#### Blanton, Appellee, *v.*Littrell, Appellant.

(No. 1848

Decided April 5, 1945.)

*Messrs. Shively, Shively <& Shell,*for appellee.

*Mr. Joseph N. McGrath,*for appellant.

Hornbeok, P. J.

This is an appeal on questions of law from a judgment of the Municipal Court of the city of Dayton, in favor of the plaintiff, in the sum of $200 plus interest and costs. The trial was had and judgment entered by the acting judge, Harold H. Lamp-man.

The action was to recover a real estate commission *229claimed to have been earned by the plaintiff under a contract wherein he was given the exclusive right for a period of three months-beginning January 14, 1944, to sell certain real estate of the defendant. Plaintiff claims that the sale was made during the period the contract was in effect between the parties.

The defenses asserted were that the contract had expired; that it was entered into on January 4 and not the 14th; that the sale was consummated on April 10; and that the plaintiff .did not produce the purchaser.

In this court, it is asserted that the trial court erred in finding against the defendant on the two defenses stated, and further that the acting judge was without jurisdiction to hear and determine the cause for the reason that Section 1579-85, General Code, providing for the appointment of an acting judge by the chief justice of the Municipal Court when the incumbent judge of that court shall be temporarily absent or incapacitated from acting, is unconstitutional.

It is asserted that Section 1579-85, General Code, is in derogation of Sections 10 and 13, Article IV, and Section 2, Article XVTI of the Ohio Constitution. Without setting forth the text of the sections, we are satisfied to say that Section 1579-85, General Code, is constitutional. Section 10 of Article IV limits the length of terms of elective judges other than those provided for in the Constitution.

The Municipal Court of the city of Dayton is a creature of legislative action in which the qualifications of a municipal judge are set up. Section 13, Article IV of the Ohio Constitution authorizes the Governor to fill by appointment vacancies occurring during the regular term in the office of any judge, but its language is restricted to vacancies in office which contemplate that the incumbent of the office has died, resigned or has been removed from the office as distinguished from temporary absence or incapacity. The-same ob*230servation may be made as to Section 2, Article XYII of the Ohio Constitution.

We are referred to an address by Judge Simon Ross, in which he discussed the proposed amendments to the Ohio Constitution, affecting judicial procedure, 17 Ohio BAR, No. 14, 169, as supporting the contention, in the instant case, that the absence of the judge, though of temporary character, constitutes a vacancy within contemplation of the Ohio Constitution. We refer counsel to the same address in which it is said:

> * * as to No. 1, that is, as to the qualifications of judges, I have commented on that. It is simply a restatement of the power that exists in the Legislature today.”

We are in accord with the conclusion reached by the Court of Appeals of Lake county, in *State*v. *Partanen,*67 Ohio App., 248, 36 N. E. (2d), 422, holding constitutional a section of the municipal court act for the city of Painesville, the provisions of which are similar to the provisions of the section here under consideration, and are in accord, also, with the case cited by counsel for plaintiff, *State, ex rel. Ramey,*v. *Davis et al., County Commrs.,*119 Ohio St., 596, 165 N. E., 298, which reiterates the proposition that the Legislature has exclusive power to create courts inferior to the Courts of Appeals, and to define their power and jurisdiction.

The other error assigned may be disposed of by the determination of one question, namely: Was the contract between the parties entered into on the 14th day of January 1944? If so, then the sale was made during the term of the three months during which the contract controlled the rights of the parties. This issue was vigorously controverted, and we are frank to say that the correctness of the determination of the trial judge is somewhat doubtful. There are many facts tending to corroborate the claim and the testimony of the defendant and his wife. It is somewhat disconcert*231ing and damaging to plaintiff’s cause to have his own employee testify, purportedly from a copy of the controlling contract, that such contract showed that it was entered into on the 4th day of January and not the 14th, and that he, the employee, had so informed Mrs. Littrell before the sale was completed. There is, however, no defense of estoppel.

On the other hand, the original contract is in evidence. It apparently bears the date of January 14. There is no direct testimony that the date had been changed or that an insertion of the figure “1” had been made before the figure “4.” Therefore, in the last analysis the question presented was one largely of credibility which was resolved by the trial judge in favor of the plaintiff. Further, there is considerable support for the claim that the plaintiff contacted the eventual purchaser during the term of the contract and had arranged to show the property to him during that period.

We do not feel justified in invading the province of the trial judge, although if this were presented to us as an original question we would have considerable hesitancy in reaching the same conclusion as he. We cannot say that the conclusion is so manifestly against the weight of the evidence as to require the judgment to be set aside. It will, therefore, be affirmed.

*Judgment affirmed.*

Geiger and Miller, JJ., concur.