Volume 16 — Ohio Nisi Prius Reports, New Series

<p>MUNICIPAL REGULATION OF BILL-BOARDS.</p>

<p>ADMINISTRATION OF ESTATE OF DECEASED ITALIAN.</p>

<p>UNFAIR. MEANS OF SECURING ATTENDANCE OF A DIRECTOR. AT A BOARD MEETING.</p>

<p>LIABILITY FOR. THE NEGLIGENCE OF FELLOW-SERVANTS.</p>

<p>A FINE NOT COLLECTIBLE FROM ESTATE OF A DECEDENT.</p>

<p>TRUST IN BANK DEPOSIT ESTABLISHED BY PAROL.</p>

<p>AS TO CONFORMITY TO THE STATUTE REGULATING ASSIGNMENT OF WAGES.</p>

<p>Vendor’s Lien — Cam, Not be Based on a Reserved Right to Maintain Billboards — Vendor and Purchaser — Lien Can Not be Based on Covenants or Agreements.</p> <p>A vendor’s lien on real estate is limited to unpaid purchase money, and can not he based on the reservation of a privilege or license, such as the right of the grantor to erect and maintain on the premises conveyed hill-hoards and signs free of rental therefor.</p>

<p>LIEN OF STATE BANKS UPON STOCK OWNED BY DEBTORS TO THE BANK.</p>

<p>PROCEDURE FOR. MODIFICATION OF A DECREE FOR ALIMONY.</p>

<p>SWITCHING CHARGES WITHIN MUNICIPAL LIMITS.</p>

<p>STATUS OF THOSE WHO SIGN BOTH WET AND DRY PETITIONS.</p>

<p>JUDGMENT ON THE PLEADINGS BEFORE EVIDENCE HAS BEEN HEARD.</p>

<p>SUBLEASING OF PROPERTY HELD UNDER AN EXPIRING LEASE WITH PRIVILEGE OF PURCHASE.</p>

<p>Wills — Conditions Under' Which a Spoliated Will 'May be Admitted to Probate — Declarations of Decedent and Her Husband as to Existence of Will — Failure to Establish Contents With Precision.</p> <p>1. A will being in tbe custody of a person other than a testator,. and not being in existence after death of the latter who was incapable of revoking it, or not having access to it, it must have been fraudulently destroyed in the lifetime of the testator, or subsequent to his death. If so destroyed it was' fraudulently so done, and the legal result is the same precisely as if it had continued in . existence up to the time of the death of the testator.</p> <p>2. To establish the contents of a spoliated will upon declarations alone of the testator, without other clear and convincing evidence as to the precise provisions of the will would be an unsafe rule of evidence.</p> <p>3. A spoliated will can not be admitted to probate, notwithstanding declarations which sufficiently establish its existence' at the time of the death of the testator, if it- is impossible to determine its contents by clear and convincing evidence as lo its provisions.</p>

<p>LIABILITY FOR. INJURY TO A TELEPHONE LINEMAN FROM A FALL.</p>

<p>PERMISSION TO ERECT BOOTHS IN A PUBLIC PARK.</p>

<p>MUNICIPAL POSITIONS HELD DE JURE UNDER TEMPORARY APPOINTMENT.</p> <p>Note — References above made to the General Code are to the Page & Adams Annotated Edition of 1912, prior to the enactment of the civil service law of April 28, 1913,</p>

<p>RELIEF FOR. EMPLOYEES SUFFERING FROM OCCUPATIONAL DISEASES.</p>

Heard on motion of William Ziegler for a new trial and the motions of Fred Schmutte to dismiss the proceedings and for a new trial.

<p>STATUS OF MUTUAL TELEPHONE COMPANIES UNDER. THE PUBLIC UTILITIES ACT.</p>

<p>RIGHT OF TELEPHONE COMPANY TO TRIM TREES ON LAND OF ABUTTING OWNER.</p>

<p>LIABILITY FOR INJURY TO LIVE STOCK IN TRANSIT.</p>

<p>POWER OF THE PROBATE COURT OVER ITS OWN DECREES.</p>

<p>FAILURE TO ENDORSE AMOUNT SUED FOR ON SUMMONS.</p>

<p>LIMITATIONS AS TO TIME WITHIN WHICH SUIT MAY BE BROUGHT.</p>

<p>INCOMPATIBILITY ON THE PART OF A WIFE WHICH A COURT WILL EXCUSE.</p>

<p>ACTIONS UNDER. THE FEDERAL EMPLOYERS’ LIABILITY LAW.</p>

<p>THE OHIO STANDARD OF DRY MEASURE UPHELD.</p>

<p>LIEN OF MORTGAGE COVERING ONE CO-TENANT’S SHARE.</p>

<p>PRESUMPTION THAT EVIDENCE WAS HEARD UPON WHICH AN INDICTMENT HAS BEEN BASED.</p>

<p>GASES WHICH ARE EXEMPT FROM OPERATION OF THE NEW JURY LAW.</p>

<p>CONTRIBUTIONS BY COUNTIES, CITIES AND OTHER. TAXING DISTRICTS TO THE STATE INSURANCE FUND.</p>

<p>ADMINISTRATION OF AN ESTATE IN DIFFERENT JURISDICTIONS.</p>

<p>TITLE TO FEES PAID INTO THE TREASURY BY A COUNTY OFFICER. SERVING UNDER AN UNCONSTITUTIONAL SALARY LAW.</p>

<p>BILLS OF EXCEPTIONS FROM THE MUNICIPAL COURT.</p>

<p>TITLE TO AND CONTROL OVER. STREETS BY MUNICIPALITIES.</p>

<p>LOSS OF MERCHANDISE BY FLOOD WHILE IN TRANSIT.</p>

<p>ACTION FOR. RECOVERY OF MONEY PAID FOR CORPORATE STOCK.</p>

<p>RIGHTS AND DUTIES OF AN ADMINISTRATOR. UNDER AN ORDER TO CONTINUE A BUSINESS.</p>

<p>VALIDITY OF VEHICLE LICENSE ORDINANCES.</p>

<p>UNLAWFUL OCCUPATION OF SIDEWALK WITH GOODS AND WARES.</p>

<p>SPECIFICATIONS FOR. PUBLIC CONTRACTS.</p>

<p>DRAINAGE RIGHTS OF AN UPPER. PROPRIETOR.</p>

<p>AS TO BAIL IN CASES OF MURDER IN THE FIRST DEGREE.</p>

<p>ALIMONY TO WIFE MADE A LIEN ON REAL ESTATE TRANSFERRED BY HUSBAND IN FRAUD OF HER RIGHTS.</p>

<p>INVALIDITY OF THE SALES-BY-WEIGHT STATUTE.</p>

<p>RIGHT TO FREEDOM FROM NOISE IN A RESIDENCE NEIGHBORHOOD.</p>

<p>VALIDITY OF AND MEANING OF THE HOME RULE AMENDMENT TO THE OHIO CONSTITUTION.</p>

<p>STATUTE RELATING TO NECESSARIES NOT APPLICABLE TO CLAIM OF A MERCHANDISE BROKER.</p>

<p>PROPER. ALLEGATIONS UNDER. THE WORKMEN’S COMPENSATION ACT.</p>

<p>CONSTRUCTION OF THE SALARY ACT WITH REFERENCE TO FEES RECEIVED BY STATE OFFICERS IN NATURALIZATION CASES.</p>

<p>A PLEADING IS NOT VITIATED BY THE NAME GIVEN TO IT.</p>

<p>MUNICIPAL APPROPRIATIONS FOR. CELEBRATION OF PATRIOTIC EVENTS.</p>

<p>Corporations—Stockholders’ Liability and Actions to Enforce—Limitation Contained in Section 8688 Not Applicable, When.</p> <p>The eighteen months limitation prescribed by Section 8688 for actions to enforce the liability of stockholders has no application to a suit for judgment on an assessment against stockholders levied in an action begun prior to the enactment of said section.</p>

<p>UNENFORCIBLE CONTRACT PROCURED BY REAL ESTATE AGENTS.</p>

<p>EJECTMENT OF A VENDEE.</p>

<p>Taxation — Inheritance Taxes Are Excise Taxes — Why Paid by Executor Instead of Distributees — Liability Therefor as Between Two Sure- , ties, One on the Administration Bond and the Other on the Bond for Sale of Real Estate.</p> <p>1. Where an executor gave a general administration hond in the sum of two thousand dollars with one bonding company as surety, and afterward gave .bond in the sum of forty-six thousand dollars for sale of real estate with another bonding company as surety, and distributed the entire proceeds of the estate to legatees named in the will without paying the collateral inheritance tax due to the state of Ohio, and thereafter died insolvent and all the legatees are without the jurisdiction of the state, both surety companies are liable as co-sureties in their respective proportions to the state for payment of such collateral inheritance tax, notwithstanding the executor had personal property in his possession sufficient to pay such collateral inheritance tax before the sale of the real estate from the proceeds of which the legacies were paid.</p> <p>2. Inheritance taxes are taxes on the right and privilege to inherit or succeed to property and are excise taxes and not taxes on the property received.</p> <p>3. Although an executor is made liable under the statute for payment of collateral inheritance tax, such tax is not paid on account of the estate, biut on account of the legatees or distributees whom the state is unwilling to trust.</p>

<p>INJURY TO HUSBAND FOR. WHICH WIFE HAS NO RIGHT OF ACTION.</p>

<p>Husband and Wife — Liability of Husband for Medical Services Rendered to Wife — Where Wife Has a Separate Estate — Medical Services Distinguished From Funeral Expenses — Pleading.</p> <p>Unless it appears that a wife by special contract bound her separate estate for medical services rendéi'ed in her behalf during her lifetime, the husband is not relieved from liability for such services, and the physician may proceed against him without first exhausting her separate estate..</p>

<p>ALLEGED MISAPPLICATION OF TRUST COMPANY FUNDS.</p>

<p>WHAT ARE SUFFICIENT GROUNDS FOR A CHANGE OF VENUE.</p>

<p>POWER. COMPANY SERVING A GROUP OF FACTORIES NOT A PUBLIC^UTILITY.</p>

<p>VIOLATION OF THE SUNDAY LA\y BY OPENING A BAKERY ON THAT DAY.</p>

<p>Attachment — Does Not Lie on the Ground, the Debt'Was Fraudulently Contracted — Where the Rights of the Parties Rest on Contract Rather than Tort.</p> <p>1. An attachment does not lie on the ground the indebtedness sued on was fraudulently contracted, where it appears that possession of the money which is the subject of the attachment was acquired under the provisions of a contract and title thereto is claimed by the holder under the terms of the said contract.</p> <p>2. An attachment against a foreign corporation can not be based upon the mere conclusion that the defendant being a foreign corporation is not exempt from attachment; but the affidavit, unaided by the petition, must affirmatively set forth the facts which afford exemption under the statute.</p>

<p>Good Will — Restrictions on a Vendor Organizing a Competing Business— Notwithstanding the Absence of a Stipulation Not to Re-engaqe in a Similar Business — Injunction Against Inducing Employees of the Old Concern to Take Employment with the Competing Business.</p> <p>1. The vendor of the good will of a business, while retaining, in the absence of an express stipulation to the contrary, the right to re engage in a similar business, may not directly solicit business from known customers of the old firm, and an attempt on his part to do so will be enjoined by a court, of equity.</p> <p>2. Where the vendee of the good will organizes a corporation and transfers thereto all his right, title and interest in and to the property and good will of the old concern, the right which is by law conferred upon him to prevent interference with former customers devolves upon the newly organized corporation and may be enforced by it; and where the vendor of such good will thereafter organizes a corporation which engages in a similar business, such newly organized corporation will be bound by the same obligations with reference to such interference as those which devolved upon the vendor.</p> <p>3. The vendor of the good will of a business will be enjoined from endeavoring to induce former employees of such business to leave its employ and to join him in a competing business.</p>

<p>CORPORATE STOCK WHICH PROVED WORTHLESS GIVEN IN EXCHANGE FOR. PROPERTY.</p>

<p>Eminent Domain — Strip Taken by Railway Company Across Land Acquired by the Municipality for Park Purposes — Damages to the Residue.</p> <p>1. A strip of land leased by a municipality to a railway company for a term of years-for occupation by its tracks, does not thereby become a parcel carved out of an entire tract, but remains a part of the original tract subject to the incumbrance of the lease, and upon appropriation of the strip by the railway company, subsequent to the expiration of the lease, the city may recover damages to the residue.</p> <p>2. Damages to the -residue may be recovered either in an action to compel an appropriation under the statute or one brought to appropriate.</p>

<p>ACTION FOR RECOVERY ON AN UNCOMPLETED CONTRACT.</p>

<p>Municipal Electric Lighting Plants — Allegations which Do Not Warrant Injunction Against Operation of — Jurisdiction Over Such an Action —Capacity of a Tax-Payer to Maintain — Furnishing Current at Less than Cost — Not a Misapplication of Public Funds Nor an Abuse of Corporate-Power — City Not Required by Statute to Light All or Any of Its Streets and Alleys — Varying Rate to Consumers May Not be Discriminatory — Wisdom of Such an Enterprise Not a Matter for Judicial Investigation — Sections 3618 and 3939-12, Q-. C.</p> <p>1. The legal capacity of a tax-payer to maintain an action to enjoin the municipality from maintaining and operating a municipally owned electric light plant at a loss is sufficiently shown by averments as to the official position of the city solicitor and his refusal to bring the action upon request.</p> <p>2. It is well settled in Ohio that the court oí common pleas has jurisdiction over the subject-matter of an action of this character, and having jurisdiction over the subject-matter it also has jurisdiction over the subject under such limitations as are imposed by statute or the principles of the common law upon the extent of the exercise of such jurisdiction.</p> <p>2. But facts necessary to constitute a causé of action in favor of a taxpayer against administrative officers of a municipality are not shown by an allegation that the prices charged by the municipality for electric current sold to private consumers are substantially less than the cost of generating and distributing said current together with interest on the investment; or that the prices charged to private consumers are not uniform in the sense that they are not unvarying; or that, as a consequence of furnishing current to private consumers, the plant is overloaded and there is not sufficient current to light all the streets and alleys of the city; or that by reason of such overloading the plant is deterioating, involving further loss to the municipality which must be borne by the taxpayer.</p>

The matter is beard upon demurrer to the petition and amendment thereto. The pleadings present two main questions for consideration, as follows: I. Current is furnished private consumers at less than cost. H. The discrimination in private consumption.

<p>NECESSARY ALLEGATIONS UNDER. THE WORKMEN’S COMPENSATION ACT.</p>