Volume 20 — Ohio Circuit Court Reports, New Series

<p>DETERMINATION AS TO WHETHER. A CONVEYANCE WAS FRAUDULENT.</p> <p>Fraudulent Conveyance — Action to Set Aside — Laws of State Where Transaction Occurs, Govern.</p> <p>1. A fraudulent conveyance made with intent to hinder, delay and defraud creditors, will not be set aside under Section 67-e, of the National Bankruptcy Act, unless made within four months next preceding the filing of a petition, in bankruptcy, nor under Section 6343 of the Revised Statutes of Ohio, unless the person to whom the conveyance was made knew at the time of the transaction .of the fraudulent intent on the part of the debtor.</p> <p>2. Where a husband citizen of Ohio becomes indebted to his wife in the United States and in payment of that indebtedness delivers to her in Italy a conveyance of his interest in a trust estate held in the state of Ohio, the transaction is governed by the laws of Ohio and not by the laws of Italy.</p>

<p>CONVERSION OF PERSONAL PROPERTY.</p> <p>Wrongful Possession or Dominion — Gives Right of Action for Conversion — Application of the Statute of Limitations.</p> <p>1. It is not necessary for the party tailing wrongful possession of personal property of another to assert absolute ownership of the property in order to give the owner, who is entitled to the immediate possession, the right to an action for conversion, but any' unauthorized act which deprives the owner of the possession of his property, or the exercise of any dominion over the property inconsistent with his possession, is sufficient.</p> <p>2. The statute of limitations begins to run at the time the right of action accrued, and an action for the conversion of personal property is barred within four years after that time.</p>

<p>DEATH AT A RAILWAY CROSSING WHERE THE VIEW OF THE TRACKS WAS HIDDEN.</p> <p>Negligence — Milk Wagon Driver Killed at a Grade Grossing — Obstruction of View — Verdict of $5,400 Held Not Excessive.</p> <p>1. Where at the intersection of a street and railway tracks at grade there is a high board fence enclosing a coal yard, which completely obstructs the view of tracks from the south until within a few feet of the tracks, and the testimony is conflicting as to whether the electric bell giving warning of approaching trains was ringing or was out of order, a verdict in favor of the administrator of a driver, whose wagon was struck by a train coming from the south at the rate of forty-five or fifty miles an hour, will not be disturbed by a reviewing court.</p> <p>2. A verdict of $5,400 on account of the wrongful death of a man thirty-eight years of age, who left a wife and two small children, and who was in perfect health and earning $20 a month and board as a driver on a milk route, is not excessive.</p>

<p>INSURANCE POLICY INTERPRETED “MOST STRONGLY AGAINST THE INSURER.”</p> <p>Wire Insurance — Policy Construed in Harmony with the Known Intention of the Parties Thereto — Other Insurance Permitted, by Agent with Full Knowledge.</p> <p>If an agent of a fire insurance company, who has authority to write insurance, deliver the policy and collect the premium, and who has been correctly informed of other insurance on the property, attaches a slip containing the following, “Other insurance permitted to the amount of $ — ,” to a policy which provides that it shall be void if the insured has other insurance on the property, unless the agreement is endorsed on or added thereto, that no officer, agent or other representative of the company shall have power to waive any of the provisions or conditions of the policy, delivers the policy and collects the premium, he complies with the provisions permitting concurrent insurance, and the company is estopped from defending because of other insurance known to the agent at the inception of the contract.</p>

<p>ACTION FOR INJURIES FROM FALLING INTO AN OLD CISTERN.</p> <p>Landlord and Tenant — Liability of Owner'for Injury from Falling Into Cistern — Necessary Proof as to Defective Condition.</p> <p>In an action against a landlord for damages for injuries, sustained by a daughter of a tenant who fell into an abandoned cistern in the back yard while hanging out a washing, an allegation that the cistern was completely concealed from view by a growth of grass and weeds and that the cover of the cistern was in “an unsafe, unsound, rotten and dangerous condition,” is not supported by proof which goes no further with reference to the cover of the cistern than to show that the rim was broken off.</p>

<p>PEDESTRIAN STRUCK BY AUTOMOBILE AT STREET CROSSING.</p> <p>Contributory Negligence — By Woman Crossing Street in Front of Approaching Automobile — -Misconduct of Counsel in Referring to Liability Insurance Company as Interested in Case on Trial.</p> <p>1. A woman who attempts to cross a street in front of an approaching automobile in broad daylight, and is struck and injured, is not entitled to a verdict for damages against the owner of the machine, for the reason that she was manifestly guilty of contributory negligence, either in failing to look in the direction from which vehicles might be expected, or in stepping in front of the machine notwithstanding the evident peril in so doing.</p> <p>2. In an action for damages against the owner of an automobile, intimations by counsel that some insurance company is interested in preventing a recovery, or questions to prospective jurors, in their examination on their voir dire, as to whether they are connected in any way with any liability insurance company, is prejudicial to the rights of the defendant and highly improper.</p>

<p>LIABILITY FOR INJURY CAUSED BY HOLE IN STREET.</p> <p>Negligence — Municipality Permits Hole to Remain in Street — Woman Steps Into It and, is Injured — Contributory Negligence on Her t Part Defeats Recovery.</p> <p>Where the city permits a bad hole to remain in a street and a street car passenger, who had knowledge of the existence of the hole, steps into it in alighting from the car and is injured, the direct cause of the accident is not the negligence of the city in permitting the street to get out of repair, but the contributing negligence of the one so injured in not observing proper care in using the street.</p>

<p>DISTRIBUTION OF RESIDUE OF ESTATE.</p> <p>Wills — Construction of Devise of Residue Bequeathed to Nephews and Nieces.</p> <p>The testator bequeathed the residue of his estate to the children of his two sisters, share and share alike. Held: That the division should be made among said children per capita and not per stirpes.</p>

<p>MONEY NOT EQUITABLY DUE SHOULD NOT BE RECOVERED</p> <p>Equity — Refusal to Sold Mortgagor Except as Indemnitor — Application of the Principio that “He Who Seehs Equity Must do Equity.”</p> <p>The mortgage which the plaintiff seeks to foreclose in this case can be regarded only in the light of an indemnity, and under the equity rule that “if money is not equitably due it ought not to be recovered,” the petition is dismissed at plaintiff’s costs.</p>

<p>BARRING OF A CLAIM AGAINST HEIRS OF A TRUSTEE.</p> <p>Trusts — Running of the Statute of Limitations — As to a Claim Against the Estate of a Trustee — Bar Not Prevented from Falling by Continuation of the Trust — Partition—Sections 10876-7-8.</p> <p>Beneficiaries under a trust can not maintain an action against the heirs and legatees of the deceased trustee or enforce a claim against their interest in the trust property, where no claim was asserted against his estate within the time fixed by the laws of administration.</p>

<p>INJURY TO PASSENGER ALIGHTING FROM STREET CAR.</p> <p>Negligence — In Attempting to Step from a Gar in Motion — Answer by Jury to Interrogatory May be Disregarded, When.</p> <p>Where the evidence clearly indicates that the car was in motion at the time plaintiff attempted to step off, a contrary answer by the jury to an ambiguously worded interrogatory will not prevent a reversal of the judgment.</p>

<p>CONNECTION BY ABUTTING OWNER WITH A PRIVATE SEWER.</p> <p>Sewers — Injunction Against Use by Abutting Owner of Private Sewer Does Not Lie, When.</p> <p>Connection with, a private sewer will not be enjoined on the claim that the sewer will be overloaded thereby, unsupported by evidence that plaintiff has suffered damage or that such a result as that complained of will follow.</p>

<p>EFFECT OF REFUSAL OF JUDGE TO MAKE FINDINGS OF FACT AND LAW.</p> <p>Prejudicial Error — Statutory Right Denied by Refusal to Make Proper Findings — Sections 11469 and 11470.</p> <p>1. It is mandatory upon a trial judge to make, when so requested, a special finding of fact separately from the conclusions of law, and his refusal so to do constitutes prejudicial error.</p> <p>2. The statutory rights of a party to such a finding is in no way affected by the fact that his counsel sat silent at the opening of the trial, when the judge announced that he would consent to proceed with the trial of the case without a jury t only on condition that he should not be asked to prepare a finding of fact and conclusions of law.</p>

<p>CONSTRUCTION OF LEASE FOR. GAS AND OIL LANDS.</p> <p>Oil and Gas — Construction of Lease Providing Rental for Completed Wells and for the Land Prior to Such Completion — Words “Completed Well” Mean a Productive Well.</p> <p>In a lease of land for exploration for gas and oil, wherein it is stipulated that the lessee shall pay $200 each year in advance for the product of each well from the time of its completion, and in case no well is completed within a specified time the lessee shall pay a rental of $580 for each year such completion is delayed thereafter, and each completed well shall only reduce the land rental $200, the words “completed well” have reference to a productive well and not to a dry hole, and the lessee is not entitled to a reduction of $200 in his rental because of the completion of an unproductive well.</p>

<p>LIABILITY OF HUSBAND FOR FUNERAL EXPENSES OF WIFE WITH WHOM HE WAS NOT LIVING.</p> <p>Husband and "Wife — Wife’s Funeral Expenses May be Made a Charge Against Husband — Notwithstanding They Were Living Apart Under an Agreement of Separation.</p> <p>1. A husband is not relieved from liability for the expense of the funeral and burial of his wife by the fact that they had entered into a written contract to live separate and apart during the remainder of their natural lives, notwithstanding for considerations satisfactory to herself the wife had stipulated in said contract that she thereby released the said husband from all claims she had on him by reason of their marriage relation.</p> <p>2. In such a case presentation of the claim to the administrator of the estate of the wife is not a condition precedent to the bringing of suit against the husband.</p>

<p>THE EQUITABLE REMEDY OF A RECEIVERSHIP.</p> <p>Receiver — Effect of Appointment — Will he Denied upon Petition of a Creditor, When — Section 11894</p> <p>There is no authority for the appointment of a receiver for the property of a debtor, where the plaintiff is the owner of a simple contract claim, and an appointment would exclude a judgment creditor from his right to levy upon the said property for the satisfaction of his judgment.</p>

<p>PROCEDURE WHERE CHARGES OF WRONGDOING ARE MADE AGAINST AN OFFICER ELECT.</p> <p>Office and Officer — Construction of the Corrupt Practice Act — Board of Deputy State Supervisors of Elections Can Not Assume Judicial Prerogatives — Not Authorized to Refuse a Certificate of Election, When — Mandamus Against Board to Compel Issuance of Certificate —Secretary of State May Be Joined in such an Action, When — Sections 5175-2-3.</p> <p>1. When the person elected to the office of probate judge has filed itemized statements purporting to contain a full statement of all the money or other things of value promised, received or expended, and the liabilities incurred in connection with such election, and the primary election therefor, in substantial compliance with Sections 2 and 3 of the act known as the corrupt practice act (Section 5175-2 and 3, General Code) the board of deputy state supervisors of elections are not authorized under Section 8 of this act to refuse a certificate of election to such person on the grounds that the hoard believes the statements filed are false and incomplete.</p> <p>2. In mandamus proceedings by the person elected to the office of probate judge begun in the county in which the election was held against the board oí deputy state supervisors of elections to compel the issuing of a certificate of election to him, the Secretary of State may be joined with said board as a party defendant, where the Secretary of State under color of his office has assumed the right to direct said board to refuse the certificate, and where the certificate has been refused by reason of such direction.</p> <p>3. In the trial of such mandamus proceedings the defendants can not introduce evidence tending to prove that such statements are either false or incomplete.</p>

<p>JURISDICTION OVER NON-RESIDENT DEFENDANT.</p> <p>Attachment — Motion to Discharge Not an Appearance Conferring Jurisdiction Over the Person of the Defendant, When — Subject-Matter of Action is Existence of the Indebtedness Charged and Not Ownership of the Property Attached.</p> <p>1. Jurisdiction oyer the person of a non-resident defendant in a suit in attachment is not acquired by the filing of a motion by him for a discharge of the attachment for the reason that he is not the owner of the property upon which it has been levied.</p> <p>2. The overruling of a motion for judgment by default is not a final order to which error can be prosecuted.</p>

<p>CLAIM OF ABUTTING OWNER TO PART OF ROADWAY.</p> <p>Dedication — Of a Roadway Where Not in Accordance With Statute— Easement Enjoyed by a Turnpike Company is Vested in the Public — Encroachments on Roadway.</p> <p>1. While there was no statutory dedication of what is now known as the Linwood road, the plat and deeds which are in evidence, taken in connection with the use of the strip as a public highway, have operated as a dedication to public use.</p> <p>2. Such dedication was in nowise prevented by the fact that the way, to which the plat and deed refer and with reference to which they were drawn, was for a long period the property of and under the control of a turnpike company.</p>

<p>ESTOPPEL THROUGH ACQUIESCENCE IN A BOUNDARY LINE.</p> <p>Boundary — Held to be Where the Parties Have Long Believed It to Be —Bather than on the Line Shown by a Survey.</p> <p>The boundary line between the lands of two adjacent owners may be determined by agreement or acquiescence for so long a period of time as to estop either of the owners from asserting that the true boundary is on a different line.</p>

<p>DETERMINATION AS TO TESTACY.</p> <p>Descent — Devise of Life Estate But Not of Fee — How the Fee Passes in Such a Case — Wills—Sections 8574 and 8577.</p> <p>The relict of a deceased husband or wife, who leaves a will bequeathing a life estate only, permitting the fee to go where the statute sends it, dies intestate as to real estate inherited from such deceased husband or wife, and in consequence the title to- such real estate passes under the provisions of Section 8577 and not under Section 8574.</p>

<p>SUFFICIENCY OF CHARGES UPON WHICH POLICE OFFICER WAS DISMISSED.</p> <p>Police Officer — Trial Toy Civil Service Commission — Review Thereof.</p> <p>If charges upon which a member of the police force of a city was tried by the director of public safety and the civiL service commission and discharged from the force, are indefinite or trivial, or not such as are recognized by law or the rules made by the police department in pursuance of the' law as causes for which an officer may be suspended, the judgment of suspénsion is void; but if the charges, or any of them, are of the kind and character which the law recognizes as sufficient to authorize the discharge or suspension of the officer from the police "department, then the court will not inquire into the question whether the charges were sustained by the evidence or not, unless fraud is alleged.</p>

<p>PROPER TESTS AS TO REASONABLENESS OF A RATE TO BE CHARGED FOR NATURAL GAS.</p> <p>Public Utilities — Control of Rate for Natural Gas — Elements to be Considered in Fixing Rate — What is Contemplated by the Statute Giving Municipal Councils Power to Regulate — Court Will Not Declare a Rate Confiscatory, Unless.</p> <p>1. The power given to municipalities hy the Ohio statute to regulate the price of natural gas contemplates an impartial and thorough investigation into all the facts for the- purpose of doing justice to both the corporation and the public by establishing reasonable rates on the one hand and on the other compensation which will be just to the company.</p> <p>2. The elements to be considered in fixing the rate for natural gas are the amount of net profit which may be earned under a fixed rate, and whether the rate as so fixed will yield a fair return on the investment, depreciation in the value of the plant and the risk attendant ■ on the enterprise considered.</p> <p>3. The fixing of the rate of twenty cents per thousand for natural gas for the city of Newark can not be regarded as confiscatory, notwithstanding some depletion in the supply from the wells, when it appears that the supply is still four times the consumption in that field, and the company for some time paid dividends' of ten per cent, under a rate of only eighteen cents, and for several years has paid dividends under a twenty cent rate, and other localities in the same filed are being’ furnished gas at the eighteen cent rate at the present time.</p> <p>4. Moreover, rate can not be declared confiscatory unless clearly shown to be so by actual experience, and particularly will a court refuse so to declare where a mandatory injunction to enforce the provisions of the ordinance fixing the rate complained of has been in force for three years and no showing is made by the company of the result of its operations during that time.</p>

<p>RIGHT TO USE OF A WAY NOT ACQUIRED BY PRESCRIPTION.</p> <p>Easements — Use of a Way Not Adverse Where Privilege Was Acquired by Arbitration — Failure to Close a Gate and Failure to Keep a Fence in Repair Distinguished — Meaning of the Word “Let" in the Phrase “Without Let or Hindrance.”</p> <p>1. The submission by the user to arbitration of his right to use a strip of land as a road leading to a public highway, is inconsistent with the claim that its use has been of a character which has ripened into a title by prescription; and where the condition imposed for its use by the arbitration has not been observed, injunction lies against its further use.</p> <p>2. The phrase “without let or hindrance” is a tautological expression in which the word “let” does not mean “permission,” but has the same, meaning as “hindrance,” and the adoption of this phrase in defining the nature of the “use” which has been enjoyed in no way assists in establishing a right by prescription.</p>

<p>BREACH OF DUTY OF MASTER TOWARD SERVANT.</p> <p>Employer and Employee — Furnishing Viscious Horse — Resulting in Death of Its Driver — Verdict Finding One Not an Employee Will Not he Reversed, When — Inference that Deceased Was Not an Employee Raised hy the General Verdict.</p> <p>1. In an action to recover damages for the death of one who is alleged to have been in the employment of the defendant and to have met his death by the negligence of the defendant, the claimed breach of duty being the furnishing the employee with a viscious horse to drive in the performance of his work without informing him of its dangerous character, the action is based on the breach of a duty which the master owes to his servant as such, and it is not a duty owing to a mere volunteer.</p> <p>2. Where, in such case, the bill of exceptions contains all of the evidence and would justify a finding by the jury that the deceased was not an employee, and the charge of the court is free from error on that branch of the case, a judgment for the defendant will be affirmed on the authority of Sites v. Haversticlc, 23 Ohio St., 626, and McAllister v. Hartzcll, 60 Ohio St., 69, whether error does or does not exist in a matter relating exclusively to another issue.</p> <p>3. In such an action, where the answer denies that the deceased was an employee and alleges contributory negligence, and the jury returns a general verdict for the defendant, the inference arises that the jury found that the deceased was not an employee.</p>

<p>INJURY SUFFERED AFTER ACCEPTING EMPLOYMENT BUT BEFORE BEGINNING WORK.</p> <p>Master and Servant — Relation Held to Exist Although WorTc Had Hot Begun — Plaintiff Relieved of Negligence by Action of Defendant’s Agent.</p> <p>A young woman was sent for to take a place in a laundry and begin work at once. Slie donned ber working clotlies and accompanied the messenger back to the laundry. They entered the premises through the engine room, where the young woman stepped into a sunken barrel filled with boiling water, which was uncovered and of the existence of which she had no knowledge. The proprietor of the laundry provided medical attendance for her and after her recovery took her back into his employ. Held:</p> <p>1. That the relation of master and servant existed and she was not a trespasser.</p> <p>2. That the verdict of the jury in her favor was not inconsistent with their answer of “yes” to interrogatory as to whether a safe and convenient entrance was furnished employees of the laundry.</p> <p>3. That the burden of proof as to the circumstances existing at the time of her injury was upon the plaintiff below, and the jury having found in her favor, judgment should not be disturbed.</p>

<p>PROCEEDINGS FOR. RECOVERY OF CONCEALED PROPERTY OF AN ESTATE.</p> <p>Estates of Decedents — Character of Proceeding for Recovery of Com cealed Property — Defendant Competent to Testify — Burden of Proof —In Whose Favor Judgment Should be Rendered.</p> <p>1. Tlie purpose of Section 10673, making provision for proceedings when property belonging to the estate of a decedent has been concealed or. embezzled, is not to furnish a substitute either for criminal proceedings for embezzlement or for a civil action to recover judgment for money owing to the executor, but rather to provide a speedy and effective method for discovery of assets belonging to the estate and secure possession of them for the purpose of administration.</p> <p>2. In such an inquiry it is error to treat the defendant as a party to a civil action and therefore incompetent as a witness.</p> <p>3. The burden of proof is upon the plaintiff to show by a preponderance of the evidence that the deféndant received the money or other thing of value claimed to have come into his hands and that he concealed, embezzled or conveyed it away.</p> <p>4. In cases where such a proceeding is instituted by an executor the judgment, if any is rendered against the defendant, should be in favor of the executor and not in favor of the state.</p>

<p>PROSECUTION FOR FURNISHING LIQUOR TO A MINOR.</p> <p>Intoxicating Liquors — Prosecution of a Saloon Keeper for Furnishing to a Minor — Proprietor Absent at the Time of the Alleged Offense —Instructions to Bar -Keeper — Competency of Evidence — Charge of Court.</p> <p>1. In a prosecution against the proprietor of a saloon for furnishing intoxicating liquors to a minor in which it appears that the bar tender had been instructed at the time of his employment not to sell to minors, unqualified and unequivocal proof of the absence of the proprietor at the time of such furnishing having been given in direct examination of the bar tender in defense of accused, the narration of any independent circumstance to fortify his own statement is improper in direct examination and properly excluded.</p> <p>2. An instruction, in a prosecution for furnishing intoxicating liquors to a minor, that if the liquors were not furnished by the proprietor but by the bar tender, unless the proprietor consented to such ' furnishing by the bar tender then no conviction could be had and the burden is on the state to show that the furnishing was.consented to by the state, is properly refused when the court charges generally that it is immaterial whether the furnishing was by the proprietor or the bar tender, unless it appears that such liquors were furnished without the authority and against the instructions of the proprietor given to the agent in good faith, and also, that the burden of proving defendant guilty is upon the state.</p>

<p>BOY KILLED BY THE STARTING OF A TRUCK IN SOME UNKNOWN MANNER.</p> <p>Negligence — Heavy Electric Truck, Started by Unknown Agency, Runs Over Boy Passing Along Sidewalk.</p> <p>The decedent, a boy twelve years of age, while walking along the sidewalk in the evening, was killed by being run over by a heavy electric truck which had been left for the night with the brake on and the controller removed, standing in an open space covered with a cement floor slanting toward the sidewalk and abutting thereon. In the absence of any evidence as to the agency which started the truck, the court holds that the boy met his death by reason of the negligence of the defendant owner of the truck in not leaving it in a safe and proper place where it could not injure persons lawfully passing along the sidewalk.</p>

<p>RIGHTS UNDER CIVIL SERVICE OF EMPLOYEES ON THE ELIGIBLE LIST.</p> <p>Civil Service — Determination as to Eligibility for Promotion Can Not be Reversed — Subsequent Board Bound by Such Determination.</p> <p>Where the commission has once determined that a member of the police force is eligible for promotion and promotion is duly made after competitive examination, it is without power to subsequently reverse its decision with respect thereto, and a subsequent board is bound by such former action.</p>

<p>PROSECUTION FOR KEEPING A PLACE WHERE INTOXICATING LIQUORS ARE SOLD.</p> <p>Criminal Law — Accused Named, in the Affidavit by Ms Initials — Proof as to the Sale of Liquor on Sunday — Jury Trial Not Necessary on the Issue of Former Jeopardy Under Charge .of Unlawfully Keeping ' a Place "Where Intoxicating Liquors are Sold — Variance.</p> <p>1. Courts take judicial notice that Christian and surnames are abbreviated. Hence, in a prosecution before a mayor under General Code, 13195, for keeping a place where intoxicating liquors are sold in violation of law, the fact that accused is named in the affidavit by initials instead of his full name does not necessitate a reversal for variance under General Code, 13582, especially where no objection is made on the trial thereto and in his internal revenue certificate and state liquor tax application it appears that his name is designated by such initials.</p> <p>2. Proof of a single sale on Sunday of intoxicating liquors in a room furnished with bar fixtures, a bar tender and other indicia of a place where liquors are kept, justifies a conviction under General Code, 13195, for keeping a place where intoxicating liquors arte sold contrary to law.</p> <p>3. The inhibition of General Code, 13195, as to unlawfully keeping a place for sale of intoxicating liquors is not limited to dry territory but includes unlawfully keeping a place on Sunday.</p> <p>4. Plea of former jeopardy is properly heard and determined by a mayor under General Code, 4528, in a prosecution for unlawfully . keeping a place for sale of intoxicating liquors contrary to General Code, 13195, and, since the prosecution is for a fine only, a jury trial is not necessary.</p>

<p>APPOINTMENT OF STREET COMMISSIONER..</p> <p>Municipal Corporations — Mayor’s Appointment of a Street Commissioner to Fill a Vacancy — Must he Confirmed by Council — Temporary Appointment Unauthorised, When.</p> <p>1. An appointment of street commissioner to fill a vacancy requires confirmation by the village council the same as an appointment for the full term as prescribed by Section 4363, General Code.</p> <p>2. An appointment of street commissioner of a village on or before the first Monday in February is limited by Section 4251, General Code, to an appointment for a full term of a year which under Section 4363, General Code, requires confirmation of the council; hence, a “temporary appointment” of one whom council refuse to confirm as street commissioner to “prevent a stoppage of public business” as prescribed by Section 4488, General Code, which applies only to civil service employees, is unauthorized and invalid.</p>

<p>ACTION TO ENJOIN ISSUING OF EXECUTION.</p> <p>Execution — Clerk of Court Can Not he Enjoined from Issuing, When— Remedy of the Defendant Ample at Law.</p> <p>Injunction against the clerk- of the court of common pleas to prevent him from issuing an execution to the sheriff of the same county, will not lie, in the absence of fraud, conspiracy or circumstances showing unfair advantage in issuing such execution, the remedy at . law by application to the court from which the execution issued, to have it set aside, being ample.</p>

<p>CROSSINGS OF ELECTRIC AND STEAM RAILWAYS.</p> <p>Railroad Crossings — Policy of the Law with Reference to — When an Overhead Crossing Will he Ordered — Apportionment Between Electric and Steam Railways of Cost of an Overhead Crossing.</p> <p>1. It is the policy of the statutes providing for the manner of one railroad crossing another to require crossing other than at grade, where practicable from an engineering point of view and reasonable as a business proposition; and where an electric road seeks to cross a steam road and an overhead crossing is, under all the circumstances, practicable and reasonable for both companies, a crossing of that character will be ordered.</p> <p>2. In apportioning the cost of an overhead crossing between an- electric railroad company and a steam railroad company, the steam company where first established, should be made to share the cost of constructing only that part of the crossing that is necessary to provide a way and support for the tracks of the crossing railroad;. the cost of ties, rails, ballast and the like must all be borne by the company crossing the older line.</p>

<p>CLASSIFICATION OF EMPLOYEES UNDER. THE CIVIL SERVICE.</p> <p>Civil Service — Determination as to Whether a Valve-man is a Skilled or Unskilled Laborer — Status Where Unskilled Laborers Sold Over More Than Twelve Months Without Examination.</p> <p>A valve-man employed in the municipal service under the,former civil service law was in the unskilled class, and his appointment by the director of public service was legal and he became an “incumbent of the place” under the present act, and is entitled to remain in the position and to receive pay for his services, subject to his successfully passing a non-competitive examination when called upon to do so by the commission.</p>

<p>WHERE A LOSS MUST FALL UPON ONE OF TWO INNOCENT PARTIES.</p> <p>Promissory Rote — Made Payable at an Attorney’s Office — Is Paid to the Attorney Who Absconds — Maher and Payee both Innocent of Intentional Wrong — Determination as to Whose Carelessness was Responsible for the Loss — Agency—Evidence.</p> <p>1. Where a promissory note is made payable at the office of an attorney and the maker and payee never meet but the amount of the loan was handed to the maker by the attorney in question, and for several years the maker paid interest on the note to the attorney and finally paid the principal upon the promise of the attorney to send him the canceled note, which was not done but the attorney thereafter absconded, a finding by a jury under proper instructions that a,s between the two innocent parties the carelessness of the payee was responsible for the loss will not be disturbed by a reviewing court.</p> <p>2. In such a case it is not error to exclude the answer of the payee as to whether he authorized the said attorney to collect the principal of the note.</p>

<p>CONTRACT FOR SALE OF COAL LANDS.</p> <p>Specific Performance — Absence of Goal on Tioo Hundred Acre Tract Not Established by Two Borings — Failure to Perfect Title Does Not Defeat Action for Specific Performance.</p> <p>1. In an action upon a contract for the sale of coal land, a defense that there was no mineable or marketable coal under plaintiff’s land is not sustained by evidence that two borings on a two-hundred acre tract failed to disclose coal in mineable or marketable quantities when it is admitted that in that neighborhood coal veins appear and disappear unexpectedly.</p> <p>2. A vendor who has not complied with the terms of his agreement by making a good title, or by conveying or offering to convey at a stipulated day, may still obtain a decree for specific performance notwithstanding his delay, provided it is not intentional, unreasonably long, or so injurious to the vendee that an enforcement would be inequitable.</p>

<p>CONVERSION OF STREET INTO A VIADUCT CAN NOT BE ENJOINED BY AN ABUTTING OWNER.</p> <p>Tax-Payer — Barred from Bringing an Action on Behalf of the Municipality, When — Ordinance May be Regarded as Containing but One Subject Although Treating of Many Matters of Detail — Abutting Owner Relegated to an Action tor Damages and an Injunction Not Allowed to Prevent Public Improvement.</p> <p>1. The right of a tax-payer to bring an action on behalf of the city is barred, where the question which he desires to raise is one which might properly have been raised and litigated in a previous action brought by the city solicitor and carried to a final judgment.</p> <p>2. An ordinance relating to a separation of grades at a crossing of a street over railway tracks will be deemed to contain but one subject, notwithstanding many matters of. detail may be involved therein.</p> <p>3. The fact that an abutting property owner may be greatly inconvenienced by the conversion of the street in front of his property into a viaduct and may lose a portion of his land through appropriation for that purpose, and it is evident the damage he is about to sustain to his remaining property will be very great, yet the fact that he has a complete remedy by way of compensation deprives him of the right to an injunction against the carrying forward of the improvement, where it appears that it will be of great benefit to the community at large.</p>

<p>ERROR IN ADMITTING IN EVIDENCE A PRINTED RECORD.</p> <p>Evidence — XJnaulhenticated Copy of Court Proceedings — -Not Competent as Proof of a Question of Fact.</p> <p>It is error to admit in evidence a printed record of a cause determined in another court, unauthenticated by the certificate of the judge and clerk of said court, where the matter sought to be established thereby is one of fact; but where plaintiff had failed to prove the facts necessary to make his case and the proof so introduced by defendant became immaterial, its admission was not prejudicial or ground for reversal.</p>

Plaintiff filed her petition for partition of the property described therein. Her right .to partition -depends upon a construction of the will of Richard Gould, deceased. Richard Gould died in the year 1879 leaving a widow and six children, several of whom were minors. At the time of his death he was seized in .fee of the property of which partition is sought. The widow still lives and has never remarried. Five of the children are living and are of full age.

<p>DURATION OF TEMPORARY APPOINTMENTS BY THE MAYOR.</p> <p>Civil Service — Tenure of One Appointed to the Municipal Service to Meet an Emergency — Section 4488.</p> <p>Under the rules of the Civil Service Commission of Cincinnati the tenure of one appointed to the municipal service to prevent the stopping of public business or to meet an extraordinary emergency, continues until such time as tbe commission certifies suitable persons from an appropriate eligible list to fill the vacancy.</p>

<p>ALLOWANCE OF ALIMONY ON GROUNDS SUBSEQUENTLY ARISING.</p> <p>Divorce and Alimony — Refusal of Alimony to Wife in Another Jurisdiction — Conclusive Only Under Conditions then Existing.</p> <p>Where, in prior actions in another jurisdiction in this state, the courts have held in suits between the same parties for divorce and alimony, that the separation of the parties was caused by the fault of the wife, but that she had not been guilty of willful absence for three years, nor of gross neglect of duty, nor extreme cruelty, and have adjudged that the husband should make a fixed monthly payment for the support of the children, but refused an allowance of alimony to the wife, such adjudications are final and conclusive as to conditions then existing, but do not preclude an allowance of alimony on grounds subsequently arising.</p>

<p>DETERMINATION AS TO BENEFICIARY.</p> <p>Beneficial Insurance — Brothers of Policeman Designated as His Beneficiaries — Designation Invalidated by His Subsequent Marriage.</p> <p>Tlie designation by an unmarried member of a policemen’s benefit association incorporated under General. Code, 9427, of bis brothers as beneficiaries of a fund payable at his death by said association, is invalidated by his subsequent marriage; and death occurring after such marriage the fund should be paid to his widow.</p>

<p>DAMAGES FOR WANTON TRESPASS.</p> <p>Trespass — Finding of Not Guilty of Intentional Wrongdoing or Actual Malice Not Inconsistent toith a General Verdict for Plaintiff which Includes Punitive Damages.</p> <p>In an action to recover damages for an alleged wanton and malicious trespass on real estate, in which the jury returns a general verdict for the plaintiff, and assesses the actual damages and the punitive damages separately, and further states in answer to an interrogatory submitted, that it does not find the defendants were guilty of intentional wrongdoing or actual malice, the plaintiff is entitled to a judgment for the full amount of the general verdict, inasmuch as such special finding does not exclude a conclusion that the defendants acted wantonly, or in reckless disregard of the rights of the plaintiff, and it is not, therefore, irreconcilable with the general verdict.</p>

<p>PROOF OF GUILT UNDER AN INDICTMENT FOR ROBBERY.</p> <p>Evidence — Trials—Statements of Third Parties in Presence of Accused; When Admissible — Record of Whole Case Before Reviewing Court —Immaterial Evidence Admissible to Rebut Like Evidence — Evidence Known to Party Not Newly-Discovered.</p> <p>1. Statements of third persons to the accused, charging him with crime and his conduct or replies in response thereto, are admissible in evidence.</p> <p>2. Where a motion for a new trial is overruled and no exceptions taken thereto and a second motion for a new trial made on the ground of newly-discovered evidence is also overruled, to which exceptions are taken and the case taken on error to the circuit court, the record of the entire case is before the court for review.</p> <p>3. Where immaterial evidence has been admitted on behalf of one party similar evidence then becomes admissible on the part of the other party to explain or rebut it.</p> <p>4. A new trial will not be granted on the ground of newly-discovered evidence, simply because the counsel for the accused did not know of the existence of the evidence, when it was possible for the defendant to communicate it to him at any time previous to the trial, and he failed to do so.</p>

<p>LIABILITY OF STOCKHOLDERS FOR DEBTS INCURRED BY THE CORPORATION.</p> <p>Pleading and Practice — Stockholders Liability — Appeal Brings Questions on Pleadings to the Appellate Court — Subsequent Facts May be Set Forth in Supplemental Petition — Stockholders Liable for Debts Incurred Before Transfer or Assignment of Stock.</p> <p>1. An appeal brings up questions on the pleadings, in the same manner as such questions would be raised had the appellate court had original jurisdiction.</p> <p>2. Facts necessary to make a cause of action, which have occurred since the filing of an original petition, may be set forth in a supplemental petition.</p> <p>3. Under Section 3258, Revised Statutes, stockholders are liable for such debts as the corporation has incurred before the transfer of the stock and such liability is not limited to such debts as have matured at that time.</p>

<p>HEARING DENIED TO A DISMISSED SCHOOL JANITOR.</p> <p>Mandamus — School Janitor Fails to Appear When Cited by the Board to Answer to Charges — Estopped Thereby from Being Granted Belief in Court.</p> <p>Mandamus does not lie upon the petition of a school janitor-engineer to require the board of education to prefer charges against him and give him an opportunity to be heard, where specific charges were theretofore preferred against him and a date set for the hearing which he ignored, whereupon he was notified that his services would be no longer required.</p>

<p>INSOLVENCY OF CORPORATION PROVED BY TAKING A DEFAULT JUDGMENT.</p> <p>Judgments — Failure to Notify Stockholders of an Insolvent Corporation of the Institution of a Suit Against it Foes Not Amount to Fraud and Collusion.</p> <p>Where in an action to enforce stockholders’ liability a judgment for the plaintiff has been reversed and the case remanded from the Supreme Court for the sole reason that no insolvency of the corporation had been shown, and while pending in the common pleas court, the plaintiff obtains a default judgment against the corporation upon which execution is issued for the purpose of establishing the insolvency of the corporation in the stockholders’ liability suit, such judgment is not obtained by fraud or collusion and is not in violation of any rights of the stockholders, even though- they were not notified of the suit.</p>

<p>SCHOOL BUILDING JANITORS UNDER CIVIL SERVICE.</p> <p>Civil Service — Janitor of a Public School Building is i?i the Classified Service — Hold Over Janitors Subject to a Non-Competitive Examination — '-Liability of Treasurer of School District Under Section 486-21.</p> <p>1. Under the rules of the board of education of Cincinnati a janitor of a public school building is an employee of the board rather than an independent contractor.</p> <p>2. Such janitor of a public school building is within the classified service, but those who were legal incumbents of the position at the time of the passage of the civil service act are entitled to hold over, subject to a non-competitive examination.-</p> <p>3. Where the money has been drawn by the treasurer of a school district for payment of any salary due one legally employed as janitor and there is no sufficient reason for his not paying it over, a writ of mandamus will issue to require such payment.</p>

<p>APPLICATION OF THE STATUTE SHORTENING THE TIME FOR BRINGING PROCEEDINGS IN ERROR.</p> <p>Error — Statute Limiting the Time for Bringing Proceedings to Seventy Bays — Applies to Gases in Which Judgment Has Been Rendered Since the Law Went Into Effect — Section 12270.</p> <p>A proceeding in error is an independent action, and jurisdiction in such a proceeding is not acquired under the present statute, in a case in which it is sought to reverse a judgment rendered since the law went into effect, unless commenced within, seventy days after the entering of such judgment.</p>

<p>APPLICATION OF FUNDS UNDER. THE WORKMEN’S COMPENSATION LAW NOT SUBJECT TO INJUNCTION.</p> <p>Jurisdiction — Not Conferred Upon the Courts — To Enjoin Payments Under the 'Workmen’s Compensation Law.</p> <p>The authority conferred by Sections 2921 and 4311 on the prosecuting attorney of the county and the city solicitor to bring actions for the purpose of restraining the illegal payment of money from the public treasury do not give jurisdiction to a court to entertain an injunction proceeding contrary to the provisions of Section 58 of the workmen’s compensation act.</p>

<p>ENDORSER RELEASED BY DIVERSION OF COLLATERAL.</p> <p>Bills, Notes and Checks — Collateral Diverted by Payee Without Consent of Accommodation Endorser — Latter Released to the Extent He Was Injured Thereby.</p> <p>Under favor of Section 8300, General Code, and the rules of the law merchant an accommodation endorser is entitled to be protected in his right to collateral securities deposited with the payee, and such payee has no right to divert the securities without the consent of such endorser, and he will be released by such act, to the extent he is injured 'thereby.</p>

<p>ASSESSMENT FOR PAVING A STREET OCCUPIED IN PART BY A MARKET HOUSE.</p> <p>Assessment for Improving Street — Where Fixed at Fifty Per Cent. Not Inequitable Against Abutting Property, When.</p> <p>Where a market house occupies the middle of a street, extending across an entire square from one intersecting street to another, and the said street is improved with a new pavement on both sides of - the market house, an assessment of fifty per cent, of the cost, exclusive of intersections, against the abutting property is not inequitable but may be legally made and will not be enjoined.</p>

<p>Appeal from common pleas court.</p>

<p>NATURE OF DEPOSITS MADE BY A TOWNSHIP TREASURER. OF TOWNSHIP FUNDS.</p> <p>Depositories of Public Funds — Bank Deceiving Township Funds from Township Treasurer Hold Them as a Special and Not a General Deposit — Trust Status Not Lost — Taxes Collected by a Deputy County Treasurer in Villages Having no Local Bank, But Deposited in a designated Bank of Deposit Are General Deposits — Undivided Tax Funds.</p> <p>1. The proviso of Section 12873, General Code, exempting the acts of township and other treasurers depositing certain public funds in the banks prescribed from the operation of a drastic criminal statute, does not enlarge the authority of such treasurers nor authorize a deposit for other than safe-keeping; hence, a bank receiving funds deposited by a township treasurer, no attempt being made to comply with Section 3320, General Code, et seq., providing for township depositories, succeeds prima facie to the treasurer’s possessory title to such funds and as quasi trustee for their safe keeping as a special and not a general deposit.</p> <p>2. Section 4294, General Code, authorizing the deposit of- municipal moneys in certain banks as special deposits, is intended only.to legalize such deposits, retaining the civil liability of the treasurer upon his bond, and there is nothing to warrant any inference that the treasurer’s duty or authority over such trust funds is changed, having no authority to convert such funds to his own or any other’s use. Hence, village funds deposited in a bank by a village treasurer upon his sole authority do not lose their trust status or become general deposits. Whether the subsequent knowledge or acquiescence of his sureties to such deposits is equivalent to prior assent, quaere. .</p> <p>3. The deposit of taxes collected by a deputy county treasurer under Sections 2746, 2748, General Code, in villages having no local bank of deposit, but deposited by him in a designated bank of deposit on the day of payment, complies with the statute, whether sent first to the county treasury or placed in a depository bank, and become "undivided tax funds” under Section 2737, General Code; and, where entered upon the pass book among the interest bearing deposits and allowed to remain, and is entered on treasurer’s record as “deposited in depository” and certified by the auditor, constitute such funds general and not-special deposits. ,</p>

<p>ERROR PROCEEDINGS IN CRIMINAL CASES.</p> <p>Exceptions in Criminal Proceedings — Time Within Which Bill of Exceptions and Petition in Error May he Filed — Section 13680.</p> <p>1. The period within which a hill of exceptions must he prepared and filed in a criminal case is the same as that allowed in civil actions.</p> <p>2. The time limitation for filing a petition in error to reverse a judgment in a civil action has no application to a criminal action.</p>