Volume 68 — Ohio State Reports

The plaintiff in error, Joseph Miller, was plaintiff below, and the defendant in error, Charles L. Ewing, administrator of Samuel Ewing, deceased, was defendant below. Plaintiff’s action was founded on a promissory note dated December 5, 1884, due in one year, for $300, with interest at eight per cent, payable annually, No credits appeared on the note. Suit was commenced August 19, 1899, and the amount demanded was $300, with interest payable annually from date.

On the 6th day of December, 1873, Moses G-ooctrich, one of the plaintiffs in error, made and delivered his promissory note of that' date to Grove Case, then in full life, but now deceased, said Burton Case, defendant in error, being his executor. The following is a copy of said note: “$2,500. Two years after date I promise to pay Grove Case, or order, the sum of twenty-five hundred dollars, with interest at eight per cent., the interest to be paid annually. Value received.

Joseph T. Pace, 'defendant in error, brought an action in the Court of Common Pleas of Franklin County, Ohio, against the Columbus Street Railway Co., to recover damages for personal injuries. The ease has been three times tried, twice in the Court of Common Pleas of Franklin County, and once in the Court of Common Pleas of Pickaway County.

The plaintiff below, who as now defendant in error, commenced his suit against the plaintiff in error to recover damages for injury to his person occasioned by the caving of a bank of earth on the premises owned by the railroad company.

In t'hc court of common pleas the iron works company sued the ice manufacturing company for $498, the agreed ¡Drice of a wrought iron shaft for an ice machine, with interest thereon.

This action was begun by a petition in the Court of Common Pleas of Montgomery County, of which the following is a copy: “The plaintiff, Neil Overholser, says that the defendant, The National Home for Disabled Volunteer Soldiers, is a corporation duly incorporated and organized under the laws of the United States under Section 4825 and the following sections of chapter 3.

<p>Making Out and Presenting False Claims to Public Officers — Section 7075, Revised'Statutes — Indictment Charging Certification of Fraudulent Pay Roll — To Municipal Auditor — Sufficient Under Said Statute — Motion to Quash Should be Overruled, When — Interpretation of Law — Court Procedure.</p> <p>An indictment under Section 7075, Revised Statutes, charging the defendant with having unlawfully, knowingly and feloniously made out and presented for payment, and certified as correct to the auditor of a municipal corporation, a false and fraudulent pay roll against said corporation for the purpose of procuring an allowance of the same by said auditor and said corporation, and for the purpose of procuring an order for the payment of the same out of the treasury of such corporation, with intent to defraud, sufficiently charges an offense under said section, and a motion to quash the indictment because it does not show authority in the auditor to allow or pay the pay roll should be overruled.</p>

This action was originally commenced in the Probate Court of Lucas County, Ohio, by William H. A. Read, as assignee for .the benefit of creditors of Cary D. Lindsay, by the filing of a petition in said court, asking for an order to sell certain of the assigned real estate to pay debts. To this proceeding the defendant in error, -The Toledo- Loan Co., and others, were made parties de-fenclant.

On August 30, 1899, the defendant in error, The Ohio Postal Telegraph Cable Co., filed in the Probate Court of Crawford County, its petition against the plaintiff in error, and the holders of certain trust deeds securing certain bonded indebtedness owing by the railway company, the purpose and 'prayer of which petition were to obtain by appropriation, the right of The Ohio Postal Telegraph Cable Co., to enter upon and occupy, for the erection and operation of its telegraph…

The plaintiff, The Shinlde, Wilson & Kreis Co., brought suit against the defendants in the court of common pleas to recover the value of a quantity of sugar which if bad' stored in 'a warehouse leased from the defendant's, and which was destroyed by the ál-leged defective condition-of the warehouse.

The defendant in error commenced am action against The Drake Medicine Co. and Warren W. Drake, in the 'Court of Common Pleas of Hancock County, alleging as follows: Plaintiff says that he has for many years last past carried on the business hereinafter described under the name of The Glessner Medicine Co., of Findlay, Ohio; that' he has complied with all the provisions of Section 3170, Revised Statutes.

The action below was brought' by the State against The Vindicator Printing Co. in the Court of Common Pleas of Mahoning to recover public moneys alleged to Rave been unlawfully drawn from the treasury of that county on the order of the board of county commissioners.

One Charles M. Spahr on and before January 29, 1901, was indebted to George L. Bobilya on a'secured note in the sum of $130, and rent of room $10, total $140. He also owed the Will-shire bank $63, and owed certain notes which he had forged, amounting to $514.59, which notes were held by the Willshire bank for collection, and which notes he desired to pay to prevent prosecution for forgery.

Tiro defendants in error made a motion to strike the bill of exceptions from the files. The cause was tried in the circuit court on appeal and judgment rendered late in- the month of December, 1902. A bill of exceptions was 'allowed after January 1, 1903. under Sections 5301 and 5302, Revised Statutes, as they stood before the amendment of those sections, October 22,' 1902.

On February 6, 1901, said Harris Gettinger filed his petition against The National Bank of Commerce, Arthur Klauser, Grant Benson, 'diaries B. Darling and Jay Benson, and afterward filed his 'amended petition as follows, omitting caption, signatures and verification: “Plaintiff states that the defendant, The National Bank of Commerce, is a banking corporation organized under tihe laws of the United States and doing and carrying on a general hanking business at No. 324…

Error,to the Circuit Court of Puitnaan County. On August 28, 1900, the plaintiff in error, Nicholas Miller, as Sheriff of Putoaan County, Ohio, by virtue of 'an execution in his hands issued at the suit of John H. Uphaus, on a judgment in his favor against one Joseph Boof, levied upon and seized certain chattel property as the property of said Joseph'Boof, the judgment debtor.

On July 27, 1898, the plaintiff in error, The Koppitz-Melehers Brewing Co., entered into a contract in writing with the defendant in error, Henry T. Hall, whereby it agreed to sell and deliver beer to said Henry T. Hall, at Cambridge, Ohio. By the terms of said; contract shipments of beer were to be made by said-brewing company in “car load lots,” and Hall was to pay for the same at the times and in the manner stipulated and provided in said contract.

■Plaintiff brought her action in the court of common pleas to set aside two deeds for reail estate executed by the defendant, John J. Summers, to 1ms two sons -as being in fraud of creditors, and to subject the lands conveyed to the payment of 'a debt due from the grantor to .plaintiff 'at the time of the conveyance.

. The defendant is error is 'a capitalist and contractor. She filed a petition against' the plaintiff in error, in which she alleges that the defendant is a corporation, «and for a first cause of action says: “1.

The plaintiff in error, The Peoples’ Savings Bank Co., was plaintiff in the courts- below. Its action was- 'brought against Charles Parisette and his wife, Susan- Parisette, to enforce specific performance of 'a land contract for -certain lands in the city of Akron, executed by the ¡husband alone.

The plaintiff filed the following petition in this court/caption, signature anidl verification being here omitted: “The relator, Samuel E. Kemp, is a resident and tax-payer, residing ■within the city of Dayton, Montgomery county, Ohio. “The defendants, Edwin T. Clark, Chas. A. Wintersteen, John Buck, Chas. E. Simms, Wilson J. Pierce, Chas. Gr. Lander, John Ploban, Peter Zimmer, Emery E. McMichael, Jos. W. Miller, John M. Betseh, Chais.

County. The defendant in error, the Walsh-Upstill Coal Oo., a corporation, brought suit in the Court of Common Pleas of Cuyahoga County, against' the plaintiff in error, the Marine Insurance Co., Limited, of London, England, on a policy of insurance issued to it by said Marine Insurance Co. The Walsh-Upstill Coal Co., the nominal .plaintiff in said s-uit, brought the action, as averred in its petition, for the use of the R. P. Elmore Co., a corporation of Milwaukee,…

The plaintiff in error, as plaintiff in the lower court, on January 8, 1901, filed the following amended petition: “The plaintiff, Henry D. CofSniberry, is the owner of the following lands: The south half (%) of the southwest one-fourth (%) °f section eighteen (18) and the north half (V2) of the northwest one-fourth (14) of section nineteen (19) in Portage township, Wood county, Ohio, and containing in all about one hundred and fifty-eight (158) acres.

On February 13, A. D. 1875, George F. Wilt, one of the defendants in error, was 'appointed administrator of the estate of his father, Harrison Wilt, deceased, which appointment was accepted and letters of administration were duly issued. The administrator gave bond, which was approved, in the sum of $4,000, conditioned according to law, with J. E. Smith, plaintiff in error, as one of his sureties. Having so qualified Ire entered npon the duties of his trust.

A proceeding by the city to appropriate property for the extension. of McClung street across the railroad 'Owned by the Dayton & Michigan Railroad Oo., amid operated ®nd held under lease by the Cincinnati, Hamilton & Dayton Railway 'Co., was tided in the court of common pleas for the determination of compensation amid damages.

This suit was brought on January 4, 1898, by the City Solicitor of the City of Defiance in the name of the city under Section 1777, of Revised Statutes, against the council of the city.

<p>Inchoate Dower of Wife — Not a.Lien on Husband?s land — Sale of Land by Judgment Creditor — Does not Bar Dower of Wife — Judgment by Court in Favor of Mortgagee Against Husband — Does not Affect Wife’s Interest, When — Purchaser at Sheriff’s Sale not Subrogated to Mortgagee’s Rights, When — Statute of Limitations — Law of Dower.</p> <p>1. The inchoate dower of the wife is not a lien upon the land of the husband, hut is an interest in it.</p> <p>2. A sale of land at the suit of a judgment creditor of the husband, brought to marshal liens, does not have the effect to bar or .foreclose the inchoate dower of the wife.</p> <p>3. The rule is not different although the wife is made a party to the creditor’s suit and is in default of answer when the judgment ordering a sale is entered and- the sale is made, and although a mortgagee, in whose mortgage the wife has joined releasing dower is also made defendant, hut is in default at the time .the judgment is rendered and the sale is made.</p> <p>4. The filing after sale of an answer by the mortgagee setting up his mortgage (not followed by summons), and a finding and ■judgment by the court on the mortgage against the husband and ordering a sale of the premises .in default of payment by him, hut not followed by a sale or the issuing of an order of sale, will not affect the interest of the wife in the land, although the purchase money is in part applied on the mortgage debt.</p> <p>5. The purchaser at the sheriff’s sale, not being in privity with , the mortgage, is not entitled to be subrogated to any supposed rights of the mortgagee. A further fact in the case negatives the claim of subrogation, viz., That more than twenty-one years having elapsed after the rendition of the judgments, and the sale and distribution of proceeds, any such supposed right of the mortgagee is barred ' by the statute of limitations.</p> <p>6. In such case the wife is not required to redeem the mortgage and is entitled to dower.</p>

The facts in this ease involve the rights of several- mortgagees under chattel mortgages from L. E. Bloomfield, a contractor, engaged -in drilling oil wells, in which business he owned and used drilling tools, machinery, horses, wagons and harness, but was not the owner of any real estate.

The defendant in error, John Bright, brought -his action in the court of common pleas to recover of the plaintiffs in error a considerable sum of money which, he alleges, he lost to them during the month of February, 1899, while dealing in margins at' their place of business conducted in Findlay, Ohio.

Plaintiff brought' her action in the court of common pleas to recover from the defendant $600, the sum of six monthly installments which were admitted to be unpaid, and which she claimed to be due her on the following state of facts.: In 1881, the late Frederick Iiassaurek and the plaintiff were husband and wife, and the parents of two children.

.This action -was instituted in the Court of Common Pleas of Cuyahoga County by the First National Bank of New York, defendant in error, against the Cleveland City Railway Co., the ■plaintiff: in… Held: at the time of the consolidation, by Taintor & Holt, viz., 300 shares of preferred and 13,300 shares of common, been paid. No shares of the new company were ever issued for the balance of the preferred and common stock held by Taintor & Holt.

The action below was begun July 15, 1901, in the Court of Insolvency of Hamilton County by the plaintiffs in error against the city and the auditor, to enjoin the collection of an assessment for the improvement of Mercer street which had been levied on a lot owned by them on tlie corner of Vine and Mercer streets.

This same cause was here once before, and is reported in Life Ins. Go. v. Howie, 62 Ohio St., 204; the cause now here being the one brought' upon the two small policies, one for $126, dated September 25, 1893, and the other for $500, dated November-12, 1894. The policies were on tbe life of Sarah Iiowle, and ran in favor of her husband, said Henry Howie. She died September 5, 1895.

'Error to the Circuit Court of Mahoning County.- In the court of common pleas Allen was tried upon an indictment for robbing one Albert Miller, ’and a verdict of guilty -was followed by an appropriate sentence.

On August 10, 1901, Jacob I. Mayer, a defendant in,error, filed his petition in the Court of Common. Pleas of Franklin County, against' tbe plaintiff in error, tbe American Cigar Co., and tbe Iiavana-American Co., to recover tbe sum of $5,000, with interest from June 17, 1901.

Mandamus. The petition is as follows: “The relator is the duly elected, qualified and acting Auditor of State of the State of Ohio.