10 Ohio Cir. Dec.

Volume 10 — Ohio Circuit Decisions

260 opinions

10 Ohio Cir. Dec. 1Miehle Printing Press & Mfg. Co. v. Andrews-Jones Printing Co. (1899)
Appear from the Court of Common Pleas of Tucas county.
10 Ohio Cir. Dec. 12Van Cleve Glass Co. v. Wamelink (1899)
Appeal from the Court of Common Pleas of Cuyahoga county.
10 Ohio Cir. Dec. 14Poll v. Oppenheimer Bro. & Co. (1899)
BILLS OF EXCEPTIONS. Smith, and Swing, JJ. 1. Former Holding, as to Nunc Pro Tunc Entries not Applicable to Present Statute. The former holdings of the Ohio courts that a failure by inadvertence to have the journal show the allowance and signing of a bill of exceptions could be cured by a nunc i>ro tunc entry, do not apply to the statute as it now stands. 2. Bill must be Allowed and Signed and Journal Entry made within the Fifty Days. It is necessary, therefore, under the last amendment of sec. 5302, Rev. Stat., 89 O. L., 125, that a bill of exceptions should not only be allowed and signed within the fifty days, but also that the journal entry of the allowing and signing of the same should be made within that time.
10 Ohio Cir. Dec. 16Mathers v. Bull (1899)
Heard on motions to dismiss appeals.
10 Ohio Cir. Dec. 17Jos. Schlitz Brewing Co. v. Blacklay (1899)
EVIDENCE — VERDICTS. King, Haynes and Parker, JJ. Action for Damages eor an Injury Received from a Kick by a Horse of a Vicious and Dangerous Character. In an action for damages by a person who has received an injury resulting from a kick by ahorse of a vicious and dangerous character, owned by defendant, and the testimony of such person shows that the horse that kicked him was named “Nelly,” and the evidence clearly shows that “Nelly” was a horse of a kind and gentle disposition; but from the evidence of defendant’s own employees it appears that the horse that kicked the plaintiff, was not “Nelly,” but “Pearl,” and the evidence without contradiction shows that “Pearl” was of a vicious and dangerous character: Held, that a verdict returned by the jury in favor of plaintiff, will not be disturbed, as it is fully sustained by the evidence.
10 Ohio Cir. Dec. 20Miller v. Gleason (1899)
Error to the Court of Common Pleas of Lucas county.
10 Ohio Cir. Dec. 23Busbey v. Russell (1898)
ASSIGNMENTS — GAS AND OIL LEASES. Laubie, Frazier and Burrows, JJ. 1. Power of Assignees and Probate Courts. Under an assignment for creditors all the power or right which the assignee or the probate court possesses in enforcing the trust is to sell the property and distribute the proceeds among creditors. 2. Cannot Alter Terms oe Lease Without Consent of Creditors. Such assignee, therefore, has no power to modify or change the terms of a lease which,is upon the premises at the time of the assignment, and the subsequent approval of the probate judge, endorsed on the contract, gives it no force or effect, where the consent of creditors has not been obtained. 3. Modification Void as Against Purchaser With Notice. Such modification is, therefore, void against a purchaser at the assignee’s sale, although the sale was made subject to “all legal contracts for oil and gas” and although the purchaser knew of the modification of the lease at and before the purchase. 4. Meaning of the Word “Income” Outside Commercial Transactions. The meaning of the word “income” in the ordinary commercial sense may mean net or clear income, but where the instrument to be construed is not of - commercial character, the question is not to be determined by strict commercial usage, but by the intention of the parties as deduced from the context or subject-matter and the character of the persons contracting. 6. In Gas and Oil Lease It Is Construed to Mean Gross Income. Royalties on minerals are usually assessed on the marketable amount produced, or made a share of the amount produced and it is fairly to be inferred, where lessor, in a gas and oil lease, stipulated for one-eighth of the income from ■gas produced and sold, he intended and it was understood to be one-eighth of the gross income or receipts from the sale; and particularly where the lease provides that lessor shall receive one-eighth of the oil produced, inasmuch as it is fair to presume that if the parties intended the royalty on gas to be less, or one-eighth of the net income, they would have said so in the contract.
10 Ohio Cir. Dec. 27Brady v. Palmer (1899)
Hrror to the Court of Common Pleas of laucas county.
10 Ohio Cir. Dec. 33Sherman v. Peoples Investment Co. (1899)
BILLS AND NOTES — STATUTES. King, Haynes and Parker, JJ. 1. Tendency of Courts to Adhere to the Common Law Rules Applicable to Negotiable Paper. The tendency of the courts seems to be to adhere to the common law rules applicable to negotiable paper as closely as possible and to construe all statutes in derogation thereof with strictness. 2. Defense, if Indorsed or Delivered After Maturity. The language of sec. 3173, Rev. Stat., which provides that “If any such bond, note, bill of exchange or check be indorsed or delivered after the day on which it is made payable,” etc., applies to the first indorsement, and does not apply to an indorsement that has been made after the liability of the maker has been fixed by an indorsement and transfer before maturity, without notice.
10 Ohio Cir. Dec. 36State ex rel. O'Donnell v. Schafer (1899)
ELECTIONS. King, Haynes and Parker, JJ. 1. Failure to Specify Office Makes the Vote a Nullity. Where three members are to be elected to the board of education, two of them for the full term of three years and one to fill an unexpired term of one year, and the names of six candidates appear on the ballots, but with nothing to indicate which are candidates for the long terms and which for the short term, there is no valid election, and the old board holds over, even though one set of candidates were regularly nominated at a party caucus as candidates for the different terms and properly certified to the board of elections. 2. Adjournment Sine Die not a Resignation of the Members of the Board. The fact that the old board, acting upon the assumption that there has been a valid election, adjourned sine die, and the members of the old board holding over and the three candidates at the recent election who had received the highest number of votes and qualified as members, organized and elected officers as the new board of education, does not operate as a resignation of the old members and appointment of the candidates to fill the vacancies, as no such thing was intended. ,
10 Ohio Cir. Dec. 41Jones v. Standard Home & Savings Ass'n (1899)
PROBATE COURTS — ASSIGNMENTS. Laubie, Frazier and Burrows, JJ. 1. Jurisdiction of Probate Court is Specific, not General. The jurisdiction of the probate court is limited by statute, is specific, not general, and its auxiliary and incidental powers are limited to such as are necessary and proper to carry into effect the powers expressly granted. 2. Probate has Nothing to do with the Making of an Assignment. The probate court has nothing whatever to do with the making of an assignment; all that the law authorizes the probate court to do is to receive the assignment, endorse thereon the time when it was received, and enter the filing of it upon the journal. The further duties of the court are in directing the asignee in the disposition of the property and in the management of the trust. 8. It has no Jurisdiction to set aside an Illegal Assignment. The probate court, therefore, has no jurisdiction of an action to set aside an assignment for the benefit of creditors of a corporation, on the ground that such assignment was uncalled for, unnecessary and in fraud of creditors and stockholders, and was made by a minority of the directors of the corporation. 4. Injunction is the Remedy and Common Pleas'has Jurisdiction. The remedy, if the assignment was illegal, and the assignee illegally appointed, for the reason stated, is by injunction, upon proper application to the court of common pleas.
10 Ohio Cir. Dec. 45Redfern v. Hancock Co. (1898)
JOINT COUNTY DITCHES. Price, Day and Norris, JJ. 1. Joint Ditches Must be Jointly Maintained. The intention of the law-making power, which recognized the necessity of joint county ditches, and provided for their construction, was that a joint method of keeping them up should be pursued. 2. Proceedings by Upper County, Rendering Ditch in Lower County Inadequate, Void. The proceedings of the commissioners of an upper county after the construction of a joint county ditch, in ordering that the portion of the ditch in such county be enlarged by deepening and widening, thereby accelerating the flow of water, and taxing the outlet or that portion of the ditch in the lower county beyond its capacity, without notice to or agreement with or consent of the commissioners of the lower county,- are inoperative and void. 3. Injunction Lies if Proceedings were Illegal though Illegality does not Appear of Record. Although the step., in a ditch proceeding in the nature of the one above referred to are regular in form, so that the illegality does not appear on the face of the proceedings, yet if it appears from other sources that the commissioners proceeded contrary to law and without jurisdiction, so that no adequate remedy is pointed out by law, an injunction will lie, and in favor of a property owner whose lands will be damaged by the enlargement of the ditch in question.
10 Ohio Cir. Dec. 49Fitzgerald v. Union Savings Bank & Trust Co. (1899)
LANDLORD AND TENANT. King, Haynes and Parker, JJ. [Of the Sixth Circuit, sitting in the first circuit.] Rules Applicable to Signatures to Contracts not Applicable to Notice to Vacate. A notice to vacate premises was sufficient when signed “ Edgar Stark, Assistant Secretary of the Union Savings Bank & Trust Company,” the premises in question being in charge of the company as receiver.
10 Ohio Cir. Dec. 49Mt. Adams & Eden Park Inc. Plane Ry. Co. v. Isaacs (1898)
Error to the Court of Common Pleas of Hamilton county.
10 Ohio Cir. Dec. 57Beckett Paper Co. v. Hamilton & Rossville Hydraulic Co. (1898)
Appeal from Court of Common Pleas of Butler county.
10 Ohio Cir. Dec. 66Wood v. Rosendale (1899)
NOTES AND BILES — PRESENTMENT—PROTEST. Price, Day and Norris, JJ. 1, Payee Accepting Note Payable in Four Years Contemplates Probability of-Change of Residence. The payee, who afterwards became indorser, having accepted a note payable in four years and containing a general place of payment, must be held to have contemplated the probability that the maker might change his residence, and. to have assumed to be governed by the exercise of such diligence in the presentment as change of residence and circumstances might require. 2. Presentment Which Will Bind Indorser. Presentment, if made on the proper day, of a note maturing in four years, payable at “Fostoria, O.,” where maker, and payee then resided, by a notary who had possession of the instrument, at the late residence of the maker in Fos-toria, for the purpose of demanding payment, and finding that she had removed from the city some time previous, and the only information, and that not of a certain or positive character, that notary could gain was that she resided in Springfield, O., whereupon notice of dishonor was mailed to indorser, was an exercise of diligence which will bind such indorser. 3. Note Executed November 7, 1892, Payable in Four Years, Matures November 10, 1896. A note executed November 7, 1892, payable four years from date, under the law in force at that time relating to commercial paper, secs. 317Í to 3175, Rev. Stat., is entitled to days of grace and became due November 10, 1896. 4. Days of Grace Became Part of the Contract, and Could not be Withdrawn by Subsequent .Change of the Law. The days of grace inserted by an existing law became an important element of the contract, and the general assembly could not withdraw them from it by a subsequent change (reference is made to the amendment of sec. 3175, Rev. Stat., passed March 12, 1896, abolishing days of grace) of the statute. They were a contract right, and did not pertain merely to the remedy to enforce It. 5. Premature Presentment. Under this rule a presentment of the note referred to and notice of dishonor or protest made on November 6, 1896, was premature, and did not bind the in-dorser.
10 Ohio Cir. Dec. 71Jones v. Jones (1898)
TRUSTS — PARTNERSHIPS—LIMITATIONS. Price, Day and Norris, JJ. 1. Continuing and Subsisting Trusts can only be Satisfied by Performance. Continuing and subsisting trusts, which arise only by appointment or contract, are only cognizable equity, are without the statute, as there is no time at which the cause of action accrues, and can only be satisfied by performance. :2. Exception of such Trusts From Statute of Limitations Merely Saves Prevailing Rule. In excepting continuing and subsisting trusts from the operation of the statute of limitations, the legislature was merely recognizing and saving a prevailing rule. -‘3 Termination of a Partnership by Operation of Law. A partnership entered into for the purpose of dealing in war scrip (to induce the government to accept such scrip and pay for it) without agreement as to limitation, but simply providing that at the discontinuance of the agreement the net proceeds of the co-partnership business should be added to the capital stock and the whole divided, terminated and discontinued when there was no further business to do and when the assets had all been converted into cash or its equivalent. ■4. Such Partnership Creates no Continuing and Subsisting Trust. Such partnership agreement itself fixed the time for an accounting (by operation of law, when there was no further business to do) and all that either partner had to do was to divide the assets and pay his co-partner. Under these circumstances there is no subsisting and continuing trust in favor of either. •S. Time for Accounting — Statute Begins to Run. The time for an accounting was when the partnership terminated, under the rule above stated, when one of the partners, who held the assets, ceased to be a partner and became a debtor to his co-partner; a right of action then accrued and the statute of limitations runs from that time. 6. Action Barred by the Statute. Therefore, under the rule above stated, where the partnership terminated in 1861 and action by the administrator of a deceased partner to recover decedent’s share of the proceeds of such partnership, is barred by the statute of limitations.
10 Ohio Cir. Dec. 74Eleventh Street Church of Christ v. Pennington (1898)
Error to the Court of Common Pleas of Lucas county.
10 Ohio Cir. Dec. 81Kolling v. Bennett (1899)
INTOXICATING LIQUORS — VERDICT—EVIDENCE-DAMAGES. King, Haynes and Parker, JJ. L Service op Notice Under Sec. 4358, Rev.' Stat. Under the. provisions of sec. 4358, Rev. Stat., the notice may be served in anticipation of the habit of drunkenness being formed, or a debauch being indulged in, and as a means of prevention thereof, and of the consequent damages. It is not necessary that the person serving the notice be liable to injury from drunkenness at the time the notice is served. 2. Scope and Effect of Such Notice. Such notice, is a full and competent safe-guard of the seller. He has no right to complain, or to ignore it, because the person against whom he is warned is not at the time intoxicated, or in the habit of getting intoxicated. The seller has no right infringed by the giving of such notice; no vested right to sell to a particular person is thereby impaired. 5. Seeder not Liable unless He Shall have Committed a Crime Involving Moral Turpitude. Under the statutes of Ohio the seller is not liable unless he shall have committed a crime involving moral turpitude, against the commission of which crime and wrong he has been forewarned by the person liable to be damaged thereby. 4. Verdict, Though not in Harmony with the Charge oe the Court Should Stand. Whether, since the amendment of February 37,1875, 72 O. L., 35, carried into the Revised Statutes, secs. 4357,4358, it should be held as formerly that where, in such action the evidence made a case provable under the petition without material variance, and the jury returned a verdict for plaintiff, it should stand, though not in harmony with the charge of the court, qucsre? •5. Preponderance oe Evidence is Sufficient to Prove an Unlawful Sale. In a civil action under the statute, founded on an unlawful sale of liquor, a preponderance of evidence is sufficient to prove an unlawful sale. 6. Measure of Damages for Unlawfully Selling Liquor after Service of Notice as Provided for in Sec. 4358, Rev. Stat. The amount which the defendant received from the husband for liquors sold to him which otherwise might have been devoted to the support of his wife, is not tne measure of damages in an action by her for unlawfully selling liquor to the husband, where it is shown such drunkenness caused the loss of the husband’s position. One who by unlawful sale contributes in ever so slight a degree to produce or increase the drunkenness from which damages flow, may be required to respond m the whole amount of such damage.
10 Ohio Cir. Dec. 85Ott v. L. S. & M. S. Ry. Co. (1899)
Error to the Court of Common Pleas of Rucas county.
10 Ohio Cir. Dec. 91Hardin Co. v. Coffman (1897)
COUNTY COMMISSIONERS — BRIDGES. Price, Day and Norris, JJ. 1. Petition Establishing Plaintiff’s Authority to Maintain Action for Wrongful Death. A petition alleging that plaintiff sues as administratrix, ior negligently causing death of her decedent, naming his next of kin and praying for damages, is sufficient to indicate plaintiff’s authority to maintain the action. 2. Petition which States a Good Cause of Action in such Case. A petition in an action against county commissioners in their official capacity for the death of plaintiff’s decedent, resulting from the fall of a defective bridge, upon a public highway, upon which decedent was travelling, riding on the-water tank of an ordinary thresher engine, alleging that the defective condition of the bridge was known to defendants long prior to the accident, and that they failed to make it sale for public travel and that decedent was without negligence on his part, states a good cause of action. 3. Section 845, Rev. Stat., Imposes no new Duties on County Commissioners, Amendment Simply gives Citizen Right to Recover. The county commissioners are, by sec. 845, Rev. Stat., made liable in their official capacity for negligence or carelessness in keeping a bridge in repair, but said section imposes no new duties. The board being created for the benefit of political society, the duty was imposed when the board was created, and has existed since said board became a part of our local government. The amendment to the statute simply gives the citizen the right to recover. 4. Right to Recover Cannot be Defeated Because no Special Fund is Provided. Such a claim, when reduced to judgment, is a claim against the county, to be paid out of the county funds or from taxes levied for that purpose, and a refusal invokes compulsion by mandamus. The right to recover cannot be defeated because no special fund is designated or set apart for such purpose. 5. Citizen Cannot Become Trespasser white Legatee and Property Conducting Himsete Upon Pubtic Highway. A citizenrcannot become a trespasser while legally and properly,conduc;ting himself upon a public highway. A pedestrian, therefore, having.permission to ride upon the tank of an ordinary steam thresher assumes no risk, as to injuries resulting from the falling of a defective bridge, by riding thereon, so far as thei county or the county commissioners’ liability is concerned, unless he had knowledge that the bridge upon which he travelled was unsafe. ] 6. Careeut and Criticat Examination oe Bridges by a Person Skitted and Competent, Required. A careful and critical examination of a structure of that kind (a bridge), by a man skilled and competent to do so, is only ordinary care on the part of the commissioners. Anything less, after notice of defects or opportunity of knowing thereof, is negligence. 7. Bridges Must be Made Saee eor Steam Thresher Engines as Wett as Ordinary Trafeic. That steam thresher engines are of common use, and a necessity, and that they are moved along highways and over bridges, is a fact to which county commissioners cannot shut their eyes. It is, therefore, their duty to keep bridges, safe for such traffic, as well as that of ordinary teams and wagons.
10 Ohio Cir. Dec. 95Detwiler v. Louison (1899)
FRAUDULENT CONVEYANCES. King, Haynes and Parker, JJ. 1. One Having Claim for Damages Sounding in tort Not a Creditor. One having a claim against another for damages for an assault and battery is not a creditor within the meaning of the law upon the subject of conveyances in'fraud of creditors, until such claim has been reduced to a judgment. 2. Bona Fide Purchaser Prom Fraudulent Grantee Protected. Title acquired by an innocent purchaser for value from a fraudulent grantee . -will not be annulled by a' suit against the grantee, to which the purchaser from the grantee is not a party; and a decree against one who had parted with his title before suit brought, will not bind those to whom the title had been conveyed. 8. Rules applied. Where L. L. had a claim against F. L. for assault and battery, and after suit brought and before judgment F. L. conveyed his property to Z., who subsequently conveyed it to J. L., the wife of F. L., who mortgaged it to B. for a valuable consideration, and B. assigned the mortgage to D., a bona fide purchaser; D. is protected as against W., who claims title under a judicial sale of the property upon the petition of L. L. to set aside the conveyance to Z., as being in fraud of creditors and to decree a sale of the lands to satisfy her judgment, after the mortgage had been given, and to which action neither J. L- nor B. were made parties.
10 Ohio Cir. Dec. 100Findlay Brewing Co. v. Brown (1899)
Error to the Court of Common Pleas of Lucas county.
10 Ohio Cir. Dec. 103St. Paul's Methodist Episcopal Church v. Gorman Bros. (1899)
Error to the Court of Common Pleas of Lucas county.
10 Ohio Cir. Dec. 106Frazier v. Wilkinson (1899)
Error to the Court of Common Pleas of Butler county.
10 Ohio Cir. Dec. 107In re the Assignment of H. K. Roberg & Co. (1899)
COURT OF INSOLVENCY — APPEAL AND ERROR. Sprith, Swing and Giffen, JJ. 1. Act Withdrawing Jurisdiction of Common Pleas and Conferring Jurisdiction on Court of Insolvency must have Uniform Operation. An act of the general assembly conferring jurisdiction on the court of insolvency in certain matters and withdrawing such matters from the jurisdiction of the common pleas court, is one of a general nature and must have a uniform operation throughout the state. 2. Act Conferring and Withdrawing Jurisdiction of. Appeal and Error, must also have Uniform Operation. An act conferring the right to appeal and to prosecute error in certain cases from the court of insolvency directly to the circuit court, and withdrawing the right in such cases to appeal and to prosecute erpor to the court of common pleas, is also general and must have a uniform operation throughout the state. 3. Doctrine of Classification does not Apply to Counties so as to Render Act Constitutional. The doctrine of classification, as applied to cities, does not extend to counties, so as to render an act, conferring jurisdiction on courts, which would otherwise be local, uniform in its operation. 4. Rule as to Effect of Unconstitutionality of one Section Upon Another. If two sections comprising an act are so connected with and dependent upon each other as to warrant a belief that the legislature intended them as a whole, and would not have passed one without the other, and one is unconstitutional, the other must fall with it. ■6. Act of 1898, 93 O. L., 669, Invalid Under Rules Above Stated. The act of April 25,1898, 93 O. L., 669, amending secs. 9 and 13 of the act of May 21, 1894, establishing a court of insolvency in counties containing a city of the first grade of the first class, and for the relief of the probate court in such counties, which amendment withdraws certain mátters from the jurisdiction of the common pleas and confers jurisdiction on the court of insolvency, and which confers the right of appeal and error in certain cases directly to the circuit court, and withdraws it from the court of common pleas, is unconstitutional from a lack of uniform application, being applicable to Hamilton county' only, and for .the reason that the two sections of the act are so connected with and dependent upon each other that they must fall together. 3. Circuit Court, Therefore, Cannot Directly Entertain Such Cases on Error or Appeal. Inasmuch as the entire act is invalid and the repealing section is void, secs. 9 and 13 of the original act, providing for appeal and error from the court of insolvency to the court of common pleas, are in force. Appeal and error, therefore, cannot, in such cases, be entertained directly by the circuit court.
10 Ohio Cir. Dec. 111State v. Lacy (1899)
MANDAMUS. Relator bought a lot of furniture from A. J. Conroy & Co. for $464.92, payable in installments of $25 per month, and as a part of the transaction executed a chattel mortgage to secure the purchase money, duly sworn to as a chattel mortgage, and duly filed as such. The sale was conditioned that the title of the property should remain in Conroy & Co. until all the installments were paid. The relator paid $208.
10 Ohio Cir. Dec. 112Anderson v. Rawlings (1899)
The defendant in error sued the Fountain Square Theatre Co., owners, and M. C. Anderson, lessee, for $500 damages, claimed to have been forfeited to him under the civil rights act by reason of the refusal of the ticket seller at the Fountain Square theatre to sell to him tickets to the parquet of said theatre, the reason given for said refusal being that all the seats, in that part of the theatre weje sold, when, as a matter of fact, the seats were not all sold, and said…
10 Ohio Cir. Dec. 113Schroeder v. Overman (1899)
STREET IMPROVEMENTS — ASSESSMENTS. Smith, Swing and Griffin, JJ. 1. Variance Between Resolution and Ordinance not Fatal to Assessment.' An ordinance to improve a street “by grading the same, macadamizing the roadbed in accordance with the resolution of the council adopted May 11, 1893,” is not so essentially different from the resolution declaring it necessary to improve “by grading the same, macadamizing the roadbed and constructing the necessary culverts or drains, in accordance with the plans, profiles and specifications on file in the office of the village clerk,” as to render the assessment invalid, where the evidence shows that the plans and specifications referred to in the resolution were on file in the office of the city clerk and provided for the culverts and drains, and that they were necessary for the improvement and were made, and inasmuch as the ordinance calls specifically for the improvement declared necessary by the resolution. -. Assessment of Land in Bulk, Abutting Improvement. Land in bulk, abutting an improvement, and assessed in proportion to the usual depth of lots in the vicinity, must be considered as a whole in determining whether the assessment exceeds 25 per cent, of the value; it cannot be subdivided, because a portion of the property, less valuable and con-1 sidered as a separate tract, would be unequal to the assessment, nor can the assessment be proportionably reduced on account thereof. 3. Assessments by Front Foot are Valid in Ohio. Assessments by -the front foot, without regard to benefits, are valid in Ohio. (The court approves the rule laid down in Baker v. Norwood, recently decided by the .Supreme Court of the United States, but distinguishes it from case at ■bar, and holds that the question of assessments by the front foot was not directly involved in Baker v. Norwood; that the question.there was whether, when the property of one person is condemned by a municipal corporation, the condemnation money, with all the costs and expenses of condemnation, could be legally assessed upon the property from which it was taken.)
10 Ohio Cir. Dec. 115Newdick v. Hamilton (1899)
Error to the Court of Common Pleas of Butler county.
10 Ohio Cir. Dec. 118State v. Butler Co. (1899)
Appeal from the Court of Common Pleas of Butler county.
10 Ohio Cir. Dec. 121State ex rel. Kaiser v. Akins (1899)
INTERPRETATION OF LAWS. Caldwell, Marvin and Hale, JJ. 1. Interpretation of Statutes. Where the intention of the legislature .is not clear and the construction which should be given to a statute is a matter of doubt, the court, in interpreting its provisions, may take into consideration the construction which has been adopted by the public officials, whose duty requires them to act under the statute in the transaction of public business. 2. Interpretation of the Act of April 12, 1889, 86 O. L., 264. Reasonable doubt existing as to the true construction of the Act of April 12, 1889, 86 O. L., 264, relating to the salary of the county auditor, the interpretation given to the law by that official and his predecessors will be adopted by the court. 3. Salary'of Auditor of Cuyahoga County — How Determined. The salary of the auditor of Cuyahoga county is to be determined by taking into account, both the Act of April 12, 1889, 86 O: L., 264, and Secs. 1069 and 1070, Rev. Stat. »
10 Ohio Cir. Dec. 126Arcade Tea Co. v. Glueck (1899)
APPEAL AND ERROR. Caldwell, Marvin and Hale, JJ. Law Authorizing Transfer Appealed of Cases is Unconstitutional. The act of the legislature authorizing the court of common pleas to transfer cases brought up on appeal or error from a justice of the peace to the insolvency court, to be tried in such court, is unconstitutional, as being a general law not uniform in its operation.
10 Ohio Cir. Dec. 128Ober v. Hickox (1899)
WILLS. •Caldwell, Marvin and Hale, JJ. 1. Construction of a Will. In construing a will, the entire will and codicils thereto must be considered .and construed together, and effect given to each of the instruments. The intention of the testator is to govern. If it can be gained from the language of the instrument, it is to be gained from that. 2. Statement of Case and Construction of a will and Codicils. Where a will recites that the testator having deeded to his daughter Cornelia, certain property, with the desire that no part of his estate should descend to his daughter, as he intended the land deeded to her to be her full share of his estate, otherwise his estate was to be distributed according to law, and a codicil gave one dollar t© the testator’s daughter E., the balance of the estate to be distributed “to my remaining children, G., L., M., S., Charlottte, and R.,” and a second codicil gave to E., $1,000, “as her full share,” the balance of the estate to be divided among “my other heirs according to law,” the three parts are to be construed together, and to give any force and effect to the .original will, Cornelia must be held not included in the term “my other heirs” as used in the second codicil. 3. Meaning of the Word “Heir.” An heir at. common law is one who, after his ancestor’s death, has a right to inherit all the intestate estate; by descent, he inherits. But while living, a man stricly has no heir. So that the word heir as used in the second codicil to this will, is not used in its strictest sense, but, in common parlance, it is used to denote children.
10 Ohio Cir. Dec. 131Olcott v. Guerinck (1899)
ATTACHMENT AND GARNISHMENT. Caldwell, Marvin and Hale, JJ. 1. When Plaintiff in Attachment May Sue the Garnishee. Plaintiff in an attachment proceeding need not wait until final judgment has been rendered in the attachment case, before he may sue the garnishee, but final judgment shall not be rendered against the garnishee until the action against the defendant in attachment is determined. 2. Situs oe a Debt Due a Foreign Corporation. Where the garnishee in an attachment proceeding residing in Ohio is found to be indebted to a foreigu corporation, the situs of that debt is in Ohio, and is reached by the proceedings in garnishment. 3. Attachment oe Money Owing to a Co-Partnership. Money owing to a co-partnership is not liable to attachment in a suit against one of such co-partners. ■ ■ t
10 Ohio Cir. Dec. 137State v. Boyden (1899)
BOARD OF ELECTIONS. Smith, Swing and Giffen, JJ. 1. May Employ Counsel without Authority oe Board oe Legislation. The hoard of elections of Hamilton county, notwithstanding the provisions of sec. 1781, Rev. Stat., may, without the authority of the board of legislation, in a proper case, employ counsel and from funds appropriated to their use pay them, when such action becomes necessary to protect the rights of such board. Yaple v. Morgan, 1 Circ. Dec., 557, followed. 2. A Proper Case eor the Exercise oe this Power. A case in which the powers of the board of elections, in the matter of the direction and control of judges of election, have been usurped by a court, and in which it is held that corporation counsel has no .authority to appear for such board, is a proper case within the rule above stated. 8. That Board was not a Party does not to Prevent Payment oe Counsel. The mere fact that the board of elections was not a formal party to the case should not prevent the board from making proper payment to counsel employed, where the rights, privileges and duties of the board were vitally affected by the decision. 4. Voucher Should be drawn on Fund eor Sundry Election Expenses. Where the board of legislation has provided by specific appropriation, under sec. 2690h, Rev. Stat., for the board.of elections under four heads, (1) for salaries of members and clerks, (2) for sundry election expenses, (3) for stationery and printing, and (4) for pay rolls forjudges, clerks, etc., the voucher for legal services should be drawn on the second item. 6. IE no Money is in Fund Auditor may Repuse Warrant. If there are not sufficient funds to the credit of the account upon which the voucher is drawn, the auditor is justified, under sec. 1765a, Rev. Stat., which is mandatory, in refusing to draw his warrant until sufficient funds are on hand to meet the same. 6. May Refuse Warrant if Voucher is not Drawn on ProperFund. And if the voucher is not drawu on any particular fund, or on the proper fund> the auditor is justified in refusing to draw his warrant until a proper voucher is presented.
10 Ohio Cir. Dec. 141State ex rel. Sawyer v. Pollner (1899)
PUBLIC OFFICIALS. Caldwell, Hale and Marvin, JJ. 1. An Intention to Resign will Accomplish Nothing Whatever. An intention on the part of a public official to resign amounts to nothing whatever. The intention must be manifested in some way, and the usual way is to convey the resignation to the person authorized to receive it and who has power to fill the vacancy. If conveyed to any one else, or to a stranger, it amounts to nothing. 2. Resignation to one who is not Legally an Officer. The resignation of a member of the board of elections, therefore, delivered to the person whom such member supposed had been elected to and was mayor of the city, amounts to nothing if the fact turns out to he that such person was not mayor; it would be the same as though the resignation had been handed to a stranger. 3. Circuit Court Determines Title to Office of Mayor in Proceedings to Determine Title to Office of Member of Board of Elections. Whether the circuit court, in proceedings in quo warranto, to determine the title to the office of a member of the board of elections, has power to determine who was legally mayor of the city at the time, qucere. However, inasmuch as the determination of that question is necesfeary to a determination of the matter in controversy, the court decides it. 4. The only way Authority of a Public Official may be Attacked is by Quo Warranto. The only way a public official can be attacked as to his authority to act, is to bring an action in quo warranto, wherein he is made a party, and wherein he is made responsible. v 5. When Mayor of the City of Cleveland Shall Take His Seat. Where the statute does not fix any time when the mayor of the city of Cleveland shall take his seat, but prescribes that he shall take an official oath, that he shall file a good and sufficient bond, which shall be approved by the city council, the term of such mayor elect commences immediately upon his election, and if he sees fit he may immediately enter upon the duties of such office, by declaring himself to be mayor; the requiring of the oath, bond or any other thing that the statute may require, is merely directory language and is not mandatory. 6. Validity of Appointment Made by Such Mayor Elect. Where the mayor elect, upon taking his oath of office and declaring himself to be mayor, enters upon the duties of such office, and receives and accepts the resignation of a member of the board of elections, and the retiring mayor, upon hearing of such resignation, immediately appoints a new member of the board of elections to fill such vacancy, such appointee cannot maintain a proceeding in quo warranto against a subsequent appointee to the same office by the mayor elect.
10 Ohio Cir. Dec. 145Cleveland Retail Grocers' Ass'n v. Exton (1899)
Error to the Court of Common Pleas of Cuyahoga county.
10 Ohio Cir. Dec. 149Connell v. Brumback (1899)
CONTRACTS — ATTORNEY AND CLIENT* King, Haynes and Parker, JI. 1. Contract by Widow, Fixing Attorney’s Compensation In Action for. Wrongful Death, Valid. A widow, as one of the beneficiaries, under the statute authorizing actions for wrongful death, has power to contract with a firm of attorneys, to bring suit against a railway company for wrongfully causing the death of her husband, and to fix compensation for their services, at one-half the amount received, over and above a certain sum, although the action is to be prosecuted in her name as administratrix, and for the benefit of herself and minor children of deceased. Such widow is, therefore, personally liable for a breach of such a contract. 2. Settlement Direct a Breach op Such Contract, And Widow is Liable. A compromise settlement with the railroad company, effected after the action was commenced, without the knowledge of the attorneys, made with the, widow as administratrix and as plaintiff, and a guardian appointed by the probate court for the minor children, each of such representatives receiving a portion of the fund, constitutes a breach of the contract, for which the widow is individually responsible to the attorneys. 3. Guardian or Minor Children — DiabidiTy or. Unless the evidence shows that the guardian, appointed for the minor children, assisted in a violation of the contract, further than a passive agency in accepting the trust and in receiving the money, such guardian is not personally liable. 4. Cause or Action Accrues When Money is Paid — Basis of computation. A cause of action, under such contract, accrued to the attorneys when the money was paid to the administratrix and the guardian, and is based on the total amount paid, over and above the exemption, and their claim is not defeated by the fact that the amount paid to the widow does not exceed the sum exempted in the contract. 5. Notice Insuepicie'nt to Bind Raidway Company. A notice from the attorneys to the railroad company, in the following words: “Defendant will take notice that under and by virtue of the terms of an agreement between plaintiff and the undersigned, her attorneys, the undersigned have an interest in the proceeds of any settlement made or judgment obtained in above entitled action,” is not sufficient to require the railway to hold any part of the funds, or pay them into the bauds of the attorneys, or to charge the railway company with having defeated a right, lien or legal advantage of plaintiffs (the attorneys), whereby the railway, company should be required to respond in damages. 6. Dismissing Petition as to Certain Parties a Finad Order. The order of the common pleas court in dismissing the petition as to the administratrix and as to the guardian, in 'the action brought by the attorneys to recover under this contract, was a final order upon which error could be prosecuted.
10 Ohio Cir. Dec. 157Many v. Cleveland (1899)
Appeal from the Court of Common Pleas of Cuyahoga county.
10 Ohio Cir. Dec. 160State ex rel. Keeler v. Wagar (1899)
OFFICE AND OFFICERS. Caldwell, Marvin and Hale, JJ. 1. Right of Elector to Hold the Office to which He is Elected. One who is an elector is entitled to hold the office to which he is elected, unless there is a provision of the'statute forbidding him to hold the office. 2. “Member of Council” Construed to Include “Trustees of Hamlet.” Where required by necessity, the term “member of council,” when used in the statutes, may be construed to mean and include “ trustees of the hamlet.” 3. Constructions of “Member of Council, ”’as Used in Sec. 1717, Rev, Stat. The term “member of council,” as u^ed in sec. 1717, Rev. Stat., which forbids members of the council from holding other offices, cannot be construed to mean “trustees of hamlet,” and such trustees are not precluded from acting as members of the board of education. 4. When Court will Dismiss Petition after Sustaining Demurrer. Where a demurrer to a petition is sustained and no further pleading can be filed which will help the case, the court will upon sustaining the demurrer, dismiss the petition.
10 Ohio Cir. Dec. 162Cozad v. Hubbard (1899)
Appeal from the Court of Common Pleas of Cuyahoga county.
10 Ohio Cir. Dec. 164Fargo Gas Light & Coke Co. v. Greer (1899)
ATTORNEY AND CLIENT. King, Haynes and Parker, JJ. 1. Disregarding Defense Cures Error in not Striking from Answer. Instructing the jury to disregard a defense (the doctrine of estoppel) cures the error in overruling the motion to strike such defense from the answer. 2. Pleading a Conclusion of Daw Amounts to Nothing. An averment, in the answer to an action to recover from an attorney a sum of money which he retains as fees, following and concluding allegation of facts, that plaintiff, having placed claims in the hands of defendant for collection, is estopped from claiming any part of the money which defendant retains as fees, is a mere legal conclusion and amounts to nothing. 3. Proper and Material Facts in Imperfect Pleading. So much, however, of the averment as stated facts, though imperfectly pleaded, was material and proper and should not have been ruied from the case. 4. Attorney and Client — Authorized Payment to Agents. An attorney who receives for collection accounts and bills receivable, assigned by an insolvent firm to a dormant corporation, from one who is acting as agent and sole representative of such corporation, and was at one time its president, and who was also a member of and general manager for said insolvent firm, is justified in paying the proceeds of such collections over to and upon the order of such agent, without further or direct order or contract with the corporation itself. 8. Contract Entitling attorney to Fees and Creating a Dien Therefor. The action of such agent, as assignor and assignee, of as sole representative of the two concerns, amounts to a contract of service with the attorney, which entitles the latter to fees for making the collections and creates a lien therefor on moneys in his hands, without further contract with or direct authority from the corporation itself.
10 Ohio Cir. Dec. 167Bowlus v. Shanabarger (1899)
"DEBTORS AND CREDITORS — CONVEYANCES—-TRUSTS. Ring, Haynes and Parker, JJ. 1. Action and Relief Afforded Under Secs. 6344 and 6345 Rev. Stat. The action and relief afforded by secs. 6344 and 6345, Rev. Stat., relating to conveyances in fraud of creditors, is for the benefit oí all creditors and it is not necessary, though, it may be proper, that the creditors be made parties defendant, unless brought in to acquire a preference. •2. Rioht of Appeal — Trial in Appellate Court. One creditor may bring such action for the benefit of all other creditors, and if one so bringing the action is defeated, he may appeal and the appeal will be tried in the appellate court the same as in the court where it was brought. -3. The Appeal may be Taken by any Proper Party — Result is for All. The appeal may be taken by any proper party, even though it was not necessary that he be made a party. If the creditors are made parties, and especially if they have answered and asked for the same relief as is asked for in the petition, such answering defendants may appeal, and the case will go to the appellate court to be tried for the benefit of all. -4. Right to Appeal does not Depend on Validity of Cause of Action. The right to appeal does not depend upon whether the appellant has a valid cause of action, which the proof will sustain; if the petition or pleading, therefore, states a valid cause o'f action, either the party may appeal from a judgment against him. ■5. Not NECESSARy to Determine Whether Appellant is Existing or Subsequent Creditor. Under this rule, and inasmuch as any proper party has a right to appeal, it is unnecessary to determine, in order.to maintain the appeal, whether appellant is an existing or a subsequent creditor. -6. Conveyance Amounting to a Gift with Agreement back for Life Support. A deed of land from father to son, accompanied by an agreement which provides, that in consideration of $500 paid by the son to the father, the latter has deeded certain lands to the son, and that the latter shall furnish the father a good and suitable home and board, lodging and necessaries of life, excepting clothing, during his natural life, amounts to a mere gift from father to son, with agreement back for life support. 7. Such Gift is Valid if Grantor Retains Property to Pay Existing Creditors and does not Intend to Defraud Creditors. Such gift or conveyance is not effectual if made to defraud creditors, or with intent to defraud creditors, or if its effect was to defraud existing creditors, or if made with intent to defraud future creditors ; but, if, without intent to defraud future creditors, the father retained sufficient property to pay his existing creditors, the gift or conveyance is valid. 8. Retaining Property Worth Five or Six Times Indebtedness Sufficient. A person owning and retaining other property at the time of such a conveyance, worth five or six times the amount of his indebtedness, has an undoubted right to make such a conveyance, unless it is shown that, at the time, he intended thereby to defraud future creditors. 9. Transfer op Personal Property Within the Same Rules. ^ A transfer of personal property, accompanying such conveyances or under conditions stated, is equally valid and within the same rule. 10. Trust Conveyance Valid if Trust is Executed Before Debts are Incurred. A voluntary conveyance of land by the father to a third person, who, at the request of the grantor, subsequently conveyed to the son, without consideration and although originally made as a secret trust, is valid if the trust was executed prior to the time when the grantor showed any intention of incur.ring the indebtedness set forth in the action t; set aside the conveyance. 11. But if Facts Establish Secret Subsisting Trust, Conveyance is Void. But where the facts establish a secret and subsisting trust, in relation to the property so conveyed, and for the benefit of grantor, the conveyance constitutes a continuing fraud and is void as against subsequent as well as existing creditors. 12. Facts Establishing such a Trust. Where grantor, in explanation of the purposes of the trust conveyance, stated that it was given in contemplation of the possibility of a suit for,$50,000 damages, resulting from an injunction suit, in which, it appeared, the bond required was only Í1.000, and it further appeared that grantor stated, when first directing his attorney to prepare the deeds to the trustee, that he had other children besides the son already provided for, naming a daughter, and that he desired the property to be held in trust for her; that subsequently he came to the attorney’s office with the son and directed the property to be conveyed to him, and still later appeared with the son, and the latter, without explanation, executed, with his wife, mortgages back to the trustee, in an amount nearly equal to the value of the property, which mortgages the father retained, these facts establish a secret trust, within the within the rule above stated ; and as the deeds and the mortgages were without consideration and void, they should be set aside and the probate court directed to administer the property for the benefit of creditors. 13. Voluntary Mortgage also Held Invalid. A voluntary mortgage given by grantor in foregoing conveyances, to the trustee, upon another tract of land, made without consideration, is also invald and property included should be administered by the probate court. 14. Existing Creditors. Creditors whose debts were contracted after the conveyances constituting the secret trust, but during the continuance thereof, are existing creditors.
10 Ohio Cir. Dec. 174Guckenberger v. Dexter (1899)
TAXPAYER’S ACTION — COUNSEL FEES. Swing, Smith and Giffen, JJ. 1. Compensation under Sec, 1779, Rev. Stat., Shoui/d never be Large Enough to Invite Litigation. The amount of compensation to be allowed, under sec. 1779, Rev. Stat., to an attorney for a taxpayer who volunteers his services for the public benefit, should never be so large as to possibly invite litigation, the moving purpose of which might be the compensation allowed by this section. 2. Compensation to Public Officers for Dike Duties Should be Borne in Mind. But the compensation, under the statute, for the performance of a public duty should be as full as circumstances justify; and in determining this the sum allowed public officers for the performance of like duties shou.d be borne in mind. 3. Compensation for Public Duties not Expected to be as High as that Paid Individuals. Compensation for the performance of public duties is not expected to be as high as that paid individuals. The amount to be allowed, therefore, should not be governed by amounts paid by private corporations or individuals for similar services. 4. And is not Governed by Amount Saved, though it may be Considered. Nor should the amount be ascertained by taking as a basis any percentage of the amount saved to the city, although such saving may be considered in estimating the value of the Services rendered. f>. The Amount Allowed for the Prosecution of such an Action. Eor the services of attorneys, three in number, in such an action, to restrain the city of Cincinnati from the performance of a contract made by sinking fund trustees' concerning the refunding of a bonded debt amounting to $15,610,000, prosecuted to the Supreme Court, and resulting in a decision holding the contract invalid, and a saving to the city as well as a determination of important questions in respect to refunding bonds, the court allows an attorney fee of $5,500. Plaintiffs asked for $25,000, and testimony of other attorneys as to the value of the services rendered varied in amounts from $3,000 to $25,000.
10 Ohio Cir. Dec. 177Dodsworth v. Cincinatti (1899)
ASSESSMENTS-CONDEMNATION. Adams, Douglass and Vorhees, JJ. (Of the fifth circuit, setting in the first circuit.) 1. Power oe Muntcipar Corporation Not Exhausted by One Assessment for Improving a Certain Street. Under secs. 2290 and 2300 Rev. Stat., providing for cases of illegal and insufficient' assessment, a city council has a right, after having levied one assessment, to provide a fund to pay one-half the cost of improving a certain street, to re-assess to supply a deficiency. U. Two Assessments, Exceeding Preriminary Estimate, not Void Except Pro tanto. The fact that two assessments for improvements exceed the preliminary estimate does not make such assessments void except pro tanto; the last assessment should be reduced to bring it within such estimate when added to the former assessment. 3. Assessing Ordinance not Invadid because it Fairs to Provide eor Cash Payment. The fact that an assessing ordinance does not make provision for cash payment does not make the assessment void. The property owner has a right so to pay his assessment, and may exercise it if he desires. 4. Exemption Under Sec. 2301, Rev. Stat., Arrowed Onry Where change oe Grade Occasions Expense. It is only where it is a fact, shown by proof, that a change of grade occasioned the expense, and was not a single incident to the improvement of a street, that property owners are, under sec. 2301, Rev. Stat., exempt from assessments for such expenses. '5. Widening of a Street at a Certain Point is Separate Improvement and Assessments Shourd be Tocar. The widening of a street at a certain point is a separate improvement, and the assessments for its cost should be local, and not upon the whole length of the street as ordered improved. Such assessment, therefore, is valid only as to such lots and land as bound and abut on this improvement. ■6, Cost of Land Appropriated to Widen a Street Shourd be Assessed on Both Sides. The cost of the condemnation of a strip of land necessary to widen a street, as ordered improved, should be assessed on both sides of such part of the street as included the property thus appropriated and not merely on property abutting it on one side. 7. Incruding Cost of Necessary and Independent Condemnation. It is no defense to the validity of an assessment which includes the cost of an independent proceeding to condemn a strip of land, necessary to widen a street, that the sum of the assessment, together with the cost of such com-demnation, exceeds the preliminary estimate for the whole cost of the improvement, for the reason that the condemnation proceeding rests upon a basis of its own and is independent from the assessment. 45 Paying Owner Condemnation Money and Re-condemning Entire Award IS IRREGAR. But paying an owner his condemnation money, and then adopting a rule of assessment whereby the entire award to him is re-condemned, by imposing on his abutting property an assessment by the front foot, without reference to special benefits, is against both state and federal constitutions and is invalid.
10 Ohio Cir. Dec. 180Warrington v. Upham Manufacturing Co. (1899)
CORRECTION OF JUDGMENTS. Adams, Douglass and Vorhees, JJ. (Of the fifth circuit, sitting in. the first circuit.) 1. The Date is a Material Part or a judgment. The date, by which a judgment may be affected if it is sought to be reversed on error, or as to supersedeas bond, or computation of interest, is a material part of the judgment. 2. Overruling Motion and Allowing Bill Subject to Review on Error. An order made by the court of common pleas upon a motion to correct an entry changing the date of the overruling of a motion for a new trial, and allowance of a bill of exceptions, is a final order, made in a special proceeding, affecting the substantial rights of the parties, and may be reviewed on error. 3. Proceeding to correct Entries is Governed by Secs. 5354, 5357 and 5123 Rev. Stat. A proceeding to correct the date of the overruling of a motion for a new trial, and the date of the allowance of a bill of exceptions, is governed by sec. 5354 Rev. Stat., as to the manner of correcting mistakes, and by secs. 5357 and 5123, ■ Rev. Stat., as to procedure and notice. 4. Notice nsr Writing unless Appearance Entered or Record shows Notice. A notice by word of mouth, of a motion to correct mistakes or irregularities in obtaining orders or judgments, under secs. 5354 and 5357, Rev. Stat., is not sufficient, in view of sec. 5123, Rev. Stat., providing that when a notice of a motion is required it must be in writing, unless there is something in the record to show that the party received notice or entered an appearance.
10 Ohio Cir. Dec. 182Howe v. C., H. & D. Ry. Co. (1899)
CARRIERS — STOPPAGE IN TRANSITU. Smith, Swing and Giffen, JJ. 1. Consignment Vests Titee in Consignee, Subject to Carrier's Lien an» Consignor’s Right oe Stoppage in Transitu. The general rule of law is, that upon consignment of goods the title becomes vested in the consignee, subject only to the carrier’s lien for freight and coe-signor’s right of stoppage in transitu, upon the consignee’s insolvency, 2. Insolvency oe Consignee Essential to Right oe Stoppage in Transitu. The insolvency of the buyer is essential to the existence of the right of the vendor to stop the goods. If, therefore, the former be solvent at the time of its attempted exercise, the carrier, if he knew the fact, will not only be justified in refusing to give up the goods, or paying any attention to the notice, but it would be his duty to do so. 3. Stoppage in Transitu Re-invests Title In Consignor. After stopping the goods and directing that they be not delivered to consignee, the consignor can have no claim against the consignee, as this, in effect, annuls the sale and re-invests title in consignor. 4. Carrier Becomes a Stake-holder Between the Parties. After notice, it becomes the duty of the carrier to hold the goods and not deliver them to the consignee. The law will then afford the parties such, opportunity of asserting and enforcing their rights as will effectually guard the interests of the carrier. He then occupies the position of stake-holder between the parties. 5. Time to Raise Question oe Consignee’s Solvency Is when the Goods are Ordered Stopped. The time to raise the question of the consignee’s solvency is when the consignor demands of the carrier that the goods he stopped ■m transitu', the consignor, therefore, cannot, in order to recover the value of goods stopped in transit, and by the carrier delivered to an unauthorized person and lost, be required to prove that the consignee was insolvent when stoppage in transitu was demanded. ■& Remedy ie Carrier Claims Consignee is Solvent and Delivers Goods. If the carrier, when the demand for stoppage in transitu is made, states that the consignee is solvent, and goes on and delivers the goods, the consignor has his remedy against the consignee and against the carrier, if the consignee’s insolvency is shown. 7. Carriers may Bring Goods into Court and Require Claims to be Established. If the carrier, after the goods have been stopped in transitu, has reason to fear a claim by consignee, it may refuse to deliver the goods to either the consignee or the consignor, and, by bringing them into court, require claimants to interplead and establish their rights. 8. Ie Carrier Recognizes Right of Stoppage in Transitu and Pails to Redeliver to Consignor. But where the carrier recognizes the right of consignor to stop the goods from being delivered to consignee, and undertakes to re-deliver same to consignor, or to some person upon his order, but fails so to do, and the. goods are lost to the consignor, the carrier is liable for the value thereof, and irrespective of consignor’s actual right of stoppage in transitu.
10 Ohio Cir. Dec. 186Connecticut Fire Ins. v. Carnahan (1899)
INSURANCE — INCENDIARY FIRES — EVIDENCE. King, Haynes and Marvin, JJ. (Sitting in Hancock circuit by special assignment.) 1. Rule as to Setting Aside Verdicts. The verdict of a jury should not be set aside by the court to which it is returned, on account of anj' mere difference of opinion between the judge and the jury, as to the weight of the testimony, but only when the verdict is unsupported by or is against the decided weight of the evidence; and should ‘ not be disturbed by a reviewing court, unless so clearly unsupported by the weight of the evidence as to indicate some misapprehension or mistake or bias on the part of the jury, or a wilful disregard of duty. 2. Rule Applied to Action on Policy oe Insurance. A verdict for plaintiff in an action against insurance companies, in. which the evidence in support of the defense that the fire was incendiary, and caused by assured, was of a circumstantial nature, and vague and indefinite, ánd, as to circumstances, improbable, and where circumstances surrounding witnesses for the insurance companies strongly suggested undue influence or corruption, and the whole matter was involved in contradiction, should not be disturbed by a reviewing court. 3. Evidence oe Witnesses Discredited by their own Conduct. The jury was justified in wholly disregarding, if they did so, the testimony of a witness who, previous to the trial, made conflicting statements,, for and against assured, and who was pursuéd by the insurance companies and finally turned out a witness in their beiialf. And also in disregarding the evidence of a witness who, for several years after the fire, failed to disclose evidence in his possession unfavorable to assured, and who then became a witness for the insurance companies. 4. Conduct oe Assured in Obtaining Statements oe Witnesses — Ofeer oe Money. The fact that assured, knowing that the statements of a fello,w townsman were unfavorable, and tending to support the claim that assured was guilty of burning his own property, appealed to such person, who afterwards became a witness, to make a statement denying such statements, and even going so far as to offer small sums.of money to have him do so, is not necessarily reprehensible or tending to prove guilt. The credibility of the assured and the witness, under such circumstances, is a fair question for the jury. 6. Conduct of Assured in such Matters not Proof of Guilt. The same rule is applicable to the fact that assured, knowing of the unfavorable reports and having a large sum of money at stake, showed great interest and anxiety in getting statements- from the witnesses favorable to himself, and sought to have these statements reduced to writing, and sought to change or correct the reported unfavorable statements, even going to the extent of offering small sums of money or doing inexplicable things in relation thereto. The court is not authorized by such conduct to infer guilt, particularly where the evidence indicates that methods employed by the insurance companies were equally or even more questionable. It remains fairly within the province of the jury.to determine the facts, and their finding, under such circumstances, should not be disturbed by a reviewing court. 8. Rebuttal of Pe oof Tending to Show incendiarism. Evidence that, after the fire, coal oil in considerable quantities was found to have been scattered about the store and on the goods, is not sufficient to warrant reversal, where such evidence, as to quantity of oil, etc., is more or less conflicting, and the effect of such testimony is more or less rebutted by evidence showing that lamps were used in the store, and that the lamps and other furniture were broken, and the oil scattered about, by the force of streams of water which were thrown while the fire was in progress.; 7. Reviewing Court may Consider Verdicts and Judgments in Other Cases. A reviewing court is not required to ignore the result of several cases, involving substantially the same evidence concerning the origin of the fire, which have been submitted to juries and reviewed by common pleas and appellate courts, but may consider such verdicts or judgments, in determining whether the jury, in the case under consideration, has gone contrary to the evidence or not. 8. Demand for Appraisement not Made in Good Faith. A demand for appraisement, on May 28,1894, of goods destroyed by fire April 8, 1894, and after the insurance companies had entered into' an agreement, and appointed a committee of adjusters to act for all, which committee, about April 13, notified assured that, in their opinion, he had burned the property and that the companies would so insist in defense to actions on the policies, which demand was not accompanied by an offer or proposition of any kind on the part of the insurance company making it, is not in good faith and is insufficient to establish a defense that an appraisement should have been made, under conditions of the policy, before suit was brought. 9. No Appraisement Required for Goods Totauuy Destroyed. For goods which were totally destroyed by fire no appraisement can be derhanded or required, for the reason that to appraise the loss on such goods would require appraisers to call witnesses.
10 Ohio Cir. Dec. 195C., H. & D. Ry. Co. v. Murphy (1899)
Error to the Court of Common Pleas of Butler county.
10 Ohio Cir. Dec. 199C., H. & D. Railway Co. v. Boyer (1897)
RIGHTS OF A TRESPASSER. Day, Price aud Norris, JJ. 1. Trespasser’s Rights on a Railroad Train. A trespasser on a ireight train, who is there without permission or invitation from any officer or agent of the company, but whose intentions are not unlawful or criminal, either against the company’s property or its servants, is entitled to the rights with which the law clothes him as a man and a citizen. 2. Company May Remove Such Trespasser, but not with Violence. The company has a right to eject such trespasser, but he is shielded by law from wanton and unnecessary assault, and his removal should not be made in a manner which will jeopardize his life or health. 15. Unless Trespasser’ Resists Removal, Any Assault is Unlawful Unless it appears that such person sought to maintain his position as a trespasser upon the train, an assault of any kind was unnecessary aud unlawful. 4. Where it is Conceded that Plaintiff Was a Trespasser, Proof. In an action for personal injuries, resulting from being unlawfully ejected from a railway train, and, with wanton and unnecessary assault, where it is not claimed that plaintiff was a passenger, but is conceded that he was a trespasser, and only entitled to consideration as such, proof that he was rightfully upon the train could not be pertinent to the issue, and iustructinglhe jury that he could only recover upon such a showing would have been erroneous. 6. Conflicting Evidence — Jury May Give Credence as Their Judgment Dictates. Where the evidence, in such case, was conflicting, as to who assaulted and who drove plaintiff from the car, it was lor the jury to give credence as their ' judgment dictated, and the circuit court cannot say that the finding was not correct, particularly where the evidence, upon which the jury apparently found for the plaintiff, appears to be corroborated by a disinterested witness. '6. Verdict not Excessive. A verdict of $3,500 for injuries received by a trespasser who was unlawfully ejected from a railway train, with wanton and unnecessary assault, his leg broken in three places, and mangled and crushed, his right loot greatly injured, and his left foot mangled and partly cut off, and his head, back and shoulders bruised and hurt, is not, considering the injuries, the loss of time, the expense and suffering, mental and physical, excessive; on the eetttrsry, the verdict is a very moderate one.
10 Ohio Cir. Dec. 203Fricke v. Fricke (1899)
A judgment for $12.00 a month. alimony was rendered against the plaintiff in error, a minor child having been given into the custody of 'the wife. Fricke failed to pay the alimony, and in a proceeding in contempt, brought in the usual form, he was adjudged guilty and sentenced to ten days in jail, unless he paid the $33 alimony then due.
10 Ohio Cir. Dec. 203State ex rel. Steinkamp v. Davis (1899)
CONTEMPT — ERROR—PRACTICE. Smith, Swing and Giffen, JJ. 1. Error dies to Proceedings in Contempt. Error lies to a proceeding in contempt, instituted by a receiver, charging defendants with unlawfully interfering with the discharge of his duties. 2. Professional Statements of Counsel should appear as Evidence. Where, in a proceeding in contempt, there was no sworn testimony introduced, but the court heard the professional statements of counsel and acted upon them, such statements should appear as evidence, and the parties are entitled to a bill of exceptions. S. Discretion oe Court in Awarding Costs is not an Unlimited Discretion.. The discretion conferred upon the court in certain cases as to awarding costs, is not an unlimited discretion, but is a reasonable discretion, and is reviewable on error.
10 Ohio Cir. Dec. 205Lewis v. Taylor (1899)
CONSTITUTIONAL LAW — ASSESSMENTS. Adams, Douglass and Voorliees, JJ. (Of the fifth circuit, sitting in the first circuit.) 1. Knowledge oe Unconstitutionality — Not an Allegation oe eact. An allegation of knowledge of the unconstitutionality of an act, which the Supreme Court has held to be constitutional, is not an allegation of fact, and is not admitted by demurrer. •2. Acts Under Statute Held Constitutional not Invalidated by Subsequent Contrary Holding. Where the Supreme Court has declared a certain statute constitutional, the county commissioners and the public have a right to rely on the decision, a* to that and similar statutes, and acts done in pursuance thereof, and prior to a different or contrary holding by the Supreme Court, should not be affected or rendered void by the later decision. 3. Validity of Bonds Issued Under Such Circumstances. Bonds issued by the county commissioners, for the payment of the cost of an improvement, made under a statute which, at the time, had been declared constitutional by the Supreme Court, but which, in a later decision, subsequent to the sale of the bonds, was declared unconstitutional by the same court, are valid in the hands of innocent purchasers, but the county at large,, and not special property owners, should bear the burdqn thus imposed. 4. Uessee Agreeing to Pay Assessments, not Estopped erom Testing-Validity oe. A lease by which lessee is required to pay “ all taxes and assessments ” which, may be made against the property, does not estop lessor from questioning the validity of such assessments. 6. Similar Provision in a Deed Construed. An agreement in a deed, whereby grantee agrees “ to pay assessments,” means- “ legal and valid assessments.” Grantee is not, therefore, estopped by such agreement from testing the validity of such assessments. 6. Rule as to Estoppel by Silence. A party is not estopped, by mere silence, unless, by his acts or conduct, ha hae-induced the other party to change his condition to his disadvantage. The holding of the Supreme Court, in Tone v. Columbus, 39 Ohio St., 281, that a. party is estopped from denying the validity of the assessment by mere silence while the improvement was being made, goes beyond this rule and is-not supported by the holding of that court in Columbus v. Agler, 44 Ohio St., 485, which lays down the true rule, which is, in such cases, that the property owner is not called upon to do anything until steps are taken to make the-assessment. V. Allowing Improvements to Be Made Without Compensation not Estoppel. A property owner cannot be said to have induced or promoted the constructions of the improvement, by merely allowing or suffering it to be made across his-property without demanding compensation. 8. Demanding and Receiving Compensation not Estoppel. The fact that the property owner demanded and received compensation, for land actually taken to make an improvement, does not exempt the case from rule above stated as to estoppel. 9. Assessments — An Unconstitutional Daw. An act requiring the county commissioners to assess one-half the cost of a road or street improvement upon certain lands, found in certain sections, in proportion to the acreage thereof, and without regard to value, and without regard to benefits, is unconstitutional.
10 Ohio Cir. Dec. 211Interstate Casualty Co. v. Bird (1899)
Error to the Court of Common Pleas of Hamilton county.
10 Ohio Cir. Dec. 219American Hosiery Co. v. Baker (1899)
REPLEVIN — REPRESENTATIONS—INSOLVENCY. Smith, Swing and Giffen, JJ. 1. Promise to do a Specific Thing at a Future Time. A promise by a purchaser to do a specific thing at some time in the future, does not amount to a false representation, upon which an action in replevin, based upon a fraudulent purchase, can be maintained, unless the purchaser, at the time the promise was made, had no intention of iulfilling it. 2. Statement Amounting to Such a Promise. ' A statement that “ the receivership for the A. E. Burkhardt Co. is about to be raised. There are a few legal points to be settled as yet. After that I will reorganize my business on a sound financial basis and a satisfactory statement will be furnished,” so far as it relates to the Burkhardt Co’s financial condition, is only a promise to do something in the iuture, yet if, at the time, they had no intention of reorganizing the business on a sound financial basis, the statement would amount to a false representation. 3. Charge Which Is Confused and Misleading. , A charge that “ while a mere promise to pay or do something in the future does not constitute a representation, yet a statement by a purchaser, as to his iuture intention respecting a material fact, would be a false representation if at the time the purchaser had no such intention, ” is confused and misleading, for it would be difficult to understand how a statement would become a false representation because the purchaser had no present intention as to his future intention, respecting a material fact. 4. Insolvency Sufficiently Defined. The words “ nor is it necessary that his assets should be less in amount than his liabilities ” added to a charge that “by the term ‘insolvency of the buyer’ is meant his inability to pay his debts in the usual course of business. It is not necessary that he should have been adjudicated a bankrupt or insolvent debtor,” amount simply to a negative statement, which does not enlarge such definition of insolvency, for, by implication, the latter includes the former; and while a charge embracing the two statements might have been proper, a refusal to give it, after giving the charge above set forth, does not constitute prejudicial error.
10 Ohio Cir. Dec. 220Howe v. Chicago, Burlington & Quincy Ry. Co. (1899)
COMMON CARRIERS. Smith, Swing and Giffen, JJ. 1. Failure to Allege Ownership — When Reviewing Court will not Disturb Judgment. Where the evidence discloses ownership in the plaintiff, and the case was tried upon that theory, and no demurrer was filed to the petition, the judgment will not be disturbed by a reviewing court for failure to allege ownership in the petition. 2. Rure Applied. A case in which it appears, and the .reviewing court has previously held, that consignor had such an interest in the goods that he had a right to stop them in transitu, provided consignee was insolvent, and that defendant railway recognized that right, and made a new agreement with consignor, whereby ' the company agreed and undertook to deliver the goods to one other than consignor, whereby they were lost, is entirely consistent with ownership, and is within the rule above stated.
10 Ohio Cir. Dec. 222Baker v. French (1899)
Appeal from the Court of Common Pleas of Hamilton county.
10 Ohio Cir. Dec. 225Pennsylvania Fire Ins. v. Carnahan (1899)
INSURANCE — PARTNERSHIP—PRACTICE—EVIDENCE. King, Haynes and Marvin, JJ. (Sitting in Hancock Circuit by special assignment) 1. Fees for. Witnesses not Examined may be Included in Costs. The fees of persons subpoenaed as witnesses, on the part of the prevailing party, though such persons are neither sworn nor examined as witnesses at the trial, provided they were subpoenaed in' good faith, may be included in the judgment for costs. 2. Action by Partnership may Proceed After Death of a Partnex. Where a suit was begun by a co-partnership, in the name of a firm, and one of the co-partners dies, during the pendency of such suit, the court may order the same to proceed to trial and judgment without change of caption or title. 8. Assignment of Policy and Death of Partner After Suit is Commenced. Where a suit is begun by a co-partnership, in the firm name, upon a policy of insurance, and during its pendency plaintiff assigns to a third party “ all the money coming to us upon the collection by us of the insurance policy, except necessary costs, attorney’s fees, and expenses incurred in the pending suit for the collection thereof, which suit is to be prosecuted to a successful termination by us for our benefit, but the judgment that may be recovered thereon to belong to the said ” third party, absolutely, to satisfy debts due to such third party, and one of the partners in such firm dies during the pend-ency of such action, and after the execution of such instrument, the court may order the case to proceed to trial and judgment without change of title or caption, and without substituting as plaintiff the party to whom such assignment was made. 4. Evidence — Written Instruments Contradicting Oral Testimony. Where a witness, upon cross-examination, was shown a written instrument, purporting to have been signed by him, containing statements directly in conflict with testimony which he had given in his direct examination, and was asked if he signed such instrument, which question he answered in the negative, and another witness was then called who testified that the preceding witness did sign said instrument, it was not error to admit such written instrument in evidence. ■fi. Evidence — Unexplained Portions of such Instrument. A witness having been examined, and having admitted, upon cross examination, that he signed a certain written instrument, a part of which was in direct conflict with the testimony which he had given in his examination in chief, and as to another part of which, prejudicial to the party calling the witness, no questions were put to the witness, it was error to admit that part of the writing about which no questions were asked. fi. Assignment of Policy Before Suit is Brought. Where it appears, in an action by assured, to recover under a policy of fire insurance, that the policy was assigned, before suit was brought, to a creditor, as security or as a pledge, but in the assignment assured was authorized to collect the insurance and turn it over to the assignee, it is not prejudicial error for the court to permit the action to proceed in the name of assured, or after the death of a partner, suggested on the record, in the name of the partnership._ 7. Incendiary Fires — Charge as to Defense of. Where, in an action upon a policy of fire insurance, one of the defertses is that the assured caused the destruction of the property by fire, a charge to the-jury, alter attention has been called to each question of f.-.ct for their determination, that “ in view of the large amount of testimony offered, comist-ing of papers, documents and oral evidence, and in view, also, of the amount involved, and the serious characterof the charge, you should carefully scrutinize, examine and weigh each and every item of evidence, together with all the circumstances proved on the trial, and give to it such weight as in yourtjudgment seems right'; and if you believe, lrom a preponderance of the evidence, that the plaintiff (a partnership) by one of its members, wilfully caused or procured the property insured to be set on fire, the plaintiff can not recover, and your verdict should be for the defendant;” is not erroneous. B, Charge to Jury — Latitude Allowed in Argument. Nor is it error for the judge to say, in his charge to the jury “ that the attorneys engaged in the trial of this case may call your attention to the evidence ; they may present it in such a way as to best suit their respective-sides, and they can comment upon the testimony, but they have no right to-tell you what disputed point has been proven or disproven.”
10 Ohio Cir. Dec. 234Saginaw Bay Co. v. Engel (1899)
SUB-CONTRACTOR AND MATERIAL, MEN — LIENS. Caldwell, Hale and Marvin, JJ. 1. Sub-contractor's and Material Men — Liens. A sub-contractor’s or material man’s lien attaches to all money due, from the owner to the contractor, at the time of filing or becoming due within ten days thereafter. 2. Are Required to Pro Rate. Such lienholder is required to pro rate with all who come within the ten days. S. After Ten Days Funds appropriated to Liens Filed. After the ten days, the funds due before are to be regarded as appropriated to the exlent of the liens filed before the expiration of the ten days. 4. Liens Filed after Ten Days. Liens filed after the ten days, become liens only on funds due after the ten days and on any balance, after liens filed before the ten days are satisfied, out of funds due before the ten days.
10 Ohio Cir. Dec. 235State ex rel. Vexler v. Hyman (1899)
CLEVELAND FIRE DEPARTMENT. Caldwell, Hale and Marvin, JJ. 1. Director of Fire Governed by Formulated Rules. The director ot fire has no authority to conduct his office contrary to the rules formulated, under the federal plan law, by the director of fire and the mayor, and approved by the council, which rules have the force of law. •2. Rule not Changed by Custom of Director. The director of fire cannot change the rules governing his department by custom, unless such custom is known to the mayor and city council for such a length of time as will be considered essential. 3. Age Limit in Making Appointments. Under a rule “ providing that persons appointed to the fire department sha.l be not less than nineteen, nor more than twenty-eight years of age,” a person who is over twenty-eight, but not twenty-nine years of age, is ineligible. -1. Person Ineligible may be Removed Informally. A person who was ineligible, under the rules above referred to, at the time of his appointment as a member of the fire department, never legally held office and may be removed informally.
10 Ohio Cir. Dec. 236Cook v. Olds Gasoline Engine Works (1899)
Error to the Court of Common Pleas of Eu cas county.
10 Ohio Cir. Dec. 239Schneider v. Curran (1899)
Error to the Court of Common Pleas of Lucas county.
10 Ohio Cir. Dec. 245Winnett v. State (1899)
Error to the Court of Common Pleas of Stark county.
10 Ohio Cir. Dec. 250Mykrantz v. Globe Building & Loan Ass'n (1899)
Appeal from the Court of Common Pleas of Ashland county.
10 Ohio Cir. Dec. 255Pittsburg & St. L. R. R. v. Millikin (1899)
Error to the Court of Common Pleas of Butler county.
10 Ohio Cir. Dec. 256Vanduzen Gas & Gasoline Engine Co. v. Schelies (1899)
The defendant in error recovered a verdict of $3,500 on account of the loss of a part of his hand while employed by plaintiff in error in operating a circular saw.
10 Ohio Cir. Dec. 257Esman v. Esman (1899)
The will of Adolph Joseph Esman provided, in item second, as follows: “I give, devise and bequeath to my beloved wife, Elizabeth Esman, in lieu of her dower, all my property, real as well as personal, during her natural life.
10 Ohio Cir. Dec. 258Rudershauer v. Metropolitan Life Insurance (1899)
The plaintiff applied for a policy of insurance on the life of Sarah; Putthoff, at her request, and as security for loans theretofore made to her when in need. A policy was delivered to her, made payable to the estate of Sarah Putthoff.
10 Ohio Cir. Dec. 259Beardsley v. J. W. Zacharias & Co. (1899)
Error to the Court of Common Pleas of Cuyahoga county.
10 Ohio Cir. Dec. 259Spaulding v. Allen (1899)
HEIRS — ERROR. Caldwell, Hale and Marvin, JJ. Heirs may Prosecute Error Though not Parties To Judgment. The provisions of sec. 6098, Rev. Stat., authorizing the heirs of a deceased person, in an action against the administrator on a claim against the estate of such deceased person, “to make any defense to such action which such administrator or executor could make,” carries with it the right to institute and carry on proceedings in error.
10 Ohio Cir. Dec. 260Alling v. State ex rel. Nichols (1899)
BASTARDY — COMMITMENT. Caldwell, Hale and Marvin, JJ. 1. Bastardy — Commitment—Order Need not be Made at Same Term. The authority of the court of common pleas to order a commitment, in a bastardy proceeding, for failure to comply with the order of court, requiring payment of costs and the giving of a bond for the maintenance of the child, is not confined to the time or the term at which the order to provide for the support of the child is made. 2. Purpose to Give Dependant Opportunity to Comply with Order. It is the purpose of the statute relating to such proceedings to give the defendant an opportunity to give the security required by the order, and if, after having had the opportunity, he fails to comply, the court may then, and at a subsequent term, order his commitment to jail.
10 Ohio Cir. Dec. 262McClatchy v. McClatchy (1899)
Error to the Court of Common Pleas of Cuyahoga county.
10 Ohio Cir. Dec. 263Cuddy v. Sczepansky (1899)
Error to the Court of Common Pleas of Cuyahoga county.
10 Ohio Cir. Dec. 264Davis v. Coe (1899)
Error to the Court of Common Pleas of Cuyahoga county.
10 Ohio Cir. Dec. 265McCaslin v. McPherson (1899)
Error to the Court of Common Pleas of Cuyahoga county.
10 Ohio Cir. Dec. 267Isham v. Matchett (1899)
Appeal from the Court of Common Pleas of Cuyahoga county.
10 Ohio Cir. Dec. 269Metcalf v. Carter (1899)
CORNER LOTS — ASSESSMENTS. Caldwell, Marvin and Hale, JJ. H. Improvement Ordinance Passed by Unanimous Vote of Counsel. Where a street improvement ordinance is passed by unanimous vote of the city council, sec, 2267, Rev. Stat., applies, and a petition, signed by two-thirds of the property owners, is unnecessary. 2. Permitting Improvement and Paying Assessments. A property owner having permitted a street improvement to be made without objection and having paid three assessments therefor, is not thereby estopped from contesting the validity of the assessment or from resisting further payments. 3. Front of Corner Lot Determined by Principal Use. The front of a corner lot occupied by a store building is determined by the front of the main floor or by the principal use of the building, and cannot be assessed beyond the rule in corner lot cases by reason of the use of rooms in the rear with entrances from an area on the side street.
10 Ohio Cir. Dec. 272Thatcher v. Toledo (1899)
SIDEWALK RESOLUTIONS. Parker, Hayues aud Hull, JJ. 1. Sidewalk Resolutions oe a Permanent Nature. A resolution of a city counsel providing for and ordering the construction of either a stone or artificial stone sidewalk, while not of a general nature, being applicable to only one piece of property, is of a permanent nature and is within the rule prescribed by sec. 1694, Rev. Stat., requiring such resolutions to be read on three different days, unless three-fourths of the members elected dispense with the rule. 2. Statute Relating to such Resolutions Mandatory. The statute referred to is mandatory and unless complied with, resolutions and assessments thereunder are illegal and void.
10 Ohio Cir. Dec. 278Brown v. Toledo & Ohio Central Railway Co. (1899)
Error to the Court of Common Pleas of Lucas county.
10 Ohio Cir. Dec. 280Toledo v. Buechele (1899)
Error to the Court of Common Pleas of Lucas county.
10 Ohio Cir. Dec. 285Simmons Hardware Co. v. Bucket Pump Co. (1899)
VENDOR AND VENDEE. Smith, Swing and Giffen, JJ. Error in Filling Order, Offer to Correct. An error in the size, and in marking the size, of about one and one-half dozen coal hods, in filling an order for 435 dozen, which error the seller, upon being notified, immediately offered to correct, does not justifying the purchaser in rescinding the sale and returning the goods. The contract was substantially complied with and the seller is entitled to recover for the goods.
10 Ohio Cir. Dec. 286In re C., N. O. & T. P. Railway Co. (1899)
VACATION OF STREETS — DAMAGES. Smith, Swing and Giffen, JJ. 1. Vacation op Streets — Damages. Owners of property in the “immediate vicinity” of some one of certain streets sought to be vacated, but not abutting thereon, cannot recover damages on account of such vacation unless it appears from the evidence that they have thereby suffered an injury different in kind, and not in degree only, from that suffered by the public. 2. Ruge Applied. Such property owners, for example, cannot recover damages by merely showing that they are owners of property in the immediate vicinity of the street sought to be vacated, and are in the habit of using it frequently, and more frequently than the public generally, and that the closing of the street would be .a great inconvenience to them, by requiring them to travel farther to 1 reach a given point. 3. Damnum Absque Injuria. The mere inconvenience which such property owners suffer by the vacation of such streets is suffered also by the public and does not affect a legal right, but comes under the rule of damnum absque injuria. 4. Evidence of Intended use of the Property. Evidence in behalf of such property owners, as intervenors, under sec. 2656, Rev. Stat., in proceedings by a railway company, as owners of abutting property, to vacate certain streets, as to the use which the railway company proposed to make of the property, in connection with its own, after the streets were vacated, as an element of damage or as tending to depreciate the value of property in the vicinity was incompetent and the trial court properly refused to allow it to go to the jury. If any of the legal rights of claimants are infringed upon, damages may then be recovered or an injurious use restrained.
10 Ohio Cir. Dec. 288Cincinnati & Wooster Turnpike Co. v. Cincinnati (1899)
Error to the Court of Common Pleas of Hamilton county.
10 Ohio Cir. Dec. 289Ziska v. Schutt (1899)
BOUNDARIES. Caldwell, Hale and Hull, JJ. When Monuments will Govern in Ascertaining Boundaries. Where, in ascertaining boundaries of a strip of land, the recorded distance does not agree with the measured distance, the monuments, which are well defined and not in dispute, will govern.
10 Ohio Cir. Dec. 290Prudential Insurance v. Howle (1899)
Error to the Court of Common Pleas of Cuyahoga county.
10 Ohio Cir. Dec. 291Cleveland City Railway Co. v. Ebert (1899)
Error to the Court of Common Pleas of Cuyahoga county.
10 Ohio Cir. Dec. 293Squires v. Wiener (1899)
WORKHOUSES — CONSTITUTIONAL LAW. Caldwell, Hale and Hull, JJ. (Judge Hull of the sixth circuit, sitting in the place of Judge Marvin.) 1. Regulation oe Workhouses in Cities Second Grade, First Class. While sec. 2104, Rev Stat., relating to the regulation and management of a workhouse in a city of the second grade, first class, may he general in its nature, it is not of general interest to all the inhabitants of the state, and is not within Cincinnati v. Steinkamp, 54 Ohio St., 284. That portion of the statute is not, therefore, invalid because the classification applies, in fact, to only one city in the state. «4 Portions oe Statutes Relating to Cities and Counties Separable. That portion of the statute, pertaining exclusively to a city of the grade and class described, is not so connected with or dependent upon that portion of the statute pertaining to counties, containing cities of the grade and class referred to, as to render the whole statute invalid should the latter portion be held to be unconstitutional. 8. Vagrancy and its Punishment. Sections 2108, 2109 and 2110, Rev. Stat., give cities of the grade and class referred to, power to pass ordinances as to vagrancy and punishment, but, instead of following that course, a city may, under sec. 2110, supra, waive its option and proceed under sec. 2104, Rev. Stat.
10 Ohio Cir. Dec. 294Lower v. Fisher (1899)
APPEAL — FILING TRANSCRIPT. Caldwell, Hale and Hull, JJ. (Judge Hull, of the sixth circuit, sitting in the place of Judge Marvin.) 1. Premature Filing- of Transcript. Under sec. 6588, Rev. Stat., in reference to proceedings where an'appeal from a justice is not prosecuted, the premature filing of a transcript by the appellee and the striking of the same from the docket is not a bar to a subsequent judgment, upon refiling the transcript at the proper time, 2. Proper Time when Appexxee, Under Sec. 6588, Rev. Stat., may Fide the Transcript. Under sec. 6588, Rev. Stát., the term at which the transcript from the justice court may be filed is the one next after the term within which the thirty days allowed the appellant expire. 3. Fixing Transcript in the Insoxvency Court. The filing of a transcript from justice court in the insolvency court, does not preclude the filing a transcript with the common pleas court and taking judgment thereon, as provided for in sec. 6588, Rev. Stat.
10 Ohio Cir. Dec. 295Case v. Johnson (1899)
BILL OF EXCEPTIONS — JUDGMENT. Caldwell, Hale and Hull, JJ. (Judge Hull, of the sixth circuit, sitting in the place of Judge Marvin.) .A Finding Conclusive on the Circuit Court. In the absence of a bill of exceptions, containing the evidence upon which the judgment of the trial court was given, a finding by the trial court that a certain party had not been served with summons and that the court had no jurisdiction over such party, is conclusive on the circuit court.
10 Ohio Cir. Dec. 296Carr v. Toledo Traction Co. (1899)
Error to the Court of Common Pleas of Lucas county.
10 Ohio Cir. Dec. 298First Nat. Bank v. Ballard (1899)
DEBTORS AND CREDITORS — PARTNERSHIP. Russell, Cherrington and Sibley, JJ. 1. Contract Constituting Partnership as to Creditors. A contract whereby B agreed to furnish money and indorse to an unlimited amount for a firm of contractors, for the purpose of assisting in the construction of a railroad, in which contract it is agreed that B is to have a portion of the net profits, but is expressly stated that he is not a partner, constitutes a partnership as to third persons without knowledge of the terms of the contract, who loaned money upon the notes of the contractors endorsed by B., during the existence of the contract. Woods- v. Vallette, 7 Ohio St., 172, approved and followed. 2. Supreme Court Decisions Distinguished. The rule laid down in Woods v. Vallette, supra, that a contract between parties to share the net profits of a business, to the carrying on of which they respectively contribhte, necessarily makes them partners as to third persons, was not changed or modified by the ruling in Harvey v. Childs, 23 Ohio St., 319, which, on the contrary, was distinguished as being in reference to a single transaction, for which money had been advanced and in which no credit was contemplated.
10 Ohio Cir. Dec. 304Hoffman v. Kiefer (1899)
Error to the Court of Common Pleas of Tucas county.
10 Ohio Cir. Dec. 308Dakin v. Lecklider (1899)
TITLE — MECHANICS’ LIENS. Parker, Hayues and Hull, JJ. 1. Possession is Ownership within Mechanics’ Lien Law. Possession of land is a species of legal title, involving suck a right and interest as makes the possessor an “owner ” within the meaning of the mechanics’ lien law. 2. Attaches to Interests as Occupying Claimants. The lien attaches to any equitable interest in the land growing out of the melioration thereof by the debtor and any right he may have under the statute protecting occupying claimants. 3. Right to Value oe Improvements. An occupying claimant has a right to the value of lasting and valuable improvements without respect to the question of whether the owner of the fee so conducted himself as- to be estopped; his equity does not arise out of the doctrine of estoppel. 4. Equitable Principles Analogous to Statute Available. While it is not apparent that the interest of lienors can be worked out in an equitable action through the statute on the subject of occupying claimants, the equitable principles and rules, in which the statute had its origin, were not abolished or superceded by the statute, and may be given effect by a court of equity in analogy to an application of the statute in an action at law.
10 Ohio Cir. Dec. 316State ex rel. Mortgage & Trust Co. v. Godfrey (1899)
TAX LIENS — FORECLOSURE. Parker, Haynes and Hull, JJ. 1. Lien and Right of Action for Taxes Superior to Private Interests. The lien of taxes on land in favor of the state and the right of the state to proceed to the collection thereof, in manner provided by law, are paramount to the ownership or interests pf private parties, and are not affected by the circumstance that a suit may be pending to foreclose and extinguish the title of the owner. 2. Purchaser at Tax Sate not Affected by Foreclosure. The rights, therefore, of a purchaser at a tax sale are not affected by a subsequent decree of foreclosure although the proceedings were instituted prior to and were pending at the time of the tax sale. As to such purchaser the rules of Hs pendens do not apply, and to his lien or title acquired from the state the effects of Us pendens do not attach. 3. Relation Same as if Conveyance was Voluntary. A purchaser at sheriff’s sale, under the foreclosure, is not, upon presentation of his deed to the county auditor, and tendering the fee required by law, entitled to have the property transferred to his name upon the tax list before the rights of the purchaser at the tax sale are extinguished. The purchaser at sheriff’s sale stands in the same position with respect to the tax sale and the rights acquired thereunder, as he would if a voluntary conveyance had been made to him by the owner of the fee. 4. Any Other Rule Would Defeat the Statute. To permit the grantee under a sheriff’s deed to have the property transferred to his name on the tax duplicate before the rights of the purchaser at the tax sale have been extinguished, would be to annul the provisions of sec. 2888, Rev. Stat., and defeat the purpose of that statute, which is to give the holder of the tax certificate some advantage or standing with respect to the inchoate title which he acquires by the tax sale, to the end that the state may more' readily collect its taxes by this procedure.
10 Ohio Cir. Dec. 321Tate v. Tate (1898)
HUSBAND AND WIFE —ALIMONY — DOWER —FRAUD. King, Haynes and Norris, JJ. (Judge Norris sitting in the place of Judge Parker.) 1. Conveyance in Fraud oe the Rights oe a Wife. Where property is deeded to the husband by the wife for merely a nominal consideration, and subsequently, when they had decided to separate, he sells the same for about half its real value, without her knowledge or consent and for the purpose of depriving her of any rights therein, such sale is fraudulent. 2. Alimony Chargeable against Property so Conveyed. Alimony allowed the wife is chargeable upon lands in the hands of those who purchased from Her hugJwMid for an inadequate consideration and with knowledge that the transfer was made in fraud of her rights, to the exrent of the difference between the value of the property and the consideration actually paid. •$. Dower not Precluded by Wire’s Conveyance. A conveyance by the wife to her husband of her legal interest in certain real estate, for merely a nominal consideration does not preclude her dower right in the property. 4. Chargeable with Value ob Prospective Dower. Prospective dower interest, its value having been determined, is also chargeable-upon the land conveyed by the husband in iraud of the rights of the wife. 6. Notice — Wife Purchasing Through Her Husband. The wife is chargeable with notice of the fraud, where she purchases certain real estate through her husband and he has knowledge that the transfer is-made in fraud of the rights of the grantor’s wife. 6. Notice — Consideration Expressed in Deed. Where a duly recorded deed on its face shows that it was a transfer from wife-to husband and for a nominal consideration only, a purchaser from the husband is chargeable with knowledge of the fact.
10 Ohio Cir. Dec. 324United States Mortgage & Trust Co. v. Wood (1899)
MECHANICS’ LIENS — PLEADINGS. Parker, Haynes and Hull, "JJ. 1, Abnegations to Enforce Mechanic’s Lien. The petition in an action to enforce a mechanic’s lien, under sec. 3184, Rev. Stat., must allege that the labor was performed or the materials furnished under contract with the owner of the premises. 2. Eainure to Annegb Material Facts — Practice. . The failure to allege such material and essential fact is available on error in the circuit court, without demurrer, motion, or other objection to the sufficiency of the pleading in the court below.
10 Ohio Cir. Dec. 326Cleveland, Chicago, Cincinnati & St. Louis Railway Co. v. Richerson (1899)
NEGLIGENCE — RAILROADS. Caldwell, Hale and Hull, JJ. . (Hull, J., sitting in place of Marvin, J.) i. Rule as to Reversal by Reviewing Court. A reviewing court should not reverse on the ground that the verdict is against the weight of the evidence unless the verdict or finding is so clearly ’ unsupported by the weight of evidence as to indicate some misapprehension or mistake or bias or a wilful disregard of duty. 2. Negative Statements — Affirmative Testimony. The testimony of a witness who was near enough to hear and see, that he was paying particular attention and that he looked and listened for a train, and that the bell was not rung nor the whistle sounded, is not negative testimony; it is as much positive or affirmative testimony as that of a witness who testifies that a signal was given. •3. Rote as to Such Testimony. The court properly refused to charge the jury that where all the witnesses are unimpeached, they “ must give the greater weight to the testimony of those who speak positively.” -4. Leaving Cars on Track near Crossing. While it is not per se negligence on the part of a railroad company to leave cars on its tracks close to the crossing, if they are not on the highway, it would be misleading to so instruct the jury, in a case where the negligence complained of was in leaving the cars upon the track close to the crossing and starting a locomotive from behind them, without warning. -5. Failure to Maintain Gates or Flagmen. The failure to maintain gates or flagmen at crossings outside a municipality, is ■ not, as a matter of law, negligence; but whether the circumstances of a particular case or the situation at a particular crossing, required, in the exercise of ordinary care, gates or flagmen is a question for the jury. ■6. Limits for Sounding Bells and Whistles. j Instructing the jury that the law imposes upon a railway company the duty “within certain limits and certain places” to sound bells and whistles, and : that, therefore, if the jury find that the railway company failed to sound its ¡ whistle or ring its bell “within the limits prescribed for this crossing,” etc., \ without stating the limits, is not erroneous in the absence of a request by the railway company that the jury be so instructed. ".7. Rule as to Proximate Cause. i A charge that “if you find that defendant company failed to sound its whistle or, ring its bell within the limits prescribed for this crossing, and by reason of that, and without fault on the part of. the plaintiff contributing proximately to her injuries, if you so find she was injured, etc.” is equivalent to saying thaC if the jury find by reason of the failure of the company to sound its whistle ¡ or ring its bell the plaintiff was injured, the company would be liable; an i particularly when followed by the question “if they were not sounded, did' the failure to sound them upon that occasion, either the one or the other, proximately contribute to or cause the injuries to the plaintiff,” which gives the jury fairly to understand the rule.
10 Ohio Cir. Dec. 333Lake Shore & Michigan Southern Ry. Co. v. Baldwin (1899)
NEGLIGENCE. Caldwell, Hale and Hull, JJ. (Hull, J., sitting in place of Marvin, J.) 1. Facts which Eail to Establish Contributory Negligence. A written notice to a brakeman that repairs are about to be made on a certain bridge, whereby “the head room will be reduced so that it will be about eighteen feet six inches clearance to the underside of the floor beam,” without further or more immediate precautions, such as lights or temporary “tell tales,” is not sufficient as a matter of law to relieve the railway company ot liability for injuries to a brakeman, several days afterwards, on a night run and while in discharge of duties, on top of the train, which demanded his _ exclusive attention. It can not be said, as a matter of law, that the brake- . man, under these circumstances, was guilty of contributory negligence in failing to constantly bear in mind that the bridge was about to be changed or in failing to observe that it had been done. 2. Minor Representing Himself to be of Age — Employment. A minor who in his application for emloyment from a railway company falsely answers that he is of age and secures employment in violation of a known rule against employing minors, does not thereby become a trespasser, while so employed, or forfeit his right to protection as an employee, when actually engaged in the company’s service. 3. Subject to Rule of Negligence Applied to Adults. Such employee, having represented himself to be of age, must be judged by the same rule of negligence as an adult.
10 Ohio Cir. Dec. 341Hoyt Dry Goods Co. v. Thomas (1899)
ERROR — NEW TRIAL — PRACTICE. Caldwell, Marvin and Hale, JJ1 1. Granting New Trial — Error Does not Lie. Granting a motion for a new trial is not a final order from which error will He. 2. Review Requires all the Evidence. The circuit court cannot review the holding of the trial court on a motion for a new trial without all the evidence, both on the trial and on the motion. 3. Failure to Bring it into the Record. Bringing in the bill of exceptions and the fact that the trial court states in his ruling the ground of his decision does not bring it into the record. 4. Record as Proof. The record is proof of only what the law requires it to contain.
10 Ohio Cir. Dec. 341Betts v. Shields (1899)
APPEAL. Smith, Swing and Gifien, JJ. Appeal — Action for Recovery of Money. The answer of an administrator in an action for the recovery of money ©mly, denying that his intestate received the money, does not change the issue and the action is-not appealable.
10 Ohio Cir. Dec. 342Shields v. Betts (1899)
PETITIONS IN ERROR. Smith, Swing and Gifien, JJ. Failure to File within Statutory Time. A petition in error not filed until five months after rendition.of the judgment although within four months from the overruling of the motion for a new trial,is not sufficient.
10 Ohio Cir. Dec. 342Hudson v. Sanders (1899)
CONTRACTS — ATTORNEY FEES. Smith, Swing and Gifien, JJ. Contract for Services of Attorney. One who enters into a contract with an attorney to procure the reduction of assessments against certain lots, for a contingent fee, is liable for such fee, upon performance of the contract, without reference to the question whether or not he is the owner of the lots.
10 Ohio Cir. Dec. 343Hulshoff v. Bowman (1899)
MORTGAGES — VENDORS’ LIENS — JUDGMENTS. Ring, Haynes and Parker, JJ. 1. Subrogation to Equities in Favor of Vendor. The assignee of a contract for the sale of real estate is entitled to the benefit of equitable rights existing in favor of the vendor, as well as those existing in favor of the assignor of the contract. Therefore, where the former holds a purchase money mortgage, executed by the vendee under a former sale, which was rescinded, as security against a judgment lien, the assignee of the contract is entitled to the benefit of the Same security, whether he had knowledge of the facts or not. 2. Agreement Preventing Merger oe Mortgage. By the agreement that the purchase money mortgage, given by the first grantee, should be held as security against the judgment lien, a merger of the mortgage in the rescinded sale and reconveyance was prevented, and it remains alive for the purpose and with the effect designed. S. “Settled” does not Import Determination or Payment. The term “settled” does not necessarily import either that the issues were determined by the court or that the claim sued upon was paid, released or in any manner discharged or satisfied, except in so far as was necessary to terminate plaintiff’s then present right of action upon it. 4. Is not Res Judicata or Estopped. An entry, in a foreclosure suit, that “this day came the parties by their attorneys and in open court declared this cause settled” does not amount to a satisfaction of the mortgage, or a vendor’s lien theretofore existing in favor of the plaintiff, nor is it such a judgment as will, either as res judicata or estoppel, preclude a reassertion of the vendor’s lien or the mortgage. 5. Scope op the Decree. A decree, as between the parties, is not conclusive except as to that which is actually determined by the issues. Therefore the rights secured or preserved by the entry “settled” must be determined by the agreement which is the basis of the termination of the suit. 0. Judgments and Entries — Rights Thereunder. One not a party to the entry or judgment of settlement or dismissal derives no interest thereunder and acquires no right to insist upon its conclusiveness. jT. Lien op Judgment Subject to Latent Equities. The lien of a judgment or levy attaches only to the real interest of tho debtor, without respect to what his apparent interest maybe, and is subject to all equities, though secret or latent. 8. Judgment Against Grantee. Where a grantee in 1892 received a deed of real property and in payment and exchange therefor conveyed other real estate and executed a purchase money-mortgage, which instruments, except the mortgage, were never recorded, and in 18y7 the sale and exchange were rescinded and the property reconveyed by unrecorded instruments, a judgment rendered against grantee in 1894- and a levy thereunder, will not prevent a subsequent sale of the property by-the original grantor or attach to money due thereunder.
10 Ohio Cir. Dec. 347Rafferty v. Toledo Traction Co. (1899)
ERROR to the Court of Common Pleas of Rucas county.
10 Ohio Cir. Dec. 353Allen v. Lowe (1899)
Error to the Court of Common Pleas of Cuyahoga county.
10 Ohio Cir. Dec. 355Estate of Meswald v. Marks (1899)
Error to the Court of Common Pleas of Cuyahoga county.
10 Ohio Cir. Dec. 357W. L. Milner & Co. v. Hill (1899)
Error to the Court of Common Pleas of Lucas county.
10 Ohio Cir. Dec. 360Kennedy v. Dodge (1899)
ACTIONS — PRACTICE—JURY TRIAL — FRAUD. King, Haynes and Parker, JJ. 1. Joinder oe Causes — At Law and in Equity. A petition in an action based upon a promissory note, alleging tbat after the maturity of the note, and demand for an unpaid balance, the maker of the note conveyed certain property to her husband, thereby becoming insolvent, and seeking to recover a judgment on the note and to have the conveyance declared fraudulent and the property charged with any judgment which might be rendered against the maker of the note, states two causes of action ; one at law, upon which judgment is asked and one under secs. 6343 and 6344, Rev. Stat., to set aside a fraudulent conveyance. 2 May be heard Jointly — Rule as to Error. The two causes of action thus stated may be heard jointly; and the fact that they were not separately stated and numbered is not available as error in the reviewing court unless objection was made and exceptions noted in the court below. 3. Waiver oe Right to Trial by Jury. A party may waive his right toa trial by jury by acts as well as by words. Where the record declares that the parties appeared and neither demanded nor waived a jury, but, without objection, submitted the cause to the court, the court may proceed to final judgment, and an objection by the defeated party, first made after judgment, comes too late. Bonewitz v. Bonewitz, 50 Ohio St., 373, followed. 4. Demand by one Party not Available by Another. A demand by one of the parties to an action, for a trial by jury and exception to the court’s refusal, are not available in behalf of the opposing party where the record shows that the latter made no such demand and that the cause was submitted to the court without objection on his part. 5. Relying upon Correctness oe Court’s Reeusal. The fact that defendant’s counsel supposed that the trial court was correct in refusing, upon plaintiff’s application, a trial by jury, does not make the plaintiff’s demand and exceptions available in behalf of the defendant. ' 6. Payments on Note not Subject eor Book Account. Where money has been loaned and a note given, upon which credits should appear, payments made thereon are not a proper subject matter of a book account.' Such evidence is, therefore, in defense to an action upon the note, inadmissible. 7. Book Account as Evidence. A book account to be admissible in evidence under sec. 5242, Rev. Stat., must be a book of original entries, made concurrently witb the transactions, by a person having knowledge thereof, and who is dead or beyond the process of the court. 8. Ledger Incompetent without Further Proof. Evidence that a day book or booh of original entries has been destroyed by fire does not make a ledger competent, without evidence to show that the entries in the ledger were transcribed correctly from the day book by. the person who made the entries in the day book or by one having knowledge of the transactions and of the correctness of the original entries. 9. Conveyance in Fraud of Creditors. A voluntary conveyance by a wife to her husband, without consideration, which operated to defraud creditors, must, without respect to the intention of the parties, be set aside. 10. Proceeding after Conveyance is Set Aside. The action, not being in aid of execution, under sec. 5464, Rev. Stat., but coming within the provisions of secs. 6343 and 6344, Rev. Stat., a decree finding the plaintiff’s lien to be first and best lien on the property would be improper; the law requires, when the conveyance is set aside, the appointment of a trustee and the property to be sold and administered for the benefit of all creditors.
10 Ohio Cir. Dec. 367Russell v. Toledo (1899)
NEGLIGENCE — ICY SIDEWALKS. Ring, Haynes and Parker, JJ. 1. Duty of Cities to Keep Streets Free from Nuisance. The duty enjoined by statute on municipal corporations, to keep their public ways open, in repair and free from nuisance, is ministerial and mandatory, and requires the removal from such ways of all dangerous defects and obstructions, from whatever cause arising, when brought to the notice of the corporation. 2. Negligence in Removing Ice and Snow. While the mere fact that a sidewalk is slippery will not render a municipal corporation liable for injuries occasioned thereby, yet where there are accumulations of snow and ice, dangerous in themselves or dangerous by reason of the manner in which the walk is constructed or laid, a ci'.y may be liable if it has been negligent in not removing the same. 3. Negligence is Question of Fact, not of Law. The question whether the city has been negligent in not removing ice and snow accumulated upon its sidewalks, is one of fact, to be determined by the jury; and particularly in a case where the location and condition of the walk are such as to facilitate dangerous accumulations of snow and ice. 4. Evidence of Other Accidents Admissible. In an action against a city for damages for injury caused by falling upon an icy sidewalk, evidence of other accidents of a similar nature happening at the same place on account of the same ice, is competent, as tending to show the dangerous character of sidewalk in its unguarded condition; and that its dangerous character was brought to the notice of the city authorities.
10 Ohio Cir. Dec. 372Trust v. Miami Oil Co. (1899)
LABOR CLAIMS — PREFERENCES. King, Haynes and Parker, JJ. 1. Preference in Favor of Claims for Labor. Under Sec. 3206a, Rev. Stat.; contracts for a lien upon personal- property engaged in business are subject to liens of persons who have been employed to manage, control and conduct the property. Therefore, where the personal property of an employer is placed in the hands of a receiver, claims for labor performed within three months should be paid out of the trust fund in preference to all other claims, including mortgages given prior to the performance of the labor, except taxes and costs of administration. 2.'Not Limited to Real Estate or Waived By Failure to Record. The preference provided in sec. 3206a, Rev. Stat., for claims for labor performed - within three mouths prior to the appointment of a receiver, is not limited to a claim against real estate and is not waived by failure to file an itemized statement with the recorder, as therein provided for liens on real estate. 3. Labor Liens and Preferences Constitutional. Laws providing liens and preferences in favor of mechanics and laborers are founded upon the highest public policy, and are constitutional and valid.
10 Ohio Cir. Dec. 377Smith v. Whittlesey (1899)
SERVICE BY PUBLICATION. King, Haynes and Parker, JJ. 1. Summons not Necessary to Service bv Publication. In order to properly begin an action, it is necessary to file a petition, and, if the defendant is within the jurisdiction of the court, to have a summons issued, but if, at the time of the filing of the petition, it he known that the defendant is beyond the jurisdiction of the court, issuing a summons, to be returned “not served,” would be an idle ceremony and is not required before service can be made by publication under sec. 5048, Rev. Stat. 2. Section 5054, Rev. Stat., Relates to Cases of Joint Liability. Section 5054, Rev. Stat., relating to service of summons in actions.upon joint contracts, where some of the defendants are'within and some are beyond jurisdiction of the court, and requiring, as to the latter, summons to be returned “not served” before service can be made by publication, is not applicable to case at bar, forthe construction of a will, orto ordinary actions against defendants severally liable, inasmuch as that section governs the termination of the action against defendants served rather than the manner of its commencement.
10 Ohio Cir. Dec. 381Weller v. State (1899)
M AN SL AU GHTE R — P R ACTICE — ARGUMENT. Price, Norris and Day, JJ. 1. Evidence oe Familiarity with Firearms Competent. In a prosecution for manslaughter, based on the theory that the shooting, with a revolver discharged from the coat pocket of accused, was done while accused -was engaged in an unlawful act,_ having pointed the revolver at deceased, evidence, elicited on cross examination of accused, that he had at • other times owned firearms, and of incidents connected therewith, is, as against the claim of accused that the shooting was accidental, competent as touching his familiarity with such weapons and their use, and dangers if not carefully handled. 2. Reciting Disputed Facts as Admitted or Ignoring Evidence. In charging the jury on the trial of a criminal action it is proper for the court to direct attention to the admitted or undisputed facts, but where the court recites a material fact as undisputed, which is denied by the accused; or where there is evidence or circumstances tending to disprove such fact, such action of the court is reversible error, 3. Manslaughter — White Engaged in Unlawful Act. Where in a prosecution for manslaughter the state relies for conviction on the ground that the deceased was killed while the slayer was in the commission of an unlawlul act, it must appear that the alleged unlawful act was a breach of some penal statute of the state; and it is not sufficient to show that such . act was a crime or offense at common law. 4. Improper for Trial Judge to Sanction Argument. A trial judge should not add his sanction to any particular method or. means of argument, ana thereby give it special prominence. For example, where the prosecuting attorney, in his argument in a manslaughter case, gave statistics as to such crimes and convictions during a certain period, which, if correct, tended to show a failure of justice, it was improper for the judge, in the presence oi the jury, to sanction that argument, as his action in doing so might have tended to a conviction, not on the testimony but because, according to the statistics quoted, convictions theretofore might have seemed to have been entirely too rare.
10 Ohio Cir. Dec. 388Hunt v. Hayes (1898)
WILLS — PAYMENT OF LEGACIES — HEIRS. Haynes, King aud Parker, JJ. L Runs as to Legacies and Devises. Where there are money legacies and devises of real estate to different parties, the legacies in money should be charged upon the personal property, and upon the personal property only, unless there is a clear manifestation in the will that the real estate should be charged with the same. S. Implication as to Testator’s Intention. But a devise of money legacies and devises of real estate, followed by a devise of the residue of the estate, real and personal, is such a blending of the real and personal estate in a common fund as to justify the implication that testator intended, in case of the failure of the personal assets, to make the legacies a charge upon the realty. 3» Rues Applied, Charging Real Estate. A will bequeathing money legacies, including a life annuity, and making devises of real estate, with remainder, real, personal and mixed, over, the residuary legatee being executor, without bond, testator expressing a desire that there should be no appraisal or sale of his personal estate, but authorizing the executor to sell any or all of the real estate, in such manner as he might deem best, is within the rule last above stated. The legacies and the annuities are, therefore, chargeable upon the real estate. 4. Amount of Personal Property at Testator’s Death Immaterial. Under the circumstances stated, it is immaterial whether there was sufficient personal property at the time of testator’s death to pay, the money legacies or not. The executor and residuary legatee; having full power to administer the estate, without appraisal or bond, and both real and personal estate being chargeable with payment of money legacies, it is sufficient, in an application for an order to sell real estate, for the executor to allege that at the time of the filing of the petition there was no personal property with which to make payment of the legacies or the annuity. 6. Legatee or Devisee not an “Heir.” A legatee or devisee under a will is not an heir, within the meaning of sec-6098, Rev. Stat., providing that an heir may file a requisition on an administrator to reject any claim presented for allowance, or entitled to oppose pay. ment of a legacy or annuity under the will in question. 6. Legacy or Annuity not a “Claim.” And a legacy or an annuity is not a “claim” in the general sense of that term or within the meaning of sec. 6098, Rev. Stat. (
10 Ohio Cir. Dec. 394Nelson v. Quail (1899)
Error to the Court of Common pleas of Cuyahoga county.
10 Ohio Cir. Dec. 394Bigalke v. Bigalke (1899)
NEWSPAPERS — LEGAL NOTICES. Caldwell, Marvin and Hale, JJ. A Newspaper Within the Statute. A paper devoted primarily and principally to proceedings in courts and county offices, but giving more or less of the general news ot the day, is a “newspaper” within the meaning of sec. 5950, Rev, Stat,, providing, in regard to legal notices, that “publication must be made for six consecutive weeks, in a newspaper printed in the county where the petition is filed.”
10 Ohio Cir. Dec. 396Van Cleve Glass Co. v. Tillyer (1899)
JUDGMENTS — SETTLEMENTS—TRIAL. Caldwell, Marvin and Hale, JJ. 1. Denial on Settlement oe Judgment to be Reversed. Where the alleged settlement of a judgment sought to be reversed on error is denied, an issue is made which cannot be properly tried upon affidavits. 2. Should be Made and Tried as Other Issues. ■ Such issue should be made by proper pleadings and trial, upon evidence, had as upon other issues.
10 Ohio Cir. Dec. 397Spaulding v. Allen (1899)
ATTORNEY AND CLIENT — TRUSTS—CONTRACTS. Caldwell, Marvin and Hale, JJ. 1. Attorney for Trustee cannot Waive Rights oe Estate. Attorney of a trustee, by virtue of his employment to prosecute a certain action, cannot waive the rights of the trust estate; except in the manner of conducting the litigation, he has no authority to prejudice the rights of the trustee or the cestin que trust. 2. Accepting Proceeds of his Action not a Waiver. Accepting the proceeds of a sale of mortgaged property does not amount to a ratification of an ultra, vires contract made by such attorney. 3. Notes — Endorsement in Beank. The legal import of an endorsement in blank, unrestricted and unambiguous, cannot be varied by parol evidence.
10 Ohio Cir. Dec. 398State ex rel. O'Leary v. Salen (1899)
APPOINTMENT — POLICE COURT JANITOR. Caldwell, Marvin and Hale, JJ. 1. A “ Janitor ” is not an “ Officer.” A “janitor ” is not an officer within the meaning of sec. 1645, Rev. Stat., the-federal plan law of Cleveland, authorizing the council to appoint certain, officers. 2. Head of Department Must Appoint. The city council, therefore, has no authority to authorize the police judge to-appoint a janitor of the police court; such appointment must be made by the-head of the police department.
10 Ohio Cir. Dec. 400Woodward v. Curtis (1899)
PROBATE COURTS — JUDGMENT—EXECUTORS. Adams, Douglass and Voorhees, JJ, 1. Judgments oe Probate Court Can Only Be Impeached for Fraud. The probate court, as to matters that come within its jurisdiction, is a court of record, and its judgments are of the same binding effect as judgments in any other courts, and can only be impeached for fraud. 2. Actuad Fraud. The fraud for which a court of equity will vacate a judgment must be a fraud practiced by the successful party in obtaining the judgment. 3. Rude Appdies to Approvad oe Executors’ Accounts. The rule that the judgments of the probate court cannot be set aside, collaterally, except for fraud, applies to judgments approving accounts of executors. 4. Purchase by Executor After Resigning, Vadid. The fact that an executor, having brought property to a sale to pay debts of the estate, upon failure to sell for want of bidders, resigned, and, upon a sale by his successor in trust, bought the property as executor of his father’s estate, at a price claimed to be inadequate, does not constitute ground for setting aside the sale, where it does not appear that vendee, and former executor, did anything to prevent fair competition.
10 Ohio Cir. Dec. 406Engleright v. Annesser (1897)
Appeal from the Common Pleas Court of Putnam county.
10 Ohio Cir. Dec. 408Glenville v. Englehart (1900)
Error to the Court of Common Pleas of Cuyahoga county.
10 Ohio Cir. Dec. 411Johnson v. Johnson (1900)
Error to the Court of Common Pleas of Cuyahoga county.
10 Ohio Cir. Dec. 413State ex rel. Schwartz v. Schwartz (1899)
CORPORATIONS — VOTING STOCK. Smith, Swing and Giffin, JJ. 1. Stockholder’s Option as to Manner oe Voting Shares. Under sec. 3245 Rev. Stat., as amended April 23,1898, 93,0.1?., 230, a stockholder has the option of voting his shares for as many persons as there are directors to he elected, or to cumulate the shares for as many less as he prefers. 2. “Shares” and “.Votes” Used in the Same Sense. The meaning of the word “ shares” as used in the statute, means “ shares as voted.” A stockholder who owns one share and casts a vote lor each of nine candidates, votes as if he had nine shares; so also does he vote if he casts nine for one candidate. The words “ shares ” and “ votes ” are used in the same sense. 3. President Cannot Throw out Cumulative Votes. Where, at a regular annual meeting of the stockholders of a corporation, an election for directors is held, the tellers having announced the vote as cast, the president of the corporation has no authority to entertain a motion to throw out cumulative votes, and declare others receiving a less number of votes duly elected. 4. Power oe Court to Order New Election Discretionary. The power of the court, under sec. 6776 Rev. Stat., to order a new election, is discretionary, and 'where there is nothing in the case to require its exercise, the election held will be allowed to stand.
10 Ohio Cir. Dec. 415Cleveland, Cincinnati, Chicago & St. Louis Railway Co. v. St. Bernard (1899)
ORDINANCES — LIGHTING RAILWAYS — PRACTICE. Smith, Swing, and Giffen, JJ. 1. Ordinance Requiring Raiiway to Light Tracks. A village ordinance requiring a railway company to light its tracks as provided in secs. 2494 to 2499, Rev. Stat., is not rendered nugatory hy failure on the part of the village to notify the railway company of its intention to pass such ordinance. 2. Location oe Lights. Although any particular lamp may not be placed by the village on the railway track, yet if it lights the tracks as well as the location permits, the primary object of the statute and the ordinance is accomplished the particular location of the lamp is immaterial. 5. Statute as to Seecial Verdicts Mandatory. Prior to the amendment of sec. 5203, Rev. Stat., it was discretionary with the court to grant a request for a special verdict but the amendment, providing that “the court shall, at the request of either party, direct them (the jury) to give a special verdict, etc,” made the statute mandatory. 4. Practice — Right oe Counsel to Assume that Court Would Direct. Where, at the close of plaintiff’s evidence, defendant’s counsel called the attention of the court to the fact that they had filed in the office of the clerk of the court a demand in writing for a special verdict, and the court at the time made no ruling on such request, counsel were justified in assuming that after the evidence was all in the court, thus apprised of such request, would so instruct the jury ; and it would be error to neglect to do so. 6. Jury not Bound by Draets eor Special Verdict. Bither or both parties may submit a draft of a special verdict upon all or any of the issues in the case, under secs. 5200 and 5201, Rev. Stat., but the jury would be bound by neither, for the statute directs them to find the facts.
10 Ohio Cir. Dec. 418State ex rel. Monett v. C. & H. El. St. Ry. Co. (1899)
STREET RAILROADS — STATUTES—QUO WARRANTO. Smith, Swing and Giffen, JJ. 1. Sec. 2502, Rev. Stat., Appues only to Original Construction. Section 2502, Rev. Stat., providing that no ordinance for the construction of a. street railroad shall be passed until the public notice of the application-therefor has been given, applies, so far as the notice is concerned, only to original construction of a route and not to an extension thereof. % Rule as to Estimating the I/ength or Track. The fact that the line of a street railway is partly within and partly beyond corporate limits, does not make it two separate roads; and in estimating the-length of track, under sec. 3438, Rev. Stat., relating to appropriation of the use of the tracks of another company within the municipality, the entire-distance between the termini of the line, and not that part only which is within the corporate limits, should be considered. Whether this provision of the statute is just and equitable or whether it would have been enacted in. view of present conditions, quaere † 8. Municipae Authorities — Bridges. Under sec. 2640, Rev. Stat., municipal authorites have control of all bridges-within the municipality, although such bridges may have been built by the county, and can, therefore, grant a franchise to use such bridges for street, railway purposes. And if this were not so, the fact would not be available-in behalf of the state as intervenor by quo warranto in condemnation proceedings to which the county was not a party. 4. Laws Authorizing Traffic Arrangements not Exclusive. While the acts of May 14, 1894, 910. D., 285, and May 21,1894, 91 O. E., 379, permit street railway companies to make traffic arrangements with other companies, in order to secure a joint use of tracks, these sections are not exclusive and do not interfere with the right, in the absence of such arrangements, to appropriate the use of the tracks under sec. 3440, Rev. Stat. 6. Consent of Abutting Owners not Required as to Existing Tracks. Where an extension of a street railway line contemplates the use of existing tracks for a portion of the way, the consent of abutting owners as to-such portion is not necessary under sec. 3439, Rev. Stat., even though new trolley and feed wires are to be erected, and new curves constructed at the-intersection of streets. & Quaere, as to. Allegations by the State in Quo warranto. Whether the state can allege as a ground for quo warranto, against a street railway company seeking condemnation of the joint use of existing tracks, that the company has not obtained the consent of abutting owners, is questionable. Court is of the opinion that such claims should be asserted by the-parties in interest and in different actions.
10 Ohio Cir. Dec. 426Briggs v. Rowley (1900)
BILL OF EXCEPTIONS. Caldwell, Marvin and Hale, JJ. Record must show Biee Submitted to Opposite Counsee. A judge lias no authority to allow and sign a bill of exceptions until submitted to opposite counsel, and that it was so submitted must be shown by the record. .
10 Ohio Cir. Dec. 427Manguno & Tomfocaro Co. v. Clymonts (1900)
COURTS OF COMMON PLEAS — JUDGMENTS—PRACTICE. Caldwell, Marvin and Hale, JJ. 1. Courts op Common Pleas — Control over Judgment. Courts of common pleas have such control over their judgments and orders, during the term iu which they are rendered and made, that they may, in proper cases, in the exercise of their discretion, independent of the statute, modify, vacate or set them aside. 2. Rule Applied. A motion to set aside a judgment of default for the reason that the attorney for the defendant was absent from the county at the time for answer, aud that there is a good defense to the action, is within the rule above stated and the action of the court of common pleas in setting aside the judgment at the same term, was not erroneous although the ground therefor is not among those provided by the statute.
10 Ohio Cir. Dec. 430Desnoyers v. Dennison (1899)
RES JUDICATA — TAX TITLE — PRACTICE. Caldwell, Marvin and Hale, JJ. 1. Actions To Quiet Title — Matters to be Litigated. In an action to quiet title, all matters affecting the title of the parties to the action may be litigated and determined, and the judgment therein is final and conclusive. 2. Bar to all within the issue. T-he judgment of the court, in such cases, is conclusive as to all questions within the issue, and which might have been litigated, whether formally litigated or not. 3. Rule Applies to Tax Liens. This rule applies to one claiming a lien by virtue of a tax-deed,-who, though not made a defendant by plaintiffs in an action to quiet title, was made a defendant, and served with summons, by answer and cross petition of another defendant, and who failed to file any pleading sitting up his claim. 4. Taxes Subsequently Paid Under Belief of Ownership. Where taxes were paid under an opinion that the person who paid them owned the laud, the rule that he who asks equity must do equity applies when the true owners seek to have their title quieted. Therefore, taxes so paid for years subsequent to those barred by the judgment in a former action, should be paid by plaintiffs.
10 Ohio Cir. Dec. 434Ranney v. Ranney (1899)
Appeai, from the Court of Common Pleas of Cuyahoga county.
10 Ohio Cir. Dec. 435Auerbach v. Swadner (1899)
ATTACHMENT — NON-RESIDENCE. Summers, Wilson and Sullivan, JJ. 1. Nonresidence, though Omitted from Statute, a Ground for Attachment. The intention of the law-maker constitutes the law. A thing may be within the letter of the statute and not within its meaning; and within its meaning though not within its terms. Under this rule the amendment of sec. 5521, Rev. Stat., April 26, 1898, 93 O. U., 318, by which nonresidence, as ground for attachment, was omitted from the statute, does not operate to defeat the remedy. Inasmuch as the reasons for such a ground for attachment existed as much at the time of the amendment as before, and inasmuch as following provisions of the statute relating to nonresidence remained as before, as clearly omitted by inadvertence, and is as much a part of the statute as though expressly included. 2. Construing Remediad Statutes. The words of a remedial statute are to be construed largely and beneficially, so as to suppress the mischief and advance the remedy. It is by no means unusual to extend the enacting words of such statutes beyond their natural import and effect, in order to include cases within the same mischiefs.
10 Ohio Cir. Dec. 437Tucker ex rel. Newark v. Newark (1897)
Error to the Court of Common Pleas of Licking couuty.
10 Ohio Cir. Dec. 440State ex rel. Tucker v. Newark (1899)
MANDAMUS — DAMAGES. Adams, Douglass and Voorbees, JJ. 1. Pleading Waives Process in Mandamus. The formal process by -which it is proper to begin a mandamus proceeding (the issuing of an alternative writ of mandamus which must contain a copy of the petition) may be and is waived by voluntary appearance and pleading to the petition. 2. Assessing Damages in, Mandamus Suit. Where relators in a mandamus proceeding have a good cause of action, for example, where it appears that they were the lowest bidders and were entitled to a paving contract, and that they have been, during the pendency of proceedings, without fault on their part, deprived of relief which a writ of mandamus could give, as where the contract for paving was.awarded to others and the work had been performed and paid for, and that they are, therefore,without remedy at law, such relators are entitled to have their damages assessed in the mandamus suit.
10 Ohio Cir. Dec. 443L. S. & M. S. R. R. v. Ehlert (1899)
DEATH BY NEGLIGENCE — CHARGE OF COURT. Caldwell, Marvin and Hale, JJ. 1. Negligence at a Railway Crossing. It is negligence for a person having approached a railway crossing where the gates have been lowered, to stand, while waiting for a train to pass on one track, in such close proximity to another track, on which trains are known to be operated, as to be within reach of a passing train, or to attempt to walk across the tracks after the gates are lowered. 2. Recovery Notwithstanding Contributory Negligence. Although a person may have been guilty of negligence in placing himself in a dangerous position, in which he was liable to be injured by passing trains, yet if the employees of the railway company in charge of an approaching train knew of his danger, or might have known by the exercise of ordinary care, in time to protect or save the life of such person, the negligence of the railway is the proximate cause of the injury and a recovery may be had. 8. Pacts to Which Rule may be Applied. In an action (or wrongful death, where the evidence clearly shows that deceased, having approached a railway crossing, after the gates were lowered, took a position so near another track as to be within reach of a passing train, and that he remained in that position until he was killed, and the evidence also shows that the employees of the railway company in charge of the train saw him, or could-by the exercise o f ordinary care have seen him for a distance of 150 feet from where he was killed, the rule stated in the preceding paragraph may be applied; and the question in such case, whether the railway company was negligent in (ailing to sound the whistle in time to warn deceased of his danger and save his life, was properly submitted to the jury, although deceased was guilty of negligence in getting near or on the track. 4. Rule Should be Applied with Great Caution. The rule that a recovery may be had where defendant’s negligence was the proximate cause of the injury, notwithstanding contributory negligence upon the part of plaintiff’s decedent, should be given with great- caution : in many cases, where the time for action is short, and the principle is so vague and uncertain, it would be misleading, but under the facts stated in the preceding paragraph it was properly given. 5. Construction oe Ordinance As to New Conditions. A trial judge, in such an action, is not required, unless specially requested, to construe an ordinance with reference to a condition not apprehended by the terms of the ordinance itself. Therefore, an omission to construe an ordinance providing that gates at a railway crossing shall be raised after one train has passed before allowing another to pass, with reference to its effect where.it is claimed that trains were passing simultaneously, in opposite directions, or to state that, under the ordinance, trains might be permitted to pass in that manner, is not error, particularly where the evidence is conflicting as to whether the trains did pass at the same time. 8. Duty oe Railway Companies at Crossings. A statute law requiring gates at railway crossings does not prescribe the full duty of railway compánies at certain crossings; and does not relieve such, companies from duties which they owed the public before the statute was 7. Not Discharged by Simply Operating Gates. The duty of a gatekeeper at a railway crossing is not, therefore, fully discharged by merely operating the gates; he is required to exercise ordinary care in keeping watch oí approaching trains and to give such warning as ordinary prudence would require; and if such gatekeeper sees a person in danger from an approaching train it is his duty to warn him, and a failure to do so-is negligence ior which the railway company is responsible. 8. Negligence in Running a Belated Train. Running a railroad train, not on schedule time and when people could have no knowledge of its coming, over city crossings at the rate of from twenty-five to thirty miles an hour, is, in itself, great negligence. 9. Evidence — Ordinances not Pleaded Admissible. Ordinances in relation to the duties of a railway company in relation to the speed of trains and regarding gates at crossings are admissible in evidence, in an action for wrongful death, although they are not pleaded. 10. Rule as to Computing Damages. It is proper for the trial judge, in an action against a railway company for wrongful death, to instruct the jury that, if plaintiff is entitled to recover, the jury should not take into consideration any solace or bereavement or suffering by way of bereavement, or matters of that kind, but should only consider the pecuniary loss to the family. 11. Refusal to Give when not Required. A failure, however, to give the charge referred to, upon request of the railway company, does not constitute reversible error unless, from other portions of the charge, the jury may have been given to understand that they might give damages outside and beyond the pecuniary loss. 12. Words “Pecuniary,” “Solace” and “Bereavement.” The words “pecuniary,” “solace” and “bereavement,” as applied to such cases, are terms which might not be fully comprehended by a jury, and, if requested, an explanation thereof should be given in the charge. 13. Word “Pecuniary” not Misleading. Used alone, in reference to the measure of damages, or in passing upon requests, the word “pecuniary” is not so technical or incomprehensible as to mislead a jury.
10 Ohio Cir. Dec. 452Cleveland Trust Co. v. Lander (1900)
TAXATION — BANKS. Caldwell, Marvin and Hale, JJ. L Incorporated Banks Taxed on Capital Stock. The intent and purpose of sec. 2746, Rev. Stat., is to tax the capital stock, not' the capital itself, of incorporated banks, whether state or national, existing in this state. The tax is against the shareholder, and the provision for the bank paying it is but a mere method of collecting the tax from the stockholders, the lien being upon the stock, and not upon any property of the bank. 2, The Two Methods Not Unequal Taxation. The provision of the statute lor obtaining the value of the capital stock of an incorporated bank, and for obtaining the value of the capital of an unincorporated bank, are merely different methods provided by law for arriving at the true value in money of each kind of property, and they are so nearly equal that the difference in their values would not constitute what is known as unequal taxation. 8. Exact Equality Not Attempted. Taxation laws do not attempt to arrive at exact equality, nor to provide that equivalents shall be of exactly the same value. A substantial equality is all that they attempt to reach.
10 Ohio Cir. Dec. 458Richardson v. State (1899)
COUNTY COMMISSIONERS — FEES. Adams, Douglass and Voorhees, JJ. 1. Fees to Commissioners in Morrow County. Under sec. 897, Rev. Stat., each county commissioner of Morrow county shall be allowed three dollars for each day that he is employed in his official duties, and five cents per mile for his necessary travel, ior each regular or called session, not exceeding one session each mouth, or twelve in any one year, and five cents per mile when traveling within said county on official business, to be paid out of the county treasury on the warrant of the county auditor; and for his services, when necessarily engaged in attending to the business of the county pertaining to his office under the direction of the board, and when necessary to travel on official business out of said county, shall be allowed, in addition to his compensation and mileage as aforesaid, any other reasonable and necessary expenses actually paid in the discharge of his official duty. 2. Matters Included in Last Provision. The provision in said section in relation to “any other reasonable and necessary expenses actually paid in the discharge of official duties,” might, for example, include a bill for drayage, for manual labor or for legal advice, necessarily incurred in the discharge of official duties. 3. Not Entitled to Certain Personal Expenses. Such commissioners are not entitled to pay out of the county treasury for personal expenses, as board, lodging, horse feed and other like expenses, incurred while employed in official duties within the county, or when attending to official business out of the county. 4. Limitation as to Fees. The amount which such commissioners are entitled to receive out of the county treasury, for necessary expenses actually paid in the discharge of official duties under said section, includes only such expenses as are necessary in the discharge of such duties. Board, lodging and other like personal expenses that may be incurred while in the performance of such duties are not to be included, and such expenses cannot be allowed under said section. 5. Fees Cannot be Allowed upon Implication. To warrant the payment of fees or compensation to a public officer, out of the county treasury, it must appear that such, payment is authorized by statute. Fees cannot be allowed upon an implication, or upon an equitable construction of the statute.
10 Ohio Cir. Dec. 461Hack v. Heffern (1899)
Error to the Court of Common Pleas of Delaware county.
10 Ohio Cir. Dec. 464Kilgore v. Miller (1898)
JUDGMENT LIENS — MORTGAGES—HOMESTEAD. Adams, Douglass and Smyser, JJ. 1. Judgment Creditor, Prior Mortgagee and Homestead Rights. A judgment creditor acquiring a lien on different parcels of land, one of which is occupied as a homestead, and'all of which are covered by a prior mortgage, cannot complain of a release of the mortgage from the homestead lot, although such release was made by a relative, who had purchased the mortgage ; parties have the right to the aid of friends or relatives in securing a homestead so long as no illegal act is done; the matter stands as if the original mortgagee held the mortgage and as if the homestead lot had not been released. 2. Equity Rule as to Marshaling Securities and Liens. The rule that where one party has security on two funds and a later lienholder has security on only one of the two funds, the first lienholder will be compelled to first exhaust his exclusive fund before resorting to the other, is not applicable to facts above stated. 8. Law of Ohio does not Allow Judgment, to Bring Homestead to Sale. The law of Ohio does not allow a judgment, in and of itself, to bring a homestead to sale; and the release of the homestead from the mortgage does not so inure to the benefit of the judgment lienholder.
10 Ohio Cir. Dec. 467McMahan v. Davis (1899)
Error to the court of common pleas of Perry county.
10 Ohio Cir. Dec. 472Duffield v. Russell (1899)
OIL AND GAS LEASE. Frazier, Burrows and Laubie, JJ. 1. “ Commencement ” of Operations Under an Oil and Gas Lease. The “ commencement ” of operations, under an oil and gas lease, may consist of trivial and comparatively insignificant matters. Any act, the performance-of which has a tendencj' to produce the desired result, is a “ commencement ”■ of operations; there!ore, staking out the location for the well, making the contract for the lumber for rig and cutting a portion of the timber constitutes a “ commencement ” of operations, if done bonafide. 2. Laches op Lessor Barring Equitable Relief. Where nothing was done to commence operations under an oil and gas lease until the last day of the time specified therefor, but lessor, knowing the fact, instead of notifying lessee that the lease was forfeited, made a contract with, him for cutting timber, removing a building, etc., and afterwards treated lessee as properly in possession, assuring one who proposed to join him in the enterprise that the lease was valid, etc., and took no steps to avoid it until offered a bonus for a lease to another party, such lessor is not entitled, to equitable relief. 3. Second Lessee with Notice has no Equity. Under an oil and gas lease reciting that the premises were previously leased to> another party, which lease was “ believed to have expired ” but which later lease expressly stated that second lessee took subject to any rights which the first might have, the second lessee assumes all risk of the legality of the: first lease and is not entitled to equitable consideration.
10 Ohio Cir. Dec. 475Cleveland Gas Co. v. Collins (1899)
Error to the Court of Common Pleas of Cuyahoga county.
10 Ohio Cir. Dec. 479Cincinnati ex rel. Wilson v. Hess (1898)
SEWER ASSESSMENTS. Marvin, Wilson and Parker, JJ. (Judges of the eighth, second and seventh districts, sitting in the first district.) 1. Whether a Lot is Provided with Sufficient Drainage. Whether or not a certain lot is in need of local artificial drainage, is a question to be determined from the facts and circumstances and the surroundings existing at the time the assessment was made. 2. Lands with Natural Drainage Exempt. Lots and lands within the bounds of a municipal corporation which are supplied by nature with sufficient local drainage, are, by the statute, exempt from a special sewer assessment.
10 Ohio Cir. Dec. 480Brooks v. Hanna (1899)
Petition for Construction of Will. J. Twing Brooks, plaintiff, says that Robert, Hanna, deceased, late of the city of ■Cleveland, Ohio, died on or about April 2,1882; that prior to his decease he made and executed his last will and testament, and subsequently a codicil thereto; that the same were, after his decease, duly admitted to probate and record in the probate court of Cuyahoga county, Ohio; a copy of which will and codicil, as probated, are hereto attached, marked…
10 Ohio Cir. Dec. 493East Cleveland Railroad v. Everett (1900)
Error to the Cotnmon Pleas Court of Cuyahoga County.
10 Ohio Cir. Dec. 501Moerder v. Fremont (1899)
Error to the Court of Common Pleas oi Sandusky county.
10 Ohio Cir. Dec. 505Benedict v. Market National Bank (1900)
DEBTORS AND CREDITORS — PREFERENCES. Smith, Swing and GifFen, JJ. 1. AGREEMENT AMOUNTING TO A PREFERENCE. The making of an agreement by a corporation with a bank at the time of procuring a loan, that in the event the corporation should be compelled to make ah assignment the bank should be notified in time to reduce its cognovit note to judgment and levy execution Before the deed of assignment was filed, renders invalid the execution thereafter levied in accordance with the agreement and just before the making of an assignment. 2. Facts not Sufficient to Validate. The fact that at the time such note was given part of the money covered by it was actually loaned the company, and the further fact that at that time the company was believed to be solvent and it was hoped that an assignment might, be averted, does not validate the agreement or levy. ¡3. Court of Insolvency — No Jurisdiction over Common Pleas Judgments. An assignment does not vest the court of insolvency with jurisdiction to pass upon judgments of the court of common pleas; the only court competent to pass upon the validity of the judgment of that court is a court of general equity jurisdiction.
10 Ohio Cir. Dec. 508Lubbering v. State (1900)
ALIMONY —COSTS—CONTEMPT. Smith, Swing and Giffen, JJ. 1. Failure to Pay Alimony and Costs of Contempt. A court has the power to imprison one who has been ordered to pay alimony in an amount which he could pay, but which he refuses to pay; but where there is added to the amount of alimony a fine and costs of the contempt proceeding, and the defendant is committed until the whole sum is paid, the order of imprisonment is invalid. 2. Pine and Costs Simply Judgment for Money. A sum ordered to be paid as fine and costs in a contempt proceeding amounts simply to a judgment for money, and the court has no power to imprison as for contempt on failure to pay it. 3. Imprisonment for Failure to Pay Alimony — Constitutional. Alimony is something more than a debt, and imprisonment for failure to perform is not against the provisions of our constitution or our statutes.
10 Ohio Cir. Dec. 509DeCamp v. Revoy (1900)
CORPORATIONS — STATUTORY LIABILITY. Smith, Swing and Giffen, JJ. 1. Statutory Liability — -Judgment and Execution not Necessary. Where it appears that a corporation is “utterly insolvent and has no assets of any description whatever,” it is unnecessary that one desiring to proceed against the stockholders’ statutory liability should first obtain judgment and issue an execution. 2. Mere Legatee not Liable Under the Statute. One who receives a bequest of shares of stock, but obtains no transfer thereof on the books of the corporation, and there is no other evidence of his acceptance of the bequest, cannot be held for an assessment upon such stock under the statutory liability; the proceeding should be against the estate of the testator. 3. Deficit upon Mortgage Foreclosure. Where a loan upon real estate mortgage is obtained by an individual for the benefit of a corporation, and the property upon foreclosure fails to pay the loan in full, the corporation does not become personally liable for the déficit. 4. Evidence Defeating Insolvency Finding. A finding by a referee that a stockholder is insolvent will not be upheld where the evidence shows that he still has outstanding interests, and has conveyed property without valid consideration. 6. Variance Between Allegations and Proof. Where plaintiffs sued as upon a joint claim it was error to receive evidence supporting the claim as belonging to a partnership, of whkh plaintiffs were members but not the only members. 6. Improper Substitution of Parties Plaintiff. It was also error, after the referee had filed his report, and the firm owning the claim referred to had transferred the same to a bank, and the bank had recovered a judgment thereon in a separate action, to substitute the bank for the plaintiffs.
10 Ohio Cir. Dec. 512Eichels v. Cincinnati (1900)
MUNICIPAL CORPORATIONS — CONTRACTS. Smith, Swing and Gillen JJ. 1. Contracts — Walls Constructed upon Private Property. Under an agreement between a municipal corporation and a property owner,' whereby the former acquired the right to go upon private property lor the purpose of constructing retaining aud wing walls for a culvert, in consideration of the property owner’s right to build over and into and use said walls, the city or the property owner may finally abandon all right and interest in. said walls, but the former cannot, by abandonment, at the same time deprive the property owner of his right to use said walls. 2. Removal Gives Owner Right of Action for Damages. The fact that the walls, constructed under such agreement were wholly upon the land of the property owner, and the nature and character of the use of the same, granted without reservation of a right of removal, indicate an intention to make the walls a permanent structure; and although the agreement contained no express provision as to duration, the removal of the walls soon after the agreement, and against the protest of the property owner, gives him a right of action for damages, the amount of which is a question for the jury. 3. Delay in Use of — Not a Surrender. The fact that the property owner did not immediately exercise his right to build over and into or use said wall does not amount to a surrender of such right.
10 Ohio Cir. Dec. 514Gallipolis Furniture Co. v. Symmes (1900)
REPLEVIN — FALSE REPRESENTATIONS. Smith, Swing and Giffen, JJ. 1. Judgment Notwithstanding Verdict. In an action of replevin submitted to the jury on the petition and evidence of the plaintiff, without answer or evidence by defendant, a motion for judgment for the plaintiff notwithstanding the verdict, should be granted. 2. Intention or Expectation of Paying. Where it appears that goods were obtained by false and fraudulent representations, it is immaterial whether the purchaser intended to or had reasonable-expectation of being able to pay for them. 8. Taking Notes Without Knoweedge of Fraud. Taking notes in settlement of an account after the latter becomes due does not. defeat the right to rescind the sale and replevin the goods on the ground that they were obtained upon false representations, where vendor, when the notes were taken, had no knowledge of the fact, and tendered the notes before-bringing the replevin suit. 4. Bbeief in Truth of Eaese Representations no Defense. Representations by a purchaser that he was only indebted in the sum of £600-for goods in transit, and £900 on a mortgage on his residence, and that the residence was worth £2,600, when in fact, he was owing his wife £800 and the residence was worth only $1,500, are false and fraudulent; and such purchaser was bound to know the truth of such representations, and mere belief in. their truth will not excuse.
10 Ohio Cir. Dec. 515Mathers v. Bull (1900)
Appeal from the Court of Common Pleas of Hamilton county.
10 Ohio Cir. Dec. 516State ex rel. Prescott v. Hanousek (1900)
APPEAL AND ERROR — JUDGMENTS. Caldwell, Marvin and Hale, JJ. 1. Supplying Rules for Proceedings in Error. Where jurisdiction is conferred by the constitution upon an appellate court and the mode of procedure to bring a case before such court on error is indefinite and uncertain, or certain steps are entirely wanting, the court may prescribe the necessary rules, for, in such cases, it may be presumed that the legislature intended the common law procedure to apply. X No Such Rude Applicable to Appeal. No such rule is applicable in cases of appeal, to be tried de novo (the only meaning of appeal in Ohio), which was unknown to the common law and exists only by virtue of the statute; and the failure to prescribe such procedure amounts to a denial of jurisdiction in such cases. X Jurisdiction Conferred by Statute — Rules not Applicable. And where jurisdiction is conferred by statute and no method of procedure is prescribed, the court is powerless to prescribe any rules and regulations, either in matters of appeal or matters of error. 4. No Appear from Justice to Insolvency Courts. Section 548-25a Rev. Stat., 93 O.L. 264, purporting to confer “ original jurisdiction of appeals from decisions of justices of the peace, including error thereto etc.,” upon courts of insolvency, in certain cities, provides no method of procedure, and as the court is powerless to provide them, the act in question confers no jurisdiction upon courts of insolvency. 6. Defect Can only be Cured by Legislation. While the legistature probably intended, in providing for procedure after appeal, to include a method of taking the appeal, the act fails to so provide, and courts have no authority to interpolate the probable intention of the legislature. The defect can only be cured by legislation. 6. Judgment in Partnership Name Owned by Individual. A judgment obtained by an individual under a partnership name, passes by his assignment for creditors, and in a subsequent action by the assignee it may be shown that the judgment, although obtained in the name of a partnership, was the individual property of the assignor.
10 Ohio Cir. Dec. 520Fitch v. Sprague Carriage Co. (1900)
DISSOLUTION OF CORPORATIONS — PLEADING AND PRACTICE. Caldwell, Marviu and Hale, JJ. 1. Insufficiency op Petition por Dissolution op a Corporation. A petitiou praying for the dissolution of a corporation, under sec. 5651, Rev. Stat., which fails to set out the accounts and inventories of such corporation, as required by sec. 5652, Rev. Stat., is incomplete, and the court has no authority to appoint a referee or make the order requiring parties to show cause under sec. 5654, Rev. Stat. 2. Proceedings under Sec. 5673, Rev. Stat. When such petition is filed under sec. 5673, Rev. Stat., if a dissolution of the corporation will be beneficial to stockholders, the court may require the officers of the corporation within a reasonable time, to file the inventories, accounts and statements required by sec. 5652, Rev. Stat., and the court has no authority to make any order under sec. 5654, Rev. Stat., until such inventories, accounts and statements are filed. 3. Petitioners have Right op Access to Books. It is within the power of the court to give the petitioners asking for the dissolution of a corporation access to the books of the corporation, so as to enable them to furnish the facts, which they are required to set forth in their petition under sec. 5652, Rev. Stat. Therefore, an excuse cannot be substituted for that which the statute provides shall be done.
10 Ohio Cir. Dec. 522Cincinnati v. Anderson (1899)
Error to the Court of Common Pleas of Hamilton county. The judgment to which error was prosecuted is in favor of the defendant in error for $800 and costs.
10 Ohio Cir. Dec. 523Lane v. Kellner (1899)
The petitioner holds a judgment for $765.77 against the defendant named, and prays for a decree setting aside a conveyance of a lot on Margaret and Forbus street, Forbusville, as made in fraud of creditors.
10 Ohio Cir. Dec. 524Cincinnati v. Frazier (1899)
NEGLIGENCE — MUNICIPAL CORPORATIONS. Smith, Swing and Giffin, JJ. Municipal Corporations not Excused from Care of Crossings. In an action for personal injuries occasioned by a defective street crossing, it would be error to direct the jury, in considering the question whether the crossing, at the time and place of the accident, was reasonably safe, to bear in mind “the extent of the territory covered by the cit}', and the number of other crossings and streets demanding care, and the number and nature of other duties devolving upon the city and also claiming its care and attention.” Such a charge would be equivalent to stating that, owing to such facts, the corporation, not having funds to properly care for all, by attending to such repairs as were most urgent would not be deemed negligent; and a city, by the certainty and regularity of taxation, has less reason than a private corporation to so shield itself.
10 Ohio Cir. Dec. 525Herron v. Herron (1899)
Appeal from the Court of Common Pleas of Ricking county.
10 Ohio Cir. Dec. 528Eureka Fire & Marine Ins. v. Purcell (1899)
Error to the Court of Common Pleas of Hamilton county.
10 Ohio Cir. Dec. 530Loewenstein v. Bennett (1899)
Error to tbe Court of Common Pleas of Hamilton county.
10 Ohio Cir. Dec. 531Wachtel v. Reichel (1899)
VENDOR AND VENDEE — INSOLVENCY. Smith, Swing and Giffen, JJ. Purchase by an Insolvent Person. Where it appears that vendee, although insolvent at the time of his purchase, made no representations to his financial condition, and the trial court must have iound that he intended to pay and had reasonable expectation of being able to do so, the circuit court would not be warranted in disturbing the judgment.
10 Ohio Cir. Dec. 532State ex rel. Fanning v. Cuyahoga Co. (1899)
PUBLIC CONTRACTS — COUNTY COMMISSIONERS. Hale, Marvin and Caldwell, JJ. 1. Section 2834, Rev. Stat., Mandatory. Section 2834, Rev. Stat., in relation to the transfer of special tax or loan to general fund, is mandatory and is a condition precedent to be complied with before the board of county commissioners can make a lawful contract; and the Certificate required by sec. 2834b, Rev. Stat., as to money being in treasury, is as much a condition precedent as is the fact that the funds are provided. 2. Petition Must Show Certieicate. In a suit on such a contract, a failure to aver that the certificate was made, is fatal to the action and judgment on the pleadings should be granted.
10 Ohio Cir. Dec. 532Smith v. Moreton Truck & Storage Co. (1898)
DEFAULT JUDGMENTS — PRACTICE. King, Haynes and Parker, JJ. 1. Counsel Engaged in Trial oe Another Case — Deeault. The fact that counsel, in an action pending in a county where there are several branches of the court of common pleas, was otherwise engaged and could not be present to answer the call of a case, and that an agreement existed between counsel as to a disposition of it, should be brought to the attention of the court, notwithstanding a rule of court that whenever the attorneys for either party to an action are engaged in the hearing of another cause in another branch of the court, the cause shall not be taken up for hearing, or any default taken therein. In the absence of such a showing the court would be justified in entering judgment on default, but upon proper presentation of the facts such judgment should be set aside. 2. Replevin — Judgment on Default. While a petition in an action of replevin, averring ownership and right of possession, stands undenied, the court has no authority, upon default, to dismiss the case and render judgment for costs against the plaintiff. The plaintiff, in such case, is entitled to judgment in his favor as to ownership and right of possession, which would carry the costs.
10 Ohio Cir. Dec. 535Selig v. Akron Hydraulic Pressed Brick Co. (1899)
PETITION IN ERROR. Caldwell, Marvin and Hale, JJ. Time for Petition m Error Runs from Judgment. The four months time for filing a petition in error begins to run from the date of the judgment, not from the date of the overruling of a motion for a new trial.
10 Ohio Cir. Dec. 535Campbell v. Cooney (1899)
ERROR — PRACTICE. Caldwell, Marvin and Hale, JJ. Practice — Motion for Rehearing in Circuit Court. Where a case is heard without objection in the circuit court on error and reversed and remanded to the common pieas for errors appearing in what purported to be a proper bill of exceptions, the circuit court, upon motion for a rehearing, on the ground that, as a matter of fact, there was no bill of exceptions in the case, refuses to grant a new trial, holding that the question can be raised in the Supreme Court by a motion to strike the bill off.
10 Ohio Cir. Dec. 536Blank v. Altenau (1899)
Error to the Court of Common Pleas of Hamilton county.
10 Ohio Cir. Dec. 537Retzsch v. W. C. Retzsch Printing Co. (1900)
CONDITIONAL, SALES — CHATTEL MORTGAGES. Smith, Swing and Cox, JJ. 1. Conditional Sales — Conditions Precedent. Under a written contract of sale, providing that vendee, having purchased a certain cutting machine in New York, shall give a mortgage to vendor, for purchase money, upon the arrival of the machine in Cincinnati, the execution and delivery of the mortgage is a condition precedent to passing title to the machine; and mere shipment in name of consignor, with directions to notify vendee, whereby the latter obtained possession of the machine, does not deprive vendor of title thereto. 2. Ohio Decisions as to Filing Chattel Mortgages. Although the statute declares a chattel mortgáge void as against creditors unless filed forthwith, the decisions in Ohio have been to the effect only that such a mortgage is void as to creditors of the mortgagor who assert their rights against the property before . the mortgage is deposited with the recorder or township clerk. 3. Act oe Agent in Withholding erom Record. A chattel mortgage, for money loaned to a corporation, executed on December 4, 1895, and given by the mortgagee to his father-in-law, a stockholder in the corporation, and, without the knowledge of the mortgagee, by such stockholder withheld from record, at the request of the president of the corporation, until January 22, 1896, the day of but prior to the appointment of a receiver for the corporation, is valid. The act of concealing the mortgage from other creditors, while constructively fraudulent as to them, cannot be charged against the mortgagee.
10 Ohio Cir. Dec. 538Brown v. Gimm (1900)
Error to the court of Common Pleas of Cuyahoga county.
10 Ohio Cir. Dec. 540Kennard House v. Mathiviet (1900)
Error to the Court of Common Pleas of Cuyahoga county.
10 Ohio Cir. Dec. 542Moss National Bank v. Lakeside Co. (1900)
RECEIVERS — LAKESIDE COMPANY. Caldwell, Marvin and Hale, JJ. 1. Receivers — Prospect oe Suits by Creditors. Where no trouble is shown in the directorship and the whole machinery of the corporation is intact and working harmoniously, the fact that certain creditors are about to bring action to enforce their claims is not ground for the appointment of a receiver. 2. Receivers — Statute against Appointing Stockholder. The fact that directors decided that they would put the corporation in the hands of a receiver, to prevent creditors from taking action, having secured a bondholder to bring the action, guaranteeing him against any expense, does not amount to a consent which should set aside the plain provisions of the statute against the appointment of a stockholder as receiver. 3. Receivers — Jurisdiction and Control oe Property. Where it appears that the property of a corporation, which has been placed in the hands of a receiver in one county, at the suit of a bondholder, is located in another county, and that an independent action will be necessary or is pending in such county to adjust liens and sell the property, it is proper that the control of the property should be left with the court in the county where the property is situated, and, if a receiver is necessary, that he should be appointed there.
10 Ohio Cir. Dec. 544Winous Point Shooting Club v. Bodi (1895)
SANDUSKY RIVER — FISHING AND HUNTING, Scribner, Haynes and Bentley, JJ. 1. Mouth of a River Tributory to a Lake or Bay. The mouth of a river tributory to a lake or open bay, is where the course of the river is checked by such lake or bay, as marked by the sediment deposited by the current, although the waters of such river are affected by the rise and fall of the lake, and although, at certain seasons, no banks appear, for a considerable distance inland, above the water on either side, and at other times only a marsh or lowland growth of vegetation defines the channel. 2. Rights of Private Ownership Extend to River’s Mouth. The rights of private ownership and every beneficial interest in such river, including the right of trapping and hunting, extend to its mouth, the point above defined. 8. Navigation and Fishing Excepted. The owners of the land covered by such waters, have exclusive dominion over the same, subject only to the right of public navigation and fishing. The rights of navigation and fishing go together in such waters. Sloane v. Bie-miller, 34 O. S., 493, followed and approved._ i. Injunction Lies for Violation of such Rights. For the violation of the rights ot such ownership, as, for example, those of hunting and trapping, the law affords no adequate remedy and injunction lies.
10 Ohio Cir. Dec. 554Union Savings & Trust Co. v. Darr (1900)
Appeal from the Court of Common Pleas of Hamilton county.
10 Ohio Cir. Dec. 557Cleveland Retail Grocers' Ass'n v. Exton (1899)
Error to the Court of Common Pleas of Cuyahoga county.
10 Ohio Cir. Dec. 561In re Hannberger (1900)
HABEAS CORPUS — CONTEMPT—PRACTICE. Smith, Swing and Giffen, JJ. 1. Contempt Proceedings — Practice. It is not fatal to a contempt proceeding that the mittimus is issued under the title of the cause in which the contempt is charged, although the better practice would be to have the mittimus entitled and issued in a regular contempt proceeding. 2. Contempt Under Sec. 5239, Rev. Stat. A person charged with contempt, who is not yet under arrest, but who has been ordered to appear at a time fixed, stands in the attitude of a witness or juror, and, upon failure to appear, may be punished for contempt under sec. 5639, Rev. Stat., conferring power “to punish summarily a person guilty of misbehavior in the presence of or so near the court as to obstruct the administration of justice;” and this punishment may be imposed without the filing of a new charge for this particular contempt.
10 Ohio Cir. Dec. 562Northwestern Mutual Life Ins. v. Maguire (1900)
LIFE INSURANCE. Adams, Douglass and Voorhees, JJ. 1. Life Insurance — Public Policy. A condition in a policy of life insurance, declaring it void in case of the death of the insured within two years from the date of policy, by his own hand or act, sane or insane, is valid; and if the insured commits suicide by shooting himself within the two years, although at the time he was insane, it would be death by his own hand or act within the meaning of the condition, and the policy would be forfeited and void. 2. Evidence — Coroner’s Finding as to cause oe Death. The coroner’s evidence and finding as to death and cause of death of the insured, voluntarily furnished the insurance company by the beneficiary, in compliance with the condition of the policy of insurance, as to preliminary proof of death and cause of death of the insured, are admissible as prima facie evidence of the facts stated therein, and would stand until the contrary were shown. 8. Suicide — Evidence oe to be Overcome. Where in an action on a life insurance policy there was no evidence that death resulted from accident, or other cause, but the evidence supported the theory of suicide rather than accidental death, a verdict for the plaintiff must be set aside.
10 Ohio Cir. Dec. 567Mansfield v. Hunt (1900)
RIPARIAN OWNER — NUISANCE. Adams, Norris and Voorhees, JJ. (Judge Norris of the third circuit taking the place of Judge Douglass.) 1. Nuisance to Lands of Riparian Owner by Corrupting Water Course. A municipal corporation that constructs a system of sewers whereby it discharges its sewage into a natural water course above a riparian owner’s land, rendering the waters of the stream unfit for use by corrupting and polluting the same, causing unwholesome, noxious and offensive odors and fumes to arise therefrom, tq the special and substantial injury of such riparian owner and occupant of the premises, is liable in damages to such riparian owner for. causing and maintaining a nuisance. 2. Right of Riparian Owner to Waters of a Stream. A riparian owner is entitled to the use and enjoyment of the waters of a stream in its natural condition of purity ; and il such owner be injured by its corruption and pollution, he may maintain an action against the party causing it, whether an individual or a municipal corporation. 8. When Action Accrues — Statute of Limitations. When a municipal corporation or an individual commits a nuisance or an act of trespass upon the lands of another, and thereby injures such other and to the full extent that such act will ever injure him, such municipal corporation or individual is liable at once for such act and its effects, and the time of the statute of limitations runs from the time of such commission of the nuisance or act of trespass. But where the wrong complained of is a continuing nuisance or trespass, until such continued nuisance or trespass by adverse use ripens into a presumptive right and estate in the wrong-doer, the injured party may bring his action. 4 Nuisance to Homestead — Measure of Damages. When the nuisance complained of is of such a character as can be removed by removing the cause thereof, or for the continuance of which a second or third action may be maintained, or which may be abated by the order of a competent court, and the injury to the premises already inflicted is not of a permanent nature, the rule that in actions for nuisance the measure of damages is the difference between the market value of the land before and after the occurence of the injury, is not the rule for assessing damages. 5. Nuisance and Injury not Permanent — Measure of Damages. But when the nuisance and injury are not of a permanent character, and the injured party is the owner and occupant of the premises as his homestead, the rule for the measure of damages would not be limited to rental value to the property alone, but would include inconvenience and discomfort suffered and the deprivation of the comfortable enjoyment thereof by himself and his family; and includes such additional sum as will compensate him for loss of time and expenses caused by sickness of himself and family due to the nuisance. The recovery is only limited to the actual damage sustained.
10 Ohio Cir. Dec. 573Pugh ex rel. Cincinnati v. Cincinnati Edison Electric Light Co. (1900)
Error to the Court of Common Pleas of Hamilton county.
10 Ohio Cir. Dec. 577Cincinnati v. Wynne (1900)
ASSESSMENTS — ORDER OF SALE OF LOTS. Smith, Swing, and Giffen, JJ. 1. Rule as Sale of Property Encumbered and Subdivided. Where lands encumbered by a lien are sold in separate parcels, to different purchasers at different times, each paying full value without regard to' the incumbrance, the separate parcels should be sold to satisfy the lien in the inverse order of alienation. 2. Rule applied to Collection of Assessments. Where the lien for the improvement of a street attaches to a corner lot and ‘ the lot next adjoining, and these two lots are subsequently subdivided_ into three lots fronting on the cross street, and the inside lots are sold with a warranty against all incumbrances, and the corner lot is subsequently sold without such warranty, the city must exhaust the corner lot in the collection of the assessments before proceeding against the other lots.
10 Ohio Cir. Dec. 579Larwill v. Burke (1900)
Appeal from the Court of Common Pleas of Cuyahoga county.
10 Ohio Cir. Dec. 605Larwill v. Burke (1900)
Appear from the Court of Common Pleas of Cuyahoga county.
10 Ohio Cir. Dec. 618Cincinnati v. Hosea (1900)
Error to the Court of Common Pleas of Hamilton county.
10 Ohio Cir. Dec. 621Rousculp v. Ohio Southern R. R. (1899)
MORTGAGES — MECHANICS’ LIENS — STATUTES. Price, Norris and Day, JJ. 1. After Acquired Property Clause in Mortgages. As against an “ after acquired property ” clause in a mortgage, a person who, as vendor and creditor, contributes to the body of the property to which the mortgage is to attach,has,as such vendor and creditor,an equity in the property superior to that of the mortgagor; as to the latter a mechanic’s lien would be good; therefore, the mortgagee takes the property under such clause subject to the same equities and liens. 2. Title oe Mortgagee to After acquired Property. A mortgagee under a mortgage containing an “after acquired property” clause is no.t, as to such after acquired property, a purchaser for value, and cannot acquire an interest by way of lien greater than that which the mortgagor himself has acquired : such a clause has no better standing than a new mortgage on the acquired property, on the date when it was acquired. 3. Section 3208, Rev. StaT., Not Retroactive or Invalid. Section 3208, Rev. Stat., providing for liens upon railroads, does not violate any contractual obligations held by a prior mortgagee, especially respecting after acquired property; and its operation is not retroactive where the property upon which the lien is sought was acquired by the mortgagor after its passage. 4. Mortgage Applying to After Acquired Property. A clause in a mortgage making it attach to after acquired property, is good as between the parties, and attaches as soon as the property is acquired by the mortgagor. 6.Mortgage, Construed with Reference to Statutes. A mortgage should be construed with reference to existing statutes, and the statutes should be regarded as part of the mortgage. 6. Mechanics’ Liens — Failure to Describe Notes. While secs. 3185, 3187 and 3203 Rev. Stat., relating to mechanics’ liens, provide for a description in the affidavit of any notes given, yet if the dates are not material or if the party does not rely upon the note's, but upon obtaining a lien for his security, the lien will not fail for want of a description of the notes. Such failure amounts to a waiver of the'lien for the notes but not for the actual debt. 7. Railroad Liens — Notes Need not be Described. In any event, inasmuch as sec. 3208, Rev. Stat., providing for liens upon railroads, does not require a description of notes which may have been taken by the creditor, and inasmuch as secs. 3185, 3187 and 3203, Rev. Stat., above referred to, relate to liens upon buildings, machinery,etc.; and do not apply to railroad property, a lien upon the latter is not waived or defeated by a "failure to describe the notes. 8. Giving a Note not Payment of the Debt. As a general rule, giving a note is not payment but merely evidence of the debt, and in the absence of proof to the contrary must be so regarded. Therefore, to defeat a mechanic’s lien, it must be shown that the notes were given and received inpayment of the claim.
10 Ohio Cir. Dec. 629Acklin v. Waltermier (1899)
Appeal from Court of Common Pleas of Wood county.
10 Ohio Cir. Dec. 638Holmes v. Ashtabula Rapid Transit Co. (1900)
Error to the Court of Common Pleas of Ashtabula County.
10 Ohio Cir. Dec. 648M. E. Ch. & Society v. Ashtabula Water Co. (1900)
WATERWORKS COMPANIES — CONTRACTS. Frazier, Uaubie and Hull, JJ. (Judge Hull of the sixth circuit sitting in pl^ce of Judge Burrows.) 1. Practical Construction or Ambiguous Contracts. Where the language of a contract is ambiguous, it is proper for the court to consider the interpretation and construction that the parties themselves have placed upon it, as evidenced by what they have said and what they have done. 2. Rule as to Construing when the Language is Clear. Where the language of a contract is clear, courts will not endeavor to inject any ambiguity or to give it a far-fetched construction, but will place upon the contract Lhe construction which the plain language used calls for, giving to each word its ordinary meaning. 3. Construction oe Stipulation eor Free Water in Churches. Under a franchise granted to a waterworks company stipulating that grantee “shall furnish free of charge all the water needed for use in the churches,” such company may be required to furnish free of charge the water necessary to operate a motor to furnish power to a pipe organ in the church, although at the time the franchise was granted such motors, while in use elsewhere, «ere not in use in any of the churches in the city granting the franchise. 4. Estopped by Practical Construction and Expenditures. Where the construction placed upon a franchise grautéd to a waterworks company, stipulating that the company “shall furnish free of charge all the water needed for use in the churches” is construed for a period of seven years, by the waterworks company and by church officials, to include water necessary for a motor to operate a church organ, and on the strength of statements to that effect by the waterworks company to church officials, a church, at considerable expense, put iu such a motor, the waterworks company is estopped from afterwards asserting a right to charge for water for that purpose and from refusing to furnish it free of charge.
10 Ohio Cir. Dec. 656Ward v. Ward (1900)
ATTACHMENT — AFFIDAVITS. Haynes, Parker and Hull, JJ. 1. Affidavit for Attachment Before Plaintiff’s Attorney — Insufficient. Section 5271, Rev. Stat., providing that “the officer before -whom depositions are taken must not be a relative or attorney of either party, or otherwise interested in the event of the action or proceeding,” in view of the provisions of sec. 5264, Rev. Stat., to the effect that an affidavit maybe taken by anyone authorized to take depositions, applies to affidavits as well as depositions. Therefore, an affidavit for an attachment taken before plaintiff’s attorney is insufficient. 2. Oral Denial of Affidavit Insufficient. An oral denial not under oath of an affidavit, inade by defendant’s attorney in support of a motion to dissolve an attachment, made on the hearing before the justice of the peace, is not a denial of which the justice is required to take notice. 8. Attorney Defined — Need Not be Attorney at Daw. An attorney, is one who appears on behalf of another and it is not necessary to bring such person within the provisions .of the statutes above referred to, relative to affidavits, that he should be a member of the bar or an “attorney at law.”
10 Ohio Cir. Dec. 660Spaulding v. Toledo Consolidated St. Ry. Co. (1900)
Error to the Court of Common Pleas of Eneas county.
10 Ohio Cir. Dec. 667Worthington v. Hottois (1900)
WILLS — TRUSTS. Caldwell, Marvin and Hale, JJ. 1. Evidence — Division of Property. Under a will bequeathing an estate to testators son and daughter, with the further provision that devisees prefer to continue to live as one family and to hold the estate in common they may do so, a division, by agreement, under the first provision, is not affected by devisees continuing to live together as a family upon the estate. 2. Remainder Based upon Contingency. A will devising land to two persons, to be divided by the executor according to the provisions of the will, or to be held in common, as devisees may prefer, with the further provision that if no division is made under the first provision prior to the death of one of devisees, the property shall pass to third persons, creates no vested remainder in such third persons prior to the death of the devisee named. 3. Facts Creating Absolute Title in Devisee. Where, in pnuvmnce of authority conferred by the-will, land is sold by an executor, who -■i one of the devisees, and the legal title to land purchased with the p .Is of such sale is taken in the name of such executor, a subsequent division of the property, by agreement between devisees, whereby the land in question is apportioned to such executor and devisee, it is sufficient without other or formal conveyance to vest an absolute title in such executor and devisee. 4. Trusts — Failure to Name Trustee. Under a will creating a trust for the benefit of one of the devisees, without naming a trustee, it becomes the right and duty of the executor under the will to act in that capacity.
10 Ohio Cir. Dec. 673Groppengeiser v. Walter (1900)
Error to the Court of Common Pleas of Hamilton county.
10 Ohio Cir. Dec. 675Spronk v. Addyston Pipe & Steel Co. (1900)
Error to the Court of Common Pleas of Hamilton county.
10 Ohio Cir. Dec. 677Cincinnati v. Taylor (1900)
Error to the Court of Common Pleas ot Hamilton county.
10 Ohio Cir. Dec. 678State ex rel. Crawford v. Twp. Bd. of Ed. (1899)
AppdicatioN for an alternative ’writ of mandamus.,
10 Ohio Cir. Dec. 681Voorhees v. Minor (1900)
COMPUTATION OF TIME — EXECUTIONS. Smith, Swing, an'd Giffen, JJ. 1. Agreement Staying Execution does not Include Aid oe Execution. An agreement that execution shall not be levied for a certain specified time, is not violated by the institution of proceedings in aid of execution seeking to subject equitable assets and preserve priority of the lien: such a proceeding is not within the meaning oí the term “ execution.” 2. Computation oe Time in Such Cases. An agreement made on April 2, 1898, that execution shall not be levied for ten months, is not violated by an execution levied on February 2, 1899, as the day on which the agreement was made may be counted as a part of the specified time. 3. Rule as to Including and Excluding First Days. There is a wide difference between a contract or law providing a period within which a thing must be done, and one providing a period beyond which a thing may be done : in the second case the first day is included and in the last it is excluded.
10 Ohio Cir. Dec. 684Dunbar v. American Casket Co. (1900)
Error to the Court of Common Pleas of Hamilton county. .
10 Ohio Cir. Dec. 686Woodlief v. Duckwald (1900)
WILLS — DEVISE. Smith, Swing, and Giffen, JJ. 1. Meaning of “Definite” and “Indefinite” Failure of Issue. When the precise time for the failure of issue is fixed by the will, as in the case-of a devise to A, but if he dies without issue living at the time of his death,, then to another, this is a failure of issue definite. An indefinite failure of issue is the very converse or opposite of this, and it signifies a general failure of issue whenever it may happen,-without fixing any time or a certain or definite period within which it must happen. 2. Remainder if Devisee “Dies without Diving Issue.” A devise of an estate for life with remainder over if the devisee “dies without living issue,” does not convey by implication any estate in remainder to such devisee, since the remainder over is upon a definite failure of issue. 3. Issue Born After Death of Testator Does Not Take. Where there is a devise of a life estate, with remainder over should the devisee die without living issue, the issue born to the devisee after the death of the testator, does not take the remainder by implication. (Swing, J., dissenting.). 4. Remainder Governed by Daws of Descent. The effect of a will devising an estate for life with remainder over, should the devisee die “without living issue,” is to leave the estate in remainder undis-posed of, should the life devisee die with issue living, to be governed by the: laws of descent.
10 Ohio Cir. Dec. 693Yost v. Maumee Brewery Co. (1900)
TAXATION — CONSTITUTIONAL LAW. Haynes, Parker and Hull, JJ. 1. Taxation — Time Within Which Omitted Taxes May Be Entered. Under Sec. 2803, Rev. Stat., providing that when the county auditor shall discover that any assessor has omitted to return any lands, improvements, structures, etc., subject to taxation, or if any such property has escaped taxation by reason of any error of said auditor, it shall be his duty to ascertain the value thereof and to enter the omitted property upon the tax duplicate, then in the hands of the county treasurer of such county, such auditor is to have the opportunity of placing such discovered omission upon the duplicate at any time during which the duplicate is in the hands of the treasurer, for the collection of taxes of the year in which the discovery is made. 2. Same — Purchaser Takes Subject to Liability. A person buying property takes upon himself the liability to have the property assessed for the taxes of the year of the purchase, or if the property has already been assessed, and if errors or omissions are found to exist therein, to have amendments made thereto for that year. 3. Tax Limitation Appeicabee to Lucas County — Constitutionae. Section 2823 Rev. Stat., relating to tax levies, and providing, among other provisions applicable according to the amount of taxable property in a county, that “ in a county where the amount of such taxable property does not exceed three million dollars ” the tax shall not exceed five mills, though applicable, so far as that provision is concerned, only to Lucas county, is not unconstitutional on the ground that it is not of general and universal application throughout the state. 4. Lucas County Stone Road Law Constitutionae. Section 4836a, Rev. Stat., the stone road law applicable to Lucas county, although different from that of any other county in the state, is not unconstitutional, and was so held by this court in Taylor v. Lucas Co., unreported, which decision was affirmed by the Supreme without report.
10 Ohio Cir. Dec. 698Toledo Real Estate & Investment Co. v. Putney (1900)
TENEMENT BUILDINGS — NEGLIGENCE. Parker, Haynes and Hull, JJ. 1. Defective Passage Way' on Tenement Building. The owner of a flat or tenement building is not liable for injuries to a child of a tenant of an adjoining building, by falling from an elevated passage way or gallery running along the back of both buildings, owing to adefect in the railing of the gallery on the building owned by him, unless he retained possession or control of such gallery or passage way. 2. Landlord Liable ie He Retained Possession. If the owner of such building at the time of such accident retained the possession or control over the passage way, and knowingly permitted the occupants of the adjoining building to use such passage way, and knew that there were young ‘children in the families of such occupants, and left the railing on such passage way in a defective condition, by reason of which such, child fell off and was injured, he is liible therefor. 8. Duty oe Building Owner to Guard against Injuries. If such passage way was habitually used by the occupants of the adjoining building, and this was known to and acquiesced in by the owner of the building who had control of the passage way, it was his duty to use ordinary care to keep such passage way in a safe condition for use by the children of such adjoining tenants, if he knew or had reason to expect that such children would pass along such passage way or use it for any purpose. i. Maintenance of Gates — Landlord not Liable. But if such owner, in good faith, endeavored to keep such passage way closed against the occupants of the adjoining building, and if, by the erection and maintenance of a suitable gate or otherwise, he gave notice to the occupants of tiie adjoining building that they would not be permitted to use such passage way, he would not be regarded as acquiescing in the use thereof and would not be liable tor such injuries, although, at times such gate, through .the acts of other parties, was unfastened and opened. •5. Negligence — Question for Jur*. In an action by a child between two and three years old against the owner of a building for injuries by falling through an opening in a railing on a passage way or gallery fourteen feet from the ground extending along the back of such building, whether leaving two pickets out of the railing, thus leaving a space wide enough for the child to fall through, is negligence, on the part of such owner, is a question for the jury. >6. Rule as to Reversal. A reviewing court should not reverse unless the verdict is so clearly unsupported by the weight of the evidence as to indicate some misapprehension, or mistake, or bias on the part of the jury, or a willful disregard of duty. 7. Infants — Contributory Negligence. A child between two and three years of age is too young to be charged with contributory negligence. ■8. Imputed Negligence not Recognized. The doctrine of imputed negligence is not recognized in Ohio.
10 Ohio Cir. Dec. 711Carl v. Pierce, Rec. T. St. L. & K. C. R. R. (1900)
Error to the Court of Common Pleas of Lucas county.
10 Ohio Cir. Dec. 715Wheeling & Lake Erie Railroad v. Suhrwiar (1900)
Error to the Court of Common Pleas of Lucas county.
10 Ohio Cir. Dec. 717Cheney v. Maumee Cycle Co. (1900)
INSOLVENT CORPORATIONS. Haynes, Parker, and Hull, JJ. I. Insolvent Corporations — Appointment of Receiver. It is the duty of officers and directors of a corporation, upon its becoming insolvent, and ceasing to prosecute the objects for which it was organized, to take steps for the preservation of its property and to convert it into money and apply the proceeds to the payment oí its debts. And upon their failure to do so, a court of equity has jurisdiction, upon the application of a creditor, to appoint a receiver to protect and dispose of its property for the benefit of creditors. % Unrecorded Mortgage Invalid Against Creditors. A mortgage executed by a corporation before going into the hands of a receiver, but not recorded until after the appointment, is of no effect as against creditors and gives the mortgagee no priority in the distribution of the funds arising from the sale of the mortgaged property. 3. President Holding Such Mortgage Cannot Asic Equity. The president of an insolvent corporation, after the appointment of a receiver, at the suit of a creditor, is in no position to ask a court of equity to give him priority over general creditors by virtue of a mortgage which was not recorded until after the appointment of the receiver.
10 Ohio Cir. Dec. 722Killits v. State ex rel. Bruns (1898)
Error to the Court of Common Pleas of Williams county.
10 Ohio Cir. Dec. 724McGreevey v. Board of Education (1900)
PUBLIC CONTRACTS — BIDS—BOARD OF EDUCATION Haynes, Parker, and Hull, JJ. 1. Public Contracts — amending Bids. A contract between the board of education and the lowest bidder for an excavation for a school house, based upon a bid which the contractor was allowed , to amend and increase, on account of an alleged mistake which did not appear on the face of the original bid, is void under sec. 3988, Rev. Stat., providing the manner in which such contracts shall be awarded, although the bid as amended was still the lowest bid received. 2. No Recovery on Quantum Meruit under Void Contract. Such contract being void, there can be no recovery thereon, or for the value of the work and labor performed thereunder.
10 Ohio Cir. Dec. 732Russell v. Harpel (1900)
Appeal from the Court of Common Pleas of Rucas County.
10 Ohio Cir. Dec. 738Davis v. State (1900)
INDICTMENT — EVIDENCE—CHARGE OF COURT. Caldwell, Marvin, and Hale, JJ. 1. Indictment for Fraudulent Claims to Public Officers. An indictment, charging defendants with making a fraudulent account against the city of Cleveland, with certifying to a fraudulent bill, with presentation of a fraudulent bill, with unlawfully making out sod presenting a fraudulent bill and with receiving payment upon a false and fraudulent bill, sufficiently describes an offense under sec. 7075, Rev. Stat., making it an offense to make and present fraudulent claims to public officers. The averment that the defendants falsely pretended that the city of Cleveland was indebted to-them or averments indicating in what respect the claim was false and fraudulent, are not essential where it is distinctly charged that it was false and fraudulent. 2. Evidence where Conspiracy is Charged. In a prosecution for making out and presenting false claims to public officers!, where it is claimed that defendants, city employees, conspired with a member of a firm to defraud the city, the books of such firm are admissible, as part of the transaction, although other members of the firm were in no way connected therewith. Such evidence, however, is competent to be considered only in the event the jury find that the parties, including the member of the-firm did so conspire. 3. Evidence — Transactions not Included in Indictment. In a prosecution under sec. 7075, Rev. Stat., for making out and presenting false claims to public officers, evidence of transactions other than the one upon which the indictment is based may be given for the purpose of proving that the defendants on trial, with others named in the indictment, were acting in concert or conspiracy, and also for the purpose of proving the defendants’ guilty knowledge as to the claim upon which the indictment was based. 4. Improper Statements made by the Prosecuting Attorney. The general rule is, that to lay the foundation for a review by an appellate court, the attention of the trial court should be challenged by an objection and exception at the time. Under this rule improper statements in argument by a prosecuting attorney, unless they were so flagrantly unjust and improper as to deprive the defendants of a fair trial, will not be considered by the reviewing court in the absence of objection and exception. 6. Improper Statement Cured by Instruction. Improper statements by the prosecuting attorney in his argument to the jury that defendants were “ in with ” another person, naming him, “ who is also under the indictment in this court,” when such fact does not appear in the evidence, the jury having been directed to pay no attention to said statement, does not constitute prejudicial error unless it appears that the jury did not follow the instruction of the court. 6. Charge on Question oe Reasonable Doubt. A failure to charge, upon request, that if any one of the juror’s entertain a reasonable doubt of the defendants’ guilt, it is the duty of such juror hot to vote for a verdict of guilty, although correctly stating each juror’s duty, cannot be regarded as prejudicial to the defendants, where the court charged generally that the evidence must satisfy the jury of the guilt of the defendants beyond a reasonable doubt before a conviction could be had.
10 Ohio Cir. Dec. 745C., P. & V. R. R. v. Davis (1900)
APPROPRIATIONS - LIMITATIONS — PARTIES. Smith, Swing, and Giffen, JJ. 1. Limitations op Action por Unauthorized Taking op Property. A person whose lands have been taken without compensation by a railroad company for its right of way, who, however, acquiesces in such taking, has twenty-one years in which to bring an action to recover compensation, unless it appears that he has elected to pursue this remedy to the exclusion of the one given him by secs. 6448 and 6449, Rev. Stat., more than six years before bringing the suit ior compensation. If he elects to do so, then he must bring such action within six years after such election. 2. Suit Must be Brought by Present Owner. When a person, the owner of land, which, without his consent, is occupied by a railroad company, sells or transfers his title thereto to another person, his right to any of the remedies provided for in secs. 6448 and 6449, Rev. Stat., is gone, and the owner of the land, his grantee, is the person who is entitled to bring the action. An action, therefore, for the value of land taken by a railway company must be prosecuted by the person owning the land when suit is brought.
10 Ohio Cir. Dec. 748Toledo v. Potter (1893)
Appeal from the Court of Common Pleas of Eucas county.
10 Ohio Cir. Dec. 749Cleveland v. Cuyahoga Co. (1900)
INSANE PERSONS — PAUPERS. Caldwell, Marvin, and Hale, JJ. 1. Paupers and Insane Persons are Distinct Classes. The statute providing for the care and support of paupers, has no application to the care and support of insane persons, as insane persons are recognized by the constitution and statutes as a distinct class. 2. City Entitled to be Reimbursed from County for Support oe Insane, Under sec. 707, Rev. Stat., when insane persons cannot be admitted to the asylum, the city of Cleveland is entitled to be reimbursed by the county for the care and support of insane persons.
10 Ohio Cir. Dec. 750Drake v. Bofinger (1900)
Error to the Court of Common Pleas of Hamilton county.
10 Ohio Cir. Dec. 751Wolf v. Stretcher (1900)
APPEAL BONDS. Smith, Swing, and Gifíen, JJ. Court May Entertain Appeal Although Bond May be Insufficient. Although a bond given on an appeal to the circuit court may be insufficient, the court may entertain the appeal if the appellant is unable to give additional bond.
10 Ohio Cir. Dec. 751Cincinnati v. Taft (1899)
This was an action brought by the city of Cincinnati to enjoin the board of sinking fund trustees and the trustees of the Cincinnati Southern Railway from proceeding under the statutes to extend the time or payment of the outstanding bonds issued under the act of May, 1.869, entitled “An act relating to cities of the first class having a population exceeding 15,000 inhabitants.” Authority to extend these bonds is found in the supplementary act of April 25, 1898, the…
10 Ohio Cir. Dec. 752Ohio Savings, Loan & Investment Co. v. Johnson (1900)
MECHANICS’ LIENS — PRIORITIES. Caldwell, Marvin, and Hale, JJ. 1. Mechanic’s Lien Daw Requires Dien Holders to Pro-rate. The mechanic lien law provides in terms that the mechanic lien holders are to pro-rate in any fund realized from the sale of the property, and prohibits, under ordinary circumstances at least, one lien holder getting priority over other lien holder’s, by reason of any material or labor that he may have contributed to the erection of the building, or the increase of the value of the property. 2. Runs Applied — Mechanic Dien Holders Pro-rate. Where a contractor secures a mechanic’s lieu for labor and materials, and the owner then places a mortgage upon the property and afterwards a second contractor secures a mechanic’s lien for labor and materials furnished, in determining the priorities of the three liens the court follows Babbett & Herman v. Morgan, 31 Ohio St., 273, and takes from the fund realized,from a sale of the property, the amount due on the first mechanic’s lien; directs payment of the mortgage out of what remains; and then adds the amount taken out before paying the mortgage to the amount remaining after the mortgage it paid, and pro-rate that amount between the two mechanics’ lien holders.
10 Ohio Cir. Dec. 754Gibsonburg Banking Co. v. Wakeman Bank Co. (1900)
Error to the Court of Common Pleas of Sandusky county.
10 Ohio Cir. Dec. 759Merchants National Bank v. Feiss (1900)
ERROR. Smith, Swing, and Giffen, JJ. Aeeowance to Special Master not a Final Order. An allowance of compensation to a special master “without hearing evidence, hut on the admissions of the defendants that said amount is reasonable,” to be advanced by certain defendants and taxed as costs, is not an order affecting a substantial right made in a special proceeding, which may be vacated, modified or reversed as'provided in Title IV, Rev. Stat. (sec. 6707, etseq., Rev. Stat., relating to proceedings in error.)
10 Ohio Cir. Dec. 760Ex parte Miller (1900)
HABEAS CORPUS—APPEAL. Smith, Swing and Giffen, JJ. Appeal Does not Lie in Habeas Corpus. An application for a writ of habeas corpus is not a civil action and appeal will not lie.
10 Ohio Cir. Dec. 761Fidelity Mutual Life Ass'n v. Troy (1900)
LIFE INSURANCE — PAYMENT OF PREMIUM. Smith, Swing, and Giffen, JJ. 1. Ripe Insurance — Non-payment op Premium. No amount of diligence on the part of the assured will excuse non-payment of premium unless some act of the'insurance company or its agents, either of omission or commission, intervenes to prevent such payment. ¡L Effort to Pay — Must be Within Reasonable 'Hours. It would not be sufficient for assured to show, where the defense to a policy is that it was forfeited for non-payment of premium, that she “ was unable to pay the same by reason of there being no one at such office to receive such payment on behalf of defendant and that she was informed that every one had gone home for the day.” It should also appear that assured, knowing that the insurance company had reasonable office hours, took the premium to the office within such hours.
10 Ohio Cir. Dec. 762Ohliger v. Toledo (1900)
Error to the Court of .Common Pleas of Cucas county.
10 Ohio Cir. Dec. 775Brenzinger v. American Exchange Bank (1900)
Error to the Court oí Common Pleas of Lucas county.
10 Ohio Cir. Dec. 781Andrews v. Hyde Park (1900)
Error to the Court of Common Pleas of Hamilton county.
10 Ohio Cir. Dec. 783Zanesville Telephone & Telegraph Co. v. Zanesville (1900)
COURTS — TELEPHONE COMPANIES. Wilson, Douglass and Voorhees, JJ. (Judge Wilson sitting in place of Judge Adams.) L Section 3461, Rev. Stat., Conelss Judicial Functions. Section 3461, Rev. Stat., providing that when any lands authorized to be appropriated, under sec. 3466, Rev. Stat., by telegraph or telephone companies, are subject to the easement of a street, alley or public way, or other public use, within the limits of any city or village, and the corporation and the company cannot agree, “ the probate court of the county, in a proceeding instituted for the purpose, shall direct in what mode such telegraph line shall be constructed along such street, alley or public way, so as not to incommode the public therein,” bestows upon the probate court a judicial, not a legislative, function and is not unconstitutional. 2. Probate Courts — JuRisdiction—As Use oe Streets. Probate courts, therefore, have, under sec. 3461, Rev. Stat., jurisdiction, in the event the municipal corporations and telephone companies cannot agree, to determine how the law of eminent domain shall be applied, or to determine the mode of the use of streets, so that companies may have their rights and the public may not be incommoded in the use of public ways. 3. Use oe Streets — A Judicial Question. The question whether the use of a street is according to law, is one which is properly relegated to the courts for settlement.
10 Ohio Cir. Dec. 789Jones v. Toledo & Ohio Central Railway Co. (1900)
JUSTICE COURTS — SERVICE OF SUMMONS — RAILROADS. Haynes, Parker and Hull, JJ, 1. Service oe Summons on Agent oe Railroad Company. A justice of the peace acquires no jurisdiction, under sec. 6478, Rev. Stat., to render judgment against a railway company by service of summons upon a “ticket agent of tbe within corporation, the within named defendant, the president of said corporation having no office or residence in” the county in which suit is brought. In order to confer jurisdiction in such case, it must appear affirmatively that the agent was one having charge of a ticket office, as provided by the statute in question. 2. No Presumption in Favor oe Justice Courts. There is no presumption iu favor of courts of an inferior and limited jurisdiction of facts which would warrant the exercise of jurisdiction; such facts ustbe made to appear affirmatively, and especially where an attempt is made ■ to obtain service of process upon a corporation through delivery of a copy thereof to an inferior officer or agent.
10 Ohio Cir. Dec. 792Cincinnati v. Covington & Cincinnati Bridge Co. (1900)
EASEMENTS — LICENSES—EQUITY. Smith, Swing, and GifFen, JJ. 1. Basement or License — Failure to Work — Abandonment. Where rights in certain streets, for wharves and boat landings, were granted by a municipal corporation, grantees “to use, occupy and enjoy the same and collect and receive the revenues therefrom,” such rights are not extinguished by the mere abandonment of a ferry which was in operation when the rights were granted but which grantees were not required by the grant to maintain. 2. Equity — Reeusad to Revoke Easement or License. When the contract whereby the grant is conveyed contains the elements of a valuable consideration, as where grantees surrendered the right to operate a ferry between certain points, in consideration of wharf and boat landing privileges, equity cannot be invoked to amend the contract or revoke the grant without an offer to restore the rights parted with when the contract was executed. Whether the grant amounted to an easement or a mere license it is irrevocable when executed. 8. Adverse Possession — Partiau Encroachment. Where possession is as exclusive and adverse as the nature of the right will permit, it is sufficient. Such cases are not governed by the Ohio decisions, to the effect that a partial encroachment upon the side of a highway by the erection of a fence is not adverse to the public. 4. Acquiescing in, Practicad Construction. A municipal corporation having acquiesced for a long period of time in the practical construction and effect of a grant as it was understood by the parties yat the time, should not be heard to the contrary. 6. Injunction — Adequate Remedy at Raw. A municipal corporation, as owner of streets obstructed by wharves and landings, has an adequate remedy at law in an action to recover possession and for damages, and is not, therefore, entitled to resort to the extraordinary remedy of injunction in the first instance.
10 Ohio Cir. Dec. 794Yeazill v. State (1898)
STANDARD MEASURES — CONSTITUTIONAL LAW. Wilson, Summers, and Shearer, JJ. 1. Legislature May Select Standard Measures. It is within the power of the legislature, in order to prevent fraud and imposition, to provide that in the purchase and sale of wheat, but one standard measure shall be used; and to select as that standard measure the United States standard half-bushel. To this extent, the' legislature has power to regulate the purchase and sale of wheat. 2. Class Legislation Must be Based upon Reason. Whenever a burden is placed upon persons or a class of persons, or whenever a privilege or protection is given to persons or to a class of persons, to the exclusion of others, it must be based upon some existing distinction or reason not applicable to persons not within its provisions. 8. Unequal and Unconstitutional Classification. It is not a proper classification to provide that producers of wheat shall alone he protected in the purchase thereof. Therefore, the act of March 1, 1894, 91 O L., 47 (now sec. 4439-1, Rev Stat.), providing that the standard half-bushel measure shall be used in purchasing or receiving wheat from the original producer, to the exclusion of all other dealers in wheat, is in , its terms unequal and does not apply uniformly to all citizens. It is, therefore, unconstitutional.
10 Ohio Cir. Dec. 797Robinson v. McConnell (1900)
Error to the Court of Common Pleas of Cuyahoga county.
10 Ohio Cir. Dec. 798In Est. Barr (1896)
PRACTICE — UNITED STATES COURT OF APPEALS. 1. Decree of U. S. Circuit Court of Appeals. A decree of tbe United States Circuit Court of Appeals is not void because it fails to show tbe exception of certain parties from its operation, wbicb exception was made in tbe opinion announced. Failure to make tbe exception bars the rights of all parties to tbe suit. 2. Adverse Decision on 'Appeal of One Party. Under tbe practice in tbe United States Court of Appeals, an adverse decision, on tbe appeal of one party determines tbe rights of all parties to tbe suit. f
10 Ohio Cir. Dec. 798Willis v. Willis (1900)
ADMINISTRATORS — APPEAL. Summers, Wilson, and Sullivan, JJ. Administrator Must Give Written Notice of Appeal. An administrator desiring to appeal from an order of the probate court, in tbe interest of bis trust, must, under sec. 6408, Rev. Stat., relating to appeals without bond by persons acting in a fiduciary capacity, file a written notice of bis intention to appeal. It is not sufficient to cause the> notice to be incorporated in tbe journal entry.
10 Ohio Cir. Dec. 799Murdock v. Kramer (1899)
10 Ohio Cir. Dec. 801Mitchell's Admr. v. Champaign Co. (1899)
The lynching of a negro at Urbana last year resulted in a suit under the anti-lynch law of Ohio, by the administrator of the victim, against the Champaign county commissioners to recover $5,000 for the next of kin. The court of common pleas held the law unconstitutional, and the case was carried to the circuit court, which, sitting at Urbana at the October term, rendered a contra decision.
10 Ohio Cir. Dec. 803Dabney v. Pappenheimer Co. (1889)
ATTACHMENT — CORPORATIONS. 'Stockholder’s Liability Upon Contract — Attachment. An attachment will lie against a non-resident in an action upon his statutory liability as a stockholder in an Ohio corporation.
10 Ohio Cir. Dec. 805Frank v. Archer (1900)
WILLS — EXECUTOR’S SALE. Smith, Swing, and Giffen, JJ. Pboceeds or Exectjtor’s Sam Treated as Read Estate. Where, after the death of testator, the real estate is sold, not under the provisions of the will but pursuant to statute, the proceeds should be treated, in carrying out the provisions of the will, as real estate.
10 Ohio Cir. Dec. 806Leyman v. Leyman (1900)
PARTITION. Smith, Swing, and Giffen, JJ. 1. Commissioners Fees in Partition Proceedings. An allowance to the commissioners, in a proceeding to partition real estate, of twenty-five dollars each, where the record does not indicate that they served more than one day, is improper, and the excess over the statutory allowance of one dollar per day was erroneously taxed as costs. 2. Commissioners Fees in Partition Proceedings. An allowance, in proceedings to partition real estate, to the sheriff for the expense of an auctioneer, and for special advertising, can only he made upon showing that such expenses were necessary, and parties interested had notice of the motion for the allowance thereof. 3. Motion for Allowance to Defendants’ Counsel. Where motion is made by defendants in partition for allowance to their counsel of part of the attorney fee taxed as costs, for the reason that he has rendered valuable services for the common benefit of all parties, it is the duty to hear evidence in support of such motion.
10 Ohio Cir. Dec. 807Mansfield v. Houston (1900)
MUTUAL FIRE INSURANCE COMPANIES. Cox, Smith, and Swing, JJ. Payment of Policy does not Relieve Member from Liability. Notwithstanding the destruction of property and payment of the insurance, the person insured remains liable, as a member of a mutual fire insurance company for his share of losses occurring during the period of his insurance.
10 Ohio Cir. Dec. 808State ex rel. Atty. Gen. v. Good (1900)
Quo Warranto. This is an action, against Mayor John M. Good, of Springfield, charging him with violating the Garfield law, and declaring his office vacant. This is the second case of the kind in Ohio, the first being that of Probate Judge Mason, of Adams county. Good was elected last April, by 11,000 plurality, as a Democrat in a Republican town.
10 Ohio Cir. Dec. 809Cincinnati Hamilton & Dayton Ry. Co. v. Dagner (1900)
10 Ohio Cir. Dec. 810In re Notice of Intention to Appeal (1900)
NOTICE OF INTENTION TO APPEAL — PRACTICE. Cox, Smith., and Swing, JJ. 1. Omission to Enter Notice oe Appeal. The notice of an intention to appeal required by sec. 5227, Rev. Stat., to be entered within three days, is not a matter within the control of the court and the omission to enter such notice within the specified time cannot be cured by a nunc pro tunc entry. 2. Notice to Court not Sufficient. The notice required by the statute in question must be entered by the party on the record; notice to the judge or court is not a compliance with the statute.
10 Ohio Cir. Dec. 811Greenlee v. Sloan's Assignee (1900)
Error to the Court of Common Pleas of Hamilton counly.
10 Ohio Cir. Dec. 812Hudson v. State (1895)
The case was that of Charles Hudson against the state of Ohio. Hudson, having been indicted for an offense against the gambling statutes, went to the state of West Virginia. A requisition was obtained from Governor McKinley, and he was brought back and put upon trial at the October term of the common pleas court.
10 Ohio Cir. Dec. 812Morton v. L. E. & W. Ry. Co. (1900)
Morton is a local ticket broker, and purchased a mileage book from the defendant company. A third party attempted to use it, and a conductor of the railroad company took it up and collected fare. Morton brought the suit to recover for the value of the book. He won in the justice court, but lost in the common pleas. The circuit court reversed the latter’s decision, and awarded Morton judgment for the amount of his claim,' together with interest and costs.
10 Ohio Cir. Dec. 813Emerson v. Gano (1900)
Error to the Court of Common Pleas of Hamilton county.
10 Ohio Cir. Dec. 814American Exch. Nat'l Bank v. Southern Granite Co. (1900)
BILLS AND NOTES. Smith, Swing, and Giffen, JJ. Negotiable Note Given fob Non-Neqotiable Note. Knowledge that a negotiable note was given in exchange for a non-negotiable one does not affect the title or rights of a bona fide purchaser be» fore maturity.
10 Ohio Cir. Dec. 815In re Hayman (1899)
Hayman, a notary public, was tried upon charges of misconduct and unfaithfulness in the discharge of his duties, and was found guilty, and an order entered removing him from the office of notary public of Hamilton county, Ohio, assessing the costs against him, and directing that the clerk transmit to his excellency the governor of the state a copy of the charges and specifications, together with a copy of the entry, certified under the seal of the court, as provided by sec.…
10 Ohio Cir. Dec. 816Busch v. Cincinnati (1899)
Appeal from judgment confirming assessments.
10 Ohio Cir. Dec. 817State v. Cincinnati & Hamilton Turnpike Co. (1899)
This is a proceeding to oust the defendants, the Turnpike Company and the Cincinnati & Hamilton Electric Street Railway Co., from their franchises, the turnpike company having entered into a contract with the street railway company, whereby the latter, for the sum of $10,-ooo, has been permitted to construct an electric railway line along its co-defendant’s pike, destroying in part the usefulness of said, pike for vehicular traffic, and converting it into a way over which…
10 Ohio Cir. Dec. 818Swift & Co. v. Lenzer (1899)
REPLEVIN — CHATTEL MORTGAGES — BAILMENT. King, Haynes, and Parker, JJ. (OÍ the Sixth Circuit, sitting in the First Circuit.) Leen oí Bailee and Chattel Moetgaqee. The lien for keep, feed and care of a horse, under an agreement with the owner, or mortgagor, is superior to that of a chattel mortgage although the agreement was subsequent in date to the mortgage.
10 Ohio Cir. Dec. 819Van Camp v. Chenot (1899)
Error to the Court of Common Pleas of Hamilton county.
10 Ohio Cir. Dec. 819O'Keefe v. Mahoney (1899)
BILLS AND NOTES — DEBTORS AND CREDITORS. King, Haynes, and Parker, JJ. Right to Recover on a Note Taking Property Which Would Have Gone to Other Creditors. The right to recover on a note cannot be affected by the fact that payee, in securing and accepting the note, and mortgage, knew that the effect would be to take property that would have gone to other creditors, bad payee not secured or enforced her claim.
10 Ohio Cir. Dec. 820Gebaur v. Vesper (1899)
JUDGMENTS — PRACTICE. •Hale, Marvin, and Caldwell, JJ. (Of the Eighth. Circuit, sitting in First Circuit)]
10 Ohio Cir. Dec. 821Boston Rubber Hose Co. v. Hagerty (1899)
10 Ohio Cir. Dec. 821Plaut v. State (1899)
10 Ohio Cir. Dec. 822Scheidler v. C. C. C. & St. L. Ry. Co. (1899)
Appeal from the Court of Common Pleas of Seneca county.
10 Ohio Cir. Dec. 823Gilbert v. Gilbert (1899)
Error to the Court of Common Pleas of Hamilton county.
10 Ohio Cir. Dec. 824Drott v. Bateman & Harper (1899)
PARTNERSHIP NAMES. Adams, Douglass, and Voorhees, JJ. (Of the Fifth Circuit, sitting in the First Circuit.) Names Showing Surnames or Partners Not Fictitious. A firm name showing the surnames only of partners, as Bateman & Harper, is not a fictitious name, nor a designation not showing the names of partners with 92 O. L., 25, requiring a certificate to be filed and published showing full names and residences.
10 Ohio Cir. Dec. 824Dodds v. Mt. Adams & Eden Park Railway Co. (1899)
CHANGE OF VENUE. Haynes, King, and Parker, JJ. (Of the Sixth Circuit, sitting in the First Circuit.) 1. Issuable Facts in Change oe Venue. The only issuable facts to be heard by the court of common pleas, under see. 5033, Rev. Stat., relating to a change of venue in a suit against a corporation, are: First, whether the party is a corporation; second, whether the corporation has more than fifty stockholders and whether it keeps its principal office or transacts its principal business in the county in which the action is pending; third, the credibility and residence of the several persons signing the sustaining affidavits. 2. Affidavits Uncontradicted — Removal Required. Where plaintiff, in common pleas court, files the necessary affidavits for removal, under sec. 5033, Rev. Stat., complying in substance and form with said section, and no testimony is offered by the corporation tending to disprove the statements in such affidavits, it is error for the court of common pleas to overrule the motion for removal.
10 Ohio Cir. Dec. 825C. C. C. & St. L. Ry. Co. v. De Graff (1899)
Error to the Court of Common Pleas of Logan county. The city sued the corporation to recover money for electric lights erected at the railroad crossings. The common pleas court gave the De Graff council judgment, and the case was carried up.
10 Ohio Cir. Dec. 826Norwood v. Hauk (1900)
Error to the Court of Common Pleas of Hamilton county.
10 Ohio Cir. Dec. 827Irwin v. Schuerer (1900)
DEEDS — EVIDENCE. Smith, Swing, and Giffen, JJ. 1. Obal Testimony as to Land Conveyed. Oral testimony as to the quantity of land conveyed by certain deeds as shown by the records in the office of the county recorder, is wholly incompetent. 2. Evidence Bearing on Title. Where, in an action to recover certain real estate, it is made to appear that plaintiff’s ancestor obtained a decree restoring title to him, it is unnecessary to show that such ancestor actually took possession thereunder. 3. Data Used to Restore Records. Evidence as to the data used in the application to restore the destroyed record of a decree finding title to certain property in a certain person, is competent in an action to recover possession of such property.
10 Ohio Cir. Dec. 828Hoffman v. Davis (1900)
ACCOUNTS — CONTRACTS. Smith, Swing, and Gifflen, JJ. 1. Action on Contract ob Account — Insufficient. A petition averring that merchandise was bought on a certain date at a certain price, and not delivered, and that later such merchandise was-replaced by a purchase at an advanced price, without averring that vendor agreed to sell and deliver at the first price, does not state facta sufficient to constitute a good cause of action, either on an account or a contract of purchase. 2. VARIANCE Between Allegations and Proofs. Under the averments referred to the preceding paragraph, it was error for the court to receive evidence tending to prove the contract of purchase.
10 Ohio Cir. Dec. 829Brown v. Larkin (1900)
ASSIGNMENTS — APPEAL. Smith, Swing, and Giffen, JJ.
10 Ohio Cir. Dec. 829Mooney v. Fogg (1900)
INSOL VEN CY — ASSIGN MENTS — DISTRIB UTION — CHATTEL MORTGAGES. Caldwell, Hale and Marvin, JJ. Premature and Unlawful Distribution by Assignee. A court of insolvency, having jurisdiction over assignments made by debtors in trust for the benefit of creditors, is without jurisdiction to order the payment by the assignee of debts secured by chattel mortgages before the expiration of the time fixed by sec. 6356, Rev. Stat., for the filing of an account by the assignee, with the opportunity for filing exceptions to such account, except in cases where all parties having an interest in the distribution of the assigned estate have notice that an application for such order is made, with an opportunity to be heard in opposition to the making of the same.
10 Ohio Cir. Dec. 832Jeffers v. State (1900)
CRIMINAL LAW — BURDEN OF PROOF. Smith, Swing, and Giffen, JJ. Charge Imposing Burden of Proof Upon Accused. Where an accused person denies that he committed the crime charged, and claims that by reason of drunkenness he was physically incapable of committing such an offense, and offers testimony to that effect, it is error to charge the jury that the burden is upon accused to show such want of capacity to commit the crime inasmuch as such a charge imposes upon him the burden of proving that he did not commit the crime, which is contrary to the fundamental principles of the law.
10 Ohio Cir. Dec. 834Hamilton v. Bonham (1900)
ADMINISTRATORS — SALES. Smith, Swing, and Giffen, JJ. J. Administrators — Sate op Personatty — Payment. Where credit is offered to prospective purchasers at a sale of personalty belonging to an intestate, the administrator cannot arbitrarily and at his pleasure reject notes tendered to him upon which are the names of sureties who have all the qualifications required by the statutes; but if his decision as to the qualifications of the sureties is made in good faith and with due caution, it should stand. 2. Same — Error in Refusing Testimony. In a suit by the purchaser for the possession of property thus offered for sale,, it is error for the trial court to refuse testimony tending to show that the Sureties had all the qualifications required by the Statutes. 3. Question for the Jury. Whether the property was actually struck off to the intended purchaser, is a question for the jury.
10 Ohio Cir. Dec. 837Hyde Park v. Kilgour (1900)
APPROPRIATION — GRADE. Smith, Swing, and Giffen,JJ. 1. Appropriation — Right to Establish Gram;. Where land is being appropriated for a street, and there has been no declara* tion as to what the grade is to be, the condemnation will carry with it the right to matea reasonable grade; but where the grade is fixed, the rights acquired by the municipality are limited thereto. 2. Same — Grade Established cannot be Changed. If the condemnation ordinance does not fix the depth to which a proposed cu is to be made, the court has the right in the condemnation proceeding to require the municipality to declare its intention in that regard, and. this having been done, and an ordinance subsequently passed adopting the grade as thus fixed, the property owner will be protected agaiust any future claim by the municipality of a right to make a cut to a greater depth.