
    Angelone v. Jones.
    (Decided June 13, 1932.)
    
      Mr. Charles N. Krieg, for plaintiff in error.
    
      Messrs. Grossman & Grossman and Mr. Kenneth D. Carter, for defendant in error.
   Vickery, J.

This action comes into this court upon a petition in error to the municipal court of the city of Cleveland, the purpose being to reverse a judgment rendered in that court against Peter T. Angelone, the plaintiff, in a replevin action in the court below.

The record in this case shows a rather singular state of affairs, and if a wrong has been committed, and apparently it has, it results from the confusion caused by the two acts passed by the last Legislature, which will be referred to hereafter.

We learn from the record that on August 20, 1931, one M. N. Piunno was the owner and in possession of a certain combination hearse and ambulance; that on that same date he borrowed from Peter T. Angelone the sum of $1,100, and gave his note therefor, and secured said note by a chattel mortgage upon the combination hearse and ambulance, Piunno, the mortgagor, remaining in possession; that on the same date Angelone, the mortgagee, filed his mortgage for record with the clerk of courts of Cuyahoga county, having prior thereto tendered it to the county recorder, who refused to receive it because of the change of laws transferring the place for the recording of chattel mortgages from the recorder’s office to the clerk’s office.

We learn further from the record that in September, at the instance of the National Casket Company, it having obtained a judgment against Piunno, a levy was made by the company upon the combination hearse and ambulance then in the possession of Piunno, and it was taken from him and was sold at bailiff’s sale for twenty-five dollars to the casket company, who sold it to Jones, the defendant in the court below; that subsequent to the sale, to wit, on December 15, 1931, the plaintiff in error, who was plaintiff below, brought an action in replevin against Jones, the purchaser.

The statement of claim was accompanied by an affidavit in replevin which set up the statutory grounds for replevin and alleged the necessary allegations according to the statute, and the case was tried in replevin. After opening statement made on each side, and the affidavit was introduced, the court found against the plaintiff in replevin; the ground being that while the affidavit set up the fact that this combination hearse and ambulance was not taken from the plaintiff by execution, order, or other process, and that he did not obtain title from one from whom it had been taken by execution, order, or other process, and that he was entitled to the immediate possession thereof, yet from the statements that were made, and from other matters that satisfied the court, the court, as already stated, found against the rights of the plaintiff on the theory that this combination hearse and ambulance had been taken from Piunno, the mortgagor, from whom he (Angelone) obtained title, by a writ of execution, and was sold on said writ of execution to the company, who sold it to Jones, the defendant in the action below.

We have examined the record in this case, and have examined the law, and have had called to our attention the case of International Harvester Co. v. Anderson, Sheriff, 30 Ohio App., 517, 165 N. E., 512, and we cannot help but come to the conclusion that the court misconstrued this statute; and that if that were all there was to this lawsuit this court would be compelled to reverse the judgment on that ground alone, because the record in this case shows that when Angelone took his mortgage upon this property, and loaned $1,100 upon it, he took it from Piunno, who had not obtained title through any process — attachment, replevin, or execution — but had purchased it, and to all intents and purposes was the owner of the property and had obtained it not through any legal process, or by virtue of any legal process, but by virtue of purchase from the wholesaler. Therefore, the affidavit that the plaintiff in replevin made was true, and his rights were fixed at the time of the filing of the mortgage, and nothing that could happen by reason of acts of third parties over whom he had no control would affect the rights granted Mm by contract in the mortgage. If that were all there was in this lawsuit, we could readily enter a reversal in tMs case, but unfortunately there is another and much more serious question entering into it, and that is this:

In April, 1931, the Legislature passed what is called the “Pringle Bill” (114 Ohio Laws, 173), which provided that after the law went into effect chattel, mortgages should be filed in the office of the county clerk, instead of in the office of the county recorder, and in said act repealed the law relating to the filing of chattel mortgages that existed prior to that time. This bill, however, contained no emergency clause and did not go into effect until the 31st of July, 1931. Before the Pringle Act went into effect, the evil consequences thereof having been called to the attention of the Legislature, that body on the 25th of June passed what is called the “Marshall Bill” (114 OMo Laws, 815), which repealed the Pringle Bill and re-established the county recorder’s office as the place for the filing of mortgages.

Now that was before the Pringle Act went into effect. In the meantime, after the passage of the Marshall Bill, that is, some time between the 25th of June and the middle of August, an action in mandamus had been brought in the Supreme Court of Ohio, as an original action, to compel the clerk of Portage county to issue a certificate for the filing of a chattel mortgage, the clerk having refused so to do, and the following question was thus raised: Was a chattel mortgage that was filed in the clerk’s office between the 31st of July, when the Pringle Act went into effect, and the 27th day of August, the date of decision of the Supreme Court, valid?

As already stated, the Supreme Court decided this question on the 27th day of August, in the case of State, ex rel. City Loan & Savings Co., of Wapakoneta, v. Moore, Clerk of Courts, 124 Ohio St., 256, 177 N. E., 910, holding in effect that inasmuch as the Pringle law was not effective until the 31st of July, and the Legislature had passed the Marshall Bill in the meantime, repealing the Pringle Act, the effect of which was in the nature of a reconsideration of the Pringle Bill, as a matter of law the first bill never went into effect; that the Marshall Bill, although containing no emergency clause, was effective from its passage, and was filed in the office of the Secretary of State, on the 16th day of July, and that the Marshall Bill was entirely in effect before the Pringle Bill went into effect, the purpose being to repeal the Pringle ‘Act, and, inasmuch as that was repealed by the Legislature before it went into effect, it simply amounted to a reconsideration and nullification by the Legislature ; that therefore there never was a time when it was proper to file chattel mortgages in the clerk’s office; and so the Supreme Court refused to mandamus the clerk, for if it had been legal and proper to file the chattel mortgage in the clerk’s office the clerk could have been compelled to issue a certificate therefor.

That this law works a hardship in this case, a substantial hardship, is perfectly manifest, and it seems that the Supreme Court should have protected the mortgages that had been filed in the clerk’s office after the effective date of the Pringle Law, at least before it’had been declared ineffectual by the Supreme Court on August 27th. Now that works, as already stated, a particular hardship in this case, because the Pringle Law, for all intents and purposes, was in effect on and after July 31st up until the 27th day of August, at least, if not until October 14th, the effective day of the Marshall Law, the Marshall Law having no emergency clause attached thereto; and this whole confusion resulted from the failure of the Legislature to incorporate an emergency clause in the Marshall Law. It is all the more grievous since an opinion was obtained from the Attorney General declaring that the Pringle Law was in force after its effective date, to wit, July 31st, until the effective date of the Marshall Law which repealed the Pringle Bill, which was October 14, 1931. But the Attorney General’s opinion was overruled by the Supreme Court, and the Supreme Court in its opinion in State, ex rel., v. Moore, supra, enunciated that the Attorney General was mistaken in his interpretation of the law and that the court could not agree in it.

In the instant case the mortgage was tendered to the recorder on August 20th, and the recorder refused to take it, and the clerk of courts was receiving and recording chattel mortgages during the interval until the Supreme Court decided otherwise in State, ex rel., v. Moore, supra, and that is a matter that it seems the Legislature or the Supreme Court should have taken care of.

That compels us to make this query: Those who loan money on chattels, and take chattel mortgages to secure the same, in order to protect themselves must have filed their chattel mortgages, and this would imply an officer with whom said mortgages could be filed; and when, as in the instant case, the mortgagee tendered his mortgage to the recorder for filing, and the recorder refused to receive and file said mortgage, but directed the mortgagee to file his mortgage with the county clerk, and he having done so and the clerk having received and filed such mortgage, the question is whether the mortgagee of the chattel should be penalized for the shortcomings of the Legislature. There must have been hundreds and perhaps thousands of mortgages filed during this interval from the 31st of July to the 27th of August, a month later, if not until October 14th, and we query whether the decision of our Supreme Court in deciding the question between private litigants in which they hold the Pringle Law never went into effect has the same force and effect as an act of the Legislature itself, which, of course, is notice to the world and everybody must be bound thereby, and it seems as if there might be a difference between the effect of a judgment of the Supreme Court in a private lawsuit and an act of the Legislature, as constituting notice to the world. And we again query whether under the circumstances of this case there had not been a proper filing; and inasmuch as there must be some place in which to file a chattel mortgage, and the clerk being the only officer who would receive such filing, and the law at that time authorizing such filing, and the filing with the clerk having been approved and indorsed by the Attorney General of the state, we cannot help but wonder whether during the interim the clerk was not a proper de facto officer with whom to file this mortgage. Or inasmuch as the county recorder had refused to receive it, and directed the mortgagee to the clerk’s office, whether to all intents and purposes this mortgage had not been filed in the proper office — whether that office be the clerk’s office or the recorder’s office.

Surely the hundreds of mortgages that were filed in this interim ought not to be declared invalid where other liens attached, where the mortgagees were in no wise to blame for the mix-up.

We think the Supreme Court must have overlooked this question, or the Legislature overlooked it, in not protecting the holders of mortgages that were filed in this interim, especially up to the 27th day of August.

This mortgage having been filed on the 20th day of August when there was no question as to the proper place to file it, we think it ought to be regarded as properly filed.

That being so, we cannot help but come to the conclusion that the court below was wrong, and the judgment must therefore be reversed and tbe cause remanded for a new trial.

Judgment reversed and cause remanded.

Levine, P. J., and Weygandt, J., concur.  