Volume 5 — Ohio Appellate Reports

<p>Police pensions — Sections 4616 to 4631, General Code — Suspension of payment — By board acting without authority — Mandamus proper remedy — Laches — Statute of limitations — Six years — Section 11222, General Code.</p> <p>1. Acquiescence in the action of a person or official board cannot be charged where the person or board taking such action was without power or jurisdiction to act.</p> <p>2. Where a member of the police force has been retired for disability and placed on the pension roll, and is thereafter suspended from said roll by a board acting without authority, his right of action for a writ of mandamus to compel the issuance of a warrant for the pension of which he was thus deprived is by analogy limited to the six years from the time when his right of action accrued.</p> <p>3. A pension being in the nature of a gratuity there is no legal liability for its payment which can be enforced in an action for money, but the remedy for recovery of a pension, payment of which has been wrongfully discontinued, is by mandamus.</p>

<p>Error: Court of Appeals for Columbiana county.</p>

<p>Criminal law — Summoning grand juror by wrong initials — Plea in abatement — Indictment for homicide — Insufficient description of weapon — Motion to quash — Evidence — Husband and wife — Undivorced woman cohabiting with defendant.</p> <p>1. The summoning of a grand juror under the wrong initials is a misnomer only, and is not an irregularity of which advantage may be taken by a plea in abatement.</p> <p>2. Under the present rules for pleading in criminal cases, which require only reasonable certainty in an indictment, the fact that the pleader might have been a little more explicit in his statement as to why the instrument alleged to have been used in committing the homicide could not be more fully described, does not constitute ground for quashing the indictment.</p> <p>3. Where the woman with whom the defendant was living as his wife, at the time of the .commission of the crime, is shown to have been previously married to another man who was still living and from whom she had not been divorced, it is competent for the state to call her as a witness against the defendant.</p>

<p>Negligence — Violation of municipal ordinance — Negligence per se, when — Exercise of care — Passenger alighting from street car — Presumption that vehicle drivers obey law.</p> <p>1. Where a municipal ordinance prohibits drivers of vehicles on a public street from passing a street car while such car is standing for the purpose of taking on and discharging passengers, it is negligence per se for the driver of an automobile to pass such car in disobedience of the provisions of the ordinance.</p> <p>2. While a passenger alighting from such car is not relieved from the duty of using ordinary care, he has the right to act upon the presumption that drivers of vehicles approaching the car from which he is alighting will obey the law, and if, while using ordinary care himself, he is injured by a collision with a vehicle driven past such car in violation of the provisions of the ordinance he can recover.</p>

<p>Descent and distribution — Adopted daughter dies leaving child— Latter inherits, by representation, from intestate grandparents, when.</p> <p>If an adopted child die during the lifetime of the adopting parents, leaving a child as survivor, such surviving child stands in the place of the parent and inherits by representation from the adopting parents who die intestate, the same as if a grandchild.</p>

<p>Office and officers — County commissioners — Death of member — Performance of duties by survivors.</p> <p>In case of the death of one member of the board of county commissioners, the vacancy thus created remaining unfilled, the surviving members have authority, acting together, to perform the duties of the board.</p>

<p>Criminal law — Jeopardy — Prosecution for lesser offotse — Not a bar to prosecution for greater, when — Assault and battery — Assault with intent to commit rape.</p> <p>The offenses of assault and battery and of assault with intent to commit rape are made by our statutes separate and distinct, and prosecution for the lesser and subsequently for the greater offense does not constitute a placing of the defendant in jeopardy twice for the same offense,</p>

<p>Extradition — Duty of governor — Hearing before judge — Section 114, General Code — Questions to be determined — Sufficiency of charges by demanding state• — Presumption as to finding by governor — Not overcome by evidence, when.</p> <p>1. The governor of this state upon a demand, made in due form by the governor of another state, for the surrender of a fugitive from justice, should first determine whether or not the requisite preliminary steps have been taken, that legal grounds exist and that the case falls within the purview of the statutes for issuing of an extradition warrant, and if he so finds it then becomes his duty to issue such warrant.</p> <p>2. The sheriff, in the instant case, took the fugitive before the judge of the court of common pleas, who under Section 114, General Code, had jurisdiction to hear and determine the cause, and upon proof by him adjudged sufficient ordered the fugitive to be delivered to the agent of the state of Pennsylvania, who was named in said requisition, to be conveyed to the state of Pennsylvania for prosecution on said charge. Held: That neither the governor nor the examining judge passes upon the ultimate guilt of the accused, but upon the questions as to whether or not an offense is charged under the laws of the state demanding extradition, whether or not the identity of the party charged is established, whether or not the party charged is a fugitive from justice, and that the extradition is not for the purpose of enforcing any civil liability against the accused.</p> <p>3. The information upon which these proceedings were based charged the offense of obtaining money by false pretenses, and the objection to this charge being technical and the information substantially charging the offense, it is held to have been sufficient.</p> <p>4. The presumption is that the governor of Ohio found, in issuing the extradition warrant, that the application for the requisition was made in good faith for the purpose of having the alleged fugitive answer to the offense charged, and the court finds there is not sufficient evidence to the contrary in the record to overcome this presumption.</p>

<p>Res adjudicata — Former judgment conclusive — As to matters entitled to be litigated, when — General denial in answer to former suit — Failure to present claim pleaded in later action.</p> <p>Where testimony as to the claim now in suit was offered and went to the jury in a former trial, in which the present plaintiff was defendant and the present defendant was plaintiff, a reviewing court must assume there was a determination as to that claimed, and the principle of res adjudicata applies, notwithstanding the answer in the former suit was a general denial and no affirmative relief was sought and no claim presented with reference to the account on which recovery is sought in the case at bar.</p>

<p>Jurisdiction — Juvenile and common pleas courts — Child of divorced parents — Section 11987, General Code, not superseded by Sections 1647, 1648 and 8031, General Code — Prior and continuing jurisdiction of common pleas court.</p> <p>t. Sections 1647, 1648 and 8031, General Code, conferring on juvenile courts authority to determine cases involving delinquent, neglected and dependent children, do not supersede Section 11987, General Code, empowering common pleas courts to make orders for the disposition, care and maintenance of children of parents involved in divorce proceedings.</p> <p>2. A court of common pleas, having made an order concerning the disposition of a minor child of parents involved in divorce proceedings, has continuing jurisdiction of such child, precluding a juvenile court from taking independent jurisdiction thereof. If the best interests of the child demand a change of custody the proper procedure is by application to the common pleas court to modify its former order.</p> <p>3. The principle that the court first obtaining jurisdiction of a subject-matter retains exclusive jurisdiction and authority until final disposition, applies to jurisdiction of a dependent child concerning whom a common pleas court has made an order for the custody in divorce proceedings; and a juvenile court has no authority to make an order for the disposition of such child.</p>

<p>Libel and slander — Publication that tradesman has retired from business — Not libelous per se, when.</p> <p>A publication by a tradesman to the effect that Mr. N. had “suddenly decided to retire from the tailoring business,” coupled with the announcement to the trade that his entire stock had been purchased for cash, is not libelous on its face.</p>

<p>Corporations — Agreement by preferred stockholders to remit'dividends— And by common stockholders to pay assessment — May be enforced, when.</p> <p>An agreement entered into by all the stockholders of a corporation, whereby the holders of the preferred stock remitted all dividends accrued and unpaid and all dividends which should accrue up to a certain specified date, on condition that the holders of the common stock should stand an assessment of $40 per share, does not lack in mutuality nor is it void for want of consideration, and an action lies against a common stockholder who has failed to meet the assessment so levied.</p>

<p>Error: Court of Appeals for Perry county.</p>

<p>Constitutional law — Rural school act — Section 473s et seq., General Code (104 O. L., 138) — Establishment of districts by county board of education — Board’s discretion will not be interfered with, when — ■Members of board not county officers — Power of general assembly under Section 3, Article VI, Constitution, igi2.</p> <p>1. What is known as the rural school code confers a broad discretion on the county board of education in the matter of the establishment of new school districts, .and where this is done by attaching four subdistricts to a village school district a court will not grant relief to a complaining taxpayer in the absence of a showing of fraud or an intentional abuse of discretion.</p> <p>2. There is nothing in the evidence submitted in the case under consideration which would indicate an abuse of discretion on the part of the county board, and the court would not be justified in limiting by construction the discretion so exercised.</p> <p>3. Failure of the rural school act to provide for the election of the members of the county board of education by the people does not render the act invalid, for the reason that the jurisdiction of members of the county board is exclusive of territory embraced in any city school district and they are, therefore, not county officers.</p> <p>4. Full power is vested in the general assembly, under Section 3 of Article VI of the amended Constitution of September, 1912, to provide for the organization, administration and control of the public school system of the state, and the act in question is within the limits of this power.</p>

<p>Street improvements — Assessments limited to special benefits, when — Effect of signing petition for improvement — Section 3836, General Code — Waiver of limitation of assessment — Consent and agreement of property owner essential.</p> <p>1. Special assessments for the improvement of the streets of a municipal corporation cannot be levied and collected from property bounding and abutting on such streets in excess of the special benefits accruing to such property from such improvement except by the special agreement and consent of the owner of such property.</p> <p>2. Where the owner of property abutting on a street in a village signs a petition, with others, to the council of such village, asking for the improvement of such street, under the provisions of Section 3836, General Code, he thereby waives the limitation of assessments for the method of assessment designated in said petition, not, however, in excess of the special benefits conferred on his property by the construction of such improvement.</p> <p>3. The owner of a lot abutting on a street in a village may waive the limitation of a special assessment to the special benefits conferred on his property, but such waiver must he with his consent and agreement, either expressed or necessarily implied.</p>

<p>Fife insurance — Limitation of actions — -Contract stipulation of one year after fire — Dismissal of action otherwise than on merits — New action not barred, when — Section 11233, General Code.</p> <p>A clause which shortens the statute of limitations, as to the time for bringing suit on the contract in which said contract is incorporated, can not be enforced in the face of the provision of Section 11233, having reference to the time within which suit may be brought in cases which have failed otherwise than on the merits.</p>

<p>Court procedure — Error to direct verdict — Where material facts in dispute — Action on executory contract.</p> <p>Where facts necessary to a determination of the issues involved are in dispute it is error to direct a verdict, and such a situation is presented where there is conflict in the evidence as to material facts and some of the questions of fact are of such character that different minds might arrive at different conclusions.</p>

<p>Error: Court of Appeals for Stark county.</p>

<p>Criminal law — Evidence — Right to meet witnesses face to face — Section io, Article I, Constitution — Statements by insane patients to coroner — Inadmissible in trial of hospital attendant, when.</p> <p>In the trial of an attendant in a hospital for the insane for the unlawful killing of one of the patients, it is a deprivation of a constitutional right guaranteed to the defendant to admit in evidence a statement by the coroner of what was told him three days later by certain insane patients as to the circumstances of the killing which they had witnessed, the testimony of members of the medical staff of the hospital being to the effect that said patients did not have the mental capacity to properly observe the incidents which took place or the memory to relate accurately what took place.</p>

Error: Court of Appeals for Hocking county. John W. Dennis filed his petition in the court of common pleas, stating that on the 27th day of January, 1881, he married Margaret A. Hartley, who died the 17th of October, 1906, seized of 73.6 acres, more or less, of land in Hocking county, Ohio. The prayer was for dower.

<p>Evidence — Weight of testimony of relatives — Charge to jury — Reversals on weight of evidence• — Judgments.</p> <p>1. An instruction to the jury that transactions between relatives “are always viewed with suspicion, and their testimony with regard to such transactions must be taken with allowance,” is not prejudicial where immediately followed by the statement ■that if such testimony “is of such a nature as to carry conviction to your mind that said witnesses are telling the truth, then it is entitled to as much weight as that of any other witness.”</p> <p>2. The rule that a reviewing court will not set aside a judgment on the ground of weight of evidence, applies to a judgment which is based on evidence which is conflicting and of such character that different minds might reasonably arrive at different conclusions.</p>

<p>Appeal: Court of Appeals for Ross county.</p>

Error: Court of Appeals for Ross county. The plaintiff in error, Clarence Myers, was charged in an affidavit filed in the mayor’s court of Chillicothe with unlawfully and purposely exhibiting to the public, in a building known as the Majestic Theatre on East Second street in that city, “a theatrical performance, to-wit: a moving picture show, on the first day of the week, commonly called Sunday.” It appears from the testimony that he was exhibiting a moving picture show on…

<p>Negligence —Bystander watching road-work — Killed by explosion of traction boiler — Owners of engine not liable, when.</p> <p>Recovery of damages can not be had for the death of one who was killed by the bursting of the boiler of a traction engine, which was being operated in a lane near a field where decedent was standing at the time of the explosion, and where the decedent was not an employe of those owning and operating the engine, and was not present by invitation, but was a mere onlooker idly watching the operation of the engine.</p>

<p>Disqualification of judge — Stockholder in plaintiff company — Default judgment and order of foreclosure — Not void or subject to collateral attack — Causes for disqualification of judge — Section 1687, General Code (103 O. L., 417).</p> <p>1. A default judgment taken on promissory notes and for the foreclosure of the mortgage securing the same, entered by a judge who is interested in the cause or matter pending as stockholder in plaintiff company, if the proceedings are all regular, is not void and can not be collaterally attacked.</p> <p>2. The grounds provided in the statute are the only ones disqualifying a judge in the trial of a cause or matter pending in his court. The clause “or is otherwise disqualified to sit in such cause or matter” brings into the statute all the common-law causes for which a judge may be disqualified, in addition to those enumerated in the statute, and the statutory remedy of filing an affidavit of prejudice applies to all of them.</p>

<p>Negotiable instruments— Qualified indorsement of note by payee — Indorsee not mere assignee of payee — Defense of mistake of character of instrument signed — Maker liable to holder in due course — Section 8143, General Code, construed.</p> <p>The qualified indorsement of a note “without recourse” simply precludes the indorsee from holding the indorser liable to him in the event the maker fails to pay the note, and the statute having reference to qualified indorsements in no way changes the well-established principle of law that the purchase of commercial paper for value before due, in the absence of fraud or knowledge of any infirmity in the instrument or defect in the title thereto, deprives the maker of any defense.</p>

<p>Error : Court of Appeals for Stark county.</p>

<p>Mortgages — Transfer'as collateral security — Inadvertent release by transferee — Notation on record cancelled and lien restored — Notice as to limited transfers.</p> <p>Where the transfer of a mortgage, which is being used as collateral security, is not absolute on its face, but is of such a character as to clearly show it is a limited transfer, sufficient notice is afforded to one examining the title to the premises described in the mortgage that the transferee is not the absolute owner and has no right to release it of record; and a notation on the mortgage record, placed there by the mortgagee and inadvertently made in the form of a full release, should be stricken therefrom and the precedence of the lien,, originally attaching to such mortgage be fully restored.</p>

<p>Contest of will — Three-fourths jury law applies■— Section 5, Article I, Constitution, 1912 — Section 11455, General Code (103 O. L., 11) —Execution of will — Testator may sign after subscribing witness, when.</p> <p>1. Article I, Section 5, of the Constitution, and Section 11455, General Code (103 O. L., 11), include actions to contest the validity of a will, and a verdict in such actions may be rendered upon the concurrence of three-fourths or more of the members of the jury.</p> <p>2. A will, otherwise regularly executed in conformity with the provisions of Section 10505, General Code, is not invalidated by the fact that one of the subscribing witnesses to the will signed as a witness before the testator signed the will, where the signing was one continuous transaction.</p>

<p>Foreclosure — Jurisdiction under cross-petition — Failure of service of summons, etc. — Rights of mortgagor and mortgagee— After condition broken — Ejectment.</p> <p>1. Jurisdiction to render judgment on a cross-petition is not conferred by the service had on the petition praying for foreclosure Of a mortgage, where the cross-petition was not filed for several months after the entering of a decree of sale on the petition, and did not ask for the sale of the' same land as . that.described in the petition but had reference to a different parcel of land, and the relief sought was not the same but of a different nature, and the codefendant whom it is sought to hold under the service upon the petition did not enter his appearance under the cross-petition.</p> <p>2. But a suit in ejectment does not lie upon the petition of a mortgagor, or his heirs and devisees or supposed successors in title, where the condition of the mortgage has been broken; from which it follows that the defective service in the instant case is without avail to the plaintiff who claims title through the mortgagor.</p>

<p>Civil service■ — Municipal — Removals — Appeal to common pleas court — Jurisdiction de novo — Section 486-170-, General Code (106 O. L., 412) —Appeal perfected, when.</p> <p>1. Section 486-17q, General Code (106 O. L., 412), providing for an appeal from the municipal civil service commission to the court of common pleas in case of removal of the chief of police or the chief of the fire department, gives jurisdiction to the court of common pleas to try the question of removal de novo.</p> <p>2. The appeal is perfected -when the necessary papers and transcripts are filed in the office of the clerk of the court of common pleas within the prescribed time.</p>

<p>Municipal corporations — Purchase of land for boulevard — Consideration— Agreement not to assess for improvement — Injunction by abutting owners lies, when — Agreement as to cost of maintenance is void, when.</p> <p>1. Where a' city, having statutory authority to acquire land for street purposes and assess the cost upon the general tax list, purchases land to be used as a boulevard, and as a consideration for such land agrees that such land shall be improved for boulevard purposes within ten years and that no special tax or assessment for the improvement thereof or the maintenance of said boulevard will ever be levied or assessed against the property abutting said boulevard, except such as is levied in the general levy for park purposes, and where the deed for such property is executed by the grantor and delivered to the city and the city takes possession of such land and improves ■ the same in accordance with the terms of the deed, it will be enjoined from assessing the cost of such improvements against the abutting lands of the grantor.</p> <p>2. That part of such agreement providing that the abutting lands of the grantor shall never be assessed for the maintenance of such boulevard is against public policy and is void.</p>

<p>Municipal corporations — Streets—Dedication — Conditions binding, when — Public policy, good faith and surrender of control.</p> <p>1. A dedication of land for streets may impose any conditions not inconsistent with public policy and which do not take the dedicated property from the control of the public authorities.</p> <p>2. Dedication rests upon good faith, and, in so far as good faith requires the parties to comply with a contract not inconsistent with a sound public policy, the conditions contained in a dedication will be sustained.</p>

<p>Jurisdiction — Challenge thereto must he continuous — Filing answer, equivalent to appearance — Error to dismiss for failure of evidence, when.</p> <p>1. A party desiring to insist that he is not in court must keep out of court for all purposes except to make that objection; and where he does not do so, but files an answer and when trial is called appears by counsel, and fails to continue to challenge the jurisdiction of the court, he thereby voluntarily enters his appearance and consents to the exercise of jurisdiction over both his person and the subject-matter.</p> <p>2. Some evidence having been offered in such a case, tending to support the allegations of the petition, it is error to grant a motion to dismiss on the ground that the petition is not supported by evidence and the court is without jurisdiction.</p>

<p>Negligence — Evidence of custom, usage, habit, etc. — Use of guy-wire by employe as support — Scope of competency of such evidence.</p> <p>1. Where an employe making repairs at the top of a telephone pole and supporting himself in part by the- aid of a guy-wire, which was claimed to be defective, fell by the breaking of the guy-wire, and was killed, evidence of a custom, usage, habit or general practice of employes to use the guy-wire as a support, known to the employer, or which by the exercise of ordinary care should have been known by it, is competent.</p> <p>2. While neither custom nor usage can justify or excuse a negligent act, they may be competent evidence to aid a court in determining whether a given act was negligent, the ultimate question being whether under all the circumstances ordinary ■ care was exercised.</p>

<p>Jurisdiction — Justices of the peace — Confined to township — Section 6308, General Code — Actions against motor-vehicle owners.</p> <p>Section 6308, General Code, providing that actions for injury to a person or property, caused by the negligence of the owner of a motor vehicle, may be brought in the county wherein the1 injured person resides, does not confer jurisdiction on a justice of the peace in a township other than the one where the injury complained of occurred.</p>

<p>Mechanics’ liens — Priority over mortgage — Executed and recorded before liens attached — But after improvement begun — Sections 8321 and 8542, General Code.</p> <p>In an action to sell real estate incumbered by mortgage and mechanics’ liens under the statute passed April 16, 1913 (103 Ohio Laws, 369), and to marshal liens and distribute the proceeds thereof, held:</p> <p>1. That Section 12 of said act is inconsistent and in conflict with Section 8542, General Code, and' that the provisions of said Section 12 must prevail over the conflicting provisions of said Section 8542.</p> <p>2. Mechanics’ and materialmen’s liens, under said act, are preferred to a mortgage given after the commencement of the improvement on the lands so incumbered, even though such liens do not attach until after the execution and recording of said mortgage.</p>

<p>Libel and slander — Matter “libelous per se."</p> <p>Publication of the following is libelous per se:</p> <p>“An honest man is M. Tratnik, whom I noticed to take some money from me and from somebody else. Therefore countrymen beware of him.</p> <p>“Mih Bucar.”</p>

<p>Fees and salary — Naturalization cases — 34 U. S. Stats, at Large, 600 — County clerks of courts entitled to fees, when — Salary act of 1906 (98 O. L., 89).</p> <p>Under the salary act of March 22, 1906 (98 Ohio Laws, 89), relating to county officers, and prior to the enactment of the General Code of 1910, clerks of the courts of common pleas are entitled to retain one-half the fees received by them in naturalization cases under the federal act of June 29, 1906, in the absence of an averment that the county had provided and paid deputies who performed such services.</p>

<p>Covenant against encumbrance — Action for breach — Parol evidence— Agreement before deed delivered — Unexpired lease — Promise to assume lien — Not inconsistent with covenant.</p> <p>1. In an action for damages for breach of covenant against encumbrances, parol evidence is admissible which in any way tends to prove that after execution of the deed containing said covenant, and before its delivery to the grantees, it was agreed between them and the grantor that the grantees should assume a certain unexpired lease constituting a lien on the premises sought to be conveyed, and that but for such agreement the grantor stated he would declare the deal off and destroy the deed.</p> <p>2. A promise to assume a lien, which is an encumbrance upon the property conveyed, is not in conflict with or inconsistent with the covenant of warranty against encumbrance contained in the deed, but is in effect a discharge of the grantor from liability on the covenant of warranty so far as said lien is concerned.</p>

<p>Leases — Termination — Refusal of saloon license to lessee — On ground that quota exhausted.</p> <p>A lease of real estate containing a provision that the same may be terminated, at the option of the lessee, if the sale of intoxicating liquors upon such premises is prohibited by township, municipality, state or other legal authority or action under and by virtue of existing or future laws, may be avoided by the lessee when it appears that a license for the sale of intoxicating liquors, upon the premises so leased, has been refused by the county liquor licensing board upon the ground that the full quota of saloon licenses in such municipality has been exhausted.</p>

<p>Negligence — Violation of motor-vehicle speed law — Negligence per se — Validity and application of Section 3490, Revised Statutes — Duty of vehicles meeting on roads — Charge to jury.</p> <p>1. Violation of the state law limiting the rate of speed for motor vehicles to 20 miles per hour upon public highways, is negligence per se.</p> <p>2. Section 3490; Revised Statutes, requiring automobiles and motor vehicles when meeting carriages and vehicles to give two-thirds of the road, is valid and should be applied at least in all cases where the roadway is of sufficient width to permit its application with safety.</p> <p>3. In a case where the evidence shows ample width of road to permit the passage of vehicles, a charge to the jury that it was the duty of the defendant on meeting plaintiff to give the statutory portion of the road, “if he could do so with safety to himself and the others then traveling with him,” is misleading and erroneous.</p>

<p>Will contest — Evidence required to invalidate will — Charge to jury — Testimony as to testator’s mental capacity.</p> <p>In an action to contest the validity of a will it is necéssary for the trial judge to charge the jury, by some appropriate language, that the evidence offered against the validity of the will must be sufficient to preponderate over the evidence offered in its support, supplemented by the presumption.raised by the statute by virtue of the probate of the will, before the jury will be justified in returning a verdict against the validity of the will.</p>

<p>Townships — Liability for indebtedness incurred by trustees — In absence of certificate that funds available — Pleading — Demurrer to petition lies, when — Section 5660, General Code, requiring certificate — Applies to road-building machinery — Purchased under Section 3275, General Code.</p> <p>1. A petition which attempts to state a cause of action based upon an alleged indebtedness incurred by township trustees for the purchase of road-building machinery, is subject to demurrer, in the absence of an averment that the provisions of Section 5660, General Code, have been complied with.</p> <p>2. The provisions of Section 5660, General Code, apply to road-building machinery purchased by township trustees, under authority of Section 3275, General Code.</p>

<p>Wills — Devise to illegitimate child lapses — Upon death of devisee, before testator, leaving children — Section 10581, General Code, inapplicable — Testator’s intention not controlling, when.</p> <p>A devise to an illegitimate child, whose decease occurs prior to that of the testator, lapses on the death of the legatee, and does not pass to the children of said illegitimate child, notwithstanding the will indicates an intention on the part of the testator that it should pass to the children of the child of his bounty.</p>

<p>Jurisdiction — Divorce — Res adjudicata — Decree granted by another state — ,Review by court of appeals — Evidence — Corroboration.</p> <p>Where a court of a sister state, having jurisdiction of the subject-matter of the action and of the parties, by actual service, grants a divorce to one of the parties, the courts of this state are without power thereafter to grant a divorce to one of the parties to the former action.</p>

<p>LIEN ESTABLISHED FOR ATTORNEY’S FEES.</p> <p> Equity—Attorney and Client—Action for Allowance of Fees—Neither Forty Entitled to a Jury as a Matter of Right. </p> <p>1. A suit may he brought in equity by an attorney to establish a lien for attorney’s fees upon a fund in court and which has been produced by the efforts of such attorney.</p> <p>2. In such an action neither party is entitled, as a matter of right, • to a trial by jury.</p>

<p>Naturalisation — Jurisdiction of state courts — Procedure and review— Courts of appeals — Error proceedings.</p> <p>1. The congress of the United States having by apt legislation conferred upon certain state courts the power to admit aliens to citizenship and to administer the naturalization laws of the country, sharing with such courts the jurisdiction of the federal courts over that subject, the power may be exercised according to the laws of procedure governing the state courts, as an incident to the power conferred, including'any right of review to which an aggrieved party may be entitled by state law; and this, although such right of review is withheld when naturalization laws are administered in the federal courts.</p> <p>2. Error will lie in the courts of appeals of Ohio from a judgment of the court of common pleas refusing to admit an alien to citizenship.</p>

<p>Jurisdiction — Foreign corporation — Appearance not entered, when — Attachment — Affidavit defective, when.</p> <p>1. A reviewing court is bound by the record, and where, so far as is disclosed by the record, the defendant appeared for the sole purpose of challenging the jurisdiction of the court, an entry of appearance can not be claimed, notwithstanding the statement by counsel that other motions were also filed by the defendant.</p> <p>2. An affidavit for attachment, which does not negative the exceptions found in the statute, is clearly defective.</p>

<p>Wills — Devise to son during lifetime — Then to his heirs in fee simple — Remainder vests, when — "Children’’ and "heirs of the body” not synonymous, when.</p> <p>In a devise to my son George “during his natural lifetime only, and at his death to the heirs of his body in fee simple,” the words “in fee simple” are inconsistent with the preceding limitation “to the heirs of his body” and have the effect of enlarging the grant to one of fee simple in the heirs of the body of George, who therefore take by purchase, the estate in remainder becoming operative after the death of George and when his heirs are ascertainable.</p>

<p>Will contest — Evidence — Capacity of testator — Opinion of witness incompetent, when.</p> <p>In an action to set aside a will, the question of the mental capacity of the testator is for the jury, and it is error to permit a question to be answered which calls for the opinion of the witness as to whether the testator was capable of making a will.</p>

<p>Error: Court of Appeals for Stark county.</p> <p>Mr. Walter S. Ruff, city .solicitor, for plaintiff in error.</p>

<p>Schools — Fraud or gross abuse of discretion by board — Prerequisite to interference by court, when — Bond issue for new building — Levy therefor excessive, when — Injunction.</p> <p>1. The courts will not interfere with a board of education in the transaction of its business, unless it affirmatively appears from clear and convincing proof that the acts complained of amount to a gross and wanton abuse of discretion.</p> <p>2. The court finds that statutory provisions will not permit of a bond issue by the defendant special school district in excess of $18,000 for the erection of a new school building, and the issue of bonds in excess of that amount is enjoined.</p>

<p>Constitutional law — County board of education — Section 4728 et seq., General Code (104 O. L., 136) — Transfer of territory — Prom, rural to village school dictrict- — Fraud or gross abuse of discretion — Prerequisite to interference by courts, when.</p> <p>1. The act of the general assembly providing for the appointment óf a county board of education (104 Ohio Laws, 133 et seq.) is constitutional.</p> <p>2. The county board of education has authority under said act to transfer territory from a rural to a village school district, and in the absence of fraud or gross abuse of discretion, the courts cannot control or interfere with the exercise of such discretion.</p>

<p>Wills — Void for uncertainty — Statutes of descent and distribution applied, when — ■ Will written in foreign language — Disagreement in translations.</p> <p>A court will not speculate as to the intention of a testator whose will was written in a foreign language and the scholars who were called as witnesses did not agree in their translations, but in such a case the provisions of the statutes for distribution of the property of the decedent will be applied.</p>

<p>Negligence — Liability of county — Failure to erect guard rails to bridge — Sections 7563 and 7564, General Code — Joint negligence of third party.</p> <p>A county is liable for all damages which are the result of a failure to erect guard rails on the approach to a county bridge, as required by Sections 7563 and 7564, General Code, though the injury was caused by the joint negligence of a third party and the failure of the board of county commissioners to comply with the provisions of the sections of the General Code just noted.</p>

<p>Receivership — Attachment bond executed by original receiver — Successor in trust bound thereby — And trust funds liable to surety for costs, when.</p> <p>A clause in a contract of suretyship, procured by order of court by a receiver, wherein it was agreed that the surety should be saved from costs and expenses, is binding on the successor of such receiver and the fund in his hands is liable therefor, and the claim does not lie that such agreement was entered into by the original receiver in his individual capacity.</p>

<p>Conservancy court — Amended petition — Elimination of territory — Withdrawal of judge — Jurisdiction.</p> <p>1. A conservancy court may permit the filing of an amended petition eliminating territory which was included in an original petition for the establishment of a conservancy district.</p> <p>2. Where territory has been eliminated from a conservancy district and a judge representing such territory withdraws, the remaining members of a conservancy court are not divested of jurisdiction.</p>

<p>Conveyances — Fraud of creditors — Deed executed before suit — But recorded after claim reduced to judgment — Claimant a subsequent creditor, when.</p> <p>An action to set aside a conveyance on the ground of fraud does not lie against a grantor who executed the deed, upon which the attack is made, prior to the bringing of suit by plaintiff, notwithstanding the said deed was not placed on record until after the plaintiff had reduced his claim to judgment.</p>

<p>Justices of the peace — Jurisdiction — Obtaining juries — Section T343S, General Code — Clerk of common pleas court —Mandamus — Drawing names from jury wheel — Section 12475, General Code — Conversion by bailee, etc.</p> <p>1. Section 13432, General Code, does not confer jurisdiction upon justices of the peace, police judges or mayors, but directs the method of procedure for obtaining a jury in cases in which such magistrates have final jurisdiction.</p> <p>2. Mandamus will not lie against the clerk of the court of common pleas to compel him to draw from the jury wheel names of persons to serve as jurors in a prosecution before a justice of the peace for the violation of Section 12475, General Code.</p>

<p>Wills — Construction — Most obvious meaning sought and adopted, when — Illiterate will.</p> <p>The illiterate will involved in the instant case is construed by the court in the manner which gives to the words and sentences used the meaning which it seems most probable the testator intended to convey.</p>

<p>Jurisdiction — State courts — Federal employers’ liability act• — 36 U. S. Stats, at Large, 291 — Interstate commerce — Railroad employe injured — Service of summons — Section 11272, General Code.</p> <p>1. Jurisdiction of the state courts over the person of a railroad company engaged in interstate commerce to enforce the rights of employes arising under the federal employers’ liability act of April 22, 1908, as amended in 1910, for injuries received while engaged in interstate commerce, is not enlarged by that act, but depends upon the jurisdiction prescribed by .the state laws.</p> <p>2. Provisions of Section 11272, General Code, apply to railroad companies owning or operating a railroad within this state and service may be made thereon in accordance with the provisions of that section.</p>

<p>Negotiable instruments — Defense of knowledge of infirmities — Burden of proof on holder, when — Finding by jury conclusive, when — Reversals on weight of evidence — Charge to jury — Confined to issues pleaded and facts.</p> <p>1. A trial judge is not bound to give to the jury written charges before argument, which embody abstract propositions of law, however sound, unless they are applicable to the issues pleaded and the particular facts developed during the hearing.</p> <p>2. Where the defendant, in an action on a note, denies that the plaintiff became the owner in good faith before due, but on the contrary was aware of infirmity in the note and that defenses would be interposed thereto, and testimony is offered in support of these allegations, the burden of proof is cast upon the plaintiff to establish his title, if he has not already done so, by affirmative proof; and where the jury has found that the plaintiff did not become the owner of the note in good faith for value before maturity and without notice of defect in the title of the person negotiating it, a reviewing court will not reverse the judgment as against the weight of the evidence, unless the court is satisfied upon the whole record that the judgment is manifestly against the evidence.</p>

<p>Negotiable instruments — Defense of usury — Preponderance of evidence — Verdict for usurious interest — Court may ignore same — And enter judgment for defendant, when.</p> <p>1. In an action upon a promissory note the defense of usury may be established by a preponderance of the evidence.</p> <p>2. Where in such action the jury returns a verdict for defendant upon his cross-petition for the recovery of usurious interest, in an amount in excess of extinguishment of the principal, the court may ignore such finding and render a simple judgment for the defendant.</p>

<p>Sales — Stallion — Breach of guaranty — Return and acceptance of another — Conditions precedent to recovery of damages, when.</p> <p>A contract for the sale of a stallion guaranteed that he should be a “satisfactory sure breeder,” provided he keeps in as sound and healthy condition as he now is and has proper care and exercise, and the contract further provided that in case of a breach the seller agreed to take the stallion back and the purchaser agreed to return him and accept another of equal value. Held: That in the event of a breach the duty to return the stallion was a condition precedent to the right to recoup damages in an action brought to recover the purchase price.</p>

<p>Constitutional law — Additional■ compensation for fudges — Of common pleas and superior courts.</p> <p>Section 2252, General Code, providing for additional salary to be paid to judges of the' court of common pleas, is not in conflict with any provision of the constitution of Ohio and is therefore valid.</p>

<p>Wills — Validity of joint will — Executed by tenants in common— Devising real and personal property.</p> <p>Tenants in common, of real estate may dispose of the’ same by uniting in a single will, not in the nature of a compact, and may by the same instrument dispose of their personal property, there being no provision for a legacy that would have to be paid from a fund to be derived from the property of both without designating the proportion in which such legacy should be paid from the property of each testator, and when the intention of the testators can be carried into effect without practical difficulty and without confusion of the properties of each testator.</p>

<p>Workmen’s compensation — Liability of noncomplying employers— Section, 1465-74, General Code — Constitutional law.</p> <p>The provisions of Section 27 of the workmen’s compensation act (103 O. L., 72), fixing the liability of noncomplying employers for injuries to employes occurring in the course of the employment, are constitutional.</p>

<p>Alimony — Modification of decree after term — New facts and altered conditions.</p> <p>After a decree of divorce and alimony has been granted a wife, the decree awarding'alimony may be modified after the term at which it was granted, when the application therefor is based upon new facts, thereafter transpiring, of such character as to make the modification necessary to suit such altered conditions.</p>