Volume 56 — Ohio State Reports, New Series

Circuit Court of Richland county. Under an ordinance passed by the city council of the city of Mansfield, June 7, 1892, authorizing the Citizens’ Electric Railway Light and Power Company to extend its track within the city limits, and also without, “ along- what is known as the Olivesburg road” to a definite point, the road named being- a state road, the Electric Railway Company extended its track over the road, digging it -up and excavating it so as to greatly injure and…

Error- to the Circuit Court of Hamilton county. The defendant in error brought suit in the common pleas court to recover the amount of a promissory note executed by Gilpin in his lifetime in aid of the endowment of Lombard University, the petition being in substance as follows : “The plaintiff says that the Lombard University, at Galesburg, 111., is a corporation duly organized under the laws of Illinois, for the purpose of conducting an institution of learning, and is…

The plaintiffs in error, as owners of real property situated in the second ward of the city of Cleveland, brought this action in the court of common pleas of Cuyahoga county, against the county treasurer, to restrain that officer from collecting certain taxes which the petition alleged had been unlawfully added to their property by reason of its value having been raised by the annual board of equalization of the city of Cleveland, above that fixed thereon by the preceding…

The defendant in error was plaintiff in the court of common pleas.

The petitions in these cases were filed on the same day in the court of common pleas of Hamilton county. Mr. Alter, a taxpayer, brought his action to test the constitutionality of the act of April 24, 1896, entitled “An act to provide for water-works purposes in cities of the first grade of the first class,” 92 Ohio Laws, 606.

Sheppard delivered to the Terre Haute & Indianapolis Railroad Company, at Lovington, in the state of Illinois, a car load of horses which that company… Held: that a carrier may make a contract to carry as far as he goes, and limit his common law liability, but not from his negligence. Rogers v. The Creed Western R. R., 32 U. C. Q. B„, 89; Express Co v. Motioned Bank, 69 Pa. State, 394; Reed v. The U. S. Express Co.; 48 N. Y., 462; Berg v. Railroad Co. 39 Kan., 561; I).

Bill of Exceptions takenby the prosecuting attorney to the ruling of the court of common pleas of Franklin county. The defendant was prosecuted before a magistrate, for a violation of the statute providing against the adulteration of food and drugs.

Action was brought by Eliza Heaton against Elridge & Higgins, in the court of common pleas, on ' several promissory notes executed by the defendants, amounting in the aggregate to something over two thousand dollars.

The suit below was brought by the village of Avondale upon ‘ £an agreement' and guaranty in writing, signed by William Holmes and William B. Burnet, dated May 4, 1891, addressed to the mayor and council of the village of Avondale, that James G. Piolines, then in life, would enter into an agreement and faithfully perform the terms of a. proposal submitted by him for the construction of a proposed improvement of a certain avenue of the village, for which bids had been…

Shay & Cogan brought suit against Weber in the court of common pleas alleging in their petition that “the defendant entered into a contract with plaintiffs by which it was agreed that they, the said Sháy & Cogan as attorneys at law, should protect the interests of the said Guy Weber and one William Anderson in certain criminal actions then and there threatened and suggested and pending in the eourt of common pleas of Hamilton county, Ohio, and in the United States circuit…

This action was brought to test the constitutionality of an act of the general assembly, passed April 21, 1896 (92 Ohio 'Laws, 567), fixing- the compensation of “county officers and their assistants in Miami county. ’ ’ The court of common pleas held the statute to be unconstitutional and its judgment to that effect was affirmed, on error, by the circuit court. Thereupon a petition in error was filed in this court to reverse the judgments of said courts.

Plaintiff’s action was commenced in the court of common pleas of Huron county, July 13,1889. At the November term, 1893, plaintiff recovered a judgment against defendant in error for $2,952.16 and costs. The action was based upon a’ claim for the value of land taken by the company for its permanent roadway, and for damages to plaintiff’s remaining lands.

The defendant in error obtained a judgment against Benjamin F. Minnear, the husband of plaintiff in error, under section 4356, Revised Statutes, for damages for the sale of intoxicating liquors to the husband of defendant in error.

The court of common pleas sustained a general demurrer to the petition in the original action, which was brought by Allen against Douglas to recover damages for a malicious prosecution ; and the plaintiff not asking leave to amend, final judgment was rendered against him.

Suit was brought in the court of common pleas of Highland county by the Vances to enjoin the defendant, Pavey, from closing up a certain way used by the plaintiffs over his land, which they claimed as appendant to their land. The defendant denied the right. The case was appealed to the circuit court, where at the trial on the issues, the court at the request of the defendant made a finding of the facts and its conclusions of law separately.

Hunter, as treasurer of Lucas county, filed his petition in the court of common pleas against Hartman under section 1104 of the Revised Statutes, alleging that there stood charged upon the duplicate against the described lands of the defendant taxes and assessments theretofore duly levied amounting to $591.42; that they were unpaid, and praying for a decree to enforce the lieu for that amount and five per cent penalty thereon.

This cause was orally argued to the second division of the court. Owing, however, to the importance of certain questions of law involved in its determination the cause was by the second division submitted to and considered by the whole court upon the elaborate briefs filed by counsel.

Two cases are pending between the same parties ' and involving practically the same issues. Held: and said judgment was not rendered at, the office of the probate judge at the county seat where the probate court is located and established by law.

The action below was brought by John Stankard and Anna Stankard, parents of Michael Stankard, an unmarried man at the time of his death, against the Baltimore & Ohio Railroad Company, for the recovery of sick and death benefits growing out of said Michael’s being an engineer in the transportation department of said company, and a member of the relief feature of the department,- and entitled to the benefits provided by the regulations of said department for a member of Class…

The plaintiff in error was prosecuted on information in the probate court of Wood county, for a violation of the act of April 16, 1890 (87 O. L. 216), to prevent abandonment and pauperism, which provides that: “The father, or when charged by law with the maintenance thereof, the mother, of a legitimate or illegitimate child or children under sixteen years of age, living in this state, who being able, either by reason of having means, or by personal services, labor or…

In Mandamus. The relator, who is sheriff of Scioto county, prays for a peremptory writ of mandamus to compel the defendant, who is warden of the penitentiary, to certify a cost bill delivered to him by the relator, with a convict, the costs not having been made on execution against the convict.

The purpose of the action below, which was brought by the executors of Thomas S. Paddock, against his son Charles S. Paddock, was to enforce the execution of a trust by the latter, under which it was alleged he held the legal title to the property involved, consisting of certain lots in the city of Cleveland, and to subject the property to sale for the benefit of the estate.

The suit below was brought by Uretta.Remy, a daughter of Thomas J. Roberts, and one of the devisees under his will, against John W. Roberts and Henry C. Roberts, the only other children of Thomas J. Roberts, who were living at the time of his decease and that of his widow, for the partition of a lot in the city of Mansfield.

William Goodall brought suit in the Superior Court of Cincinnati to recover of the defendant, The Gerke Brewing Company, the sum of $300.0.0, as rent reserved on a lease made by the plaintiff to the defendant, and charge the same as a lien on the demised premises. It appears from the petition that the premises were let for the purpose of' being used by the lessee as a place for the sale of intoxicating liquors.

Robert Brown died testate and seized in fee of lOlf acres of land in Huron county. His will, which was duly admitted to probate in that county, contained the following’ : ‘ ‘ Item 3. I do hereby nominate and appoint my son, Henry L. Brown, executor of this iny last will and testament, hereby authorizing- and empowering- him to compromise, adjust, release and discharge, in such manner as he may deem proper, the debts and claims due me.

This cause was begun in the probate court of Lucas county by a petition filed therein, by William A. Gashe, assignee of the The Ohio Lumber and Manufacturing Co., an insolvent corporation, to obtain… Held: even as between vendor and vendee, mortgagor and mortgagee, that such machinery constituting the motive power of a mill or factory is a part of the realty. Fortman v. Goepper, 14 Ohio St., 558. See this cake in the Courts below, 1 Tol. Legal News, 99 ; 31 L. B., 189.

The defendants in error brought suit in the common pleas of Cuyahoga county against the plaintiff in error, setting out, among other pertinent facts, the following: At the January term, 1893, of said court, one Simon Pischel recovered judgment against one Adolph Mahrer. An execution was issued to the sheriff who thereupon levied on and took possession of certain personal property of the defendant.

The First National Bank of Wellington, plaintiff below, filed its petition against H. P. Chapman, county treasurer, seeking to enjoin the collection of $933.50 of taxes on the value of 390 shares of stock in said bank owned and held by eight of its stockholders.

The plaintiffs in error brought suit in the court of common pleas alleging, in substance, that the ' defendant is the duly qualified administrator of the estate of' Ezekiel Martin, who had died intestate, and leaving neither wife nor child surviving him; that they are the children of Alexander Martin, who was a brother of Ezekiel, and who had died before Ezekiel; that the estate of said Ezekiel upon his death clecended to his surviving brothers and sisters and the…

<p>Exceptions by the Prosecuting Attorney to the decision of the Court of Common Pleas of Stark county.</p> <p>A statement of the exceptions, and of the grounds on which they are based, is contained in the opinion.</p> <p>Tlie Legislature of the State in 1892 recognized the deputy treasure]1 as a public officer, and provided in Section 1117, Volume 89 of the Ohio Laws, for the payment of such deputy’s salary out of the county treasury, and provided further that such salary should be fixed by the county commissioners. See sections 1089, 4949, 10, and 1090, Revised Statutes of Ohio.</p> <p>While the question does not turn solely upon the point as to whether or not a deputy treasurer is a public officer within the meaning of the law, for the statute says “whoever,” yet if he is a public officer within the meaning of the law, then under the sections of the statute above referred to he is certainly charged with the custody, etc., of the public fund. And if by virtue of his position he appropriates this fund to his own use he is guilty of embezzlement as charged in the first seventy-four counts of said indictment. Upon this question we desire to call the attention of the court to the 6th American and English Encyclopaedia of Law, page 490. 42 Texas, 63; 19 American and English En-cyclopaedia of Law, 383; 36 Mass., 273; 72 Am. Dec., 169; 41 Iowa,, 593; 10 Michigan, 54; 11 New York, 392; 62 Am. Dec., 120; 86 Penn. St., 416; 74 Pa. St., 174; 70 North Carolina, 93; 2nd Ben (U. S.), 356.</p> <p>No question is- raised as to the form of this indictment; no question is raised upon the court’s right to direct the prosecutor to elect upon which count he would go to trial, the sole and only question presented is, can a deputy treasurer who assumes to perform the duties of his superior be indicted for the crime of embezzlement under the laws of the State of Ohio.</p> <p>Sections 6841 and 7299 provide for the offense of embezzlement, its prosecution and punishment, where the embezzlement is by an officer or other person charged with the collection, receipt, transfer, disbursement or safe-keeping of the public money, and, it is provided in the last named section that it shall be sufficient evidence for the purpose of showing a balance against him, to produce a transcript from the books of the auditor of the state, or the auditor of the county ; and the refusal of any such officer to pay any draft, order or warrant drawn upon him by the proper person for any public money, or to payover to his successor any public money or security promptly, on the legal requirement of any authorized officer, shall be taken on the trial of an indictment against him for embezzlement as prima facie evidence of such embezzlement. It is to be observed that these sections contemplate the prosecution and punishment of the person or officer thus charged with the public moneys. It must be such an officer as is required by law to settle with the auditor of state or county auditor. It must be such officer as is required to pay warrants drawn upon him and to pay over to his successor the public moneys or securities in his hands. All these things the law requires of a county treasurer but not of a deputy. Revised Statutes, sections 1043, 1044, 1115, 1105,1106, 1107, 1128.</p> <p>If, upon examination of the county treasury, it appears that an embezzlement has been committed by the county treasurer, he is summarily removed from that office, and in such cases the prosecuting attorney must begin an action upon tbe treasurer’s bond. Revised Statutes, sections 1133, 1134.</p> <p>A person not thus charged with the keeping of the public money, cannot be punished under these sections of the law, whatever other offense he may be guilty of. This question came before this Court in State v. Newton, 26 Ohio St., 265.</p> <p>Section 1117, volume 89 of the Ohio laws cannot change the status of the deputy and has long since been repealed. There is no averment that Myers was appointed or held office under it, and it existed but a short time as a part of the laws of Ohio.</p> <p>The deputy county treasurer in Ohio, is not required to give any official bond, as we have stated ; he is not by bond or otherwise, made responsible to the public authority for the keeping or disbursement of the public funds. People v. McKinney, 10 Mich., 54.</p> <p>The decisions in Ohio have clearly settled, whatever they may be elsewhere, that a deputy treasurer holding his office at the discretion of the treasurer, without bond and without salary payable from the public funds, or any stated term of office, is not the holder of an office of public trust or profit in this State. The State ex rel. v. Kennon etal., 7 Ohio St., 546; "Warwick v. The State, 25 Ohio St., 21.</p> <p>This question was before this Court in State v. Brennan, 49 Ohio St., 33.</p>

At the time of his death, which occurred May 25, 1882, George F. Doughty was the secretary of the plaintiff in error and had been such from the time of its incorporation in October, 1881. During this time he had fraudulently caused to be issued a large number of spurious certificates of the stock of the company, being shares in excess of its capital stock.

On November 13, 1865, John Adams, as administrator of the estate of Quincy Wilson, deceased, filed his petition in the probate court of Lawrence county, for an order for the sale of land of which Wilson was seized at the time of the death, alleging the insufficiency of his personal estate to pay debts and the costs of administration, and the necessity for the sale of said lands for that purpose.

The plaintiff in error made a written application to the probate court of Lorain county, to admit to probate the will of- Albert Ely, deceased. On hearing, the court found that the purported will is not a will in law, and refused to admit the same to probate.

The defendant in error, Frank P. Yanders, was arrested upon a warrant issued by a justice of the peace of Cuyahoga county, based upon an affidavit charging said Yanders with unlawfully exposing for sale in said county, certain convict-made goods, made and manufactured by convicts confined in the penitentiary of the State of New York, without having first obtained from the Ohio secretary of state a license to sell such goods.

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

On February 4, 1880, one John Feuchter deposited with the probate judge of Summit county, a ipaper purporting to be his last will and testament. After the decease of Feuchter, which occurred in 1882, the probate judge opened the purported will, and it was produced for probate.

The case was tried on appeal in the circuit court. The railway company sought an injunction against the plaintiffs in error, who are the trustees of a township to restrain them from constructing a township ditch across the line of its road for the reason, among others, that it would not be benefited thereby, and the trustees intended to assess upon it a portion of the costs of constructing the ditch.

The proceeding below was in bastardy, commenced by the defendant in error against the plaintiff in error, ' by the making of complaint in due form before a justice of the peace. The defendant having been ^brought in by a warrant, the complainant was examined under oath by the justice, and cross-examined by counsel for defendant, which examination was reduced to writing by the magistrate and certified by him and filed, but not subscribed by the complainant.

The action below was libel. A verdict in favor of the plaintiff was recovered in the common pleas, upon which judgment was entered. This was reversed by the circuit court, and the plaintiff now asks a reversal of that-judgment.

Suit was brought in the court of common pleas, by Tousley, on a judgment recovered by him against Kingsborough before a justice of the peace of Cuyahoga county. The petition sets forth the date and amount of the judgment, including costs, and prays judgment for the aggregate sum with interest.

On Error to the Circuit Court of Knox county. In this case the action below was commenced by the plaintiff, Druzilla Rice, against the defendant, Phillip Baker, to enjoin the latter from obstructing a private way she claimed over his premises to the public highway as incident to her own land. The defendant denied the right of the plaintiff. A temporary injunction was obtained at the commencement of the action, which, at the hearing on the merits, was made perpetual.

This was a suit commenced in the court of common pleas bv the plaintiff against the defendant, William Meredith, to enjoin him from closing a 'wav the plaintiffs claimed over his lands. The right was denied by the defendant. Having been tried and determined in the common pleas, the cause was appealed to the circuit court.

The case was tried on appeal in the circuit court. It is to determine the validity of liens on real estate described in the petition, and the priority of the several items asserted by the Loan Company as its lien upon the premises over the liens of Crawford, Becker and Oesper, mortgagees of Frantzreb.

The plaintiff in error sought by this action to recover on a guaranty executed by the defendant in error, and certain other directors of the Motherwell Iron & Steel Company, hy which… Held: that the giving of such notes was not payment by the principal which would discharge the guarantor. Brandton Suretyship and Guaranty. First Edition 430. Benjamin v. Hillard, 64 U. S. S. .C., 149; Bobbins el al. v. Robinson et al., 176 Pa. St., 341; Chittenden v. Dawson, 6 Hill, 543;Bushv.

The action of the plaintiff below, defendant in error here, commenced in the superior court of Cincinnati, was upon two policies of accident insurance,. for $5,000 each, issued by the Association on the life of her husband, Wakeman Hubbell, whose death was alleged to have been caused by accidental drowning.

On the 3d day of March, 1892, Mrs. Ham, plain tiff below, commenced an action against Mr. Kunzi, defendant below, for the recovery of five hundred and thirty dollars ($530), and interest.

Action in quo -warranto was brought in the circuit court, to oust the defendant from the office of mayor of the city of Greenville, and induct the relator… Held: and does still hold and receive the fees and emoluments thereof, amounting to the sum of $--, and has during the said time wrongfully and unlawfully kept this relator out of the possession of said office, and deprived him of the said fees and emoluments, to his damage in the sum of twenty-five dollars ($25.00).

By a petition filed in the court of common pleas of Lucas county, the plaintiff, Michael Henahan, sought to recover of the defendants, on two causes of action, the sum of $3,708.21.

The plaintiff in error, filed in the court of common pleas, a petition in mandamus, to compel the board of county commissioners of Washington county, to file in said court, a detailed report in writing' of their financial transactions for the year preceding the third Monday of September, 1893. The court of common pleas awarded a peremptory writ of mandamus.

Action for injunction by Cullins to restrain the trustees of Muskingum township, Muskingum county, and one J. W. Lane, from closing or obstructing a township road. Tried on appeal in the circuit court. Judgment for Cullins, sustaining demurrer to the answer, finding the allegations of plaintiffs’ petition to be true, and perpetually enjoining defendants from closing or obstructing the road.

The action below was by Pollock against the Ship Building Company for damages for alleged trespasses upon the property of the plaintiff, and' for a perpetual injunction against further trespasses. Upon the trial in the common pleas, that court found that plaintiff’s damages were nominal only, but, finding that he had a right to injunction, entered judgment granting perpetual injunction. On appeal, the circuit court found for the defendant, and dismissed the petition.

The city of Cincinnati commenced its action against The Cincinnati Inclined Plane Railway Company for the recovery of certain car rentals claimed to be due, and to enjoin said Inclined Plane Railway… Held: maintained and operated by it. The Louisville Trust Co. v. The City of Cincinnati, 76 Fed. Rep., 296; Street By. Co. v. Cumminsville, 14 Ohio St., 523.

The will of Henry F. Page, deceased, contained a devise to the Ohio State University to be a part of an endowment fund; and provided that if the devise to the University should fail or be held void for any cause, it should then go to the children of two of his deceased brothers.

Suit was brought May 29, 1896, in the court of common pleas, by the plaintiff in error, it being alleged in the petition that the defendants, the commissioners of Hamilton county, and the other defendants, claiming to be trustees appointed under the pretended authority of an act entitled “An act to authorize the commissioners of Hamilton county to levy a tax for improving, grading and macadamizing Indian Hill avenue, in Columbia township, and for other purposes,” had already…

In Quo Warranto. The legislature cannot by joint resolution repeal or amend a law. Our contention is that this piece of legislation being a joint resolution, that part of it relating to the manner of the election is nuil and void, for the reason that, in order to amend or repeal the general election of the state, it is necessary that the legislature should accomplish this purpose by law, and not by a joint* resolution. Section 18, article 2, of the Constitution.

<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 Columbiana county.</p>

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

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

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

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

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

Judgment of the circuit court and of thecommon pleas court reversed on authority of Ilixon v. Bv/rson, 54 Ohio St., 470, and State ex rel v. Commissioners, 54 Ohio St., 333. Demurrer to petition overruled and cause remanded to the court of common pleas for further proceedings.