Volume 64 — Ohio State Reports, New Series

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

<p>Error to tbe circuit court of Clark county.</p> <p>The facts appear in the opinion.</p>

<p>Error to the circuit court of Alien county.</p> <p>The facts are stated in the opinion.</p>

The action below was by Frank Bemis against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company to recover damages for false imprisonment. It appeared by the petition that the action was brought more than one year from the time the cause of action arose, but that within one year from such time a suit had been brought on the same cause of action in the United States circuit court.

A. L. Miller and his associates, plaintiffs in error, and also plaintiffs below, filed their petition in the court of common pleas on April 9, 1897, against Charles E. Hixson as treasurer of Highland county, which petition, omitting the caption and signatures, is as follows: “The plaintiffs state: “1.

The action below was commenced on the 26th day of October, 1900, in the circuit court by the state of Ohio on the relation of Lon Hunter against the board of deputy state supervisors of elections for Warren county, Ohio, and Thomas C. Christie, G-eorge W. Snook, Charles W. Randall, and Charles IT. Eulass as deputy state supervisors of elections for said county of Warren, and Ed. S. Conklin as clerk of said board of deputy state supervisors of elections, defendants.

On Rehearing. Note: — On the first hearing the judgment of the circuit court was reversed. The report of the case on that hearing appears in 63 Ohio St., 442. On the rehearing the judgment of reversa] was set aside and judgment rendered affirming the circuit court in accordance with the following report of the case. — Reporter.

The action below was brojight by the city of Toledo for the use of P. A. MacGahan, against Samuel A. Ford and others, to recover the amount of assessments levied on'their lands for the construction of a main seAver in sewer district No. 26 in the city of Toledo.

<p>Court requested, by each party, to instruct jury in its favor— Court thereby clothed ivith function of jury — Verdict of jury, in such case, should not be set aside by reviewing court, when — Bank deposits forfeit money with county board at request of firm bidding on bonds — Mistake in instructions to bank — Knowledge of mistake by depositing bank — Burden of loss — Law of contracts — Agency.</p> <p>1. Where, at the conclusion of the evidence in a case, each party requests the court to instruct the jury to render a verdict in his favor, the parties thereby clothe the court with the functions of a jury, and where the party whose request is denied, does not thereupon request to go to the jury upon the facts, the verdict so rendered should not be set aside by a reviewing court, unless clearly against the weight of the evidence.</p> <p>2. A firm dealing in bonds at Cleveland, Ohio, requested a bank at Victoria, Texas, to deposit $1,000 with a certain county board at that place, to protect the firm’s bid on certain bonds, advertised for sale by the board. The bank complied with the request, but before doing so, had notice of such facts as would have informed an ordinarily prudent person that there was a mistake in the bid, and that the deposit would be of no avail to the firm. Held: That the loss if any should be borne by the bank.</p>

Smith brought suit in the court of common pleas to recover damages for injuries done to his shade trees by the defendant. He alleged that he was the owner of a farm through which passes a public highway along which he had shade trees of much beauty. The company had wires along said highway and poles for their support; that in the growth of the trees their branches had reached the wires and interfered with their operation.

. The plaintiff in error was. indicted in Franklin county for the crime of rape upon a girl of nine years. The indictment was in three counts, the first charging rape with her consent, the second rape against her will, and the third assault with intent to rape. The defendant made a motion to quash, and that being overruled, he filed a general demurrer, and that being overruled he entered a plea of not guilty.

On motion to reinstate. Pratt brought suit in the common pleas court against Walworth, alleging that he and one Payne had been partners in business, and that upon their dissolution Walworth executed to him, Pratt, a written undertaking to indemnify him against all liability on account of the indebtedness of said firm to L. C. and W. L. Smith, partners as the Smith Premier Typewriter Company.

The defendant, Emil Clauss, brought a suit against the plaintiff in error before a justice of the peace, for the sum of $86.50 and interest thereon alleged to be due on three promissory notes. The plaintiff responded to this by filing the petition in this case in the superior court, and obtained thereby a temporary injunction against the prosecution of the- ease before the justice and against the disposal of property- of the plaintiff held in pawn by Clauss.

The action below was brought in the court ¡of common pleas of Lucas by Mary J. Fox, as administratrix of Jesse F. M. Fox, deceased, against The Wabash Railroad Company, to recover for the death of the decedent alleged to have been occasioned by the negligence of the defendant Company. The accident occurred in the yard of the Company’s road at the city of Fort Wayne, in the state of Indiana.

On December 12, 1897, Fred B. Jones and three others filed a petition in the court of common pleas, against the above named plaintiff in error, and one Henry G. Pratt, and a demurrer to said petition having been sustained, said plaintiffs below, on leave, filed an amended petition, which is as follows, omitting caption and signatures: “Plaintiffs say that the Standard Home and Savings Association Company is a corporation, organized under the laws of the state of Ohio, to do…

On the 29th day of March, 1899, the commissioners of Henry county made an application to the probate court of that county, in the form of a petition against the commissioners of Fulton. county, under Section 4510-2 of the Revised Statutes. .The petition states, in substance, ,that proceedings had been commenced and carried on before the Henry county commissioners for deepening and straightening a watercourse known as Turkeyfoot creek, which furnished the only outlet for a…

In Quo Warranto : The defendants admit that they assume, and are about to exercise, the official powers attempted to be conferred upon them as the board of park commissioners in and for the city of Cleveland by the legislative acts following, by issuing bonds in the sum of five hundred thousand ($500,000), dollars, levying taxes for their payment and for the payment of taxes on the bonds of said city previously issued and of exercising said powers generally.

(On rehearing.) . Aller brought suit in the common pleas against the plaintiff in error and the New York, Chicago & St. Louis Railroad Company to recover for personal injuries by him sustained in stepping from the platform, which was maintained by the plaintiff in error at a suburb in the village of Leipsic, at a'station jointly constructed and used by said company and the New York, Chicago & St. Louis Railroad Company (called the Nickel Plate) at the crossing of their roads.

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

Plaintiff’s action was brought in the common pleas of Lucas to foreclose a mortgage given to him by the Maumee Cyele Company, January 14, 1896, to secure the payment of a note for $6,266.00 due in two years with interest. The mortgage covered lands in Toledo on which was situate the factory building of the defendant Company, and was filed for record in the recorder’s office July 30,1898. Titus B. Terry,.receiver, and the First National Bank of Toledo, were made defendants.

Petition in Mandamus. The petition on relation of John A. Hasbrook is as -follows: “The relator, John A. Hasbrook, says that he is the owner of real estate in Sycamore township, Hamilton county, and a taxpayer of said county; that Eugene L. Lewis is and was on the fifth day of November, 1900, the duly elected and qualified auditor of Hamilton county, Ohio; that the question involved in this action is one of a common or general interest of many persons, who are similarly…

The priginal action was brought by the HendersonAchert Lithographic Company, against the John Shillito Company, in the Superior Court of Cincinnati, February 27, 1897, on the following petition: “Plaintiff says that it, and the defendant, are and were at the times named, corporations by the laws of the state of Ohio; that on the 24th day of September, 1889, Belford, Clarke & Company, an Illinois corporation, was indebted to. it in the sum of $2,988.00, and on that day the…

<p>Sureties on officer’s bond — Liable where under, color of office— H<e uses unnecessary force and violence.</p> <p>The sureties on the bond of an officer, conditioned for the faithful discharge of his duties, are liable thereon to the party injured, where under color of his office in making an arrest with or without warrant, and without probable cause, he uses more force and violence than is necessary.</p>

These two cases were heard and considered together. In the National Supply Company case, the petition avers that the company is a corporation duly incorporated under the laws of the state of West Virginia, that it is doing business in the state of Ohio, and that it has complied with the laws of this state relating to foreign corporations doing business in Ohio, and then proceeds to state its cause of action arising on a judgment recovered by it against said Frank E. Brady in…

Exceptions by the Prosecuting Attorney to the rulings of the Court of Common Pleas of Greene county. The defendant was indicted for burglary and larceny. The. indictment charged the defendant with breaking into “a certain building, to-wit, a certain store room then and there situate, the property of one J. M. Durkin.” The defendant was arraigned, pleaded not guilty, trial was had, and he was convicted as charged in the indictment.

On the 31st day of January, 1899, the former attornney general filed a petition in the circuit court of Montgomery county in the name of the state against said defendants, alleging that they are corporations of Dayton owned by the defendant, The Dayton Traction Company having its principal place of business in the city of Dayton, and the Cincinnati and Miami Valley Traction Company having property and doing business in the county of Montgomery in said state; that on or about…

<p>Contracts of investment security, debentures or certificates— Called and ■ redeemed by method of unequal advantage to holders are unlawful, when — Accumulation of reserve fund by lapses also unlawful, when.</p> <p>1. Contracts of investment security, debentures or certificates, which by the device of a “numeral-apart,” may be called in and redeemed at any period before they would regularly accumulate a credit in the reserve fund equal to the stipulated endowment value, and otherwise giving unequal advantages to the certificate holders, contain the elements of chance and prize constituting a lottery, and are unlawful.</p> <p>2. Contracts of investment security, debentures or certificates, which cannot reasonably be expected to accumulate a reserve fund equal to the stipulated endowment values .within the stated period, without aid from, lapses or appropriation from premiums on new business, are fraudulent, contrary to public policy and unlawful.</p>

<p>Error to the Circuit Court of Hamilton county.</p> <p>Tilden E. French, plaintiff in error, is the treasurer of Hamilton county... John B. Bobe, defendant in error, is the assignee in insolvency of The Jackson Brewing Company, a corporation having its principal place of business in the city of Cincinnati. The controversy out of which comes the present error proceeding arose in the court of insolvency of Hamilton county by the filing in that court, April 22, 1897, by French, as treasurer, of an application for an order upon the assignee to require him to pay certain state and county taxes upon personalty charged against him as such assignee on the duplicate of Hamilton county for the years 1894, 1895 and 1S96, and that he be further ordered and directed to make a correct return of all the property, moneys and credits in his hands for taxation for the year 1897. Issue was made up by answer and reply, and a trial had and judgment rendered in favor of the assignee, denying the application, from which the treasurer appealed to the court .of common pleas. That court upon trial, June 8, 1899, found the following facts, viz:</p> <p>“1. On the 3rd day of March, 1894, The Jackson Brewing Company, a corporation, operating a brewery and doing business in the city of Cincinnati, Hamilton county, Ohio, and being unable to pay its debts, filed its deed of assignment pursuant to the insolvent laws of the state of Ohio in the probate court of said county to John B. Bobe, assignee, for the benefit of its creditors, who accepted the trust and duly qualified as said assignee.</p> <p>“2. Upon the request and with the consent of all the creditors of the said Jackson Brewing Company, and pursuant to the orders of the said court made for that purpose, the said assignee was authorized immediately after the assignment to continue and did continue the business of the Company in the manufacture and sale of beer in the usual and ordinary way; and the assignee, ever since said time, has continued so to operate the business of said Company, and is still doing so, the debts of said Company having not yet been fully paid.</p> <p>u3. When the assignment Avas made the brewery plant and property was in very bad condition, and incapable, Avithout repairs and improvements, of successful operation. The assignee borrowed money and put it into the plant, to make it capable of operation, since which the operation of the brewery has been profitable. The assignee has paid the operating expenses, and repaid the costs of repairs and improvements from the earnings. He has also, from the earnings, paid off about 50 per cent, of the admitted mortgage debts of The Jackson Brewing Company, under orders of said court, but no part of the general and unsecured debts and liabilities thereof have yet been paid, or sufficient realized to pay any part thereof. The breAvery plant has not yet been converted into money, but some of the assets have been. There is a suit pending, on proceedings in error in the Supreme Court of Ohio, involving the question as to whether a certain amount of the mortgage bonds against said Company are valid obligations of The Jackson Brewing Company, the decision in the courts below having been against the validity thereof.</p> <p>“4. That the said John B. Bobe, as assignee of the said Jackson Brewing Company for the benefit of its creditors, stands charged on the tax duplicates of Hamilton county, as set forth in the application herein of Tilden R. French, county treasurer. The said John B. Bobe, assignee for the benefit of the creditors, refused to list any property for taxation, and the same was listed by the assessor, and the said taxes so charged have never been paid by the said John B. Bobe, assignee, and no part thereof; the said charges on the said tax duplicates, as returned by the assessor, were made upon the tangible personal property employed in the conduct of said business by the assignee, and being the property in his hands as assignee for the benefit of creditors.”</p> <p>By reference to the records of the probate and insolvency courts it appears that, by inventory and appraisement filed March 30, 1894, the assets of the corporation were appraised at $138,298.09, and that the liabilities amounted tó $134,505.10; that the order of March 7, 1894, authorizing a continuance of the business, directed the assignee to employ labor, purchase materials and supplies necessary to prevent waste, to preserve the property and assets and to manufacture beer in the usual and ordinary way until further orders; that February 9, 1895, the case was transferred to the court of insolvency; that that court, August 30, 1895, upon a written application of the creditors and the assignee, being satisfied that it would be for the advantage of the creditors that the business be continued by the assignee, ordered that said business be continued by him as theretofore until March 6, 1896, and until the further order of the court.' Also, that October 23,1897, the assignee made a report to the court showing, among other things, that the sales of the company for the year preceding the assignment were 14,715 barrels of beer, those of the first year under the assignment were 21,813, of the second year, 26,070, of the third year, 31,500, and the fourth year (estimated), 35,000; that substantial and necessary improvements and repairs of ice machine plant, boilers and engines, and machinery generally, as well as additions, etc., had been made; that he had reduced one mortgage on the plant from $24,-636.20 to $5,000; had paid from earnings for betterments, repairs and improvements aggregating $44,-455.18; also preferred claims, $1,446.18, his own services, $13,300; his attorneys, $1,500, for salaries and pay rolls, $89,678.73; that he had loaned the estate of his own money $3,000 in 1894, and during succeeding years sums amounting in the aggregate to $20,500, all of which was necessary for the successful conduct of the business, and all of which he has since repaid to himself; that there remained in merchandise indebtedness of the estate, which was due for current expenses and costs of administration, about $500; that he had cash on hand in bank $20,288.26; government stamps $1,700.87, and 7,272 barrels of beer in the cellar; that there had been large additions to the machinery, horses, wagons and cooperage, all paid for, and a sufficient quantity of supplies and materials, all paid for, to maintain the business in its present demands, and that the plant is in a much better condition than at the date of assignment. Having no need for at least $15,000 of the cash on hand he desired an order directing its payment on debts, and such order was made. The sales by the assignee have been of the manufactured products. No attempt has been made to sell the brewery plant or the personal property used in the manufacture of beer.</p> <p>Upon the facts found by the common pleas thax court adjudged that the assignee pay the taxes so claimed from moneys in his possession as assignee, and that he list the personal property for taxation during his continuance in the operation of the brewery. This judgment was reversed by the circuit court, and the treasurer brings error.</p>

<p>Error to the Circuit Court of Darke county.</p> <p>On February 14, 1884, one J. N. Lowry was appointed guardian, by the probate court of Darke county, of Viola Swisher, Olive Swisher and Warren C. Swisher, minor children of Robert Swisher, deceased, and gave a guardian’s bond under section 6259, Revised Statutes, in the sum of twelve thousand dollars, with D. T. Shepherd, N. M. Wilson and Jacob Warner, as his sureties.</p> <p>Afterward the guardian filed a petition' in the probate court to sell the lands of his wards, and in that proceeding he was required to give a bond under section 6285, Revised Statutes, to secure the proceeds of such sale, and he gave such bond on the 16th day of February, 1885, with said Frank McWhinney and Daniel Ryan, defendants in error, as his sureties, which bond was in the sum of twenty-three hundred dollars, was in due form, and was conditioned as follows:</p> <p>“That if the said J. N. Lowry as guardian of said wards as aforesaid shall well ajad faithfully discharge his duties as such guardian and well and faithfully pay over to the proper person or persons, and account for all the money arising from the sale of said real estate, .according to law, then these presents to be void, otherwise to be and remain in full force and virtue in law.”</p> <p>The lands were duly sold in said proceeding, and the net proceeds amounted to the sum of $876.75, one-third part of which belonged to each ward.</p> <p>The guardian received large sums of money for his wards from other sources, but kept no separate account between the money received from the sale of the land, and the money received from other sources, but commingled all the funds together indiscriminately, and used them as his own, and died insolvent on the 9th day of November, 1891. The last settlement filed by him was in May, 1890, and he then owed his wards $7,179.56.</p> <p>After his death, his administrator filed accounts of said guardianship, and the probate court found from said accounting, that there was due to said wards from their said guardian at the time of his death, the following sums: Viola Swisher, $2,252.35; Olive Swisher, $2,061.71, and Warren C. Swisher, $2,607.73; total $6,921.79.</p> <p>Said wards having become of the age of majority, demanded of said defendants in error the payment of the full amount of the bond so signed by them for $2,300.00, and upon refusal each one began a separate action against said defendants in error on said bond for the apportionate share of each in the same, with interest thereon from the ninth day of November, 1891, being the date of the death of their said guardian.</p> <p>An answer was filed by said Frank McWhinney and Daniel Eyan to the petition of Olive Swisher, in which they claimed that they could be held in any event for only the amount for which the land sold, $876.75, and that as the guardian’s accounts showed that he had paid out more than that sum for the wards, they were entitled to have sufficient of his payments credited on their liability on the bond to discharge the same in full. The courts held that they were not entitled to such crédit, but that their liability did not extend beyond the amount for which the land sold with interest.</p> <p>Olive recovered her one-third of the proceeds of the sale of the land, $292.25, with interest from the date of the death of her guardian. That case came to this court and is reported in (McWhinney v. Swisher) 58 Ohio St., 378.</p> <p>Instead of filing answers to the petitions of Viola and Warren C., counsel caused to be entered upon the journal in each case the following:</p> <p>“By agreement of the parties to the above entitled action, the final disposition of the several motions and demurrers filed in said case, or hereafter filed to any of the pleadings in said case, are to be controlled by the final holding and disposition of the courts upon similar motions and demurrers in the case of Olive Swisher v. Frank McWhinney et al., now pending as Case No. 15,047 in the court of common pleas of Darke county, Ohio.</p> <p>“In other wofids, the law as finally held in that case in the court in which said case is finally submitted, is to control in the above entitled case, and to be conclusive as to all matters in said above entitled case, except as to matters of fact upon which issue may be joined therein.”</p> <p>After the judgment in favor of Olive had been affirmed by this court, and the mandate sent to the clerk of the court of common pleas, counsellor Viola, and Warren C., moved for a like judgment in their cases. This was resisted by counsel ior the sureties, and they asked leave to file answers, which was granted by the court. Thereupon they answered in substance that after the guardian found that he could not pay the money owing to his wards, and for the purpose of indemnifying his sureties on said two bonds, one for $12,000.00, and the other for $2,300.00. he made and delivered to his said sureties, on the 18th day of July. .1891, a mortgage on his real estate, which was duly accepted and recorded, and was conditioned as follows:</p> <p>“Provided, nevertheless, that whereas said Frank McWhinney and Daniel Ryan on the 16th day of February, 1885, became sureties for said J. N. Lowry, on a certain guardian’s bond, as guardian of Olive, Viola and Warren O. Swisher, minors, in the sum of $2,300.00, which bond was on said 16th day of Feb: ruary, 1885, approved and accepted by said probate court and recorded in volume 1, guardian’s bond record, page 62 of probate record.</p> <p>“And, whereas, said D. T. Shepherd, Jacob Warner and N. M. Wilson, on the 31st day of January, 1884, became sureties for said J. N. Lowry, on a certain guardian’s bond as guardian of Olive, Viola and Warren C. Swisher, minors, in the sum of $12,000, which bond was on said 13th day of February, 1884, approved and accepted by said probate court, and recorded in Volume ‘F,’ page 434, guardian’s bond record, in probate record.</p> <p>“Now, if said J. N. Lowry, his heirs and assigns,' shall well and truly pay his said wards, as they become of age, or to his successors, the amounts found due said wards, and shall well and truly account for all moneys, credits, etc., received by him or hereafter to be received, and fully perform the conditions of said bonds and save these mortgagees harmless, then these presents shall be void. Otherwise, to be and remain in full force and virtue.”</p> <p>That the administrator of the deceased guardian filed a petition in the probate court to sell said land to pay debts, and made the sureties on said two bonds defendants; that said administrator sold said laud for the net sum of $3,820.00, and the probate court ordered him to pay that sum upon the amounts found due said wards, and that he did so pay the same as follows: to Viola $1,232.25; to Olive $1,098.25, and to Warren C. $1,489.50. That said payments wrere applied to the liability of the sureties on the bond for $12,000.00, they being totally insolvent, and no part was applied to the liability of the sureties on the bond for $2,300.00; that the defendants in error had no knowledge of such application, and did not consent thereto, and averred that they were entitled to have an equitable share of the $3,820.00 applied to the discharge of their liability on the bond signed by them, and that when so applied it would discharge their entire liability on the bond.</p> <p>There wTas a reply filed setting up the agreement as to abiding the result of Olive’s case, and also other matters, but as it conceded the controlling facts in the answer, a demurrer was sustained thereto, and exceptions taken. Thereupon, judgment was rendered in favor of the bondsmen upon the petition and answer, and exceptions again noted. The circuit court affirmed the judgment. Thereupon the plaintiffs below, Viola and Warren C., filed their petitions in error in this court, and the two cases were heard together.</p>

<p>Error to the Superior Court of Cincinnati.</p> <p>The original action was brought in the superior court, by Louisa Schmidt against Louisa Sticken, to recover a judgment on a money obligation executed by the defendant and her husband, and to charge Avith its payment, the proceeds of a policy of insurance on the life of her husband, which, it is claimed, was her separate property. Judgment was recovered by the plaintiff, from the affirmance of which in general term, error is prosecuted here. A statement of the facts necessary to an understanding of the question presented, is contained in the opinion.</p>

<p>Contract for use of patent right — For given time at annual rate —Use by licensee after expiration of term — Licensee to pay double former rate — Liquidated damages — Validity of contract.</p> <p>1. Where the parties to a contract for the use of a patent right for a certain time at a given annual rate as a license fee, agree th&t, if the licensee, continues to use it after the expiration of the term without obtaining a license therefor, the licensee shall pay double the former rate for each year in which it is used, the agreement is not unlawful or against public policy, but in the nature of liquidated damages; and may be recovered as such on a breach of the agreement.</p> <p>2. Whether it should not be treated simply as an agreement for the payment of a stipulated license fee after the lapse of a certain period, depending upon the option of the licensee to continue the use. Quere?</p>

On the 1st clay of August, 1889, Carrie B. Law was, by the judgment of the court of common pleas of Hamilton county, divorced from George W. Law for his aggression.

Mandamus. This action is brought to compel the State Board of Medical Registration and Examinations to recognize the relator as a “legally chartered medical institution in good standing,” and to issue to its graduates who may hereafter apply to the Board for that purpose, certificates authorizing them to engage in the practice of medicine in this state.

Motion to dismiss for want of jurisdiqtion. The plaintiff below brought suit against the city of Toledo to recover the amount of certain alleged unlawful exactions made of him by the city, and Avhich he paid under duress. The amount claimed Avas $294.50, with interest thereon from January 1, 1897. A judgment was rendered in his favor for $332, which included the interest as claimed..

Miss Hawkins brought her action in the court of common pleas to recover of the company for personal injuries alleged to have been sustained by her while a passenger on one of its cars, the injuries resulting from the negligence of its servants.

The defendant in eror wag plaintiff in the court of' common pleas; and in his petition alleged that tire defendants, William C. Mahler, John Cox, Lemuel E. Heckler, Edwin H. Park and William J. Kronauge, with himself as surety, executed and delivered to the City National Bank the following promissory note: “$500.00: Dayton, Ohio, Sept. 28, 1894. Six months after date we promise to pay to the order of City National Bank, Five Hundred Dollars.

The plaintiff is the assignee for the benefit of creditors of Katie W. Straub, insolvent. The principal defendant in error is The St. Bernard Loan and Building Association Company. The controversy had its origin in the probate court of Warren, by the filing by the assignee of a petition to sell lands, to which the company, as mortgagee, ivas made defendant and answered. A sale was ordered, the land sold and an order of distribution entered.

Petition in Mandamus. The Cincinnati Life Association doing a life insurance business on the assessment plan, deposited securities to the amount of $5,000.00, with the superintendent of insurance of this state under section 3631 — 25, Bates’ Bevised Statutes.

Action on account for goods sold. Plea of former recovery. Reply that the judgment was against a non-resident of the state, on constructive service only. Bemurrer to reply sustained, and action dismissed. Reversed.

The plaintiff below, the board of education of Hopewell township, Perry county, commenced an action in the common pleas against the auditor and treasurer of the county to enjoin the levy and collection of a tax, levied by the commissioners of the county for school purposes in a newly created joint subdistrict.

The record before us was made in the circuit court where the case was tried on appeal. It was a suit brought by the defendants in error against Clara Newman et al., to quiet title to certain real estate, being a lot in the city of Cleveland.

<p>Railway company liability for accident to passenger or employe —Passengers not held to degree of duty required of employes, when — Employe steps upon railway trade from platform — Guilty of contributory negligence, when — Extent of care required of ordinary person in attempting to pass over trade — Law of negligence.</p> <p>1. The rule of law which excuses passengers from the obligation to observe a strict lookout for trains and locomotives when alighting from or getting upon trains over the tracks of a railway company, does not apply to employes whose duties ■ may require them to cross the tracks in the yards or at the depots of the railway.</p> <p>2. Such employes will be held to the exercise of ordinary care in going from a place of safety upon or across railway tracks; and ordinary care requires that a person in the full enjoyment of the faculties of hearing and seeing, before attempting to pass over a railroad track, should use them for the purpose of discovering and avoiding danger from an approaching train; and an omission to do so, without reasonable excuse therefor, is negligence which will defeat an action by such person to recover damages for an injury to which such negligence contributed.</p> <p>3. Where such an employe, without looking or listening, steps .upon a railway track from a place of safety on a platform, immediately after the passing of a train, and in front of and close to, a backing switch engine, so that he is immediately struck and injured by such engine, he is guilty of contributory negligence, and cannot recover for the injury thus received.</p>

<p>Error to the Circuit Court of Hamilton county.</p> <p>The controversy had its origin in a suit to quiet title to certain lands situate in the city of Cincinnati brought by the defendants in error, Frank Fugman and Katie Margaretha Fugman against Chrysosto: mus Theobald, as pastor of St. Francis Seraphicus Roman Catholic Church, and others. Issue was made, up by answer and cross-petitions and replies, and a trial had, which resulted in a judgment in favor of the plaintiffs in part and in part in favor of defendants, from which appeals were taken by the several parties to the circuit court. That court made the same findings and rendered the same judgment as that of the court below, and the contestants come here by petition in error on the part of Theobald et al., defendants below, and by cross-petition in error on the part of Frank and Katie Margaretha Fugman. Facts necessary to an understanding of the points decided follow:</p> <p>In the year 1891, one Margaretha Fugman filed in the probate court of Hamilton county her written application designating and appointing Frank Fugman and Katie Margaretha Fugman, plaintiffs below, as her heirs at law under section 4182, Revised Statutes, and the court thereupon made and entered its proper order thereon. On April 8,1894, the said Margaretha Fugman died at Cincinnati, seized in fee simple of the real estate the subject of 'the action, and the plaintiffs below were, at the time of the filing ’of the petition, in actual possession of the same. The deceased also left a last will dated February 21, 1894, which was duly admitted to probate and record April 23, 1894. She left no issue of her body. She was possessed, at the time of the making of the will, and at the time of her decease, so far as could be ascertained, of no personal property excepting household goods and furniture, and no moneys or other personal property came into the hands of her executors. The saying of mass for the dead is one of the religious services or ceremonies of the Catholic church. The clauses of the will involved in this litigation are the following:</p> <p>Item 1. It is my will that all my debts and funeral expenses be paid.</p> <p>Item 2. I give and bequeath to Frank Fugman, for-, merly Held, who has lived in my family and who has had his name changed to Fugman by act of legislature of Ohio, whom I have designated as my heir at law by proceedings in the probate court of Hamilton county. O., in accordance with a mutual understanding between myself and my husband during his lifetime, the sum of one hundred dollars ($100), he having received during the lifetime of my deceased' husband the sum of five hundred dollars ($500), and during the lifetime of myself the sum of two thousand dollars ($2,000).</p> <p>Item 3. I give and bequeath to Katie Margaretha Fugman, formerly McGovern, who has lived in my family and has had her name changed to Fugman by act of legislature of Ohio, and whom I have designated as my heir at law by proceedings in the probate court of Hamilton county, Ohio, in accordance with a mutual understanding between myself and my husband during his lifetime, all household goods and furniture left by me.</p> <p>Item 4. I also give and bequeath to Katie Margaretha Fugman, formerly McGovern, the sum of three hundred dollars ($300).</p> <p>Item 5. I also give and bequeath to Katie Margaretha Fugman, formerly McGovern, the sum of one thousand dollars ($1,000) to hold in trust by my appointed executor until she reaches the age of thirty years.</p> <p>Item 6. I give and bequeath to the pastor of St. Francis Seraphicus Roman Catholic Church, at the northwest corner of Liberty and Yine streets, Cincinnati, Ohio, and his successors, the sum of three hundred dollars ($300) for the saying of masses for the repose of my soul and the soul of my deceased husband.</p> <p>Item 7. I give and bequeath to the pastor of St. Clement Roman Catholic Church, at St. Bernard, Hamilton county, Ohio, and his successors, the sum of one hundred dollars ($100), for the saying of annual masses on All Souls Day of each year for the repose of my soul and that of my deceased husband.</p> <p>Item 8. I give and bequeath to the St. Francis Hospital, on Queen City avenue, Cincinnati, Ohio, the sum of one hundred dollars ($100).</p> <p>Item 9. I give and bequeath to Joseph Wiemann, my brother, of the city .and state of New York, the sum of three hundred dollars ($300).</p> <p>Item 10. I give and bequeath to my niece, Katie Hollerman (daughter of my brother Joseph), of Jersey City Heights, Jersey City, New Jersey, the sum of three hundred dollars ($300).</p> <p>Item 11. I give and bequeath to my nephew, Joseph Wiedenborn (son of my sister Catherine by her first marriage), of the city and state of New York, the sum of one hundred dollars ($100).</p> <p>Item 12. I give and bequeath to my nephew, Bernard McGovern (son of my sister Catherine by her second marriage), of the city and state of New York, the sum of one hundred dollars ($100).</p> <p>Item 13. I give and bequeath to my niece, Rosa Brauer (daughter of my sister Rosa), of the city and state of New York, the sum of two hundred dollars ($200).</p> <p>Item 14. I give and bequeath to widow Katie Burckhardt (daughter of my sister, Rosa Baumart) the sum of’two hundred dollars ($200).</p> <p>Item 15. I give and bequeath to my niece, Anna Picker, of Cincinnati, Ohio (daughter of my sister Catherine), the sum'of one hundred dollars ($100).</p> <p>Item 16. I give and bequeath to Andrew Fugmann and Philip Fugmann (brothers of my deceased hus band), of Wappinger Falls, New York, each, the sum of three hundred dollars ($300).</p> <p>Item 17. I give and bequeath to Christina Singer (sister of my deceased husband), of Cincinnati, Ohio, the sum of two hundred dollars ($200).</p> <p>Item 18. I give and bequeath to the Catholic St. John Cemetery, at St. Bernard, Hamilton county, the sum of one hundred dollars ($100), interest of same to be used to keep our graves in good order.</p> <p>Item 19. I give and bequeath to the Catholic Church at Burgkindstadt, Koenigreich, Bayern. Landgericht, Weizmann, Ober Franken, Germany, the sum of three hundred dollars ($300) to provide a fund for clothing for poor children at communion.</p> <p>■Item 20. I also give and bequeath to the above-named church as described in Item 19 the sum of two hundred dollars ($200) for Ablas and to pray and say masses on the day of my death and husband for the repose of my soul and soul of deceased husband. The name of said chapel being Fuenf Funden Kapelle.</p> <p>Item 21. I give and bequeath to Kate Melzer, of Reisbach Nieder, Bayern, Germany, the sum of one hundred dollars ($100).</p> <p>■ Item 22. All the rest and residue of my estate, wherever situate, and. be the same real, personal or mixed, I give and bequeath unto the pastor of the St. Francis Seraphiciis Roman Catholic Church, or his successors, at- the northwest corner of Liberty and Vine, Cincinnati, Ohio, for the saying of masses on the day of my death and that of my husband.</p>

<p>Error to the circuit court of Belmont county.</p> <p>On the 27th day of December, 1898, Joseph T. Hinton departed this life intestate, leaving Amanda L. Hinton his widow, and Maud Hinton over fifteen years of age, and four other children under the age of fifteen years, his only heirs. An administrator was appointed on his estate and there was set off to the widow and said four children under the age of fifteen years the sum of thirty dollars each for one year's support, and also certain personal property named in the inventory.</p> <p>On the 26th day of July, 1899, said Amanda L. Hinton died intestate leaving said five children her only heirs at law, said four children being still under the age of fifteen years. Theodore Chappell was duly appointed administrator of her estate, and the appraisers set off to said four minor children for one year’s support tlie sum of $150.00, to each, and also some of the personal property which had been set off to the widow by the other administrator, as being exempt under the statute.</p> <p>Thereupon George W. Hance, the duly appointed guardian of said Maud Hinton, who was over fifteen years of age, filed exceptions to said inventory, claiming that said four children under fifteen years of age Avere not entitled to a year’s support out of the estate of their mother, and were not entitled to have said personal property set off to them under the statute as not being assets of their mother’s estate.</p> <p>The probate court sustained the exceptions, and the administrator appealed to the court of common pleas, where the case was heard upon an agreed statement of facts from which tiie above facts are taken. The common pleas overruled the exceptions. Thereupon the guardian of Maud filed his petition in error in the circuit court, and that court reversed the judgment of the common pleas and held the exceptions well taken. Thereupon the administrator of the estate of Mrs. Hinton filed his petition in error in this court, seeking to reverse the judgment of. the circuit court, and for an affirmance of the common pleas.</p>

<p>Error to the Circuit Court of Medina county.</p> <p>Action to enjoin collection of Dow law tax. Demurrer to petition sustained, and action dismissed. Judgment, affirmed by circuit court. Affirmed.</p> <p>Guy Markle brought his action in the common pleas of Medina county, against James Newton, the treasurer of that county, to enjoin the collection, by the latter, of taxes charged against the plaintiff on his business of trafficking in intoxicating liquors in that county for the years 189G, 1897 and 1S98. The allegations of the petition are as follows:</p> <p>“Plaintiff says: That the defendant is the duly elected, qualified and acting treasurer of said Medina county, Ohio. That the plaintiff is a resident and taxpayer in said Medina county, and that he duly paid all the taxes assessed against him on the duplicate of said county for the years 1896, 1897 and 1898, when the same became due and payable. That notwithstanding the plaintiff had duly paid all of said taxes for said years as aforesaid, the auditor of said Medina county, assuming and pretending to correct the returns of the plaintiff for taxation in said years, but wholly without authority of law for so doing, on the 24th day of June, 1899, charged the plaintiff on the duplicate for said year, 1899, with the sum of $313 as the tax on the business of trafficking in intoxicating liquors from the third day of July, 1896, to the fourth Monday in May, 18.97; with the sum of $350 as the tax on the business of trafficking in intoxicating liquors from the fourth Monday of May, 1897, to the fourth Monday of May, 1898; and with the sum of $350 as the tax on the business of trafficking in intoxicating liquors from the fourth Monday of May, 1898, to the fourth Monday of May, 1899. That said several amounts were so charged by said auditor against the plaintiff on said duplicate without any evidence before him that the plaintiff was engaged in the business of trafficking in intoxicating liquors in either of said years, or any part of any of said years. That said duplicate, with the several amounts illegally charged thereon against the plaintiff as taxes on the business of trafficking in intoxicating liquors in said several years, as aforesaid, is now in the hands of said' defendant as such treasurer for collection, and, unless restrained by the process of this court, said defendant as such treasurer, threatens to and Avill compel the plaintiff to pay said illegal tax, to the great and irreparable damage of the plaintiff.</p> <p>Plaintiff therefore asks that a temporary restraining order be granted enjoining said defendant as such treasurer from proceeding to collect said illegal taxes from the plaintiff, or in any way compelling plaintiff to pay the same, until the final hearing of this cause, and that on such final hearing that said injunction may be made perpetual, and for such other and further relief as plaintiff is, in equity, entitled.”</p> <p>A general demurrer to this petition was sustained by the common pleas and final judgment rendered against the plaintiff; and from the affirmance of that judgment by the circuit court, error is prosecuted here.</p>

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

<p>Error to the Circuit Court of Montgomery county.</p> <p>Upon the trial of the action in the court of common pleas, in which Overholser was plaintiff and the National Home defendant, the jury returned a verdict in favor of the plaintiff on the 25th day of November, 1898. Judgment in favor of the plaintiff immediately followed the verdict. Within three days, as required by statute, the defendant there filed a motion for a new trial. This motion was not disposed of by the court until the 27th day of March, 1899. On the 25th day of March, 1899, as appears from the record, by consent of the parties plaintiff and defendant, the judgment which had been entered in the previous November, and at a former term of the court, was set aside, the order being expressly made by the consent of the parties. Thereupon on the 27th day of March, the court upon consideration of the motion for a new trial, overruled the same and rendered judgment in favor, of the plaintiff for the amount of the verdict, to which ruling the defendant excepted and took a bill of exceptions which was filed May 10, 1899. On the 5th of June, 1899, plaintiff in error here filed its petition in error in the circuit court for the reversal of the judgment of the court of common pleas. On the 13th day of June, 1899, as appears from the record of the circuit court, that court, finding that it was without jurisdiction to hear and determine the cause for the reason that the petition in error was not filed within four months after the rendition of the judgment, ordered that the petition in error be dismissed and to this order plaintiff in error excepted. To reverse that order of dismissal is the object of this petition in error.</p>

The plaintiff sued the defendant in the court of common pleas of Lucas county alleging that on the 12th day of April, 1884, he ivas a resident of the village of Wauseon and eligible to the office of councilman in that village; that on and prior to said date while the plaintiff was a duly appointed, qualified and acting councilman of said village of Wauseon, the defendant wrongfully, oppressively and maliciously, without cause, usurped plaintiff’s said office of councilman,…

The action below7 w7as commenced by petition in the common pleas to set aside a sale of lands by the sheriff. The case w7as tried on appeal in the circuit court, where findings and judgment were rendered for the defendants.

<p>Removal of public officer — For specified causes — Facts must be stated that are relied on for removal — Right of officer to be heard — Misconstruction of statute not evidence of incompetency — Proceeding in mandamus should be employed, tolven ■ — Civil service commissioners — Removal of by mayor.</p> <p>1. When a public officer may be removed for specified causes, such facts must be stated as in judgment of law, constitute the cause relied on, and an opportunity afforded the ' officer to , be heard, before he can be legally removed. . ,</p> <p>2. The misconstruction of a statute, about which there may be ' an honest difference of opinion, is not such evidence of iii-competency, or misconduct, in the officer as to warrant his removal on either of these grounds.</p> <p>3. The proper remedy in such case is a proceeding in mandamus to compel him to act in accordance with the required construction or to show cause why he does not.</p>

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

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

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

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

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

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

<p>Proceedings in contempt. Guilty as charged.</p>

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