Volume 104 — Ohio State Reports, New Series

<p>Certified by the Court of Appeals of Paulding county.</p> <p>This suit was brought by the board of education of Benton township rural school district of Paul-ding county against the board of education of Paul-ding county to enjoin the action of the latter board in making a transfer of territory from the Benton township rural school district to the Payne village school district. Issue was made by demurrer to the answer of the county board of education, wherein it was admitted that centralization of the schools of Benton township rural school district and the issuance of bonds for the erection of a building therein were duly authorized, that such bonds were purchased by the industrial commission of Ohio, March 25, 1920, and that completion of the transaction awaited the approval of the transcript of the proceedings by the attorney general of the state.</p> <p>It is averred that on April 7, 1920, the resolution transferring territory from Benton township rural school district to the Payne village school district was passed by the county board of education pursuant to the prayer of the petition therein filed with such board, which petition was signed by more than 90 per cent, of the qualified electors residing in said territory, and upon a finding that more than two-thirds of the electors of said territory had signed such petition in accordance with the provisions of Section 4727, General Code, and that such transfer was necessary for the proper maintenance of the schools of the Payne village school district and also essential for the purpose of furnishing proper school accommodations for the people residing in the territory sought to be attached thereto.</p> <p>The court of appeals sustained the demurrer to the answer and awarded an injunction, the decree entered being “that defendants be and they are hereby enjoined from doing and performing all or any acts in the carrying out of the attempted transfer of territory as set forth in the petition herein, and from transferring the money belonging to the plaintiff, or any part thereof, until the proceedings in the matter of centralization of the Benton Township Rural School District have been regularly completed.” The court found its judgment to be in conflict with the judgment of the court of appeals of the sixth appellate district in the ease of Joseph Johann v. Board of Education, decided May 6, 1915, and accordingly certified the record to this court for review and final determination.</p>

<p>Certified by the court of appeals of Henry county.</p> <p>This cause is certified to this court by the judges of the Third Appellate District because their judgment is in conflict with a judgment pronounced upon the same question by the court of appeals of the First Appellate District in the case of Frowiter v. Frowiter, decided March 6, 1916, reported in 26 C. C., N. S., 313.</p> <p>In the Henry eonnty court of common pleas Clara J. Durham, the' wife, filed her petition for alimony alone, charging extreme cruelty and gross neglect of duty. In her petition she alleged that the defendant owned certain real and personal property and that she furnished a portion of the money which formed part of the consideration which the husband gave for a part of the land. She prayed for alimony, and that an additional amount be allowed as alimony sufficient to repay her for the money she advanced her husband. Isaac F. Durham admitted ownership of real and personal property, made general denial of all other allegations in the petition, and specifically charged the plaintiff with interference with him and his business. He further alleged that he had given her during coverture the sum of $1,000 in money.</p> <p>The court finding the allegations of the petition to be true awarded alimony, but refused to make a division of the property described. In addition to a decree awarding a part of the household goods to the wife, the common pleas court ordered as her reasonable alimony in money the sum of $500, and $75 per month as long as the parties lived separate and apart, payable monthly, and retained jurisdiction for future orders, if any were necessary. The wife prosecuted error to the court of appeals, which affirmed the common pleas. The court of appeals certified the case to this court.</p>

<p>Exceptions by the Prosecuting Attorney to the decision of the Court of Common Pleas of Columbiana county.</p> <p>The grand jury of Columbiana county, Ohio, returned two indictments against Francesco Billotto, the first charging him with murder in the second degree, for the unlawful killing of one Dominic Cam-polo ; the other likewise charging murder in the second degree, for the unlawful killing of Joe Campolo.</p> <p>Billotto was tried first on the indictment charging him with the unlawful killing of Dominic Campolo. He entered a general plea of not guilty, and contended further that if he did shoot Dominic Campolo it was while acting in self-defense against Joe Cam-polo. Upon the issues and evidence, under the charge of the court, the jury returned a verdict of not guilty.</p> <p>Shortly thereafter, Billotto was brought to trial by the state for the unlawful killing of Joe Campolo. To the charge contained in the indictment the defendant filed a plea in bar, by which he claimed that if tried again he would be twice put in jeopardy for the same offense by reason of the verdict of not guilty and the judgment of acquittal obtained in the trial on the indictment charging the unlawful killing of Dominic Campolo, in which case defendant relied upon his right of self-defense upon substantially the same evidence that would be offered upon his trial for the unlawful killing of Joe Campolo, in violation of his constitutional rights. To this plea in bar, the prosecuting attorney filed a demurrer, which the court overruled.</p> <p>Thereafter, a reply was filed by the prosecuting attorney, claiming that there was no record of such acquittal. The jury was impaneled and sworn, and the defendant was permitted by the court to give in evidence all of the testimony offered by the state and most of the evidence given by the defendant in the former trial for the unlawful killing of Dominic Campolo.</p> <p>At the conclusion of the evidence offered by the defendant upon his plea in bar, the state moved that a verdict be directed by the court, which motion was overruled. No evidence being offered by the state, the case was submitted to the jury upon arguments of counsel and the charge of the court.</p> <p>The facts as disclosed by the evidence show that Dominic Campolo and Joe Campolo were brothers; that they were both killed during the same controversy, by different bullets discharged from a gun in the hands of the defendant, Billotto.</p> <p>The prosecuting attorney claims error in the rulings of the court whereby the state of Ohio was prejudiced and a verdict of not guilty found in favor of the defendant, Billotto.</p>

<p>Error to the Court of Appeals of Cuyahoga county.</p> <p>The city of Cleveland in 1919 began a proceeding in the court of insolvency of Cuyahoga county to appropriate 4.22 acres of land belonging to the plaintiff in error for park, boulevard and park-driveway purposes. The land is located in and is part of Rockefeller Boulevard. It is included in the connecting parkway between Cordon Park and "Wade Park. The land in question is rectangular in shape and is about 365 feet wide, 535 feet long, extending from the easterly side to the westerly side of Rockefeller Boulevard, entirely across the same, including two park driveways designated on the plats as the upper and lower park driveway; and located between Wade Park avenue and East 105th street. The same property had been previously appropriated in a proceeding by the park commissioners, of Cleveland against Jesse Nichols, the father and predecessor in title of the plaintiff, in a proceeding in the probate court of Cuyahoga county, begun in 1894. In that proceeding there was a verdict in favor of the owner for $4,850. The city paid this amount into court, gave an additional bond in the sum of $4,000, and took possession of the land in March, 1895. The property was then incorporated into the park system and the city expended ¡considerable sums in improving it for park purposes. Since that time it has been included in the general park system referred to. Subsequently, legislation of the character under which the park was created having been held unconstitutional by this court, the plaintiff in error, Viola Nichols, as a non-resident of Ohio, began proceedings in the United States court to recover possession of the property. In that proceeding judgment was rendered in her favor, but the court included in its judgment a condition that the city should have the privilege of beginning proper proceedings to appropriate the property. The final judgment in the United States court was rendered on the eighth day of January, 1919, and this proceeding in appropriation was brought by the city shortly thereafter. The jury on the trial of the appropriation proceeding in the insolvency court awarded the plaintiff in error $50,000 compensation for her land. This she claims is an inadequate sum. On error to the court of appeals the judgment entered on this verdict was affirmed, and this proceeding in error is brought to reverse the judgment of the courts below.</p>

<p>Error to the Court of Appeals of Cuyahoga county.</p> <p>This cause was originally tried in the court of common pleas of Cuyahoga county upon an indictment for manslaughter. The defendant was convicted and the judgment was affirmed by the court of appeals.</p> <p>It was claimed by the state that the defendant while driving an automobile in the business and closely built up portions of Cleveland operated the same at a speed of more than eight miles per hour, and at a greater speed than is reasonable or proper, having regard for width, traffic, use and the general and usual rules of the highway, and so as to endanger property and life, and that while so operating said automobile the defendant was in a state of intoxication. While so driving the automobile the machine came into collision with the body of decedent whereby he was almost instantly killed.</p> <p>During the course of the trial, on occasions when the jury were being excused, at different adjournments, the court admonished the jury at different times in the following language:</p> <p>1. “I will admonish you according to law not to discuss this matter with anyone, or any phase of it. Such is the requirement of the law.”</p> <p>2. “The Court will repeat its admonition to permit no person to discuss any part of this case with you. In so far as possible, refrain from reading the newspaper accounts of this case while this case is going on.”</p> <p>3. “I will excuse all of you until Monday morning until 9:15, with the admonition required by law to permit no person to speak to you concerning any phase of this case.”</p> <p>4. “I shall repeat my admonition to you to permit no person to speak to you concerning any phase of this case; do not discuss it among yourselves until the matter is finally submitted to you, and when you come to deliberate upon it in your jury room.”</p> <p>The bill of exceptions shows no exceptions allowed by the court to the irregularities of such admonitions, nor any request on the part of either the prosecuting attorney or counsel for the defendant that the court properly admonish the jury.</p> <p>The court of common pleas refused upon presentation of the bill of exceptions to permit the record to show that any exceptions had been allowed, and upon error in the court of appeals counsel for the defendant invoked the aid of Section 11572-a, General Code, to obtain an order in the court of appeals for a correction of the record; and evidence was taken in the court of appeals and the application denied. The record therefore stands in this court without any exception being shown in the matter of admonition. It is further claimed that the trial court erred in the charge to the jury in defining and applying the doctrine of proximate cause.</p> <p>These are the only errors which have been considered in this court.</p>

<p>Error to the Court of Appeals of Cuyahoga county.</p> <p>The case is one involving restrictions imposed by the allotters of the Homewood Park subdivision in the city of Lakewood, Ohio. The action was brought in the common pleas court by Charlotte ,M. Flower as the owner of one of the sublots, to-wit, sublot No. 31 in the addition, against Loretta I. Hitz as the owner of the east part of sublot No. 32 in the addition, and prayed for an injunction restraining Mrs. Hitz from violating such restrictions.</p> <p>The court of common pleas infused the relief prayed for, and dismissed the action. In the court of appeals the case was heard de novo, and that court reached the opposite conclusion and granted the relief prayed for in the petition. The court of appeals entered separate findings of fact and conclusions of law, and this court is called upon to review the case under that situation.</p> <p>Mrs. Hitz’s title came from Mrs. Heil, who retains title in the west part of sublot No. 32. The title granted was by warranty deed, without reservation or restriction. The title to Mrs. Heil was. acquired by warranty deed, in which a reference was made to restrictions; the title came from one McGrath, who had formerly acquired the title from the allotters, with the full restrictions set out in or in connection with the deed transferring the title.</p> <p>The proposed allotment, which was never evidenced by a recorded plat, consisted of certain lots described in three groups, to-wit, sublots numbered 2 to 31, inclusive ; sublots numbered 1 and 32; and Block A. Plaintiff’s Exhibit “A” is a map showing the various locations, a reproduction of which map is set forth at page 49, herein.</p> <p>The facts found by the court of appeals are as follows:</p> <p> </p> <p>“1. In 1917 The Fowler-Worman-Kelley Company owned a tract of land between Lake Avenue and Lake Erie in the City of Lakewood, Ohio, laid out in a subdivision known as The Homewood Park Subdivision. No plat of this allotment was ever recorded, but the subdivision as described by the allotment company in its deeds, consists of a parcel of land located in the City of Lakewood extending from Lake Avenue between parallel lines northerly to Lake Erie and is divided into three (3) general groups consisting,</p> <p>“1. Of a block [tract] of land along Lake Ene designated as Lot [Block] A.</p> <p>“2. Of 30 sublots on both sides of Homewood Drive, Nos. 2 to 31, both inclusive.</p> <p>“3. Of two sublots, having a frontage on both Lake Avenue and Homewood Drive, Nos. 1 and 32, being located respectively at the northwesterly and the northeasterly corners of Lake Avenue and Home-wood Drive.</p> <p>“The title to all this land has gone out of The Fowler-Worman-Kelley Company.</p> <p>“2. Sublots Nos. 1 and 32 were each 115.91 feet on Homewood Drive by 161.55 feet on Lake Avenue. Lot No. 32 was originally sold and deeded by The Fowler-Worman-Kelley Company to Marie C. Mc-Grath by deed dated Sept. 11, 1917, and recorded in Vol. 1972, page 355 of Cuyahoga County Records. Said deed contains the following restrictions:</p> <p>“ ‘Said allotment shall be subject to the following restrictions and in the use of the premises hereby conveyed, grantee shall observe said restrictions. Said proposed allotment consists of Block A, being a parcel of land running along the shore of Lake Brie and from the easterly to the westerly line of said allotment, and being about 200 feet on the westerly line and about 230 feet deep on the easterly line; of sublots Nos. 2 to 31 inclusive, of which sublots Nos. 3, 4, 5, 8 to 25 inclusive, 28, 29 and 30 are sublots having a frontage of about 50 feet each on the easterly and westerly sides of,Homewood Drive, proposed, sublots Nos. 2 and 31, having a frontage of 60 feet on the westerly and easterly sides respectively of a proposed Homewood Drive and sublots Nos. 6, 7, 26 and 27, having a frontage of about 75 feet upon Homewood Drive, proposed, being comer lots; and of sublots Nos. 1 and 32 being parcels of land at the northwesterly and northeasterly comers respectively of Lake Avenue and Homewood Drive, propósed.</p> <p>“ ‘No apartments, double-house, two-family house, terraces or business buildings shall be erected upon any land in said allotment.</p> <p>‘ ‘ ‘ Said allotment shall be used for residence pux-poses only and such residences shall be private, single residences and shall not be used for boarding house purposes.</p> <p>“ ‘No residence or building of any type shall be erected upon said land during a period of ten years from and after August 1, 1916, unless the exterior plans thereof shall have been first approved by the grantor, and likewise the grade of any lot shall be subject to the approval of the grantor, but such approval shall not be unreasonably withheld, but the right of approval herein reserved to the Grantor shall be exercised only for the purpose of preventing the erection of unsightly residences and garages upon said allotment.</p> <p>“ ‘No barns or sheds for animals shall be erected upon any land in said allotment, not excluding thereby private automobile garages.</p> <p>“ ‘No spirituous, vinous, or fermented liquors shall be manufactured or sold either at wholesale or retail on said premises.</p> <p>“ ‘Upon sublots Nos. 2 and 31 inclusive, no residence shall be erected upon any sublot having a fair cost and value of less than $5,000 and any such residences shall not be set nearer the inside sidewalk line than 50 feet from the house line exclusive of any porch line nor nearer than five feet from the north line or five feet from the south lot line. Automobile garages shall not be erected, placed, or suffered to remain on any sublot fronting on Homewood Drive within ten feet of the rear lot line thereof except as hereinafter provided for sublots Nos. 7 to 16 inclusive. Not more than one residence building shall occupy any one of such sublots, but such restrictions shall not prevent the changing of lot lines by sale or purchase or both of adjacent lots or any parts thereof, provided that no such residence shall occupy or be erected upon any parcel of land of less width than 50 feet exclusive of any other residence. No automobile garage shall be erected upon sublots Nos. 7 to 16 inclusive except attached to and in connection with the residence erected thereupon.</p> <p>“ ‘Upon sublots 1 and 32 no residence shall be erected having a fair cost and value of less than $6,000, but said building must be set back at least 50 feet from the inside sidewalk line of Homewood Drive to the building line, exclusive of any porch lines, and not less than 35 feet from the inside sidewalk line of Lake Avenne to -the said building line or any window projection and not less than 5 feet from the northerly and easterly lines. No automobile garages shall be erected upon either sublot No. 1 or sublot No. 32 except attached to and in connection with the residence erected thereon and made a part thereof.</p> <p>“ ‘Upon block A no residence shall be erected having a fair cost and value of less than $6,000. Not more than four residences may be erected thereon and no such residence shall occupy or be erected upon any parcel of land of less width than 100 feet, which width may include in the case of each parcel of land immediately east and west of the common right of way hereinbefore granted one-half of the width of said common right of way. Any residence erected upon any part of block A shall be set back at least 50 feet from the northerly line of sublots 17 and 16 provided that minor projection of any such residence may extend over said line not more than 5 feet and any such dwelling shall be set back( at least 15 feet from the side lot lines of block A and if subdivided into two or more parcels not less than 10 feet from the other side lot lines formed by such subdivision. Such residence shall be set back at least 50 feet from the lake line but measured however, from the intersection of the lake line with the westerly line of said block A. Any automobile garage erected upon block A, shall be connected with and attached to the residence thereon and be a part thereof. No fence shall be erected upon any part of block A other than ornamental hedge fences or low enclosing fences which do not interfere with the view of the lake from the other sublots in said allotment.</p> <p>“ ‘The above enumerated restrictions, rights, reservations, limitations, agreements, covenants and conditions shall be deemed as covenants and not as conditions hereof, and shall run with the land and shall be binding until 1950, but the liquor restrictions shall be perpetual. ’</p> <p>“Said Marie C. McGrath subsequently conveyed said sublot No. 32 to Lizzie M. Heil, who conveyed the easterly 66.55 feet of said sublot No. 32 to the defendant Loretta I. Hitz. Said Lizzie M. Heil still retains and owns the westerly 95 feet of sublot No. 32, and has erected a house thereon fronting on Homewood Drive which observes and fulfills all property restrictions.</p> <p>“3. Six of the sublots in said allotment, Nos. 4, 5, 10, 11, 24 and 26 were deeded without imposing any restrictions whatsoever. Sublot No. 19 was deeded subject to existing restrictions. All the remainder of said lots were deeded by The FowlerWorman-Kelley Co., subject to the same restrictions as were included in the original deed of sublot No. 32. Sublots Nos. 4, 5, 10 and 11 on which no restrictions appear in the original deeds, were sold by a receiver for The Fowler-Worman-Kelley Co., pursuant to authority of court granted in that behalf and thereafter The Fowler-Worman-Kelley Co., gave quit-claim deeds for said sublots to the respective purchasers thereof, which contained no restrictions, but the evidence shows that all such sublots have been built upon and improved, and all said restrictions complied with by the owners of the same in making such improvements and buildings.</p> <p>“4. Said allotment was advertised and sold as a restricted single residence allotment.</p> <p>“5. The defendant, Loretta I. Hitz, after acquiring her portion of sublot No. 32 commenced the erection thereon of a single residence facing Lake Avenue, with garage attached, the estimated cost thereof to be $20,000 or more, which complies with said restrictions except as hereinbefore set forth.</p> <p>“6. The defendant, Loretta I. Hitz, through her husband A. S. Hitz, acting as her agent before purchasing her portion of said sublot No. 32 had an abstract of said lot which contained a copy of the restrictions in the original deed and said defendant knew of the restrictions and consulted an attorney about them before the property was purchased. About the middle of March, 1920, the defendant Loretta I. Hitz, began digging a cellar with a view to erecting a house on the rear end of lot No. 32 facing the Avenue. On April 12, 1920, before the cellar was completed, the owners of other property in the allotment notified her by letter and personally of the restrictions on the property.”</p> <p>And as its conclusions of law from the above facts the court finds:</p> <p>“1. That sublot No. 32 by virtue of the foregoing restrictions is restricted to the building thereon of a single residence to face Homewood Drive and that such residence be set back 50 feet from the inside sidewalk line of Homewood Drive, and that the defendant, Loretta I. Hitz, in attempting- to build her house on that portion of sublot No. 32 owned by her, is violating said restrictions in that one house has already been built on said sublot No. 32 and the proposed house does not face Homewood Drive.</p> <p>“2. The plaintiff and the various cross-petitioners herein are entitled to the relief prayed for in their respective petition and cross-petitions.”</p>

<p>Error to the Court of Appeals of Lucas county.</p> <p>The plaintiff in error brought suit against the defendant in error in the common pleas court of Lucas county for the recovery of damages resulting from personal injuries received by him while he was a patient in the hospital at Toledo.</p> <p>The plaintiff predicated his right of recovexy on the negligence of the defendant in its failure to use ordinary care in the selection and retention in its employ of a certain student assistant, who is alleged to have administered to the plaintiff an injection of scalding hot water immediately following an operation on him for appendicitis, and while he was under the influence of ether.</p> <p>The petition avers that the defendant is a corporation organized under the laws of Ohio for the purposes of maintaining a thoroughly equipped home and hospital, where those needing medical or surgical aid may receive the best possible care by experienced nurses; that the defendant now occupies and conducts such hospital in the city of Toledo.</p> <p>It avers that plaintiff was admitted to the hospital as a patient, for care and treatment for a valuable consideration paid by plaintiff to defendant.</p> <p>The petition describes the operation for the removal of the appendix of the plaintiff; recites that it was successful, and that the surgeons were required to administer an anesthetic, under the influence of which plaintiff remained in a deep sleep for several hours, and that while in this deep sleep the defendant undertook to administer what is termed a clysis, which consists of an enema or injection of hot water into the intestines for the administration of which great care is necessary; and avers that the defendant negligently and carelessly authorized a servant, who was not skilled or schooled in the administration of the same, or in the various duties required of servants at the hospital, or in the various duties which such servant was directed to perform over the unconscious body of the plaintiff at the time, all of which facts were known to the defendant or in the exercise of reasonable care should have been known by it.</p> <p>The petition further avers that the servant negligently and carelessly performed said duty, administered said injection by the use of scalding hot water, so that plaintiff even in said unconscious state writhed and twisted, and so that the tube became loosened and the scalding water then ran upon the outside of the body, injuring plaintiff; that the direct and proximate cause of the injuries received by plaintiff was the negligence and carelessness of the defendant in selecting an incompetent and unskillful servant to administer to plaintiff the aforesaid clysis, which said servant was not skilled and schooled in the administration of the said treatment and was incompetent to perform or to administer the same, all of which the defendant knew or in the exercise of reasonable diligence should have known.</p> <p>The details of the injury are then set forth and a judgment prayed for.</p> <p>By its answer the defendant admits that it is a corporation under the laws of Ohio for the purposes alleged in the plaintiff’s petition, that the plaintiff was on March 14, 1917, admitted to the hospital as a patient for a valuable consideration, and that plaintiff was placed in one of the private rooms of the hospital and remained there for some time; that plaintiff entered the hospital intending to have his appendix removed, and so far as defendant is informed the appendix was removed by a skillful servant ; that an anesthetic was administered and plaintiff was under the influence of same; that plaintiff’s rectum was burned while in defendant’s hospital. Defendant asserts that the nature and extent of plaintiff’s injury is unknown to it, and it therefore denies plaintiff’s allegations as to same and that plaintiff on account of said burns has been compelled to engage medical attention, and it denies every other allegation in the petition.</p> <p>The defendant further avers that it is now and ever since it was organized has been a public and charitable corporation; that it was incorporated and organized for the purpose of providing hospital accommodations for the sick and injured, and to aid the sick and needy; that it never has had, has not now, and cannot have any capital stock; that it never has declared and cannot declare dividends; that it never made and cannot make any profits, either for the corporation or its members; that its funds and income have always been and will continue to be derived from the rents, donations, devises and bequests, monies and supplies, from and by benevolent persons; that such funds and income have been used for the erection and support of a public and charitable hospital for the sick and injured and will have to be used in the future for the improvement and maintenance thereof.</p> <p>Defendant says that said hospital has always been and is now open to all persons who apply for its benefits as long as it has accommodations; that it has had and now has rooms for patients who are gratuitously lodged and cared for, and for those who are able to pay for the same, the proceeds of which have always been used for the maintenance of the hospital; that plaintiff engaged a room in said hospital, came into the same as a patient, and brought a special nurse into the hospital; and that the amounts to be paid by patients, including plaintiff, for hospital service and accommodations were not equal to the cost thereof, the balance being provided by the public, charitable and voluntary contributions.</p> <p>In his reply the plaintiff denied the allegations of the answer except such as are admissions of allegations contained in the petition.</p> <p>The ease was tried in the common pleas to a jury and resulted in a verdict and judgment in favor of the plaintiff. On proceedings in error the court of appeals reversed the judgment and rendered final judgment in favor of the defendant. This proceeding is brought to reverse the judgment of the court of appeals and affirm that of the common pleas.</p>

<p>In Mandamus.</p> <p>Error to the Court of Appeals of Wood county.</p> <p>The facts are stated in the opinion.</p>

<p>Error to the Court of Appeals of Montgomery county.</p> <p>This cause comes to this court on error from the court of appeals of Montgomery county. It was heard in the court of common pleas on appeal from an assessment made by the board of appraisers of the Miami conservancy district under authority of the provisions of the conservancy act. The assessment was made upon the property of Mary Eyan located on Ludlow street, in Dayton, where the water of the flood of 1913 stood more than thirteen feet above the street level. While technically called an appraisal of benefits, it was in fact an assessment upon property to pay the costs and damages of an improvement for flood prevention in the Great Miami valley. The members of the board' of appraisers pursued their duties according to the statutes and under the official plan which had been prepared for the improvement, and for the purpose of facilitating their labors and to make their appraisement of benefits equal and uniform upon all the property subject to assessment formulated a comprehensive plan for calculating the benefits to the various properties under the varied conditions. The basis of the assessment was the fair value of the property as of a date just prior to the 1913 flood, and the assessments were to be calculated by a, comprehensive system of percentages in which all properties which had been inundated to a depth of more than thirteen feet would bear the maximum assessments, and all other properties would be assessed upon a sliding scale of percentages depending upon the depth of inundation, in which many collateral factors were to be considered, such as elevation of lot above the street level, lots which were only partly inundated, and other factors depending upon local conditions; and it is sufficient to say that the plan was a very comprehensive one and admirably covered a great variety of conditions. It was believed by the boat'd of appraisers that said plan was so thorough and comprehensive that it was only necessary to have a correct valuation of the property and a correct ascertainment of the height of the flood water and to apply those two facts to the plan in order to arrive at a uniform assessment upon every property within the flood area. That is to say, that under the uniform rule adopted by the appraisers the assessment upon each piece of property throughout the entire district would be the same if it should be shown that the properties were of the same value and similarly situated. All assessments were made by the board of appraisers under the foregoing rule, and after the appraisal roll had been completed the same was submitted to the conservancy court, and, after exceptions were filed thereto, the report and appraisal roll, in so far as the assessments were concerned, were approved as to all the property involved.</p> <p>It is claimed on the part of the conservancy district that such approval necessarily included the adoption of the uniform rule of the board of appraisers as the act of that court, for the reason that it was acting as the representative of the court. Mrs. Eyan took exceptions to the various acts and proceedings and fully saved all her rights, and within the proper time after the approval of the appraisal of benefits perfected her appeal therefrom, as provided by Section 6828-34, General Code. Thereupon an issue was made up in the court of common pleas of Montgomery county in accordance with the provisions of that section, and the case was tried before a jury to determine the question of the amount of benefits which should be awarded against the real estate of Mrs. Ryan. The jury returned a verdict for the same amount that had formerly been assessed by the board of appraisers, and upon error being prosecuted to the court of appeals the judgment was reversed and remanded for new trial.</p> <p>The court of common pleas instructed the jury in substance that the only question of fact for it to determine was the fair market value of the property just prior to the flood of 1913, and the height of the flood water, and to apply to those facts the uniform rule which had been formulated by the board of appraisers.</p> <p>The common pleas court also refused to admit testimony of the expense subsequent to the flood for cleaning up the houses and testimony as to whether the houses were substantially as good after the flood as they were before. These are the questions before this court for determination.</p>

<p>Error to the Public Utilities Commission.</p> <p>The Water Company is a public utility. It was organized in 1906 with a small capitalization, which was fully paid. In its subsequent developing and financing the company needed and obtained larger sums of money, which were, from time to time, advanced by three stockholders largely interested in the company from the date of its organization. From time to time, until the year 1920, these three stockholders advanced as loans to the company the moneys needed for development, with the agreement that later the loans should be refunded and paid to them out of the future issues of stocks and bonds, or from their proceeds when sold. In 1911 the state legislature enacted the public utilities law, which by Section 614-53, General Code, gave the state public utilities commission jurisdiction over the issues- of stocks and securities. On December 28, 1920, the company filed its application with the commission for authority to issue $506,000 of common stock and $250,000 of first mortgage bonds, in order to take up the indebtedness of the company which had been accumulating since its organization. The statement accompanying the application showed debt liabilities amounting to $617,108.09, of which the sum of $599,744.10 was owing to the three stockholders or their estates for loans made for the purposes named. Reciting the fact that the application was made for the purpose of discharging certain indebtedness incurred in the acquisition of the company’s property and construction of its plant and facilities, the commission held that the application to issue stocks and bonds for reimbursing the applicant’s treasury for moneys “not procured by the issue of stock, bonds, notes or other evidences of indebtedness, expended therefrom prior to the five years preceding” the date of the application be denied, but that the company could offer proof of the amount of its uncapitalized capital expenditures made from its treasury within said period of five years only.</p> <p>A rehearing was asked for and denied, whereupon a petition in error was filed here seeking a reversal of the order of the commission.</p>

<p>In Prohibition.</p> <p>In 1902 the city of Cleveland granted a franchise to The East Ohio Gas Company to lay its pipes and mains in the streets of that city for the purpose of furnishing natural gas to its inhabitants. The ordinance granting the franchise also regulated the rate for gas for a ten-year period.</p> <p>In 1911 a new rate-regulatory ordinance was passed by the council for a period of ten years, fixing a rate for eight years at thirty cents per thousand cubic feet and for two years at thirty-five cents per thousand cubic feet, which period expired on February 6, 1921.</p> <p>On December 20, 1920, the council passed a rate-regulatory ordinance fixing the price for natural gas for ten years at thirty-five cents per thousand cubic feet, and included in the ordinance certain regulations upon the service. The East Ohio Gas Company notified the city of its refusal to accept the ordinance and made no appeal to the Public Utilities Commission of Ohio.</p> <p>On January 29, 1921, The East Ohio Gas Company notified the city that it would discontinue its gas service on May 1st and take up its pipes and mains.</p> <p>The city on February 3, 1921, filed its petition in the common pleas court of Cuyahoga county praying for an injunction restraining the company from discontinuing and abandoning its service, and further praying for a mandatory order compelling the company to serve gas to the people of the city at the ordinance rate of thirty-five cents per thousand cubic feet. A temporary injunction and mandatory order were granted as prayed.</p> <p>Upon the motion of the gas company to modify the temporary injunction and mandatory order, the court on August 8, 1921, modified the order.</p> <p>On the same day, upon the motion of the gas company for a judgment on the pleadings, the court rendered judgment against the city and in favor of the gas company.</p> <p>On the same day the city appealed the case to the court of appeals of Cuyahoga county, and the temporary order of August 8th made by the common pleas court was vacated; and the temporary order of the common pleas court of February 3d was reinstated.</p> <p>On September 15th the court of appeals made the following order:</p> <p>“This day this cause coming on to be heard on a motion of the appellee for an injunction restraining the appellant from the enforcement of the rate fixed by Ordinance No. 53642 of the City of Cleveland, passed December 20,1920, pending final decree herein, and upon the affidavits and exhibits thereto attached, both parties being represented by counsel, and the court having heard argument of counsel, being fully advised in the premises, and it appearing to the satisfaction of the court that the rates for natural gas service in the City of Cleveland fixed by said ordinance are inadequate and so low and insufficient that the enforcement of the same results in the confiscation of the property of the appellee devoted to natural gas service in the City of Cleveland, and that to compel the maintenance of said rate for natural gas service will deprive the appellee of its property without compensation, in violation of the constitutions of this State and of the United States, noiv, therefore, pending final decree herein or further order of this court, it is hereby ordered, adjudged and decreed as follows:</p> <p>“1. That the temporary mandatory order heretofore granted to appellant requiring the appellee to comply with the terms and conditions of said ordinance of the City of Cleveland, No. 53642, be and the same is hereby dissolved.</p> <p>“2. That the appellant, the City of Cleveland, its agents, attorneys and all others representing or acting by its authority or in concert with it, be restrained and enjoined from enforcing or attempting to enforce any of the provisions of said ordinance, and from interfering with the appellee in publishing and putting into effect a schedule of rates for natural gas service in the City of Cleveland not in excess of the following rates:</p> <p>“ ‘For the first ten thousand (10,000) cubic feet, each month, 50 cents per thousand cubic feet.</p> <p>‘ ‘ ‘ The next ten thousand (10,000) cubic feet, each month, 60 cents per thousand cubic feet.</p> <p>“ ‘All over twenty thousand (20,000) cubic feet, each month, 80 cents per thousand cubic feet.</p> <p>“ ‘All the foregoing charges are subject to a discount of 5 cents per thousand cubic feet, if paid within ten days after date fixed for payment.</p> <p>“ ‘Minimum charge (per meter) One Dollar and Fifty Cents ($1.50) per month.’</p> <p>“And the appellee is hereby authorized to file with the Public Utilities Commission of Ohio and to put into effect on October 1,1921, a schedule of rates not in excess of that hereinbefore set forth.</p> <p>“3. Said injunction and decree shall take effect and continue in force upon the following conditions and not otherwise:</p> <p>“(a) That the rates to be made by The Bast Ohio Gas Company for natural gas service from and after October 1, 1921, while this decree is in effect, shall not exceed the rates hereinabove set forth.</p> <p>“(b) That The Bast Ohio Gas Company shall deposit in a separate account with The Union Trust Company of Cleveland, Ohio, within thirty days after the close of each month, all moneys received by it in such month from sales of natural gas in the City of Cleveland in excess of the rate fixed by said ordinance. Said funds so deposited shall be subject at all times to the further order of this court, and said Trust Company, by accepting such deposit, subjects itself thereto, and such part of the money so deposited which is in excess of the rate ultimately established by law or by agreement of the parties together with interest that may be earned thereon, shall be returned to the consumers having paid the same, and the balance, if any, with similar interest, turned over to the Gas Company.</p> <p>“(c) That The East Ohio Gas Company shall keep an accurate account of the money collected by it for natural gas service in the City of Cleveland in excess of the rate fixed by said ordinance in such manner and form that the amount of such excess can be easily and accurately ascertained.</p> <p>“(d) That The East Ohio Gras Company give bond, executed by sufficient surety, to be approved by the Clerk of Court and conditioned as required by law, in the amount of $10,000.</p> <p>“To which order the City of Cleveland excepts.”</p> <p>The pleadings in the court of appeals present many issues to that court, among which are an issue as to the right of the gas company to discontinue its service, surrender its charter and remove its property from the streets and public places of the city, an issue as to the right of the city to require it to continue the service at any price, an issue as to the reasonableness of the various terms of the ordinance now claimed to be enforced by the city, an issue as to the adequacy of the rate, an issue as to the sufficiency of the supply of natural gas available to the company, and an issue as to the value of the company’s plant and the expense of operating same.</p> <p>On October 13 the case went to trial on its merits to determine as its chief issue whether the ordinance rate is confiscatory.</p> <p>On October 27 a petition was filed in this court in an original action in prohibition, on the relation of the city, against the court of appeals of the Eighth Appellate District and the judges thereof to prohibit that court from exercising jurisdiction in said cause and to prohibit said court from enforcing its interlocutory order as to rates.</p>

In Quo Warranto. The action is quo warranto. The petition of the state on relation of the attorney general has heretofore been tested on demurrer, after which the issue was tendered by answer, and the cause submitted to the court on the pleadings and evidence.

The defendant in error, plaintiff below, filed its petition in the court of common pleas of Licking county to restrain the levying and collection of taxes on certain real estate owned by it in the city of Newark. For cause of action plaintiff says it is a corporation not for profit, organized under the laws of Ohio; that it is a purely secret benevolent 'organization maintaining a lodge system, and is devoted exclusively to benevolent and charitable purposes.

<p>Error to the Court of Appeals of Cuyahoga county.</p> <p>The facts are stated in the opinion.</p>

The plaintiff in error, Mike Kolotich, was convicted in the court of common pleas of Mahoning county of murder in the first degree, with a recommendation of mercy. Motion for a new trial was overruled. Error was prosecuted to the court of appeals, which court affirmed the judgment below. Errors presented in the court of appeals, and which are relied on here as the basis of reversal, are in substance as follows: 1.

<p>Error to the Public Utilities Commission.</p> <p>This action was brought before the public utilities commission of Ohio by the plaintiffs in error against The Toledo, St. Louis & Western Railroad Company, Walter L. Ross, as Receiver of The Toledo, St. Louis & Western Railroad Company, The New York, Chicago & St. Louis Railroad Company, and The Toledo Terminal Railroad Company, and was a claim for certain freight overcharges collected by the railroad companies from the France Slag Company, the assignor of the plaintiffs in error, on shipments of furnace slag from the city of Toledo, Ohio, via Continental, Ohio, to Kiefersville, Ohio, and Elm Center, Ohio, over the lines operated by the railroad companies above named, between May 23, 1914, and October 26, 1914. The cause was heard upon the pleadings and an agreed statement of facts.</p> <p>The statement of facts recited that during the year 1914 the France Slag Company shipped 8501.65 tons of furnace slag from Toledo to Kiefersville and Elm Center via Continental over the lines of The Toledo, St. Lonis & Western Railroad Company, The New York, Chicago & St. Louis Railroad Company and The Toledo Terminal Railroad Company, for which it paid a freight charge of 65 cents per ton.</p> <p>The published tariff adopted by the railroad companies and in effect during all the time above referred to on furnace slag from Toledo, Ohio, to Fostoria, Ohio, via Continental, was 50 cents per ton, and the published tariff on furnace slag adopted by the railroad companies and in effect between Toledo, Ohio, and MeOomb, Ohio, via Continental, was 65 cents per ton.</p> <p>Kiefersville and Elm Center are stations on the line of the New York, Chicago & St. Louis railroad, intermediate between Continental and MeComh; McComb is a station on the line of the New York, Chicago & St. Louis railroad, between Elm Center and Fostoria, being the first point beyond Kiefersville and Elm Center to which a rate on furnace slag from Toledo was published; there was no rate published to Kiefersville or Elm Center. No shipment of furnace slag was ever made from Toledo to Fostoria, via Continental; there were two direct lines from Toledo to Fostoria, namely, The Toledo & Ohio Central Railroad Company and The Hocking Valley Railroad Company, upon which the published rate for furnace slag from Toledo to Fostoria was 35 cents. The Wheeling & Lake Erie Railroad Company, over a two-line haul, and The New York Central Railroad Company, over a two-line haul, from Toledo to Fostoria, each had a published rate on furnace slag of 50 cents. The total amount of overcharge claimed was $1,275.25.</p> <p>The public utilities commission made a finding against plaintiffs in error and entered a final order thereon.</p> <p>The cause is here on a petition in error from the public utilities commission.</p>

<p>Errob to the Court of Appeals of Crawford county.</p> <p>The defendant in error was tried on an indictment brought under Section 13343-1, General Code, in the common pleas court, resulting in a conviction.</p> <p>The court of appeals on error reversed the case on the sole ground that the above section of the General Code, under which the indictment was returned, is unconstitutional.</p> <p>Error proceedings are prosecuted by the state in this court for the purpose of reviewing the judgment of the court of appeals.</p> <p>The defendant in error filed no brief, nor did he appear in person or by counsel upon the submission of the case in this court.</p>

<p>Error, to the Court of Appeals of Lucas county.</p> <p>In Quo Warranto.</p> <p>The Woodville Lime Products Company is an Ohio corporation located at Toledo, Ohio, incorporated in 1902, originally authorized to have only common capital stock in the sum of $30,000. This stock was successively increased until its authorized capital stock was $200,000, all common, and on February 26,1916,1,500 shares of $100 each were issued and outstanding. The remaining $50,000 had not then been issued and has not been issued at this time. Seven hundred and fifty shares were owned by William L. Urschel and others associated with him, and 750 shares by John J. Urschel and others associated with him. On February 26, 1916, proceedings were had to authorize the issuance of $100,000 of preferred stock bearing 6% interest. These proceedings were not in the nature of an amendment to the articles of incorporation, but were by certificate pursuant to the provisions of Section 8699, General Code, according to its provisions as of that date. Thirty-four thousand dollars of the preferred stock was issued, all of which was afterwards replaced with other preferred stock of a subsequent authorization. On August 29, 1916, proceedings were had providing for a further increase of the capital stock in the additional sum of $100,000 of preferred stock bearing l°/o interest. Of that authorization $49,000 is issued and now outstanding. The preferred stock was first sold to persons other than the parties to this controversy, and, prior to December, 1919, all 'of the preferred stock except ten shares was owned by persons other than the parties hereto. Neither authorization of preferred stock contained any provisions or limitations upon voting powers. It seems to have been assumed that unless voting power was expressly conferred upon the holders of preferred stock such stock would have no voting power, and it seems also to have been understood among the holders of the common stock, at the time of such authorization, that the preferred stock should not have voting power, thereby leaving the control of the corporation entirely to the owners of the common stock, in order that William L. Ursehel and his friends and John J. Ursehel and his friends might have equal authority in the management and control of the corporation without any advantage accruing to either. This thought was evidently carried out for several years, because prior to the annual election in January, 1920, the holders of preferred stock were never notified of meetings of stockholders; neither did any preferred stockholder ever make any complaint on such account or claim the right to or make any attempt to vote preferred stock until the annual meeting of January, 1920. At the annual meeting of 1920 William L. Ursehel held a proxy representing fifty shares of preferred stock, and attempted to vote the same in the election of a board of directors. John J. Ursehel, being chairman of the meeting, prevented the vote of the preferred stock from being counted, thereby resulting in a tie vote, and, inasmuch as John J. Urschel and his friends already had a majority of the directors, they were in control of the business for the year 1920. Thereupon both William L. Urschel and John J. Urschel began to purchase the preferred stock, but William L. Urschel was evidently more diligent, because he succeeded in purchasing 263 shares, while John J. Urschel purchased the remaining outstanding preferred stock amounting to 227 shares.</p> <p>In April, 1920, an action was begun in the court of appeals of Lucas county, in quo warranto, to oust John J. Urschel and his friends from control of the business, on the theory that the preferred stock tendered at the annual election should have been counted, which would have placed William L. Urschel and his friends in control. The court of appeals heard the testimony and decided that the relator was not entitled to the relief sought, that at the stockholders’ meeting held January 5, 1920, no director or directors were elected for that year, and relator’s petition was dismissed. Thereupon, in due time, error was prosecuted from that judgment to this court, being cause No. 17031, entitled State of Ohio, ex rel. Charles F. Chapman, v. John J. Urschel et al. The petition in error was filed in this court April 22, 1921.</p> <p>In the meantime another annual meeting was held, on J anuary 3, 1921, and on this occasion William L. Urschel attempted to vote 263 shares of preferred stock then owned by him. John J. Urschel, still being the chairman, refused to permit such votes to be counted, which again resulted in a tie vote, and thereupon an original proceeding in quo warranto was filed in this court on April 25, 1921, entitled State of Ohio, ex rel. Boy B. Stuart, Prosecuting Attomey, v. John J. Urschel et al., being cause No. 17034.</p> <p>• The ultimate issue to be decided in both eases is ■whether or not the preferred stock has voting powers.</p> <p>The two cases were argued together and as it does not appear that the relator is complaining of any of the acts and proceedings of John J. Urschel and his associates during the year 1920, and it seems to be admitted by all parties that the error proceeding now presents only a moot question, both causes will be disposed of upon the issues presented in the quo warranto proceeding originally filed in this court.</p> <p>The petition is short, merely alleging that at the annual meeting of January 3, 1921, William L. Urschel and his associates received more votes than John J. Urschel and his associates and that William L. Urschel and his associates have been denied any participation in or control over the affairs of the company, and praying judgment of ouster.</p> <p>About June 1, 1921, and before an answer was filed, the relator attempted to dismiss the original suit filed in this court and announced and made known to the defendants his intention to do so. No order was ever entered on the journal of this court and nothing was done except that certain communications passed between counsel and an authorization of dismissal was filed by the attorneys in the office of the clerk of this court, which was later withdrawn. These matters are set up as a first defense in the answer which was filed June 28, 1921. The second defense denies that William L. Urschel and his associates received the number of votes alleged in the petition. The third defense alleges the attempt of William L.. Urschel and his associates to vote the preferred stock, and alleges the former adjudication upon the right to vote preferred stock in the court of appeals in the error proceeding, it being claimed that in no event should the preferred stock be entitled to vote while the judgment of the court of appeals subsists. The fourth defense alleges the equal ownership of the outstanding common capital stock by the contending parties and that at the time of the authorization of the preferred stock there was an agreement and an understanding between John J. Urschel and William L. Urschel that said preferred stock should have no voting rights, and that this was so agreed and understood in order that neither of said parties should have or obtain any advantage over the other at stockholders’ meetings, or in the management and control of the business of the company, and in order to further prevent persons not owning common stock from participating in the affairs of the company. It is further alleged that the preferred stock was always treated as not having voting rights and that no holder of preferred stock ever claimed such rights until the annual election of January, 1920; that by reason thereof William L. Urschel and Ms associates are estopped from claiming voting rights for the preferred stock held by him. A fifth defense alleges that at the time of the authorization of the preferred stock the common capital stock had not been fully subscribed for, neither had an installment of 10% on each share of unissued stock been paid, and that by reason thereof such authorization was irregular and the preferred stock actually issued of no legal validity. The answer contains a sixth defense, but in the view this court takes of the entire matter the sixth defense does not present a material issue.</p> <p>Since the argument of these causes in this court, an amendment to the answer has been tendered, and a reply to such amendment; but, in the view we have taken, neither the amendment to the answer nor the reply raises a material issue.</p>

The Chandler & Taylor Company brought suit against the Southern Pacific Company for the conversion of goods consigned to the latter for transportation.

Plaintiffs brought this action in the court of common pleas of Lucas county to recover damages which they claimed to have sustained by reason of a change of grade of Superior street in Toledo from that established prior to the construction of the permanent improvements upon their lot abutting upon that street; a jury was waived and the case was heard and submitted to the court, which found for the plaintiffs and assessed their damages at $600.

<p>Criminal law — Larceny of automobile — Alibi—Defendants never in Ohio — Evidence to impeach testimony — Presence at place of another larceny — Charge to jury — Argument to jury.</p>

Statement of Case No. 17099. This action originated in the court of appeals of Montgomery county, wherein the city of Dayton filed its action asking for a writ of mandamus to compel the budget commission of Montgomery county to approve and certify to the county auditor, as a part of the tax levy of the city, an item of $2,856.27, which it desired to levy for interest and sinking fund for bonds issued for the city’s portion of the cost and expense, including the cost of…

<p>Error to the Court of Appeals of Fairfield county.</p> <p>The facts are stated in the opinion.</p>

Exceptions by tbe Prosecuting Attorney to the decision of the Conrt of Common Pleas of Brown county- On November 20, 1920, the grand jury of Brown county, Ohio, found and returned an indictment-charging the defendant, L. ‘V. Williams, with perjury. A demurrer thereto was sustained by the court of common pleas. Upon motion of the prosecuting attorney leave was granted to file a bill of exceptions in this court to review the action of the court of common pleas.

In Quo Warranto. This is an action in quo warranto brought in this court.

This is an error proceeding prosecuted from the utilities commission of Ohio, involving questions of .rates, discrimination and service.

This case was one for injunction, enjoining the collection of street assessments occasioned by the improvement of Beekman street in tbe city of Cincinnati, filed in tbe court of insolvency, and resulting in a judgment in favor of tbe plaintiff, John A. Albrecbt.

The petition in this case was filed by Frank L. McCord in the court of common pleas of Hamilton county May 1, 1919. The action is one to contest the will of James W. McCord, deceased, which was probated May 3, 1918.

Plaintiff in error, Gustave F. Kasch, as a resident, citizen and taxpayer of the state, brought an action in the common pleas court seeking to enjoin the defendant, John I. Miller, superintendent of public works of the state, from proceeding in the acquisition of lands for the construction of public works under authority of a certain act of the Ohio legislature.

This case originated in the common pleas court of Coshocton county, Ohio, and is an action to enjoin the plaintiff in error from violating a certain covenant in a deed, which covenant runs with the. land and is binding upon all purchasers. The defendants in error are the grantors in the deed and the plaintiff in error the grantee.

<p>Error to the Court of Appeals of Lucas county,</p> <p>The facts are stated in the opinion.</p>

<p>Error to the court of appeals of Hamilton counter.</p> <p>The facts are stated in the opinion.</p>

<p>Schools — Tuition—Nonresidents of district — Inmates of private children’s home — Charging district of former residence— Mandamus — County auditor to issue warrant, when — Constitutional law — Sections 7677, 7678 and 1681, General Code.</p> <p>1. Where children of school age, inmates of a private children’s home or orphan asylum, have attended the public schools of the school district in which such home or asylum is located, such school district is entitled to recover from another district in the state of Ohio where such children had a residence immediately prior to becoming inmates of such home or asylum the expense of such attendance based upon the average per capita cost of the elementary schools of the district where such home is located, not including improvements and repairs.</p> <p>2. Where the superintendent of the school district where such home is located furnishes the county auditor a detailed report of such average per capita cost and the county auditor certifies the amount thereof to the auditor of the county of such children’s last residence, it is the duty of the county auditor receiving such certificate to issue his warrant on the county treasurer of the same county for such amount payable to the school district entitled thereto, and mandamus will lie to compel the performance of such duty.</p> <p>3. Sections 7677, 7678 and 7681, General Code, are not in violation of any of the provisions of the Constitution of Ohio.</p>

<p>Municipal corporations — Street railways — Rogers law — Sections 2505d et seq., Revised Statutes — Power to fix rates and terms of franchise-contract — Police power and regulation of public utilities — Cincinnati revision*ordinance of 1918 — Scope and effect — Franchise-contracts not within resolution of 1896.</p>

<p>Error to the Court of Appeals of Champaign county.</p> <p>In the court of common pleas of Champaign county defendant in error Jesse P. Kellough instituted a proceeding under the Torrens Law, to have his title to certain real estate and charges thereon determined and registered under the provisions of that law. Among other parties defendant named in his application were The Buckeye State Building & Loan Company, which held a mortgage for $22,000 upon the property, and William C. lviess, the grantee of another mortgage for $8,000, both of these mortgages having been recorded in March, 1936. Another, and a chief party to the proceeding, who was made defendant, was Lucille Stewart, a minor, whom the plaintiff alleged to have a claim against the real estate which was a cloud upon his titie. The application specifically alleged that this claim arose under the will of one William Stewart, the minor’s grandfather, which will was admitted to probate on the 25th day of January, 1909, and its validity later contested in the common pleas court of Champaign county, in a case wherein Lucille Stewart was one of the parties defendant, in which suit the will, was found not. to be the will of William Stewart, deceased: that on June 14. 1909, judgment, was entered on the verdict, which judgment was still in force and effect, and had not been vacated, reversed or set aside. Since the proceedings in this case for registry of title were later appealed to the court of appeals, it will suffice to allude to the issues of fact made in the latter court, upon which that court pronounced its judgment.</p> <p>The various pleadings were amended from time to time, before the final trial in the court of appeals, where the chief opposition to the registry of title was made by said Lucille Stewart, still a minor, through her guardian ad litem, J. T. Journell. In the court of appeals Journell, guardian ad litem, filed for her a third amended answer and cross-petition to the application of the plaintiff Kellough, alleging that her grandfather, William Stewart, had died intestate on January 15, 1909; that his will was probated on the 25th day of January, 1909, whereby the lands described in the application were devised to the minor in fee simple, subject to certain life estates ; that on the 20th day of February, 1909, a suit was eollusively instituted by the minor’s father, mother and grandmother Stewart to contest the validity of the will; that in that action the minor was made a party defendant at a time when she was five years of age and under the control of her father and mother; and that her parents and grandmother and guardian ad Mem appointed by the court, by concerted action for the purpose of defrauding the minor of her inheritance, made no defense whatever to the action and no effort to sustain the will, but on the contrary the guardian ad Mem assisted in causing the will to be set aside. The answer further alleges that the record in the will-contest case discloses service upon the minor by delivering a copy of the summons to her and also to her father, William A. Stewart, who was one of the plaintiffs in the suit To this cross-petition of the minor, plaintiff filed his answer, in which he admitted the institution of the will-contest suit, the infantile age of the minor, the service of summons by copy delivered to her and her father, and then denied each and every allegation in her cross-petition not expressly admitted. This included the denial of any scheme or concerted action for the purpose of defrauding the minor as alleged in her answer. As a second defense the plaintiff alleged that he purchased the real estate in question, subsequent to the judgment rendered invalidating the will; that he paid full value therefor after examination of the record, relying upon said record for his title, and that he had no knowledge or notice of the alleged infirmities in the record set out in her cross-petition.</p> <p>The mortgagees (one of whom was an assignee) answered setting forth their claims. At this stage the case was presented to the court of appeals upon the petition of the plaintiff and supplements thereto; the third amended answer and cross-petition of Lucille Stewart, a minor, by her guardian ad litem', the demurrer of plaintiff to the third amended answer and cross-petition of the minor; the answer of plaintiff to the cross-petition of said minor; the demurrer of the minor to the second defense of the plaintiff’s answer; and the motion of the defendant Lucille Stewart for a judgment in her favor on the pleadings.</p> <p>On September 13, 1920, the court of appeals overruled the plaintiff’s demurrer to the answer of the defendant Lucille Stewart; overruled the demurrer of Lucille Stewart to plaintiff’s second defense to her answer and cross-petition, and overruled the motion of defendant Lucille Stewart for a judgment in her favor upon the pleadings. Thereupon the cause was retained for hearing upon the evidence, and the defendant Lucille Stewart was granted leave to plead to the second defense of the answer to the cross-petition of the plaintiff, to-wit, that of innocent purchaser. On September 20,1920, Lucille Stewart, by her guardian ad litem, filed a reply to such second defense, which was a general denial of the allegations therein contained; and on January 3, 1921, the court of appeals rendered its final judgment upon the issues of fact, wherein it held as follows: “The court do further find upon the issues joined between the plaintiff, Jesse P. Kellough and the defendant, Lucille Stewart and J. T. Journell, her guardian ad litem, in favor of the plaintiff and against said defendants.”</p> <p>Thereupon the court of appeals ordered the registration of the title in the plaintiff, subject to the payment of the mortgages plead by the mortgagee defendants aforesaid. Whereupon the plaintiff instituted her proceeding in this court to reverse the judgment of the court of appeals.</p>

<p>Error to the Court of Appeals of Montgomery county.</p> <p>The facts are stated in the opinion.</p>

<p>Error to the Court of Appeals of Morgan county.</p> <p>Rowland was indicted by the grand jury of Morgan county, charged with violation of Section 13393, General Code, in that he gave a public dance in the village of Chesterhill without having obtained a permit of the mayor of that village.</p> <p>Rowland owned a half interest in a certain building in the village and desired to give a dance in the building on a day certain. He appeared before the mayor of the village and requested a permit to give the dance. There was evidence tending to show that he offered to comply with any rule, regulation, requirement or condition that the mayor might impose upon him in reference to the giving and conduct of the dance.</p> <p>The mayor refused to issue the permit, and refused to specify any rules, regulations or requirements as to the giving of the dance, and it is urged by counsel for Rowland that the mayor based his refusal upon the sole ground that it was a public dance, and not because plaintiff in error was an unsuitable person to give the dance, or because of any unwillingness on the part of the plaintiff in error to comply with any condition or requirement that might be specified by the mayor.</p> <p>The mayor testified that he would not have issued a permit to any person whomsoever to give a public dance in the village.</p> <p>The public dance was held. It is claimed that it was conducted in all respects in a proper and respectable manner; and it was free from any overt act of misconduct so far as the record discloses.</p> <p>In the brief of plaintiff in error it is averred that ‘ ‘ The question of law involved is whether the legislature has power to grant to a Mayor of a municipal corporation the authority to arbitrarily determine that a man shall not use the premises which he owns in that corporation for the purpose of giving upon his premises a public dance.” The following questions are then propounded: “And if a man, owning premises therein, having applied for a permit and offered to do anything that might be required of him and is nevertheless refused the permit to so use his premises, is or is not his constitutional right infringed upon or can be [he] properly be convicted of the commission of a crime. Is legislative power sought to be conferred upon Mayors by said Section 13,393, General Code, and if so, is said section in contravention of the Constitution of the State, and is not the Federal Constitution also violated by the conviction in this case * * .*?”</p> <p>Upon trial had in the court of common pleas Rowland was found guilty, which judgment, upon error, was affirmed by the court of appeals.</p> <p>Error is now prosecuted to this court to reverse that judgment.</p>

<p>Error to the Court of Appeals of Cuyahoga county.</p> <p>This case involves but one question, the constitutionality of an act passed March 24, 1921, as found in 109 Ohio Laws, 83, providing for a bond commissioner for Cuyahoga county.</p> <p>Suit was brought in the court of common pleas to enjoin the expenditure of any public funds under the provisions of that act. The petition seeking injunction was demurred to, and the demurrer sustained. Eelator not desiring to plead further, judgment was entered against him. The cause was taken to the court of appeals which reversed the judgment of the court of common pleas, holding the act to be unconstitutional.</p> <p>From the judgment of the court of appeals error is prosecuted to this court.</p>

<p>Error to the Court of Appeals of Franklin county.</p> <p>This proceeding involves a review of orders of the industrial commission of Ohio.</p> <p>On September 28, 1917, Hiram J. Plumsteel was killed while in the course of his employment at the plant of F. O. Schoedinger, Columbus, Ohio. Plum-steel was married in Canada in 1875, and lived with his wife, Sarah, at Niagara Falls, in New York, for many years, that state being the last domicile of the marriage. Seven children were bom of that marriage, some of whom are deceased, and others of whom are of age and were married and earning their own living prior to the death of their father. Plum-steel was a traveling salesman and was away from home a great deal, being absent for periods varying from a few weeks to several months. About the year 1904 he left on one of his trips and thereafter never returned to or even visited his family. Between 1904 and the time of his death he made his headquarters in various cities in Ohio, and apparently acquired a residence in Columbus, Ohio, many years before his death, because the record shows that he was an owner of real estate in Columbus in 1914. It is not shown that there was ever any trouble between Plumsteel and his family in New York state, and there is some testimony that he had trouble with his creditors which necessitated his remaining out of New York state for a while. There is evidence tending to show that he made regular contributions to his family of $50 a month until about the year 1912 or 1913. The wife, Sarah, was a helpless invalid for many years prior to the death of her husband, Hiram, and the children wrote frequently to their father urging support for the mother, without results, one of such letters being as late as July, 1917. The record fairly shows that Hiram rendered no aid to his wife Sarah later than the year 1913.</p> <p>In the year 1915 Plumsteel was married, at Columbus, Ohio, to one Maggie Berg, the marriage being solemnized under due form of law. The record shows that Plumsteel represented to Maggie Berg that his first wife was dead. He frequently made the same statement to the brother of Maggie Berg, and also to Mr. Mecartney his attorney. It does not appear that he ever made the statement to anyone that he was ever divorced from his first wife. On the other hand, there is no evidence in the record even tending to show that he was not divorced from his first wife.</p> <p>Immediately after his death, Maggie Berg filed an application with the industrial commission for compensation and was about October, 1917, awarded the full amount due to a person wholly dependent. Soon thereafter the first wife, Sarah, learned of the death arid also made application to the industrial commission, whereupon, on November 21, 1918, the order made in favor of Maggie Berg was revoked and further payments thereon suspended, on the ground that she was not the widow of the deceased or a statutory dependent within the meaning of the law. The commission also refused the application of Sarah, on the ground that she was not a dependent, because she was not living with the deceased at the time of his death and had not been supported by him for several years prior thereto.</p> <p>Both women filed an appeal from the order of the commission in the court of common pleas of Franklin county, and the causes were later consolidated and have ever since been carried as one cause. Before the case came on for trial Maggie Berg was again married to one Lederer, and later died, and David E. Evans was appointed administrator and the cause revived in the name of the administrator. Sarah Plumsteel also died before the case came on for trial in the court of common pleas, and the action was revived as to her in the name of Maud E. Dell, executrix.</p> <p>The court of common pleas decided that Maggie Berg was not a lawful wife and also that she was not a member of Plumsteel’s family and therefore did not come within the workmen’s compensation law. The court further found that Sarah Plum-steel was not dependent upon her husband at the time of his death, within the meaning of the workmen’s compensation law.</p> <p>Error was prosecuted by both estates to the court of appeals and the court of appeals affirmed the judgment as to the estate of Maggie Berg, but reversed as to the estate of Sarah Plumsteel and remanded the cause to the court of common pleas for further proceedings on the claim of Maud E. Dell, as executrix of Sarah Plumsteel. Thereupon the industrial commission and David E. Evans, as administra tor of the estate of Maggie Lederer, prosecuted error to this court.</p>

<p>Error to the Court of Appeals of Franklin county.</p> <p>This is an action for specific performance brought in the court of common pleas of Franklin county against the plaintiff in error, James O. Mills, who will hereinafter be referred to as the defendant, by John A. Connor and William Petrakas, as trustees under the last will and testament of Mike Bouzon, who will hereinafter he designated as the plaintiffs.</p> <p>The claim of the plaintiffs set up in their petition and amendment thereto is in substance as follows: On August 31, 1911, Mike Bouzon and John Pekras procured a lease which was duly executed to them upon certain business property on High street in the city of Columbus, consisting of a firs* floor store-room and basement thereunder at No. 21 North High street; and also the second, third, fourth and fifth floors over the store-rooms at Numbers 19, 21 and 23 North High street, excepting therefrom certain designated rooms on the upper floors thereof. The lease was for a period of ten years at a stipulated rental, payable monthly. It contained a clause providing that the lessees could not without the written consent of the lessor endorsed thereon sublet any part of the first floor or basement of the premises, or assign the lease; and that unless the written consent of the lessor was procured the lessees could use the first floor and basement for no purpose other than that of maintaining a first class theater for the production of pictures, vaudeville, opera, or drama. A further provision authorized the removal of equipment upon the expiration of the term. It was also provided that all the conditions, covenants, etc., of the lease should bind the heirs, executors, administrators, successor and assigns of the parties. The lessees had the right to re-lease the premises for a further period of five years from the expiration of the ten-year term on the same terms and conditions except an increased rental therein stated of $666.67 instead of $658.34 monthly, provided that prior to September 1, 1921, the lessees shall have submitted to and filed with the lessor a lease duly executed, satisfactory to the lessor, for such premises for the new term. The lease was duly filed and recorded in the lease records of Franklin county, and the lessees entered into possession of the premises and therein installed a moving picture theater. Thereafter, in accordance with the terms of the lease. Mike Bouzon acquired the interest of John Pekras in said lease and also in the moving picture theater, and performed all the covenants and conditions of the lease. Thereafter on January 5,1918, the defendant James O. Mills duly acquired said premises under a ninety-nine year lease, renewable forever, subject to the lease held by Bouzon, and subject to his right to release the premises for an additional term of five years as in said lease provided. Bouzon paid the rentals and otherwise complied with the terms of the lease until his death, which occurred April 14, 1919. He left a will, which was duly probated in the probate court of the county, which contained the following provisions:</p> <p>“Item NXTT. I am the sole owner of a moving picture theater, known as the ‘Dreamland Theater,’ located at No. 21 North High street, in the city of Columbus, Ohio. It is my will that, as soon after my decease as may be practicable, said business be sold, either at public or private sale, as my executor in his judgment deems best, and from the proceeds of such sale he shall pay over to my cousin and faithful friend, William Petrakis, an equal one-sixth (1-6) portion of the proceeds of said sale, he, the said William Petrakis, to have and to hold the same to himself and his heirs forever. The remaining five-sixths (5-6) portion of said, sale shall be divided into five (5) equal parts, and one equal one-fifth (1-5) part of said five-sixth (5-6) shall be paid by my executor, hereinafter mentioned, to each of my five sisters, Stathula, Stamota, Jonula, Chevi and Theofine, hereinbefore mentioned in various items of this will, they to have and to hold the same for themselves and their heirs forever.</p> <p>“For the purpose of consummating said sale of said theater under this item of my said will, I hereby empower my executor hereinafter mentioned to execute any and all instruments necessary to effectually transfer the title to my said theater the same as I might do if living and personally present, and it shall not be necessary for him to procure the consent or approval of the Probate Court to such sale, and the purchaser or purchasers thereof shall not be required to see to the application of the purchase money.</p> <p>“Item XÑIII. In the event there is any legal impediment in the lease or otherwise, which will prevent a sale of said moving picture theater under the foregoing item of this will, then it is my will, and I hereby direct that said moving picture business and said ‘Dreamland Theater’ shall be conducted during the life of the lease on said building by my cousin and faithful friend, William Petrakis, and John A. Connor, and one-sixth (1-6) of . the net profits thereof shall be turned over to the said William Petrakis, to be his absolutely, and the remaining five-sixths (5-6) shall be divided into five (5) equal portions and the same turned over in equal portions to my said five (5) sisters, hereinbefore mentioned, their heirs and assigns, to have and to hold the same absolutely. For this purpose, I direct that said profits' shall be ascertained and paid to them quarterly.”</p> <p>Plaintiffs averred that the defendant objected to the salé of the theater and threatened to forfeit the lease if the executor sold the lease or the motion picture theater; that on February 6,1920, the plaintiffs were appointed' by the probate court of Franklin county as trustees to operate' and conduct the theater under the lease, and since that date have been operating the same and paying the defendant the rental therefor and otherwise performing the conditions of the lease; that they prepared a renewal lease- in duplicate for the five-year term, beginning September 1, 1921, and ending August 31, 1926, which contained the terms and provisions of the original lease except as to the monthly rental of $666.67 and the lack of provision for a renewal as contained in the original lease; and that the defendant refused to execute the lease and demanded that plaintiffs surrender possession of the premises August 31, 1921, and threatened to oust the plaintiffs therefrom. Plaintiffs further averred that Bouzon made no other or further disposition of the business or of the lease than as contained in Items 22 and 23 of the will, and that when the will was executed the chattel property of said Bouzon in said theater was in excess of $25,000. Plaintiffs prayed for an injunction restraining the defendant from interfering with their possession of the premises and for a decree requiring the defendant to specifically perform his contract by executing a renewal lease to the plaintiffs.</p> <p>A general demurrer having been overruled the defendant filed an answer which set up three defenses. The first, after admitting many averments of the petition and amendment thereto, contained a general denial. In the second the defendant averred that plaintiffs have no authority other than that conferred by Item 23 of Bouzon’s will and that they were authorized by it to conduct a moving picture theater only until the expiration of the term of the lease, August 31, 1921, and that any interest of Bouzon in the lease passed to his executor; that the theater was turned over by the executor to the plaintiffs, pursuant to the order of the probate court, upon an application of the executor, the same to be operated and managed by plaintiffs as provided by Item 23 of the will, and that by the same order the executor and his bondsmen were released and discharged therein from any and all further liability as to the management and control of the theater. The third defense alleged that the plaintiffs were not authorized or empowered to execute the renewal lease. A demurrer to the answer was sustained, and the defendant not desiring to plead further judgment was rendered for the plaintiffs as prayed in the petition.</p> <p>The case was appealed to the court of appeals, where it was heard upon evidence, and judgment was there likewise entered for plaintiffs and against the defendant, who was ordered to sign and execute the lease mentioned and described in the petition of plaintiffs, and enjoined from interfering with the plaintiffs in the possession and enjoyment of the premises during a term of five years. Error is now prosecuted in this court to procure a reversal of that judgment and decree.</p>

<p>In Mandamus.</p> <p>This is an original action in mandamus brought in this court, wherein the relator, George H. Phelps, asks a peremptory writ of mandamus requiring the superintendent of insurance to revoke all licenses issued by his department to insurance companies indemnifying physicians and surgeons against loss from liability imposed upon the insured for damages on account of bodily injuries or death suffered in consequence of malpractice, error or mistake.</p> <p>The relator alleges that he is a citizen of the state of Ohio and brings this action on its behalf; that it is useless to ask the attorney general to institute proceedings, for the reason that he and his predecessors are and have been of the opinion that such indemnity contracts are valid in Ohio.</p> <p>The relator in a specific instance alleges that under a license heretofore issued by the department and now in force the Fidelity and Casualty Company of New York, a foreign corporation, has issued and will continue to issue to physicians and surgeons residing and practicing in this state indemnity’ contracts by which such insurance company engages' “To indemnify the person named in statement No. 1 (being a physician or surgeon) of the schedule of warranties, and herein called the assured, against loss from the liability imposed by law upon the assured, for damages on account of bodily injuries or death, suffered by any person or persons in consequence of any malpractice, error, or mistake, (a) of the assured in the practice of his profession during the term of this policy, (b) of any assistant of the assured while assisting the assured in the administration of medical or surgical treatment during said term. To defend in the name and on behalf of the assured any suit brought against the assured to enforce a claim, whether groundless or not, for damages on account of bodily injuries or death suffered or alleged to have been suffered by any person or persons in consequence of any malpractice, error, or mistake, (a) of the assured in the practice of his profession, during the term of this policy (b) of any assistant of the assured while assisting the assured in the administration of medical, or surgical treatment during said term.”</p> <p>The relator then alleges that these indemnity contracts are violative of the laws of the state of Ohio and inimical to public policy. He also avers that the respondent has declined to revoke such licenses.</p>

<p>Certified by the Court of Appeals of Logan county. .</p> <p>The plaintiff, J. M. Cochran, brought an action in the common pleas court of Logan county against The Ohio Farmers Insurance Company to recover for loss by fire on three several insurance policies, averring that he had fully performed each and all of the several things to be done, by him set forth in the policies, save and except the formal, “proof of loss” within sixty days from the time of the fire.</p> <p>He further pleaded, however, that the company by its knowledge and conduct had waived this provision in each one of the several policies.</p> <p>The insurance company demurred to this cause of action in the amended petition, and upon the demurrer being overruled denied the facts;</p> <p>The insurance company further pleaded that the plaintiff, Cochran, had falsely and fraudulently misstated the values purporting to be insured; had falsely and fraudulently misrepresented material statements of fact to the prejudice of the company; had refused to permit any person to enter the burning building and save the contents thereof; and, lastly, had made false and fraudulent statements as to the amount of the loss; for all of which the plaintiff, Cochran, ought not to recover against the defendant.</p> <p>The cause was finally tried upon its merits, submitted to the jury under instructions of the court as to the law, and a verdict returned in favor of Cochran.</p> <p>Motion for new trial was overruled, and judgment entered on the verdict. Error was prosecuted to the court of appeals, which affirmed the judgment below, but certified the record to this court for review upon the ground of conflict, which appears in the following language:</p> <p>“The court hereby find that the judgment upon which they have agreed in the above entitled cause is in conflict with a judgment pronounced upon the same question by another Court of Appeals of the state, namely, the Court of Appeals of the Sixth District, in the case of The Northern Assurance Company v. Frank F. Kehoe, in Lucas county, Ohio, decided June 2nd, 1913.”</p>

<p>Error to the Court of Appeals of Hamilton county.</p> <p>The German-American Commercial & Sayings Bank was organized under Ohio laws in August, 1909, with a capital stock of $25,000, and its principal place of business is in Hamilton county. On July 22, 1916, the superintendent of banks of the state of Ohio took possession of the assets of the bank, because the bank was at the time insolvent, and proceeded to liquidate and wind up its affairs. It was found that the liabilities of the bank were appróxima,tely $70,000, and that the assets were not more than sufficient to pay. a dividend of 20% thereon, leaving more than $50,000 unpaid. On January 1, 1913, when the amendment to Section 3, Article XIII of the Ohio Constitution, went into effect, the bank was solvent, and none of the debts which were owing July 22,1916, were obligations of the bank on January 1, 1913. On January 17, 1918, Woodson Poor, who was a depositor on July 22, 1916, at the time the superintendent of banks took possession of the bank, brought an action against the stockholders to recover judgments against them in amounts equal to the stock held therein by them, respectively, at the par value thereof, during the time of the insolvency of the bank, upon the liability sought to be created against them as such stockholders by virtue of the amendment to Section 3, Article XIII of the Ohio Constitution, adopted September 3, 1912. The superintendent of banks, on January 21, 1918, filed a cross-petition making practically the same allegations and asking that payments of any judgments be made to the superintendent of banks for the benefit of all creditors. Answers were filed by all defendants, which in all essential allegations were similar, except that the answers of Foy and Rhyne alleged they had transferred their stock in good faith on May 15, 1915, and the answer of Allen alleged that he had sold his stock on October 31,1915. The party to whom all of said transfers were made wa,s himself insolvent. Judgment was rendered against all defendants for the full amount of the stock held by them, except that against the defendants Foy and Rhyno judgment was not rendered for the full amount, because on May 15,1915, the net insolvpncv was 1p«s than the par value of all stock owned by solvent stockholders at that time, and judgment was therefore rendered against Foy, who owned five shares, in the sum of $290.17, and against Rhyno, who owned two shares, in the sum of $116. Interest on all judgments was calculated from January 5, 1920, being the first day of the term of court at which judgment was. rendered. Thereupon certain defendants appealed, and all of the plaintiffs in error above named prosecuted error to the court of appeals, and the cause was heard in the court of appeals as an error proceeding and the judgments of the court of common pleas were affirmed.</p>

<p>Error to the Court of Appeals of Cuyahoga county.</p> <p>. The plaintiff in error brought' suit in the common pleas court of Cuyahoga county to. enjoin the defendant board of park commissioners from, prosecuting. an appropriation suit which was then pending in the court of insolvency.</p> <p>The petition alleged that on the 14th of June, 1920, the board adopted a resolution declaring the necessity and the intention of the board to appropriate to public use an absolute estate and fee simple title in certain real estate described in the petition, for the purpose of the creation of park, parkways and other reservations.</p> <p>The plaintiff owned one entire tract which was by the defendants divided into two parcels, each of which was described in the petition separately.</p> <p>The defendant board desired to acquire a portion of the entire tract in fee and to acquire a certain control over the remainder, and for these purposes the appropriation proceedings were instituted by the board in the insolvency court.</p> <p>The parcels into which the tract was divided were designated Parcel No. 1 and Parcel No. 2, it being the purpose to appropriate Parcel No. 1 in fee simple. And the petition alleged that the rights and so-called easements desired to be appropriated in Parcel No. 2 were as follows:</p> <p>“First — The right to regulate and control all planting and floral decoration on all hillsides upon the premises last above described and adjacent to the premises first above described;</p> <p>“Second — The right and privilege at all times to enter upon the premises last above described for the purpose of planting the slopes and hillsides thereon, and the right at its option and expense, to care for, regulate, control and maintain the present vegetation now upon said slopes and hillsides, or which may hereafter be planted thereon;</p> <p>“Third — The right to regulate and control, through the appropriate department of said Cleveland Metropolitan Park Board, its successors and assigns, all grading and filling done, or intended to be done upon the slopes and hillsides upon the premises last above described and no such grading or filling shall be done without the written consent of the said board, its successors or assigns;</p> <p>“Fourth — The right, at the option and expense of the Cleveland Metropolitan Park Board, its successors and assigns, to lay, repair, keep and maintain upon the premises last above described, such drains as may be suitable to prevent the surface water on the slopes and hillsides upon said premises last above described from creating a swampy condition on the premises first above described;</p> <p>“Fifth — The right to prevent sewage or other foul waste from being emptied upon or from flowing through or across the premises last above described into Bocky Biver; not intending hereby to acquire the right to prevent the drainage of natural surface water or rain fall into Bocky Biver;</p> <p>“Sixth — The right to prevent the erection or maintenance of any building, structure, fence or wall of any kind upon the slopes and hillsides on the premises last above described, and lying adjacent to the premises first above described; reserving, however, to the owners, their heirs and assigns, the right to maintain, repair and renew the present buildings, structures, fences and walls until the first day of January, 1945;</p> <p>“Seventh — The right to prevent the erection or maintenance of any telegraph, telephone or electric light poles (not intending to acquire the right to prohibit the erection of poles for supporting electric lights), upon the slopes and hillsides on the premises last above described which lie adjacent to the premises first above described;</p> <p>“Eighth — The right to prevent the erection or maintenance of any building or structure which shall be used for a saloon, or for any business, mercantile, mechanical or manufacturing purposes, upon so much of the premises last above described as lies adjacent to and within one hundred (100) feet of the boundary line between said two above described premises; reserving, however, to the owners, their heirs and assigns the right to use, maintain, repair and renew the present buildings and structures until the first day of January, 1945;</p> <p>“Ninth — The right to prevent the erection or maintenance of any bill board, sign board or other advertising device (other than a sign board or advertising device offering for sale or lease all or a part of the premises upon which it is erected) upon the premises last above described, in such manner or location as to be seen from any portion of said park or parkway within the ‘Valley of Rocky River;</p> <p>“Tenth — The right to prevent the erection or maintenance of any building or structure which shall be used as a flat, apartment house, terrace or double house or as the abode of more than one family living in separate domestic establishments therein upon so much of the premises last above described as lies adjacent to and within one hundred (100) feet of the premises first above described, or upon the slopes and hillsides adjacent to the premises first herein described and upon the premises last above described.'”</p> <p>The petition contained allegations that the board had failed to agree with the owner upon the value of the property, that the county auditor had not certified as to funds in the treasury, that special assessments were intended to be levied upon the plaintiff’s remaining lands, in violation of law, and that the park board was without authority in law to appropriate the rights sought to be acquired in Parcel No. 2, it being conceded that the board had the authority to appropriate the fee in Parcel No. 1.</p> <p>The questions as to agreement upon the value and the certificate of funds available are no longer urged by the plaintiff.</p> <p>In its answer the board of commissioners averred the adoption of a resolution in which it declared its intention to appropriate to public use, for the purpose of conserving the natural resources of the Cleveland Metropolitan District by the creation of park, parkways and other reservations of ground, an absolute estate and title in fee simple in certain real estate, being Parcel No. 1, and in the same resolution further declared its intention to appropriate to public use, for the purpose of conserving the natural resources of the park district by the creation of parks, parkways and other reservations of land, certain rights and easements in certain real property, such rights and easements being correctly set forth in the petition and the real property being correctly described as Parcel No. 2. It further admitted the beginning of the appropriation suit referred to.</p> <p>On the trial in the common pleas court the issues were found in favor of the defendants, and the petition was dismissed, and on appeal to the court of appeals a like judgment was rendered in that court.</p> <p>This proceeding is brought to reverse the judgments of the courts below.</p>

<p>Error to the Court of Appeals of Lucas county.</p> <p>The action is one for damages for the death, on the 17th day of October, 1917, of the plaintiff’s decedent.</p> <p>The deceased on that date was driving his Ford automobile on the Toledo and Fremont road, about two miles west of the city of Fremont, traveling eastward in the conduct of his business or occupation, which business was canvassing for the sale of some article manufactured by him.</p> <p>The tracks of the defendant’s railway run parallel and along the south side of the highway. Shortly after noon on that date, the deceased arrived in front of the Wheeler farmhouse, and for some reason started to turn into the driveway leading to the buildings on the farm. To do this it was necessary to cross the railway tracks on a private or farm crossing prepared for that purpose, and •which was the natural means of ingress and egress to that property.</p> <p>In crossing the tracks, for some unaccountable reason, the automobile stopped on the track, and while in that position was struck by a freight car of the defendant company, which was traveling east on the track.</p> <p>When the collision took place the automobile was picked up on the front fender of the electric car, and in this position carried a considerable distance down the track, and while being so carried it was jolted to the south until some part of it struck a trolley pole of the defendant company, and after striking one pole, which was completely cut in two, and later another pole, and possibly a third, the automobile was further jolted and by contact with the poles pulled and thrown off the fender. The electric car was brought to a halt some 100 to 300 feet beyond the point where the automobile was thrown from the fender, and from 700 to 1,500 feet beyond the point where the electric car first struck the automobile.</p> <p>The deceased was in the automobile when it was struck, and was carried with the automobile on to the fender, and remained thereon until about the time or shortly prior to the time that the automobile was finally thrown off the fender, when he was thrown or dropped into the ditch along the tracks.</p> <p>The petition charges negligence on several grounds, to-wit: in failing, neglecting, and refusing to stop the electric car within a proper distance after striking the automobile; in dragging and carrying the automobile a distance of some 1,500 feet; in permitting- the automobile with the decedent in it to be carried along the tracks and to be thrown upon and against the electric light or trolley poles; in neglecting to give any signal bell or whistle; in approaching the crossing at a high and negligent rate of speed; and in failing to stop the car and avoid the collision after the agents of the company in charge of the car saw the perilous position of the decedent.</p> <p>The decedent received injuries from which he died two days later.</p> <p>The answer admits that the decedent while crossing the railway tracks was struck by the car with force and violence, which caused bodily injuries and damage to the automobile, and that the decedent died two days later, but denies negligence on the company’s part.</p> <p>By way of second defense it pleads contributory negligence on the part of the deceased, alleging in substance that there was nothing to obstruct the view, and that the decedent should have seen the approaching car 300 feet away.</p> <p>The common pleas court at the close of the plaintiff’s testimony, upon the motion of the defendant, directed a verdict in favor of the defendant, upon which judgment was entered, the same being affirmed by the court of appeals.</p>

<p>Error to the Court of Appeals of Cuyahoga county.</p> <p>In June, 1919, Eva Hubbell brought suit against Frank Hubbell in the court of insolvency of Cuyahoga county, asking for divorce, custody of their child Virginia, and equitable relief.</p> <p>The defendant, Frank Hubbell, answered and cross-petitioned. Upon hearing had in the court of insolvency, Judge George S. Addams presiding, the divorce was refused to the plaintiff Eva Hubbell upon her petition and the evidence, and was granted to the defendant upon his cross-petition and evidence. The court awarded the custody of the child Virginia to Frank Hubbell.</p> <p>About March, 1921, Eva Allen, formerly Eva Hub-bell, former wife of Frank Hubbell, filed her motion in the insolvency court in the original divorce action, praying, upon the ground of change of circumstances and conditions, for a modification of the decree theretofore rendered awarding the custody of the child to Frank Hubbell, and asking that the custody of the child be given to her mother, Mrs. J. Wilton Jones.</p> <p>Service upon that motion was had upon Frank Hubbell, and a hearing was had in the insolvency court, at which were present Frank Hubbell, O. S. Hubbell, his attorney, and Mrs. J. Wilton Jones, the maternal grandmother.</p> <p>Some time prior thereto the probate court, upon application of O. S. Hubbell, the father of Frank Hubbell, had made an order ex parte, purporting to appoint O. S. Hubbell guardian of the person and estate of Virginia Hubbell, but at the hearing in the insolvency court for modification of its order no effort was made to make O. S. Hubbell a party to the suit.</p> <p>. Upon hearing, the insolvency court entered an order modifying its former decree, and granted to Mrs. J. Wilton Jones the custody of the child for a period of ten weeks, to commence on the 27th day of December of each year, until the child should arrive at school age. Thereafter the said ten weeks were to begin four days after the end of the school term, the child to be returned in each case within the ten weeks at the expense of Mrs. Jones to the residence of O. S. Hubbell. That order and decree were spread upon the records of the court in June, 1921.</p> <p>Thereafter, in October, 1921, the relator, O. S. Hubbell, by his attorney, made an informal application to Judge Addams of the insolvency court for leave to open up the decree modifying the custody of the child, and moving that he, O. S. Hubbell, guardian, might be made a party to such motion tó modify. This motion was denied. Thereafter, O. S. Hubbell, claiming as guardian aforesaid, filed a petition for a writ of prohibition in the court of appeals, to prohibit the defendant from enforcing the decree granting custody of the child to Mrs. J. Wilton Jones. Demurrer to that petition was filed and overruled, and answer was then filed and testimony taken, upon consideration whereof the relator was granted the relief prayed for and defendant prohibited from enforcing the decree as theretofore ordered. Motion for a new trial was thereupon filed and overruled.</p> <p>Prom this action and judgment of the court of appeals in prohibition, error is prosecuted to this court.</p>

<p>Error to the Court of Appeals of Vinton county.</p> <p>The defendant in error, A. A. Boal, was plaintiff in the trial court, where he brought this action January 26, 1921, as a taxpayer of the Zaleski village school district, to enjoin the defendant board of education and its treasurer from paying Jenola MeKibben, who was also named as a defendant, out of the public funds, for her services as a teacher in the public schools of the village.</p> <p>The averments of the petition and the amendment thereto are substantially as follows: That on July 24, 1920, the defendant, Jenola MeKibben, was declared to be elected as one of th.e teachers in the schools of said village at a meeting of the board of education thereof; that said board then consisted of James G. McKibben, E. P. McKibben, E. O. Wallthall, George Cavenaugh and Prank Bighouse; that said James G. McKibben was then and prior thereto and since and still is the husband of the defendant Jenola McKibben, and that they were at the time of such employment, and ever since, living together as husband and wife, and that he is pecuniarily interested in her maintenance and support and is legally bound therefor, and was at the time of said employment; that at a meeting of the board of education in regular session, at the time stated, upon the motion to elect the defendant Jenola McKibben as one of the teachers of the schools, the vote was as follows, “Yes, James G. McKibben, E. P. McKibben and B. O. Wallthall. No, George Cavenaugh and Prank Bighouse;” and that the schools opened on the first Monday in September, 1920, and the defendant Jenola McKibben then entered upon the work assigned to her as a teacher in the schools, and has been acting as such ever since.</p> <p>A general demurrer to the plaintiff’s petition, as amended, was sustained by the court of common pleas. On proceeding in error in the court of appeals, the judgment of the court of common pleas was reversed and an injunction was issued by that court as prayed in the petition. This proceeding in error is now prosecuted in this court to procure a reversal of that judgment.</p>

<p>Error to the Court of Appeals of Cuyahoga county-</p> <p>Joseph Goz brought suit in the court of common pleas of Cuyahoga county, against E. P. Tenney, doing business as The Grey Express Auto Cartage Company.</p> <p>Trial was had before a jury upon the issues raised, and a verdict was rendered in favor of the plaintiff in the amount of $5,000.</p> <p>Upon motion for a new trial, the same was overruled, and judgment was entered upon the verdict.</p> <p>Error was then prosecuted to the court of appeals, which court reversed the judgment below.</p> <p>Error.is now prosecuted to this court to reverse the judgment of the court of appeals.</p>

<p>Error to the Court of Appeals of Lucas county.</p>

<p>Workmen’s compensation — Appeal to common pleas court — Judgment, attorney’s fees and interest — Mandamus.</p>

<p>Bills of exceptions — Preparation and filing — Limitation of time runs, when — Date of journal entry governs — Notation on trial docJcet not controlling.</p>

<p>Error to the Court of Appeals of Franklin county.</p>

<p>Error to the Court of Appeals of Putnam county.</p>

<p>Error to the Industrial Commission of Ohio.</p>

<p>WorTcmen’s compensation — Appeal to common pleas court — Allowance of attorney’s fees — Services in error proceedings.</p>

<p>Error to the Court of Appeals of Hamilton county-</p>

<p>Error to the Court of Appeals of Cuyahoga county.</p>

<p>Error to the Court of Appeals of Hamilton county.</p>

<p>Error to the Court of Appeals of Lucas county.</p>

<p>Error to the Court of Appeals of Montgomery county.</p>