Volume 69 — Ohio State Reports, New Series

In quo warranto. The relator sets forth in his petition that by certain joint resolutions passed by the General Assembly of the State of Ohio, it was agreed to submit to the electors of the state of Ohio on the first Tuesday after the first Monday of November, 1903, certain propositions to amend the Constitution of the state of Ohio, which propositions are described in the petition.

On April 25, 1900, A. G. Carpenter, as executor of tbe will of Jacob W. Baker, deceased, under favor of Section 6202, Revised Statutes, commenced an action in tbe Court of Common Pleas of Greene County, Ohio, for tbe purpose of obtaining tbe judgment and direction of said court as to tbe proper distribution to be made by bim, as executor, of tbe property and' estate to be by bim administered under tbe provisions of tbe will of said Jacob W. Baker.

Tbe plaintiff in error commenced an action in the Court of Common Pleas of Columbiana County against the defendant in error, who was, and is, receiver of the insolvent firm of J. Esterly & Co., to compel the allowance of dividends on certain notes owned by plaintiff in error upon which said insolvent firm were liable as in-dorsers..

Tbe facts in case No. 8216, in substance, are as follows: Upon the twenty-first day of June, 1901, tbe same day that tbe receiver was appointed, a proceeding was brought by William L. Buckingham for tbe benefit of himself and all other creditors of tbe Springfield Provision Co., to assess and collect on the liability of tbe stockholders under tbe laws of Ohio. In this proceeding tbe Building & Loan Association, on tbe eighth of October, 1901, set up its claim.

Plaintiff's in error are lessee and lessor of a railway running through Akron. The defendant is administratrix of James Thomas McCormick, who, on the twenty-fifth of December, 1897, while acting as track-walker for the lessee company, was struck by one of its trains while upon a bridge in the city of Akron, but near its eastern limit, receiving injuries from which he died in a few days.

In Mandamus. The relator asks this court to issue a writ of mandamus commanding the defendant to issue to the relator a permit in writing .to do business in the state of Ohio, as a fraternal beneficiary association, under the provisions of the statute in such case made and provided.

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

On the sixteenth day of January, 1901, W. L. Alexander, then Treasurer of Crawford County, began his action against J. C. F, Hull lor the recovery of $1,048.20, taxes and penalty claimed to be due to said county from said' Hull for delinquent taxes on shares owned by said Hull in the Second National Bank of Bucyrus, Ohio, which shares had been returned by the cashier to the county auditor for taxation, and the valuation and taxes by him placed on the duplicate for the years…

This proceeding in error is one taken by the Prosecuting- Attorney of Hamilton County, Ohio,, on behalf of the State, under favor of Section 7306a, Revised Statutes, to obtain a reversal of the order and judgment of the Circuit Court of Hamilton County reversing a judgment of conviction against the defendant in error obtained in the court of common pleas of said county at the October Term thereof, 1901.

The issues between the parties in the trial court were joined upon the second amended petition, the answer of plaintiff in error, and the reply thereto. The plaintiff below claimed a right of recovery against the defendant for damages resulting from a personal injury received in the coal mine of the defendant on the twenty-seventh day of September, 1900.

The railway company for purposes of operating its road maintains ten tracks over the grade crossing of Third street in Dennison, that street being the principal thoroughfare of the village, about one-third of its population of 4,000 residing upon one side of the tracks and two-thirds on the other.

The defendant in error sued upon a policy of insurance which contained the following clause: “This entire policy shall be void.if the insured has concealed or misrepresented, in writing, or otherwise, any material fact or circumstance concerning this insurance or the subject thereof; or if the interest of the insured in the property be not truly stated herein; or in case of any fraud or false swearing by the insured touching any matter relating to this insurance or the…

The action below was brought by defendant in error, Ida L. McClellan, administratrix, against The Baltimore & Ohio Railroad Co., to recover for the negligent hilling of Madison Me-Clellan, who met Ms death, by being run over by the caboose of a local freight train. The defense was a denial of negligence by defendant and a charge of contributory negligence on the part of the deceased.

The litigation in this case had its origin in an agreement 'signed by some twenty-five persons, of which the following is a ■copy, omitting signatures: “We, the undersigned, in consideration of the mutual agreements herein contained, severally agree, as follows: “First. That we will form a syndicate with a capital stock of $320,000, divided into forty shares, of the par value of ■$8,000 each, and we will take the shares as subscribed by us. “Second.

Prances E. Stacey, whose domicile was in the city of Cincinnati, Ohio, died testate in July, 1894, at Sacramento City, California. She left surviving her, as sole beneficiaries and legatees under her will, her two children, Edward P. Stacey and Edan P. Stacey, the plaintiffs in error, and her brother, Adolphus M. Cunningham, the defendant in error.

On or about the fourth day of December, 1895, the defendant in error was severely injured in the yards of the plaintiff in error at Delphos, Ohio, by the explosion of what is commonly known as the Baker car heater, which was in passenger coach No. 22, owned and operated by the railway company.

In Mandamus. An alternative writ of mandamus has been allowed upon a petition of which the following is a copy: “The relator says that he is an inspector of the dairy and food department of the state of Ohio; that the defendant, Roger Y. Smith, is a duly elected, qualified and acting justice of the peace within and for Springfield township, Clark county, Ohio. “On the eleventh day of August, A. D. 1903, this relator filed his affidavit with the said justice of the peace,…

Mandamus. The relator filed his petition in the Circuit Court of Hamilton County, praying for a writ of mandamus to issue against the defendant, as Auditor of Hamilton County, commanding him to proceed forthwith, according to law, to make the reports required under the said statutes and to collect his fee, perquisites and compensation and his said salary, as is provided for under Sections 1070, 1071, 1072, 1073, 1074, 1075, 1076, 1077, 1078, 1334, 1335, 1336, 1365, 1345,…

Exceptions to the Common, Pleas Court of Hamilton county. The defendant in error was prosecuted before a justice of the peace of Hamilton county under the pure food laws, and was found guilty by a jury, as charged in the affidavit, of selling oleomargarine containing coloring matter. Thereupon, on the same day, judgment was given on the verdict, and the defendant was fined in the sttm of $50 and costs.

At the Janu'ary Term, 1901, of the Common Pleas of Wyandot, the plaintiff in error, Marsh Lindsey, with four others, was-indicted for… Held: then and there unlawfully and purposely, and whilst engaged in said attempt to perpetrate a robbery in and upon the said William C. Johnson as aforesaid, did discharge and shoot off against and upon the said William C. Johnson, with the intent the said William C. Johnson unlawfully and purposely to kill and murder; and that the said…

In. quo warranto. On the fourth day of May, 1903, the mayor of the city of Mansfield appointed a board of health consisting of five qualified electors of said city, which appointment was duly confirmed by the council of said city, and they entered upon the discharge of their duties as buch board, and thereafter, on the fifteenth day of May said board of health duly appointed one A. H. McCullough health officer of said city, and he accepted the appointment and duly qualified.

This is a proceeding in error on behalf of the State, brought under favor of Section 7306a, Bevised Statutes, to obtain the reversal of a judgment of the Circuit Court of Jackson County, Ohio. The facts,.so far as material and pertinent to the questions presented and determined, are stated in the opinion.

On October 4, 1901, the plaintiff in error filed its petition in the lower court, against the defendants in error, The Buckeye Gas Co., and its general manager and secretary, asking ah injunction to prevent them from furnishing, for a money consideration, to the city of Cireleville and its inhabitants natural gas for lighting purposes, and also to prevent them from inducing the plaintiff’s customers to use natural gas for said purpose.

The defendants in error brought suit in the court of common pleas to establish a trust in certain described lands which had been conveyed to Malcolm Boughman by a deed absolute. In their petition they alleged that Edward Boughman, by a last will and testament, had devised to Elizabeth, his widow, a life estate in his interest in said lands, and the remainder to Bertha May Boughman, who is an only child.

Suit in mandamus was brought in the court of common pleas by plaintiff in error for a peremptory writ to compel the defendant in error to approve a voucher for money alleged to be due the relator as compensation for his services as a sanitary policeman in the city of Columbus. The defendant having answered, and the relator having replied to the answer, the cause was tried in the court of common pleas and a judgment rendered in favor of the defendant.

Defendant in error instituted this action by filing a petition in the court of common pleas, setting forth that the plaintiff in error is a municipal corporation duly organized under the laws of the state of Ohio; that about ten months before the injury complained of occurred certain persons, whose names are unknown to the defendant in error, erected a billboard for posting notices and advertisements, on the west side of a certain alley leading from Front street to Arch…

. The action below was upon a policy of life insurance issued October 25, 1897, by The Manhattan Life Insurance Co., plaintiff in error, upon the life of one George Messmore for five thousand dollars, which policy was assigned November 24, 1897, by said Messmore to the defendant in error, plaintiff below, Joseph Burke.

On October 13, 1899, the Luhrig Coal Co. began its action in the court of common pleas for the recovery of the sum of $825.99 against said Aaron M. Ludlum, on an account for said sum for coal before that time sold and delivered to said defendant.

Quo warranto. The petition in this ease was filed in this court by the attorney-general, and is as follows: “Now comes J. M. Sheets, who is the duly elected, qualified and acting attorney-general of the state of Ohio, and gives the court to be informed and to understand that the defendant, The Aetna Life Insurance Co., is a corporation organized under and by virtue of the laws of Connecticut for the purpose of transacting the business of life insurance, and is and has been…

On the second day of February, 1901, the defendant in error, George F. • Schmidt, filed in the Court of Common Pleas of AVyandot County, his petition, naming therein as defendants, •James R. Moorman, not plaintiff in error, and Eli Moorman, partners doing business under the firm name of Moorman Brothers, and Levi H. Troup and May Foster.

The railway company filed its petition in the court of common pleas September 10, 1901, against Kinner and numerous others, for an injunction, alleging facts of which the following is a condensed statement: The company is a common carrier of passengers, operating a line of railroad between Chicago, Illinois, and Buffalo, New York, passing through the city of Cleveland, Ohio, and making numerous connections with other roads, reaching all parts of the United States.

Mrs. Lange brought an action in the court of common pleas against the grand lodge for the sum of $2,000 alleged to be due her as the beneficiary named in its certificate upon the death of Frederick Lange, her deceased husband.

On February 1, 1896, the defendant in error, The Cincinnati Coal & Coke Co., executed and delivered to the plaintiff in error, The Montana Coal & Coke Co., a promissory note of which the following is a copy: “$1,654.39. Cincinnati, Feb. 1, 1896. “Ninety days after date the. Cinti.

No. 8390. Error to the Circuit Court of Hamilton County. No. 8153. Error to the Circuit Court of Tuscarawas County. ' The case against the Louis Lipp Co. was begun in the Common Pleas Court of Hamilton County on a policy issued by the Aetna Fire Association, which, was duly organized under Sections 3686-3690, Revised Statutes of Ohio. The cause of action was a loss by fire sustained by the holder of a policy.

In the year 1885 George McCammon died intestate, leaving an only child, Leora McCammon, an infant, and a widow, Ida Leora McCammon. He left a large personal estate, also real estate situate in Cincinnati, which descended to his daughter Leora. All this he had derived by deed of gift from his father.

Mandamus. By its petition the relator, The Covington & Cincinnati Bridge Company, makes known to the court that on March 5, 1896, the relator commenced a proceeding in eminent domain in the Probate Court of Hamilton County against one George A. Magruder and others, and such further proceedings were had therein that a preliminary hearing was had and an order entered for the plaintiff, followed by a jury trial resulting in a verdict for damages and a judgment thereon, which…

The petition of the said Eddie Liidtke, plaintiff in the court of common pleas, is as follows, omitting the caption, signature and verification: “The plaintiff says that he is an infant under the age of twenty-one years and brings this action by his father, Edward Liidtke, his next friend. “The defendant is á railroad corporation organized and operating a railroad running through the city of Sandusky, Erie county, Ohio, and having control and management of the same. “That…

On the fourth day of August, 1891, the city council of Hamilton, Ohio, by ordinance duly passed, granted to The Hamilton & Lindenwald Electric Transit Co., defendant in error, the right to construct, operate and maintain an electric street railroad in, upon and along East avenue, from Grand boulevard to John street and beyond, within said city, and in pursuance to said grant the city authorities located said street railroad in the central portion of said East avenue.

The action as originally instituted against the plaintiff in error, was brought in the name of “Frank M. Stevens, as city solicitor, and as a… Held: as a matter of law, that the municipal authorities had no power to make the contract for placing the abutments within the street, and that so occupying the street is a public nuisance; and the court ordered that by a day certain, the company remove the west abutment, but declined to make such order as to the east abutment.

Mrs. Pritschau brought suit in the court of common pleas against the railroad company to recover on account of personal injuries which she sustained while a passenger on one of its cars, the injury resulting from collision with another car, alleged to be caused by the negligence of .the company. Upon issues joined the cause was tried to a jury, the trial resulting in a verdict in her favor for $2,291.

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

■ The defendants in error brought action against plaintiffs in error in the court of a justice of the peace of Hamilton county, to recover' $247.50, the agreed price of certain labels claimed to have been sold and delivered to Abraham and Isaac Rheinstrom, at their request. The cause being appealed to the court of common pleas the defendants in that court answered by general denial.

This action was originally brought in the Court of Common Pleas of- Ottawa County by the defendant in error, Anna Pa-chuta, as administratrix of the estate of her deceased husband, John Paehuta, against the plaintiff in error, The Kelly Island Lime & Transport Co., to recover damages for the alleged wrongful death of her said husband, caused, as she averred in her petition, by the negligence of said company.

The action in the lower court was in* mandamus, wherein the defendant in error prayed for a writ commanding the Auditor of Hamilton County to correct his tax-list as to certain errors set out in the petition and that he be required by the writ to call the attention of the commissioners of said county to such errors, to the end that the commissioners may cause to be refunded to the relator the amount of taxes erroneously charged and collected.

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

The action commenced in the court of common pleas is for an injunction against the City of Greenville, to prevent it from extending Wayne and Harrison avenues in said city across the tracks, side-tracks, yards and other property of the railway company.

The will of the late Cotton IT. Allen having been admitted to probate in Franklin county, it became necessary for the probate court to appoint an administrator with the will annexed of his estate. Application for such appointment was made by Sarah C. MeCallip, his sister,' as next of kin. An application was also made by Mary M. Schumacher, plaintiff in error, for the appointment of The State Savings Bank & Trust Co. as administrator.

Decision on rehearing. The plaintiff in error, a partnership, is a lessee from John Lightner and wife under a lease for operating and drilling for petroleum oil and gas, dated May 23, 1900; and this suit was instituted by the plaintiff in error' to enjoin the defendants in error from operating under a prior lease for like purposes, dated December 22, 1899. The court of common pleas granted a perpetual injunction as prayed for, against the defendants in error.

At the April Term, 1902, of the Court of Common Pleas of Marion, James TI. Ferrel was convicted, under Section 6815, Revised Statutes, of the crime of attempting to procure a miscarriage, from which attempt the woman died, and was sentenced to two years in the penitentiary.

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

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

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

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

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

<p>Error to Circuit Court of Erie county.</p>