Volume 7 — Ohio Appellate Reports

<p>Street railways■ — •Conductor alter ego of company, when — Controversy over fare — Person making tender is passenger, when — Liability for assault by conductor.</p> <p>1. A street car conductor, while in charge of a car and engaged upon his regular run, is the alter ego of the company, and, when performing any act' associated with his duties as conductor, is acting within the scope of his authority and his employer is responsible for such act.</p> <p>2. Where a street railway company instructed its- conductors to refuse a tender of a three-cent fare, but to permit the person making such tender to ride, and the plaintiff presented himself at a proper street crossing as a passenger and was permitted to enter the car and thereupon tendered to the conductor three cents, and the conductor allowed him to be transported, he 1 was in every sense a passenger and entitled to protection as such.</p>

<p>Executors — Construction of will — Collateral inheritance tax — Uncertain estates devised■ — •Classes of 'beneficiaries in doubt — Disposition of stock dividends paid to executors — ■Action to • construe will is , one in chancery — Appeal lies to court of appeals, when.</p> <p>1. Executors may maintain an action by virtue of the provisions of Section 10857, General Code, to obtain a construction of a will where the estates devised are uncertain, the classes of beneficiaries in doubt, and the duty of the executors to pay a collateral inheritance tax in controversy.</p> <p>2. An action to construe a will is one in chancery, and appeal lies from a decree of the court of common pleas in such case.</p> <p>3. Jos. L. Wolcott executed a will in 1891 devising all his estate to his widow except a bequest of $5;000. In 1899 he executed a codicil in which by apt words he gave his widow all of his property for the term of her life. The codicil contains in addition the following provision: “At the death of my said wife all of said property as aforesaid I give and devise absolutely to the heirs of my mother Caroline B. Cromack the same to go to said heirs per stirpes• The testator died in 1900, and his mother in 1884. The testator, left surviving him, his widow, who elected to take under the will, but no lineal descendant. His mother left surviving her, a brother and sister, both of whom died in 1885, and the descendants of six other brothers and sisters, and also her second husband, Joseph C. Cromack, who died before the testator. Held: That the codicil speaks as of the date of testator’s death, and the devise therein to the heirs of his mother means those who were such at his death, and such devise did not lapse nor did the testator die intestate as to any portion of his estate, but his widow takes an estate for her life with remainder to the descendants of his mother’s brothers and sisters per stirpes.</p> <p>4. Dividends remaining in the hands of the executors paid to them on stock owned by the testator pass to’ his widow, whether paid in cash or stock, provided that the actual value of the stock at the time of testator’s death be not depleted by stock dividends.</p> <p>5. It is the duty of the executors to deliver the entire estate to the widow on the settlement of their final accounts, without security from her, in the absence of evidence showing that the rights of the remaindermen will be imperiled thereby.</p>

<p>Icy sidewalk — Violation of city ordinance requiring removal of ice ■ — Liability of abutting owner.</p> <p>. An owner who fails to remove ice from a sidewalk extending along his premises, where same was formed thereon by natural causes and without any act or fault on his part, or fails to make said .sidewalk safe by covering the same with sand or some other suitable substance, is not liable in damages to one who sustains injuries by falling upon such icy sidewalk, even though a city ordinance required such owner to temov.e the ice from such sidewalk or cover the same with sand, and provided a penalty for failure so to do.</p>

<p>Municipal corporations — Annexations—Petition to enjoin — Effect of Ming with clerh — Instead of presenting to court or a judge".</p> <p>Section 3553, General Code, requires a petition to enjoin further proceedings in the annexation of territory to a municipality to be presented to the' court of common pleas' or a judge thereof, and the filing of a petition for that purpose with the clerk of the court of comrqon pleas is not a compliance with the statute, and it is not error to grant a motion to strike such petition from the files.</p>

<p>Releases — Evidence necessary to invalidate — Pleading and proof — Tender — Action for damages.</p> <p>1. The validity of a written releasé of a cause of action can be impeached only when the' invalidity is established by evidence which is clear and convincing in character.</p> <p>2. A release of a cause of action obtained by fraudulently representing that the instrument is a receipt only, is void and not merely voidable, and' the plaintiff may ignore the same in his petition and is not required, in such case, to allege or prove that he tendered back the amount received before action brought.</p>

<p>Lien for excise tax — Liability of receiver for payment —• While in control of corporate assets and conducting corporate business.</p> <p>The excise tax upon the capital stock of a corporation, under the terms of Section 5498, General Code, during the period when a receiver is in control of its corporate assets and conducting its corporate' business, must be paid by the receiver and is a prior lien upon the corporate assets or their proceeds in his hands.</p>

<p>Demurrage charges — Liability of consignee — Embargo prevents carrier from making delivery — Although consignee furnishes switching instructions.</p> <p>When a railroad company notifies a consignee of the arrival of cars containing grain, and upon receiving switching instructions immediately gives notice to such consignee of inability to make delivery because of an embargo duly promulgated and notice of which had been given the various railroads, and no further order for the disposition of the grain is given by the consignee and the railroad holds the cars until the embargo is lifted and then delivers them in accordance with the switching instructions, the consignee is liable for demurrage charges.</p>

<p>Error: Court of Appeals for Lucas county.</p>

<p>Error: Court of Appeals for Hamilton county.</p>

<p>Appeal: Court of Appeals for Williams county.</p>

<p>Error: Court of Appeals for Lucas county.</p>

<p>Error : Court of Appeals for Crawford county.</p>

<p>Actionable negligence — Master and servant — Employe carrying heavy burden — Opening statement to jury■ — Motion for directed verdict — Facts necessary to bring case within Federal Employers’ Liability Act — Procedure where facts tendered would not authorise judgment.</p> <p>t. When counsel for plaintiff in his opening statement of the case to the jury details what he expects to prove to sustain his petition, and counsel for defendant thereupon moves for a directed verdict in- his favor on such statement, and no application is made to explain or qualify the statement, and it clearly appears that the facts offered to be proved would not authorize a judgment for plaintiff, it is the duty of the court to direct a verdict for the defendant.</p> <p>2. A petition by a section man to recover for personal injuries, which avers only that he was engaged with other employes, under the direction of a foreman, in lifting and carrying with the aid of tongs a heavy steel rail from the track of the company across a depression in the right of way, and that he was injured by the shifting of the burden onto himself when the workman in advance stepped into the depression, thus lessening that employe’s lifting capacity, fails to set forth any actionable negligence.</p> <p>3. In order to bring a case within the provisions of the Federal Employers’ Liability Act the record should show not only that the company was engaged in interstatg commerce but that the employe was so engaged at the time of his injury.</p>

<p>Error: Court of Appeals for Lucas county.</p> <p>On application for rehearing.</p>

<p>Criminal law — Distinct offenses — Counts in indictment — Election between counts — Corporation as defendant — Interrogatories and special findings.</p> <p>1. Reviewing courts will allow a rather wide discretion to trial courts in the matter of compelling election between different counts in one indictment.</p> <p>2. As a general rule distinct offenses may be joined in different counts of the same indictment, either where they arise out of and are connected with the same transaction, or wherevthey are connected by the same subject-matter.</p> <p>3. Where there is a plea of not guilty in a criminal case, the court is not required to direct the jury to return special findings or answer interrogatories, and this is true as well where the defendant is a corporation.</p>

<p>Error: Court of Appeals for Allen county.</p>

<p>Municipal court of Hamilton — Duty of city solicitor in state cases — Duty of county commissioners to fix compensation.</p> <p>R It is the duty of the city solicitor of Hamilton to' act -as the prosecuting attorney of the municipal court of that city.</p> <p>2. It is the duty of the county commissioners to make a proper allowance to the city solicitor for his services in state cases before the municipal court of Hamilton.</p>

<p>Error: Court of Appeals for Lucas county.</p>

<p>Retrial — After reversal on weight of evidence — Error to direct verdict, when.</p> <p>Where a former judgment for the plaintiff was reversed on the sole ground that it was against the weight of the evidence, and on a retrial a verdict is directed for the defendant on the ground that the judgment of the reviewing court had established the law of the case, such order directing a verdict is erroneous, when the evidence on the second trial is not substantially the same as on the first trial, and, the plaintiff having made a prima facie case, the judgment on the directed verdict will be reversed.</p>

<p>Error — Appeal — Mandamus —Effect of failure to note Ming of appeal bond on appearance docket — Review of mandamus proceedings may be had in court of appeals only by error proceedings.</p> <p>1. The notation of an appeal bond on the appearance docket is not jurisdictional, and when an appeal bond is given within the statutory period a failure to note the same upon the appearance docket at the same time it is given does not affect the appeal.</p> <p>2. The amendment to the constitution of Ohio providing for the organization and jurisdiction of the court of appeals has excluded a statutory proceeding such as mandamus from the cases which can be reviewed in the court of appeals on appeal, and such review when desired must therefore be had by error proceedings.</p>

<p>Private employment agencies — Power of legislature to regulate — Constitutionality of act regulating such agencies— Presumption against wanton fiction by public official — Implied remedy in courts against wanton action — Statutes not invalid for indefiniteness or uncertainty, when.</p> <p>1. A person who, claiming to have influence with a business company, furnishes and agrees to furnish to sundry persons employment with said company and for this service receives a fee from the persons for whom he agreed to furnish employment, and is not acting as agent for a charitable organization, is subject to the provisions of Section 886 and following sections of the General Code regulating private employment agencies, even though he maintains rio office and displays no sign or bulletin and transacts the business at his residence.</p> <p>2. Section 886 et seq., General Code, providing for the licensing and regulation of private employment agencies, is a constitutional exercise of the police power by the general assembly.'</p> <p>3. The failure to provide in the act for a review by the courts of a refusal of the commissioner of labor statistics to issue a license on his conclusion that the applicant has violated the law relating to> private employment agencies, or is not of good moral character, does not invalidate the statute, since there is a presumption against wanton action by the commissioner, and if there should be such disregard of duty a remedy in the courts would be implied.</p> <p>4. The failure of the act to define what constitutes “good moral •character,” or to furnish a standard for determining it, does not render the statute -invalid for indefiniteness or uncertainty.</p>

<p>Appeal : Court of Appeals for Hamilton county.</p>

<p>Error: Court of Appeals for Clermont county.</p>

<p>Error: Court of Appeals for Erie county.</p>

<p>Error: Court of Appeals'for Hamilton county. •</p>

<p>Accident — Negligence — Use of explosives — Measure of damages — Instructions to jury — Computation of interest on judgment — Interrogatories annexed to pleadings — Right to introduce answers in evidence.</p> <p>1. A company engaged in mining gypsum in which business it uses large quantities of dynamite is not liable for damages caused by the explosion of a quantity sufficient for its use for the day while being prepared for such use in a thaw-house, in the absence of evidence of negligence.</p> <p>2. It is error in such case to refuse to instruct the jury that if the explosion was the result of pure accident and without fault on the part of anybody the verdict must be for the defendant.</p> <p>3. The measure of damages where railroad cars are injured by an explosion is not the amount expended in repairs, but the difference between the value of the cars immediately before the damage and their value immediately thereafter.</p> <p>4. By virtue of the provisions of Section L1350, General Code, a party answering interrogatories annexed to a pleading may introduce his own answers in evidence, so far as they are responsive to the questions propounded and contain competent testimony on the issues joined.</p> <p>5: In cases where a verdict is returned but judgment is not rendered thereon until a subsequent term of court, the judgment should provide for interest from the first day of the term at which the verdict was returned, unless the action was brought during that term, in which event the judgment should draw interest from the date the verdict was returned.</p>

<p>Error: Court of Appeals for Lucas county.</p>

<p>Error: Court of Appeals for Hamilton county.</p>

<p>Error: Court of Appeals for Lucas county.</p>

<p>Justices of the peace — Grounds for new trial — Sections 10352 and 10361, General Code.</p> <p>The authority of a justice of the peace to grant a new trial is not limited to the grounds named in Section 103S2, General Code, but since the amendment in 1902 of Section 6S6S, Revised Statutes, as now contained in Section 10361, General Code, a justice of the peace may also grant a new trial on the grounds named in that section.</p>

<p>Insurance — Foreign corporation — Noncompliance with statutory regtdations— Policy not-void, when.</p> <p>Although foreign insurance corporations doing business in this state, before complying with certain- regulations designated in the statutes, are subjected to certain penalties, a contract of insurance effected by them is not void.</p>

<p>Appeal : Court of Appeals for Hamilton county.</p>

<p>Criminal law — Plea in abatement — Hearing and decision after verdict of guilty — Disqualiñcation of grand juror — -Naturalization— Jurisdiction of probate court — Section 2165, U. S. Revised Statutes — Sufficiency of record of naturalization — Collateral attack — Manslatighter — Violation of speed law — Section 12604, General Code — Directly causing death of another ■ — Charge to jury — Lesser offenses — Assault and battery.</p> <p>1. It is not reversible error for the trial court to refuse to,hear and decide a plea in abatement based on the disqualification of a grand juror, until after the return of a verdict, no substantial right of the defendant being prejudiced thereby.</p> <p>2. By virtue of the jurisdiction conferred by Section 2165, Revised Statutes of the United States, upon state courts of record having common-law jurisdiction, and a seal and a clerk, the probate courts of Ohio were authorized to grant naturalization to aliens, prior to the amendment of said statute in 1906.</p> <p>3'. Judgments granting naturalization should be liberally construed, and a probate record is sufficient which is certified October 29, 1887, by J. W. Cummings, probate judge, by B. A. Case, deputy clerk, reciting that at a probate court held at the probate office in Toledo Roger Sheehy, a native of Ireland, personally came and proved to the court that he had arrived in the United States before he had attained the eighteenth year of his age; reciting that he made the requisite declaration of his intention to be naturalized and become a citizen of the United States and had behaved as a man of good moral character attached to the principles of the constitution of the United States and well disposed to the good order and happiness of the same; further reciting that Sheehy having fully complied with the laws of the United States in relation to the naturalization of aliens, on being admitted by the court, took the g oath to support the constitution of the United States and to renounce allegiance to every foreign prince, potentate, state or sovereign, particularly to the queen of England; and certifying that he was thereupon admitted as a citizen.</p> <p>4. The record of a probate court granting naturalization to an alien prior to the amendment in 1906 of Section 2165, Revised Statutes of the United States, imports absolute verity and can not be collaterally impeached.</p> <p>5. One who operates an automobile in violation of the speed limit authorized by Section 12604, General Code, and by so doing directly causes the death of another, or, if his unlawful conduct in so operating the machine is one of the direct causes of the death of another, is guilty of manslaughter, and this is- so even though the deceased was guilty of some negligence which contributed directly to the collision resulting in his death.</p> <p>6. On the trial of a case where the defendant is indicted for manslaughter it is not the duty of the trial judge to charge the jury on the included offense of assault and battery, when there is no evidence which would tend to justify the jury in returning a verdict of guilty of that offense.</p>

<p>Error: Court of Appeals for Wayne county.</p>

<p>Error: Court of Appeals for Lucas county.</p>

<p>Constables — Fees — Prosecution for neglecting minors.</p> <p>The limitation fixed in Section 3019, General Code, of $100' per year for services rendered by a constable, does not apply to services rendered by him under Sections 13406 and 13439, General Code, in prosecutions for neglecting minor children. ■</p>

<p>Intoxicating liquors — Residential local option — Section 6145, General Code — Hearing on petition — •Not suspended when second 'petition filed — Publication of notice sufficient, when — Section 6151, General Code■ — Filing of finding by court — Section 6152, General Code, directory — Sufficiency of description of boundaries — Vacant property or billboards not business property — Evidence of residence of petitioners — Election registers sufficient, when.</p> <p>1. The language of Section 6145, General Code, providing for local option in residence districts and directing that the petition shall be granted which has the greatest number of electors’ signatures, does not require a judge who has commenced the hearing on a' petition, to suspend the same when a second petition is filed during such hearing, containing a greater number of electors’ signatures.</p> <p>2. The requirement of Section 6151, General Code, that the notice shall be published in two newspapers of opposite politics, is substantially complied with by a publication in The Toledo Blade and in The Toledo News-Bee, the object of the publication being to give notice to the public.</p> <p>3. The requirement of Section 6152, General Code, that the judge shall cause a certified copy or certificate of his findings, together with the original petition, to be filed with the clerk of the municipal corporation within forty days from the filing of the petition with him, is directory only and not mandatory.</p> <p>4. The boundary lines set forth in a local option residence district petition being sufficiently definite to describe the land for purposes of conveyance, the petition is not defective although one line was a prolongation of a street line beyond the terminus of the street.</p> <p>5. Vacant property on or in front of which billboards have been placed by a corporation engaged in outdoor advertising is not business property within the meaning of the statute.</p> <p>6. The official registers of electors of the district are competent evidence and sufficient to make a prima facie case of residence •within the district for the requisite statutory period.</p>

<p>Final judgment — Motion to discharge attachment — Jurisdiction of court of appeals in error.</p> <p>The judgment of a court of common pleas in granting a motion to discharge an attachment, where such motion was before the common pleas court upon appeal from the action of a justice of the peace, is a final judgment which is subject to review by the court of appeals.</p>

<p>Negligence — Duty of conductor while passengers alighting — Premature starting of car — Verdict sustained by evidence, when — Ordinary care by passenger — Sufficiency of charge to jury.</p> <p>1. The conductor of an electric car, discharging passengers at a regular stopping place, is bound to observe whether passengers alighting therefrom are safely discharged before putting the car in motion again.</p> <p>2. Where a woman was injured by being thrown from the steps of the car from which she was alighting, ground for a verdict in her favor is afforded by testimony to the effect that she had twice notified the conductor of her destination, which was a regular stopping place; that the stop was called by him; and that the car came to a standstill at that place, but was started again as she was descending the steps.</p> <p>3. A special instruction which states specifically the duty which rests on a passenger to use ordinary care to protect himself from injury satisfies the requirements of the law, notwithstanding there was a failure to cover that ground in the general charge.</p> <p>4. A jury having determined the weight of the evidence and credibility of the witnesses in a personal injury case, the verdict will not be disturbed by a reviewing .court where the plaintiff appears to have given a natural and reasonable narration of the events which led to the accident.</p>

<p>Error : Court of Appeals for Sandusky county.</p>

<p>Error: Court of Appeals for Columbiana county.</p>

<p>Error: Court of Appeals for Lucas county.</p>

<p>Public roads — Private ways — Statutory dedication — Prescriptive right — Vacation of street by council — Occasional use of private way by public — Effect of placing street signs and placing name of street in directory and on tax map — Township trustees without jurisdiction to establish road in another township.</p> <p>1. Trustees of a township have no jurisdiction to lay out and establish a township road through land lying in another township.</p> <p>2. The endorsement by a landowner of the report of viewers appointed to locate a proposed road, said endorsement reading “I agree to receive the above damages and open the road when the money is paid,” does not show a statutory dedication in the absence of any evidence that the money was ever paid, or that the report of the viewers was accepted, or that the other ■necessary steps required by statute were taken, or that the public ever expended any money on said road, or that any reference to such way was ever made on the public plats or in deeds to the abutting land subsequently executed.</p> <p>3. Vacation by council of a street planned to follow the line of said supposed road, after annexation of the territory to the adjacent municipality, does not estop the landowner from denying the existence of such a way; nor does the fact that street signs had been placed on the said proposed street, or that the name of the street appeared in a street directory made up by the police department for the use of its officers, and on a certain tax plat, afford proof of any right of the public therein.</p> <p>4. Occasional use of a private way, fenced in on both sides, to which admission was had through gates and evidently by permission of the landowner, does not ripen into a prescriptive right or vest any title in the public for the purpose of a public way.</p>

<p>Habeas corpus — Collateral attack — Divorce decree — Payments for children's support — Contempt — ■Failure to comply with order■ — Section 12142, General Code — Sentence controlled by statute — Discharge postponed where sentence illegal, when.</p> <p>1. The court of common pleas has power and jurisdiction in an action for divorce to order the payment of a fixed sum monthly to the clerk of the court, to be kept intact by him for the future use and benefit of the children, until further order of the court, and such order can not be questioned collaterally in habeas corpus.</p> <p>2. Statutes authorizing punishment for contempt of court are strictly construed, and in a conviction under Section 12142, General Code, the person convicted can not be sentenced to remain in prison for nonpayment of fine and costs.</p> <p>3. Where the conviction for contempt of court is lawful, but the sentence imposed is illegal, reasonable opportunity will be given the proper tribunal to re-sentence before the discharge in habeas corpus becomes effective.</p>

<p>Breach of promise — Charge to jury — Contract inferred from conduct and declarations, when — Exemplary damages — Amendment of pleading after verdict — New trial — Newly-discovered evidence — Abatement of action.</p> <p>1. In an action for breach of promise to marry it is not erroneous to instruct the jury to the effect that if the conduct, acts and declarations of the parties are shown to have been such as would lead reasonably prudent men to infer that they intended to become man and wife, the jury would be justified in concluding that a contract for marriage had been entered into between them.</p> <p>2. The general rule, which limits recovery for breach of promise to the pecuniary loss sustained, does not apply where the promise was broken abruptly or under humiliating circumstances; and an instruction to the jury, that if the making and breaking of the promise was ruthless and wanton exemplary damages may be awarded, is not erroneous, and where the petition contains no allegation upon which such damages might be based the trial judge may, sua sponte, and even after a verdict challenging the award of such damages, order that the petition be so amended as to conform to the facts as shown by the evidence.</p> <p>3. Counsel for the defendant in a breach of promise action, who have offered evidence as to' the adventuresome character of the plaintiff, must be presumed to have notice of the range of testimony which such a charge would undoubtedly draw out, and can not on motion for a new trial claim due diligence in the preparation of his case with reference to meeting the evidence offered for the purpose of refuting the charge so made.</p> <p>4. Newly-discovered evidence, tendered in support of a motion for a new trial, and having reference to alleged admissions made by the plaintiff as to her relations with the defendant, should be scrutinized closely and received with caution, and as the effect of such evidence would be to discredit or impeach the plaintiff it must be regarded as cumulative and not material to the issue and insufficient to sustain the motion.</p> <p>5. The death of a defendant in an action for breach of promise, after the return of an adverse verdict and the filing of a motion for a new trial, does not work an abatement of the action under Sections 11397 and 11235, General Code.</p>

<p>Error : Court, of Appeals for Mahoning county.</p>

<p>Error: Cou'rt of Appeals for Lucas county.</p>

<p>Undue influence — Contest of will — Admissibility of evidence — Proper execution and acknowledgment of will, what constitutes.</p> <p>1. Where, in an action to contest a will, it is evident from the testimony that the will was not read either to or by the testator, that it was not acknowledged by him, and that he had no knowledge of what it contained, it can not be said that such will was executed by the testator in such a manner as to comply with the requirements of Section 10S05, General Code; and the verdict of a jury sustaining such will is not sustained by the evidence and will be set aside.</p> <p>2. In an action to contest a will, issues relating to undue influence are generally determined upon circumstantial evidence and inferences drawn from a full presentation of facts which are inconclusive when taken separately, and a wide range of inquiry is therefore permitted to bring before the jury facts and influences bearing upon the preparation of the will.</p>

<p>Franchise tax of railway corporations — Sections 5445 and 1465-1, General Code — Lessor railway company exempt from excise tax, when.</p> <p>The Langdon act (101 O. L., 399-425; Section 5445 et seq., General Code), in so far as it defines the corporations which are subject to the franchise tax, must be construed as a revision of the Willis act (95 O. L., 124-128), and its scope as so amended is not changed by the subsequent Hollinger act (102 O. L., 224; Section 1465-1 et seq., General Code), with respect to corporations which are subject to the franchise tax; from which it follows that a railway, company which has leased its line to an operating company is exempt from payment of the franchise tax, where the operating company is required to and does report and pay the excise tax.</p>

<p>Error: Court of Appeals for Seneca county.</p>

<p>Reasonable time, what constitutes — Option to be exercised after one year from date- — Such option may be exercised within reasonable time after expiration of year.</p> <p>Where the purchaser of certain shares of stock had the option to return the stock after one year from the date of sale, such option may he exercised in a reasonable time after the expiration of the year. What is a reasonable time in such case is a question of fact, or of mixed law and fact, unless the admitted facts are such as to make it apparent that the time taken to exercise the option was an unreasonable time.</p>

<p>Contracts — Railroad relief department — Action for damages not precluded thereby, when — But termination of suit prerequisite to recovery on contract, when.</p> <p>A contract of a so-called relief department of a railroad company-can not preclude an employe of such railroad company, who is a member of the relief department, from maintaining an action to recover damages for injuries sustained through 'the alleged negligence of the railroad company, but such a suit to recover damages, unless terminated as provided by the regulations of the relief department, will preclude a recovery under the relief department contract.</p>

<p>Error: Court of Appeals for Hamilton county.</p>

<p>Real party in interest — Prosecution in municipal court for violation of city ordinance — Action on forfeited recognizance running to city, how brought.</p> <p>The state of Ohio is not “the real party in interest” in an action on a forfeited recognizance running to the city of Cleveland taken in a prosecution in the municipal, court of such city under a city ordinance.</p>

<p>Wins — Devise in fee simple — Limitation over of remainder is void, when.</p> <p>Where by the terms of a will a fee is clearly given, a limitation over of the remainder is void as inconsistent with the fee granted.</p>

<p>Judgment — Evidence — Suit against city for injuries caused by excavation in street by third person — Effect of notice to third person of such suit with opportunity to defend — •Judgment conclusive as to its necessary facts and conditions — But not as to responsibility of third person to city.</p> <p>1. A judgment recovered without fraud or collusion, against a city for injuries caused by an excavation made by a third person in a public street which he has not properly lighted or guarded, where he has had notice of such suit with opportunity to defend, is conclusive evidence of its necessary facts and conditions, as though he were a party to the record, in a subsequent action brought by the city against him'as being liable over to reimburse it.</p> <p>% The judgment against the city however does not determine the question whether or not the person who made the excavation is in fact responsible to the city; nor is he prevented by it from setting up any defenses which from the nature of the action or pleadings he could not have interposed in the first action had he been a formal party therein.</p>

<p>Error : Court of Appeals for Montgomery county.</p>

<p>Error : Court of Appeals for Cuyahoga county.</p>

Appeal: Court of Appeals for Pike county. This action was brought by parties who are of the blood of Jesse M. Vulgamore, the ancestor, to partition about one hundred and sixty-three acres of land in Pike county, the same having been inherited by Jesse M. as his share of his father’s estate.

<p>Appeal: Court of Appeals for Hamilton county.</p>

<p>Error: Court of Appeals for Jefferson county.</p>

<p>Municipal corporations — Emergency ordinances — Failure to receive tiuo-thirds vote — Inoperative after referendum period, when.</p> <p>An ordinance introduced as an emergency ordinance, but failing to receive the votes of two-thirds' of the members of council, does not thereafter become a valid general ordinance upon expiration of thirty days after its passage, but is and remains ■without force or effect.</p>

<p>Error : Court of Appeals' for Lucas county.</p>

<p>Error: ’ Court of Appeals for Tuscarawas county.</p>

<p>Error: Court of Appeals for Lucas county.</p>

<p>Appeal: Court of Appeals for Tuscarawas’ county.</p>

<p>Error: Court of Appeals for Franklin county.</p>

<p>Error: Court of Appeals for Licking county.</p>

<p>Office and officer — Repeal of ordinance establishing department — Appointive positions abolished.</p> <p>The repeal of an ordinance, passed pursuant to the provisions of Section 4404, General Code, establishing a board of health, abolishes all appointive positions under such board.</p>

Appeal : Court of Appeals for Richland county. Philip Laver, a former resident of Richland county, died testate on the — day of November, 1898, seized of certain real estate in the petition described. He was survived by two sons, Philip J. Laver and George M. Laver, who were his next of kin and heirs at law.

<p>Specific performance — Option on realty — Priorities between different holders — Enforcement of priorities — Rights agamst grantor and grantee — Legal and equitable titles — Principal and agent.</p> <p>1. A party having an equitable title to real estate, and not the legal title, is not protected as a bona fide purchaser without notice of prior equities. In order to be protected against prior equities he must have acquired the legal title and parted with the consideration therefor prior to notice.</p> <p>2. The senior equitable owner of real estate, by virtue of a binding contract for the conveyance to him of such property, may enforce the specific performance of his contract in a court of equity against both the party having the legal title and a party holding a like junior equitable title, although the latter was acquired without notice of the prior equitable title.</p> <p>3. A written optional contract for a nominal consideration given. by the owner to sell his real estate is not a sale thereof, but only a standing offer to sell to the person, at the price named and within the time stated in the contract, and the holder of the option does not acquire any title to the real estate unless he accepts the offer prior to its expiration.</p> <p>4. After the offer has been accepted by the holder of an option the contract is binding upon both parties, and he has the equitable title thereto.</p>

<p>Appeal: Court o£ Appeals for Licking county.</p>

<p>-Error: Court of Appeals for Richland county.</p>

<p>■Error: Court of Appeals for Ashtabula county.</p>

<p>Negligence — Uninsulated high-tension wire — Trespasser—Boy in tree outside sidewalk — Proximate cause — Charge to jury.</p> <p>1. A boy who, while' at play, climbs a tree standing between the sidewalk and the curb of the street is not- a trespasser as against an electric railway company, one of whose wires passes between the branches of the tree. ' ■</p> <p>2. The maintenance of a wire of high voltage, uninsulated at the point where it passes through a tree standing on the edge of the sidewalk, must be regarded as the proximate cause of the death of a boy who was electrocuted by coming in contact with it in climbing the tree while at play.</p>

<p>Fire insurance — “Iron-safe clause” — Annual inventory and sales book — Originals burned in fire — Copies or duplicates suificient, •when.</p> <p>1. The owner of a stock of merchandise does not forfeit his claim to indemnity in a policy of fire insurance which requires him to take an inventory of his stock of goods once a year and keep a set of books showing a complete record of all purchases and sales, either for cash or on credit, and to keep the last inventory and such books in a fireproof safe at night, or in some secure place not exposed to fire which would destroy the building in which such business is carried on, where the insured had taken an inventory and kept the books required, and was accustomed at night to remove them from' the building as required by the policy, but on the night of the fire through the forgetfulness of an employe they had been left in the building and burned, if the insured is able and willing to produce th.e original pencil copy of the inventory and duplicate copies of the purchases and the pass book of the bank substantially showing his cash sales, together with the pass books of his customers showing his credit sales.</p> <p>2. The failure of the insured, after his stock of merchandise covered by his policy of fire insurance has been destroyed by fire, to produce the books and inventory as required by the “ironisafe clause” in the policy, does not render the policy null and void if the books were by the unintentional negligence of the insured' left in the store building and burned in the fire that destroyed the stock of merchandise and building, if the insured is able and willing to produce .a copy of the inventory and written evidence substantially showing his purchases and cash and credit sales from the time the inventory was taken until the time of the fire.</p>

<p>Error: Court of Appeals for Licking county.</p>

<p>Error: Court of Appeals for Stark county.</p>

<p>Error: 'Court of Appeals for Lucas county.</p>

<p>Wills — Contest by executor barred, when.</p> <p>A party appointed and qualified as executor of a will, administering' an estate in accordance with its terms and taking the benefit of the provisions therein in his favor, can not afterward maintain an action to contest the validity of the will.</p>

<p>Schools — Superintendent—Term and removal from office — Written charges and defense — Injunction—Contracts—Equity.</p> <p>■ L The provision of Section ’ll02, General Code, that the term of a superintendent of schools must end on August 31, is directory and not mandatory, time not being the essence of the contract.</p> <p>•2. The provision of Section 7701, that no “teacher”' shall be dismissed by a board of education unless charges are first reduced to writing and an opportunity given for defense before the board or a committee thereof, covers superintendents of public schools, and the dismissal of a superintendent without observance of these provisions may be enjoined.</p> <p>3. A court will not permit a board of» education to abrogate-and hold for naught a contract entered into by its predecessors, unless it first establishes its legal right so to do, nor will it remit to an action at law a party suffering from the annulling of such, a contract.</p>

<p>Error: Court of Appeals for Jefferson county.</p>