Volume 63 — Ohio State Reports, New Series

In the court of common pleas the jury was instructed to render a verdict for the defendant which was done, and this, with tbe refusal of the court to admit record evidence offered by the plaintiff, was alleged as error in the circuit court. The circuit court reversed the judgment of the common pleas for those errors. The facts are sufficiently stated in the opinion.

It appears by the record that at the April term, 1898, of the common pleas of Cuyahoga, the plaintiff in error, Harry Bates, was tried on an indictment charging him with a felony, and found guilty by the jury. Motion for a new trial was overruled and sentence to tlie penitentiary imposed. Thereupon, on July 2,1898, being a day of the said April term, a motion in arrest of judgment was duly filed by defendant,, which, with the cause, was continued until the next, term.

John Parker was a duly elected and qualified justice of the peace in Lucas county, and he collected thirty-five dollars on a judgment which had been rendered on his docket, and refused and neglected, upon proper demand, to pay the money over to the party entitled thereto, Joseph P. Collins.

Judgment reversed. The record shows that a petition which prayed for the location and construction of a tiled ditch along a described route was subscribed by a number of the owners of lands in the vicinity of the ditch, and filed with the county auditor on the 14th day of June, 1897; and, after the necessary preliminary steps had been taken, the county commissioners made, and caused to be entered on their record, an order for the location and construction of the ditch as…

<p>Error to the Circuit Court of Hancock county.</p> <p>This case grows out of a proceeding before the commissioners of Hancock county, for the establishment of a county ditch. The proceedings were had about the same time as those in the preceding case; and though they relate to a different ditch, ■ both cases reached this court in the same way, and at the same time. In many respects the cases are not substantially different, but some questions are made in this case that were not presented in the other case.</p>

<p>Error to the Circuit Court of Cuyahoga county.</p> <p>The action below was upon a policy of insurance on-a two-story frame house of the plaintiff. The amount, of the policy was $1,800; loss if any to be paid certain mortgagees as their respective interests might, ajipear. It contained a provision, among others, requiring the amount of the loss in case of fire, to be-submitted to arbitrators if the parties were unable to agree. A fire occurred, the amount of the loss was. submitted to arbitrators, selected by the company and the insured, and the loss was fixed by them at $1,113.-76. This the insured, claiming that there was a total, loss, refused to accept; and the suit was then brought. The company denied that there was a total loss, and further insisted on the provisions as to the arbitration. A trial was had which resulted in a verdict in. favor of the plaintiff for the full amount of the policy. A motion for a new trial ivas made on the grounds,, that the verdict was against the weight of the evidence, that the court had misdirected the jury, and had erred in the admission of evidence. The motion was overruled and judgment entered upon the verdict. A bill of exceptions, containing all the evidence and the charge and rulings of the court was taken, and made a part of the record. On error the judgment was affirmed by the circuit court. The errors assigned relate to the charge of the court and its rulings upon evidence.</p>

<p>Will — Order of prolate court admitting paper as will — Not reviewable on petition in error — Refusal to admit is reviewable,</p> <p>An order of tlie probate court admitting a paper to probate as a last will and testament is not reviewable on petition in error, though an order refusing to admit such paper to probate is reviewable. (Missionary Society v. Ely, 56 Ohio St., 405, distinguished from Hosier v. Harmon, et at, 29 Ohio St., 220.)</p>

In the common pleas the plaintiff’s motion for new trial was overruled June 28, 1897, and judgment for defendant rendered, to which plaintiff excepted, and plaintiff wras given fifty days in which to prepare, file, have allowed and signed its bill of exceptions, and the journal of the term was ordered kept open for fifty days for that purpose.

The plaintiff in error, as administratrix of George P. Overhiser, deceased, brought suit in the court of common pleas against Lena Overhiser and the Mutual Life Insurance Company of New York, for the recovery of two thousand dollars on a policy of insurance on the life of her intestate. The company, admitting its liability, made affidavit that without collusion with it the money due on the policy was claimed by Lena Overhiser, and asked that it be, discharged.

<p>Error to the Circuit Court of Cuyahoga county.</p> <p>The plaintiff’s petition is as follows:</p> <p>The plaintiff says that it is: a corporation, duly organized and existing under and by virtue of the laws of the state of Ohio. That its general manager and treasurer, and the owner of a majority of the stock of said corporation,.is one, William K. Maher.</p> <p>That the defendant contriving to injure said plaintiff, and to bring it into public ridicule, and destroy its business, and particularly to destroy that branch of its business, which consisted of doing night watching, in and upon Prospect street, between Perry street and Case avenue, in the city of Cleveland, Ohio, where plaintiff had a large and. profitable business, did on or about the 1st day of March, 1897, falsely and maliciously, speak and publish, of and concerning the said William K. Maher, then and there well knowing that the said William K. Maher was the general manager and treasurer of said plaintiff, the false and malicious words following, to-wit: Maher (meaning the said William K. Maher) is a had man, a dangerous character, and under suspicion, and not to be trusted. There was a barn burned up here, and he is under suspicion of setting it on fire. Then and there meaning that the said William K. Maher was a bad and dangerous character, and that he had been and is guilty of the crime of arson, and was regarded as guilty of said crime, in so much that many of the persons, neighbors and citizens, to whom said defendant so as aforesaid stated and published said false and malicious words, and to whom the innocence and integrity of the said William K. Maher were unknown, and knowing the aforesaid connection of said William K. Maher with this plaintiff, have on account of the speaking and publishing of said false, malicious and defámatory words, from thence hitherto, suspected and believed the said William K. Maher to have been and to be, a bad and dangerous character, and guilty of arson, so as aforesaid imputed to him by the said defendant, and has suspected and believed the plaintiff (from their knowledge of the connection of said William K. Maher with this plaintiff) to be entirely unworthy of confidence, and patronage. And they have by reason thereof, since that time, wholly refused to patronize or have any business transactions • with this plaintiff, as they were accustomed to have prior to said time, and that by reason thereof said plaintiff has lost its large and profitable business of night watching on Prospect street in the city of Cleveland and has suffered a falling off of its business, and has been injured in its prospects and good will.</p> <p>Plaintiff says that by reason of the premises it has been injured to its damage in the sum of ten thousand dollars.</p> <p>Wherefore plaintiff prays judgment against said defendant in the sum of ten thousand dollars and costs of suit.</p> <p>To this petition the defendant demurred on the ground that it does not state facts sufficient to constitute a cause of action. The demurrer was sustained in the common pleas court, and the plaintiff not desiring to amend or further plead, judgment was rendered for the defendant. This judgment was reversed in the circuit court, and plaintiff below filed this petition in. error to reverse that judgment.</p>

<p>Error to the Circuit Court of Cuyahoga county.</p> <p>As stated by counsel for plaintiff in error, the caso below was this: The case was begun by the defendant in error in the court of common pleas, to subject, land to the payment of an attachment lien. That, court decided against the plaintiff, dismissing its petition. Appeal was taken to the circuit court, where a decree was rendered in favor of the plaintiff, defendant in error, against the plaintiff in error who-was defendant below.</p> <p>The petition alleged in substance that the plaintiff, the Marine Bank Company, on October 31, 1893,, brought an action against the defendant, F. W. Goakes, accompanied by an attachment which was. levied on land in petition described. That after-wards a judgment in the attachment suit was obtained against the defendant; that by reason of other liens no sale of the property could be had, and prayed that certain defendants might set up their liens, and that the property be subjected to the payment of the judgment which had been obtained in the attachment, suit, and costs. The defendant, Carrie Drake Coggshall, filed an answer stating that in February, 1893,, she bought the real estate in the petition described under a land contract, from the defendant Goakes,. for $4,400; that before October 31,1893, she had taken exclusive possession of the premises, and occupied the same under the contract at the time the attachment Avas levied; that prior to the attachment she had paid $600 of the consideration money to said Goakes, and owed the balance, $3,800. She alleged that she was-the owner of the property and in possession of it and denied that the plaintiff acquired any lien thereon by the attachment. Plaintiff, in its reply, denied each and every allegation of the answer.</p> <p>The decree of the circuit court, so far as important to state in this connection, is as follows: This case' coming on to be heard was submitted to the court upon the pleadings, exhibits and evidence, and Avas argued by counsel; and the court being fully advised in the premises find that on and prior to February 1, 1893, the real estate in the petition described was-owned by the defendant F. W. Goakes, who, on that date, sold, and agreed in Avriting to convey the same' to the defendant, Carrie Drake Coggshall, as in her answer set forth, for the sum of $4,400, whereof $600 became due under said contract and was paid by her to the said Goakes prior to October 31, 1893, and the balance of said money, $3,800, was then owing by her to said Goakes, but not due. That prior to October 31,1893, under and pursuant to the terms of said contract said Coggshall took possession of said premises, and has continuously ever since occupied the same. That on October 3.1, 1893, as in the petition alleged, the said premises "were duly attached in the action mentioned in the petition, wherein the plaintiff herein was plaintiff and the defendant herein, P. W. Goakes, was defendant. And afterwards, at the April, 1894, term of the common pleas court of this county, the plaintiff in said action duly recovered a judgment against said Goakes for the sum of $264.-72, but no order to sell said attached property was then or at any time, made by said court. The said judgment and costs still remain unpaid. The court further find that by virtue of said attachment the plaintiff acquired and still has, a lien on the equitable interests of said Goakes in said premises to the extent of the purchase money still owing to him by said Coggshall at the date of said attachment, and has a right to have said premises sold to pay said judgment and costs. The court also found the amount due plaintiff, the amount of costs in the attachment suit, and ordered the same paid in five days, and in default of payment that the premises be sold and from the proceeds there be paid the costs, then to said Coggshall the sum of $600, with interest, then the amount due the Bank, and the balance be brought into court. Thereupon the cause was ordered remanded to the court of common pleas to carry the judgment into effect. Mrs. Coggshall excepted; filed a motion for new trial, which was overruled, and now comes with petition in error asking a reversal.</p>

On December 30, .1892, Albert B. Lucas, then in full life but since deceased, began his action against persons holding the offices of Noble Grand, Vice Grand, Secretary, Treasurer and Trustees of Olive Branch Lodge, No. 34, Independent Order of Odd Fellows, individually and as such officers. Afterward an amended petition was filed, and said Olive Branch Lodge was made a party defendant.

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

Suit was brought by the plaintiff in error, in the court of common pleas of Montgomery county, against W. P. Sunderland, the treasurer of that county, and the city of Dayton, to enjoin the collection of an assessment levied on a lot of the plaintiff, to pay for a sidewalk which the authorities of the city had caused to be constructed along one line of the lot.

The defendants are the trustees of the sinking fund of Cincinnati and the trustees of the Cincinnati Southern Railway. The plaintiff brought suit in the court of common pleas to enjoin the defendants from extending the time of payment of bonds issued for the construction of said railway and from taking action or incurring liability in that behalf.

Mandamus. The 74th General Assembly enacted two laws, each purporting to amend and supplement section 2813 of the Revised Statutes. They are designated as House Bill No. 777 and Senate Bill No. 309.

William G. Borne recovered a judgment in the court of common pleas against Burton P. Foster, April 26, 1894, and on June 26, 1894, he began his action against Burton P. Foster, Parks Foster, Mollie M. Foster, and The Hancock Light and Power Company,. a corporation located and doing business in Hancock county where the action was commenced and service of summons duly made on said company.

<p>Application for leave to file a petition in error to tlie Circuit Court of Cuyahoga county.</p>

A motion for new trial was overruled by the court of common pleas on July 28, 1898. A bill of exceptions was allowed and signed on September 12,. 1898. The circuit court declined to consider the bill of exceptions because the same had not been presented to the trial judge for allowance and signing as provided by law. This petition in error is to reverse the judgment of the circuit court for the reason that it refused to consider said bill of exceptions.

<p>Ohio Centennial — Appropriation of $500,000 not available — Duties of “Ohio Centennial Commission" created by Act of April $6, 1898, advisory and not executive.</p> <p>There is no provision of law by which the appropriation of $500,-000, made by the last legislature. “For the Ohio Centennial and Northwest Territory Exposition,” can be made available for the purpose designated, the duties of the “Ohio Centennial Commission” created by the act of the legisature, passed April 26, 1898, being advisory and not executive.</p>

<p>A bank shareholder cannot have his indebtedness deducted from his shares — But if done in former years — No law to replace deduction on duplicate — Sections 2781 and 2782, Revised Statutes apply to return of personal property by owner — Bank stock is returned by the bank cashier.</p>

The petitions in these cases and the leases upon which they are fouuded are substantially alike, except in names, descriptions of property, amounts of money and dates.

Exceptions by the prosecuting attorney to the decision of the court of common pleas of Scioto county. At the January term, 1900, of the court of common pleas of Scioto county, Timothy Hogan was indicted for a violation of section 6995, Revised Statutes, commonly known as the tramp law. Hogan’s counsel interposed a demurrer to the indictment which was sustained by the court, and defendant discharged.

Suit for alimony, and support of child. Decree for plaintiff, on service by publication, subjecting defendant’s real property within the jurisdiction of the court, to the payment of amount allowed. Judgment affirmed by the circuit court. Affirmed.’ The case is sufficiently stated in the opinion.

In his lifetime, George H. Bennett, the intestate of Fleischer, recovered a judgment against the city of Cincinnati on account of a personal injury which resulted to him from stumbling over a stepping stone or carriage block, located on a sidewalk of Race street, near the curb.

The action in the court of common pleas was for the recovery of damages for a personal injury suffered by Raymond G. Marsh, then of the age of ten years, by reason of the explosion of a signal torpedo on the track of the railroad of the plaintiff in error.

The defendant in error, T. & W. R. Carnahan, a partnership firm formed for the purpose of doing business in the state of Ohio, began these actions in the court of common pleas, against the several plaintiffs in error, to recover, upon their several policies of insurance, the amount claimed to have been lost by fire on the store of the defendant in error.

The action below ivas by defendant in error to recover of plaintiff in error for the value of certain merchandise destroyed while in transmission on the road of the. Railway Company by reason of its alleged negligence. At the trial a verdict for the value of the merchandise ($4,986.42) was rendered for plaintiff below, and judgment entered on the verdict, which, upon error being prosecuted to the circuit court, was there affirmed. The facts are stated in the opinion.

In December, 1897, Pope Gregg, assignee in trust for the benefit of the creditors of Elijah E. Brock, assignor, filed his petition in the probate court against said assignor and Susannah Brock, Leon H. Houston, and certain other lien holders, and after averring the assignment, the qualification of the assignee, etc., continued as follows in his amended petition: “Said plaintiff further says that the said Elijah Evan Brock is the owner in fee simple, subject to the life…

Mandamus. This action is brought to compel the defendant to appoint the relator to the position of deputy state supervisor of elections for Sandusky county.

As administrator of Christian Holz, deceased, Ehlert brought suit in the court of common pleas against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company, and the Lake Shore & Michigan Southern Railway Company, to recover damages sustained by the next of kin of his intestate, who, it was alleged, was fatally injured at a street crossing in Cleveland by a train of the former company, which was negligently run on a track owned by the latter company, upon which the…

The defendant in error brought his action against John Hinds and William Hinds in the court of common pleas for the recovery of one hundred and sixty-five dollars, and by proper averments in his petition showed that he was a resident of Ohio and entitled to the benefits of the homestead and exemption laws,, that he was and had been an employe of the Pitts-burg, Cincinnati, Chicago and St. Louis Railway Company, having money due and owing to him from that company for his…

The action below was brought by the city of Cleveland, a municipal corporation of the first class and second grade, against the commissioners of Cuyahoga county, to recover the sum of $12,513.71, expended by the plaintiff in providing food, clothing and other necessaries, to various persons who were adjudged'insane by the probate.judge of that county.

<p>Error to the circuit court of Butler county.</p>

In Quo Warranto : The attorney general filed a petition to oust the defendant of its franchise upon the ground now insisted upon that such franchise has been abused and misused.

<p>Motion by defendant in error to dismiss.</p>

<p>Error to the circuit court of Washington county.</p> <p>On Motion to reinstate.</p>

The plaintiff in error brought suit in the court of •common pleas to recover for the death of Justus H. Walborn, who was a conductor on the defendant’s railroad. On the day of his death the train dispatcher -of the defendant ordered him to take his car and proceed northward from Akron to Vier’s switch.

The plaintiff in error was the plaintiff below. Her action was to recover for personal services rendered in the performance of a contract made with James Howland, in 1881, whereby she agreed to live with him and take care of him during his life. He was a man of means, well advanced in years, without family, living on Euclid avenue in Cleveland, and much of the time in ill health. The plaintiff was a daughter of his niece.

On February 19, 1887, R. A. Robinson, H. L. Robinson and D. Furtwangler made and delivered their promissory note to Norman McLean, Admr., and thereby promised to pay to him or order at the People’s and Drovers’ Bank of Washington C. H., Ohio, $480.00, in six months after date.

On the 16th day of October, 1890, the plaintiffs in error, who were then the owners of a tract of about, six acres of land in Hamilton county, known as Block No. 7, demised the same, by lease duly executed and acknowledged, to William H. Neff, his administrators and assigns, for the term of five years then next ensuing.

<p>Exceptions of the Prosecuting Attorney to the rulings of the Court of Common Pleas of Wyandot county.</p>

Rehearing on error to tlie Circuit Court of Jackson county. The suit was commenced in the common pleas court of Jackson county by Martin Grove to set aside certain conveyances made by Yeoman, in 1876, to Allen Hegler, on tbe ground that they were fraudulent as to creditors under sec. 6344, Revised Statutes, and also, by operation of law, created a trust in favor of all tbe creditors of Yeoman and Nitterbouse — Yeoman holding tbe legal title to one-balf of what was conveyed…

In Habeas Corpus. The petitioner is deprived of his liberty under the-following charge: “Being then and there the operator of a certain coal mine situated within said county, and having then and there under his employ a miner who was mining and sending to the surface coal under-said employment at ton rates, to-wit, one William Brown, did, knowingly and purposely pass the output of coal so mined by said miner as aforesaid, over-a screen, whi&h took away a part of the value…

In Mandamus. Application for alternative writ. The relators allege that the defendants, who were the commissioners of waterworks for the city of Cincinnati, took all necessary preliminary steps as required by the statute for the making of a contract for the construction of a tunnel to be used in supplying said city with water. Tbe engineer’s approximate estimate was $662,-943.

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

George A. Magruder and wife, by a trustee, leased to Abraham M. Taylor one hundred and thirty-five feet of land in Cincinnati, Ohio. The lease contained covenants that the lessee should erect upon the ground demised a good and substantial brick building, not less than three stories high and covering the entire front of said lot, and to insure each of the buildings for at least fifteen hundred dollars against loss by fire.

The plaintiff in error, The Union Central Life Insurance Company, is a corporation organized under-the laws of Ohio, having its principal place of business at Cincinnati. The defendant in error, J. Y. Hilliard, is the administrator of the estate of John Strawn, deceased, and the other defendants in error are the heirs at law of said Strawn.

In Quo Warranto. The attorney general filed his petition in this court against John R. Morris, John B. Washburn, Charles E. Logan, Robert E. Koehler, John Dunholter, Herman Teepen and Eugene L. Lewis, auditor of Hamilton county, the persons composing the Decennial Board of Equalization of the city of Cincinnati for the year 1900, and which board performed its duties as such board of equalization, and closed its session on the third Monday of October in said year. 1 The said…

This is a proceeding to reverse a judgment of the circuit court affirming a judgment rendered adversely to the plaintiff in error by the common pleas, in an action brought to recover of the defendant in error, damages for the breach of a contract. The action was tried and decided upon an agreed statement of facts, which, so far as they are deemed material, will be found in the opinion.

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

<p>Error to the Circuit Court of Trumbull county.</p> <p>The relators filed their several petitions in the court of comon pleas of Trumbull county, praying* for a peremptory writ of mandamus against the plaintiff in error to compel the issuance of a warrant on the county treasurer in his favor for $125. Each alleged that he had. been appointed with the other, by the probate judge of the county, to examine and inspect the treasury of said county and of the city of Warren, in said county, and the office of the auditor of said county including all records, vouchers, etc.; that they performed said duty according to law and made report of their examination in triplicate to said probate judge, to the auditor and the-treasurer of the county; that in the performance of said duty they were necessarily employed twenty-five-full days; that they thereby became entitled to receive-$125 each, the per diem of five dollars being fixed by law; that they presented their account therefor to said plaintiff in error whose duty it then was to issue to-each his warrant on the county treasury for the said sum of $125, and that said auditor then refused and has ever since refused to issue the same.</p> <p>The auditor answered, admitting his official character and his refusal to issue warrants for $125, and denying all other allegations of the petition. He further alleged that the the probate judge of the-county had never fixed the compensation of the relators at $125, or allowed or .approved their said claims, and that said probate judge had never informed him of said appointment. He further alleged that he had tendered to each of the relators a warrant for $50 for the alleged services, which was, in his judgment, more than said services were worth. The allegations of the answer were not denied. The case was taken by appeal to the circuit court and there tried on these pleadings and the evidence. A peremptory writ was allowed in favor of each relator for the sum of $125.</p>

The plaintiff in error was plaintiff below, and filed his petition in the court of common pleas of Stark county against the defendant in error, to recover on five promissory notes, three of which being for $2,800 each, were due, together with interest thereon, and two of which notes, aggregating $2,200, principal, were not due.

In Quo Warranto. It appears from the pleadings and the agreed statements of facts that' the defendant is incorporated under section 3235, Revised Statutes, as a corporation created for the purpose of dealing in real estate on the co-operative plan. It has no capital stock and consequently none divided into shares, being organized, as claimed, not for profit, but to assist its members in acquiring homes by sums contributed by its members for such purpose.

The plaintiff in error was indicted for criminal libel, and before his trial came on, he filed in the case, and caused to be entered on the journal of the court, the following waiver of the right to trial by jury: “I, Joseph M. Ickes, defendant in the above case, waive my right to trial by jury upon the charge made against me in this case, and request that I be tried by the court. .Respectfully, Joseph M. Ickes.” When the case came on for trial, as the journal entry shows,…

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