Volume 28 — Ohio Circuit Court Reports, New Series

<p>SECONDARY EVIDENCE MADE COMPETENT ONLY BY EXIGENCY OF PROOF.</p> <p>Evidence — Circumstantial Character of Evidence of Halit — Competency of Secondary Evidence.</p> <p>Evidence of the habit of a person being circumstantial and secondary in character, its admission is largely within the discretion of the court, and when there is primary evidence of a fact desired to be proven, there is ordinarily no necessity for resort to secondary evidence to establish the fact, and in the absence of some necessity for the introduction of such evidence .to meet some exigency of proof, it will be rejected.</p>

<p>DECREE OF DIVORCE NOT CONCLUSIVE AS TO VALIDITY OF MARRIAGE.</p> <p>Divorce and Alimony — Decree of Divorce Not ReviewaUe Nor Does Appeal Lie — Parties to an Alimony Proceeding — Not Concluded as to Validity of Marriage Toy Previous Decree of Divorce — Comt petency of Evidence as to a Former Marriage. ■</p> <p>1. No appeal or review by error proceedings of a divorce decree can be had.</p> <p>2. In the prosecution of error in a suit involving the right to alimony on the part of the wife, the parties are not concluded by a decree of divorce, previously rendered, so far as the validity of the marriage is concerned.</p> <p>3. In a suit for alimony where the defendant claims that he was never legally married to the plaintiff, for the reason that he had a first wife still 'living at the time plaintiff claimed the marriage took place and that no divorce had been had between such first wife and the defendant, it is error to refuse to permit the defendant to testify as to his former marriage and to exclude the testimony of witnesses who were, present at the church and witnessed the former wedding.</p>

<p>AUTHORITY OF THE PROBATE COURT TO TRY THE RIGHT OF PROPERTY.</p> <p>Right of Property — Frótate Court Has Authority to Determine — Title Thus Settled is Res Judicata in Another Court.</p> <p>The statutes of Ohio, . as they now stand, provide for trial of the right of property by the probate court, and proceedings before •that court pursuant thereto may be pleaded in bar of an action in another court to try the title to or the right of possession of the property involved in said proceedings.</p>

<p>RESTORATION OF AN INJUNCTION BY PERFECTION OF AN APPEAL.</p> <p>Injunction — Order Dissolving, is Suspended by Perfecting an Appeal— Contempt of Court — Not a Defense that the Offense ~Was Due to the Advice of Counsel.</p> <p>1. The perfecting of an appeal by the filing of an appeal bond suspends the order of a lower court dissolving an injunction, and violation of the injunction after the filing of the appeal bond constitutes contempt of court.</p> <p>2. The plea that parties who are in contempt of court committed the offense while acting upon the advice of counsel, is not a defense but may be considered in mitigation of the offense.</p>