Volume 51 — Ohio State Reports, New Series

At the January term 1889, of the court of common pleas of Franklin county, in an action therein pending wherein Anna Rogers (defendant in error) was plaintiff and John Rogers (plaintiff in error) was defendant, a decree was rendered granting divorce to plaintiff on account of the aggression of the defendant, and adjudging to her, as alimony, certain real estate therein described.

The action below was commenced by Sarah A. Johnston against Paul Oliver and Martha DeHaven, in the Court of Common Pleas of Richland county, on a bond of which the following is a copy: “Whereas, Isaac Gates, sheriff of the county of Ashland, has attached certain moneys in the hands of Barton Roseburgh on an order of -attachment-issued from the court of common pleas for said county of Ashland, in an action wherein Sarah A. Johnston is plaintiff, and Martha DeHaven is…

The original action was brought by Catharine Prior, against William H. Crafts, in the Court of Common Pleas of Lake county, to recover a balance of fifty dollars, alleged to be due the plaintiff, on the purchase-price of a farm sold and conveyed by her to the defendant.

The plaintiff in error was arrested upon a warrant issued on a complaint charging him with having let his premises for purposes of prostitution, and permitting them to be so used, in violation of section 7025, of the Revised Statutes. He filed a plea of guilty, in writing, with the magistrate who issued the warrant, who thereupon sentenced him to imprisonment in the work-house at hard labor for sixty days, and imposed a fine of seventy-five dollars, with costs.

<p>Mortgagee of Personalty — Rights of — Liability of — Surplus—Attachment — Garnidhee—Proceedings of fustice — Collateral Attack.</p> <p>1. A mortgagee of personal property in possession after condition broken, is the legal owner entitled to retain the possession, subject to a liability to account for the surplus of its value after the satisfaction of his Qwn claim.</p> <p>2. The liability of the mortgagee in possession after condition broken to account for the surplus, is a credit of the mortgagor, and may be attached as such by the process of garnishment.</p> <p>3. In a proceeding in attachment, commenced by a plaintiff residing in one county against a defendant residing in another county, of this state, a debtor of the defendant residing in the county where the suit is commenced, may be garnisheed on the ground of the non-residence of the defendant, and required to pay the money owing by him to the defendant into court, although service by publication only has been made on the defendant.</p> <p>4. The proceedings of a justice of the peace after jurisdiction of the subject-matter has attached, are to be liberally construed. Therefore, an order made by a justice of the peace upon a garnishee, in a proceeding in attachment, after service of notice . upon him, and the rendition of judgment for the plaintiff, to pay the money owing by him to the defendant into court, presupposes a finding that the garnishee is so indebted, and cannot be collaterally attacked on the ground that the transcript fails to show that such finding had been made.</p>

The Lake Shore and Michigan Southern Railway Company, the defendant in error, commenced the original action against James Hickey, the plaintiff in error, in the court of common pleas of Cuyahoga county.

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

This action was brought in the Court of Common Pleas of Wayne county, a trial had to a jury, and a verdict and judgment rendered for the plaintiff, who is now plaintiff in error; which judgment was reversed by the circuit court, whereupon proceedings were instituted in this court to reverse the judgment of the circuit court and affirm that of the court of common pleas.

The .plaintiff’s petition, filed in the court of common pleas of Hamilton county, August 6, 1892, set forth that he then was, and since prior to February 19, 1892, had been, a member of the board of legislation of the city of Cincinnati; that he had attended all regular meetings of the board on and subsequent to the above daté, being present during the entire session of each meeting; that he had been compensated for each of said attendances, at the rate of five dollars per…

- Error to the Circuit Court of Hamilton county. The material facts found by the circuit court, on the trial of this case, are as follows: On the 21st day of February, 1893, Amos Hill, being the mayor of the village of Pleasant Ridge in Hamilton county, presented to the council while in session the following resignation: “Pleasant Ridge, February 21, 1893. “To the Honorable Council of the village of Pleasant Ridg’e: “I, Amos Hill, mayor, tender to you my resignation, to take…

<p>Corporations — Remedy of Subscriber Entitled to Stock.</p> <p>When the proper officers of a private corporation organized for profit, refuse, on demand, to issue a certificate of stock to a person entitled thereto, his appropriate remedy is by action against the corporation for damages, or to enforce the issue and delivery of such certificate, in equity, either of which he may pursue, at his election. Mandamus is not the proper remedy.</p>

<p>ERROR to the Circuit Court of Holmes county.</p> <p>The case is stated in the opinion.</p>

<p>Error to the Circuit Court of Vinton county.</p> <p>The facts are statedUn the opinion.</p>

The original action was commenced before a justice of the peace of Cincinnati township, Hamilton county. On appeal to the Court of Common Pleas, The National Lafayette Bank, now defendant in error, filed its petition against The Cincinnati Oyster & Fish Company, now plaintiff in error, to which a general demurrer having been sustained, an amended petition was filed. To the amended petition also a general demurrer was interposed, but overruled.

Action in the common pleas on appeal from the judgment of a justice of the peace, by the board Of education of the above named district, against the defendant Milligan, who had been duly appointed, qualified and acted as treasurer of the board, and, his term having expired, failed on demand to pay over to his successor the balance of the money in his hands belonging to the board, amounting to the sum of $84.28, for which the plaintiff asked a judgment with interest.

Action in mandamus was brought in the Circuit Court of Franklin county to compel' the plaintiff in. error, as judg-e of the court of common pleas, to sign a bill of exceptions in the case of Albert A. Hall, defendant in error, against one Marshall Fulton.

<p>Incorporated villages — Rights and duties of marshal.</p> <p>Complaint being made by the marshal of a village against a person for the violation of an ordinance, and such person being arrested by the marshal under warrant issued upon such complaint, such marshal is not thereby disqualified from performing his duties as marshal, before and during the trial of such case.</p>

The first case above entitled is brought by the attorney general, in quo wa/rranto, in the interest of Berwick A. Barton, against James E. McCracken and David H. Lincoln, for the purpose of having determined the right to fill the office of clerk of the court of common pleas of Morrow county, for the period between February 9, 1894, and August 6, 1894.

The defendant in error recovered a judgment against the plaintiff in error, in the Court of Common Pleas of Lucas county, on account of personal injury received by Mm while engaged in its service. This judgment was affirmed by the circuit court; whereupon the plaintiff in error instituted the present proceedings in this court to obtain a reversal of both judgments.

On March 21, 1892, Georg’e W. Erick, plaintiff below, filed his petition against The Columbus, Hocking Valley & Toledo Railway Company, defendant below, in which he averred that the defendant below was a corporation duly organized and incorporated under the laws of the state of Ohio, and at the time of the injury complained of, owned and operated a line of railroad extending from the city of Columbus to and through the county of Fairfield and state of Ohio.

Quo Warranto. The petition is filed against C. F. Aokerman and ninety-nine other persons, who are transacting the business of guarantee and accident insurance in this state, under the name of the “Guarantee and Accident Lloyds, New York,” to oust them from the carrying on of that business, because they have not complied with the laws of the state, or received any authority from, it to do a business of . that kind.

The Board of Education of Greenville township, Darke county, December 20, 1884, purchased, by resolution, of Andrews & Company, eighteen of “Andrews’ Tellurian Globes, ” at the contract price of $500, for the use of the schools in their township, to be paid as follows: $166.66, March 1, 1886, without interest; $166.66 March 1, 1887, with interest from March 1, 1886, and $166.66, with interest from March, 1886.

In Quo Warranto. The act of March 1, 1869, Ohio Laws, 66, page 16, provides that an additional judge of the Court of Common Pleas for the second subdivision of the third judicial district, composed of the counties of Allen, Auglaize, Putnam, Mercer and Van Wert, should be elected at the following April election, the term bo begin on the second Monday of May, being the tenth day of the month; and which additional judge should again be elected at the annual election in…

<p>Dower — When not allowed.</p> <p>A woman who was divorced from her husband, and to whom his lands were allowed as alimony, by decree of the court, is not after his death entitled to dower in such lands.</p>

The plaintiff in error was prosecuted before a justice of the peace of Cincinnati township, upon the charge that, on or about the 21st day of October, 1891, at the county of Hamilton, he did unlawfully, knowingly and willfully sell a certain quail, contrary to the statute in such eases made and provided.

<p>Error to the Circuit Court of Darke county.</p>

On June 19, 1883, Elias T. Baker, of Amanda township, in the county of Fairfield, Ohio, executed his last will and testament. The tenth and last item, and the attestation clause of the paper writing purporting to be such last will and testament, with certain words written thereon under the names of the attesting witnesses, read as follows: “Tenth Item.

Henry Pomerine, as executor of the estate of Angeline A. Brobst, was required to give, and did give, three successive bonds, with three separate sets of sureties. Pomerine was removed from his trust and an administrator de bonis non appointed to succeed him. The administrator de bonis non, in an action brought on the last bond given, recovered against the sureties on that bond an amount found to be remaining in the hands of the removed executor.

On February 6, 1889, the plaintiff in error was convicted, in the police court of the city of Cleveland, of violating the statute known as the Sunday closing law, and sentenced to be committed to the jail of Cuyahoga county for ten days, and pay a fine of $25, and costs. On error, by defendant, to the court of common pleas, 'this judgement was affirmed.

Andrew Wuest and Adam Wuest, partners as A. Wuest & Son, the plaintiffs in error, on the 13th day of March, 1875, recovered a judgment in the court of common pleas of Muskingum county against John J. James, for the sum of $403.64. On December 25, 1875, execution was issued on the judgment, and levied upon a lot of land in Zanesville, Muskingum county, the same being the property of John J. James, who had no personal property liable to execution.

Alfred Simon, as supervisor of road district No. 5, Bloom township, Wood county, Ohio, the defendant in error, commenced suit against William H. Dennis, the plaintiff in error, before a justice of the peace, to recover from him the sum of four dollars, for refusing- to perform two days’ labor upon the public roads, as provided in section 4717 of the Revised Statutes. Judgment was rendered for the plaintiff on his bill of particulars.

<p>National banks — Rate of interest may reserve.</p> <p>A national bank located in this state may, since the repeal of the statutes fixing the rate of interest for banks of issue, reserve and charge interest at the rate of eight per cent.</p>

This action was brought in the Lucas county court of common pleas by William R. Hodge, on behalf of himself and other creditors of The Toledo Mower and Reaper Company, a body corporate under the laws of Ohio, against said corporation and its stockholders, to enforce the statutory liability of the latter.

This action was originally commenced on the 28th of February, 1889, by Richard J. Morrison, then the administrator of the estate of Ellis H. Elias, deceased, and afterwards Charles E. Lydecker became the administrator, and was substituted in the place of Mr. Morrison.

The case of McNeill, assignee, was commenced by the filing in the court of common pleas of Hamilton county, of a petition of which the following is a copy, viz.: . “The said plaintiff, Aaron McNeill, says that he is the assignee of The Metcalfe & Mackey Company, a corporation duly organized under the laws of Ohio, for manufacturing purposes, but which is now insolvent, and duly assigned all its property and assets to this plaintiff, in trust, for the benefit of creditors ;…

The Springfield Fire & Marine Insurance Company, of Springfield, Massachusetts, on the 1st day of September, 1883, issued a policy to Julia M. Hull, insuring her against loss or damages by fire, to the amount of twelve hundred dollars, on her dwelling-house in Youngstown, and three hundred dollars on furniture and other articles therein, for the period of three years; which policy, at its expiration, was renewed and extended’ for another like period.

Formerly the territory, now included in Jackson and Jefferson townships of. Crawford county, formed one township by the name-of Jackson. In 1872, the township was divided so 'as to form two new ones, one retaining the name oUJackson, and the other was called Jefferson. At tho time of the division, the old one was indebted in .the sum of $800 on bonds that had been issued foi the purpose of paying bounties to veteran volunteers, that had been credited to the township.

<p>Attachment — Non-resident partnership — Service of summons on.</p> <p>1. In a civil action for the recovery of money, the plaintiff may, on the ground that the defendant is a non-resident of this state, have an attachment against the property of a defendant partnership of which all the members reside outside this state, which was formed for the purpose of carrying on business in this state, and which has a usual place of doing business in this state.</p> <p>2. In an attachment against the property of such a non-resident partnership, it may be sued by its company name, and service may be had by leaving a copy of the summons, with the indorsements thereon, at its usual place of doing business in this state.</p>

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

William and Charlotte Barrett were the owners by fee-simple title 'of a lot of land in the city of Toledo, Ohio. All taxes and assessments levied upon said land, and collectible upon the duplicate of Lucas county prior to the year 1891, were duly paid. The one-half of the taxes and assessments for 1891, payable on the 20th day of December of that year, were also paid.

The plaintiff below commenced suit in the common pleas against the defendant, and in his petition alleged, that he is the owner of a lot, one hundred feet square, at the northeast corner of the intersection of High and Fifth streets, in the city of Hamilton, Butler county.

The plaintiff in error, at the October term, 1891, of the court of common pleas of Clermont county, was indicted for murder in the first degree, committed on his son, a youth of about sixteen years of age. He was tried twice in Clermont county for the offense, and upon each trial was convicted of murder in the first degree, and each conviction was set aside by the circuit court for errors committed, to his prejudice by the trial court.

At the September term, 1892, of the court of common pleas of Portage county, the plaintiffs in error, R. J. Dailey, William Donahue, Edward Lingle and S. W. Kennedy, were tried upon an indictment which charged that, on the 22d of September, 1892, they “wrongfully, unlawfully, and without lawful authority, did injure eight maple trees, the property of one E. E. Taylor, standing- and growing- upon land not that of said R. j. Dailey, William Donahue, Edward Lingle and S. W.…

This action was commenced on the 27th day of May, 1892. The amended petition filed in the case is as follows: “The plaintiff says that he is, and for a long time prioi to the commencement of the proceedings by the defendant, the óity of Cincinnati, for the improvement of Clifton avenue, has been the owner of lots and lands in the_ subdivision of the estate of the late Col. John Riddle, deceased, fronting 1,572.89 feet upon the west side of Clifton avenue, in the city of…

The original action was brought in the court, of common pleas of Lucas county, by William A. Gashe, against Charles L. Young and George W. Miller, who had been partners doing business in the firm name of Young & Miller, and John S. Eck, John W. Hughes, John E. Potts, and B. Ellis Bullock.

The suit below was brought in the common pleas of the county by Priscilla B. Frey against the city of Findlay and its treasurer, to enjoin the collection of two assessments made upon her property, one being' for the payment of the costs and expenses of an improvement of Main street, and the other for the cost and expenses of an improvement of Sandusky street; the property of the plaintiff being situated upon both streets at the northeast corner of their intersection.

The original action was commenced in the court of common pleas of Washington county, by James B. F. Pride and others, the plaintiffs in error, against George Andrew and Margaret Andrew, his wife, formerly Margaret Pride.

On October 8, 1883, The Collins Manufacturing-Company, a body corporate, then owning the land which is the subject of controversy in this action, executed a mortgage thereon to Clara A. Hoover, to secure the payment of a promissory note for $1,000, due the 5th of the ensuing October.

Plaintiff’s action was commenced by the filing in the court of common pleas of Fayette county, of a petition of which the following is a copy: “The above named plaintiff says that on or about the 28th day of November, 1888, this plaintiff and his brother, R. W. Duncan, being desirous of each purchasing from thirty to forty head light feeding hogs, the defendant represented to them that he had one hundred head of the kind and quality they wanted, but would not sell them in…

The plaintiffs in error, also plaintiffs below, filed the following petition in the court of common pleas, against defendant in error,… Held: under and by virtue of the said will of her said husband and not otherwise. “That the said Mary Ann A. Johnson was of humble origin, of simple and plain habits, and moved in society of moderate demands,'was frugal and economical, and her manner of living, her personal tastes, wants and desires were fully gratified by the expenditure…

The original action was brought in the court of common pleas of Hamilton county, by I. J. Miller and Gustav Tafel, as trustees of the estate of Edward Purcell, under an assignment for the benefit of creditors, against John B. Mannix, John Holland, Charles Stewart and Michael Walsh.

Mandamus. On April 27, 1893, the general assembly of this state passed, an act known as the Nichols law, to amend and supplement sections 2777, 2778, 2779 and 2780, of the Revised Statutes of Ohio (90 Ohio Laws, 330). Section 2777 defines express, telegraph and telephone companies.

<p>Error to the Circuit Court of Crawford county.</p>

The plaintiff in error also plaintiff below, filed the following petition in the court of common pleas of Hamilton county, on the 23d day of September, 1893. “The plaintiff, Edward Metz, represents and avers that he is a resident of the city of Cincinnati, Ohio, and there engaged at the northwest corner of Fourth and Main streets, in the wholesale and retail business of trafficking in cigarettes and cigarette wrappers, and has been so engaged for some years; and that he…

<p>Error to the Circuit Court of Harrison county.</p>

The defendant in error brought an action of mandamus against the plaintiff in error in the circuit court of Fayette county to compel it to levy a tax under and by virtue of the following act of the g’eneral assembly of this state: “Section 1.

The action below was brought to recover for the unlawful killing of George D. Clay, a coal miner, whose death occurred October 10, 1891, in a coal mine operated by the defendant company, by reason of the falling upon him of a portion of the roof of the room in which he was working.

<p>Error to the Circuit Court of Williams county.</p>

<p>Error to the Circuit Court of Wood county.</p>

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

<p>Error to the Circuit Court of Allen county.</p>

<p>Error to the Circuit Court of Holmes county.</p>

<p>Error to the Superior Court of Cincinnati.</p>

<p>Error to the Circuit Court of Defiance county.</p>

<p>Error to the Circuit Court of Summit county.</p>

<p>Error to the Circuit Court, of Ross county.</p>

<p>Error to the Circuit Court of Belmont county.</p>

<p>ERROR to the Circuit Court of Lucas county.</p>

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

<p>Error to the Circuit Court of Monroe county.</p>