Volume 7 — Ohio Circuit Court Reports

<p>1. The school board oí a special school district consisting of three members, not authorized by virtue of sec. 8694, Griauque’s Stat., or 8035 — 213 Smith & Benedict’s Edition, to change its number to five, and an election will be declared void whereby such change is attempted, and the persons claiming to be so elected, will be ousted.</p> <p>2. But where one of the parties claiming to be so elected, holds his office by virtue of a prior legal election, he will still hold it under Rev. Stat., sec. 3924, until his successor is legally elected and qualified.</p>

<p>Appeal from the Court of Common Pleas of Clark County.</p>

<p>' 1. The petition in this ease, (the action being for the recovery of real estate), was in proper form, and not showing that it was apparently barred by the statute of limitations, it was not necessary for the plaintiff to make averments therein, to bring himself within any of the exceptions contained in the statute.</p> <p>2. For a first defense, the answer denied the title of the plaintiff to the land in controversy. Under this the defendant was authorized to show an adverse occupancy of the premises by her and her grantor for mor^ than twenty-one years before the commencement of the suit. The second defense did not expressly plead the statute of limitations as a bar to the maintenance of the action, but alleged that she and her grantor had held the undisputed possession of the premises since September 26, 1863, under such circumstances, (stating them), as would estop the plaintiff from claiming possession thereof. This did not require the plaintiff by his reply, which contained a denial of the new matter in the answer, to set up facts which showed that he was within some one of the exceptions of the statute of limitations.</p> <p>3. On the issues thus made, trial was had, and as is conceded, the plaintiff showed a good paper title to the land in controversy. It was admitted also that the defendant, and those under whom she claimed, had continually occupied the property adversely, from September 26, 1863, to the commencement of the suit, August 13,1890. The plaintiff, to show that lie was not thereby barred from maintaining his action, proved that at the time of the taking possession of the premises by the grantor of the defendant, and for several years thereafter, Mrs. Swartz, the grantor of the plaintiff, was a married woman, the wife of Leonard Swartz, and so continued until his death. By the statute of limitations then in force, and which governs this case, (Section 10 of Code of 1853. S. & C. 945), a woman who was under the disability of coverture when her right of action accrued, might bring the same within ten years after the disability ceased, although her lands had been held adversely during her coverture, and afterwards, and before suit brought, for more than twenty-one years. And the grantee of such married won an had the same right.</p> <p>4. The trial court in this ease, assuming that this suit was brought within the ten years after the coverture of the grantor of the plaintiff terminated, when there was no evidence showing such fact, and no admission thereof, erred in directing the jury to return a verdict for the plaintiff.</p>

<p>Where the council of a municipal corporation under the provisions of secs. 2835 and 2837, Bev. Stat., passed a resolution declaring it necessary to increase the capacity of its system of water-works then in operation in the village (operated by steam), and to construct in connection therewith an electric light plant, so as to provide for the lighting of the streets and avenues of the village to the best advantage, and at the least possible expense, and submitted the question of the issue of the bonds of the village to an amount not exceeding $15,000, to pay for the same, to the voters of the village, said proceedings and the vote taken being regular and in strict accordance with the law, and the vote being largely in favor thereof, such proceedings and vote are not invalid or unlawful on the sole ground, that the questions of the enlargement of the water-works system, and the construction of an electric light plant were coupled together. It was, substantially, one improvement.</p>

<p>1. To the application of the canons of statutory interpretation that a special will control a general act, and that a later will control an earlier act, it is indispensable that there be irreconcilable conflict between the provisions of the special and general, or those of the earlier and later acts.</p> <p>2. Under a statute which requires a board of public officers .to make plans and specifications for improvements under their charge, to advertise for proposals for making the same, and to contract with the lowest responsible bidder, it is not competent for them to award the contract to one whose proposal is for materials not mentioned in the specifications and advertisement, as such proposal is not competitive; and the performance of a contract based upon such proposal will be enjoined under sections 1777 and 1778 of the Bevised Statutes.</p>

■Error to the Court of Common Pleas of Franklin County. On the twenty ninth day of November, 1890, The Miller Merchant Tailoring Company, defendant in error, brought an action against Harry Ross, plaintiff' in error, before a justice of the peace of Franklin county, to recover the amount of a certain judgment before that time recovered by said company against Ross; and caused process in attachment and garnishment to issue therein, which was served on the city of Columbus, a…

On the 26th day of April, 1892, the plaintiff filed in the court of common pleas a motion to amerce the^ defendant for neglecting to sell real estate pursuant to an alias order of sale „ placed in his hands, and for neglecting to return said order and to make report of his proceedings thereunder. Upon the hearing of the motion, a bill of exceptions was taken, which embodies all the evidence offered.

<p>Under the amendment of April 4, 1891, of our replevin law (88 O. L. 273), the bond no longer vests title to the property — Ihis amendment was not extended to cases pending at the time, and therefore does not apply to them — Question of value, when controverted, for jury ; cowrt can not take the question from jury and instruct them to return verdict for an amount fixed by court.</p>

<p>Error to the Court of Common Pleas of Hamilton County.</p>

Joseph P. Cloud died in 1872, leaving a last will and testament by which he bequeathed to his widow Martha A. Cloud real and personal property, on which he placed a value of $27,000.00, and devised to his two children William and Ellen Cloud the residue of his property of every kind to be equally divided between their heirs, etc., and authorized his executor, William F. Converse to sell real estate and convert the same into money as soon as practicable and divide the…

Guernesey Y. Roots, qualified as assignee of the Mason City Coal & Salt Co., of West Virginia, in the year 1871, in the Probate Court- of Hamilton county. Afterwards an assignee in'bankruptcy was appointed by the U. S. Court of West Virginia.

<p>Assessments for sidewalks constructed, under seections 2334a, 2334J, and 233¿ Rev. Stat., known as the “ Richardson law.” lhe limitations of ' • lions 2271 arid 2283, Rev. Stat., apply /A»*"**</p>

<p>_ Appeal from the Court of Common Pleas of Hamilton County.</p>

<p>The children and heirs of Y., after his decease, entered into an agreement, whereby they agreed that they would treat as advancements certain notes amounting to $10,750, given by the husbands of said children to said Y. during his life-time, and the personal estate of said Y. should be distributed to them accordingly. The .widow of Y., who was administratrix of said estate, in her final account claimed her portion of said sum as on distribution.</p> <p>Held, that she was not entitled to the same.</p>

On error to the Court of Common Pleas of Franklin County. The defendants in error brought suit in the court of common pleas to recover damages for injuries to. their real estate abutting on Scioto street in Columbus, from the excavation and drainage of said street for sewer purposes.

This was an action brought by the defendant in error to recover damages occasioned by a change of grade of the street in the rear of his lot, it being alleged that the grade established was unreasonable, and cut off access to his lot. Issue was joined on these allegations, and upon the trial of the case to a jury a verdict was rendered in his favor, and a motion for a new trial having been overruled, judgment was entered upon the verdict.

<p>1. A magistrate, under the provisions of the statute, making an examination into a complaint against a person accused of a crime which is a felony, having, for just cause, adjourned the examination for one day, and committed the aecused into custody for safe keeping, _ may properly order and require a necessary Witness against the accused to enter into recognizance, with sufficient surety, for his appearance as a witness on the day to which the examination is adjourned, and if such witness refuse to comply with such order, has ample and full power to commit such Witness' into custody until he complies with the requirement or is otherwise discharged* And—</p> <p>2. A constable, receiving a witness, so ordered into his custody by an examining magistrate and, in obedience to such order of commitment, detaining him for one day, is not liable to an action, for false imprisonment ; and a statement, by way of answer, of the facte of such order and its reasonable enforcement by the constable, is a complete defense to such an action.</p>

<p>No action can be maintained by the holder against the maker of a promissory note, an action on which is barred by the statute of limitations, on a verbal promise to pay the same, made after the bar of the statute had arisen, the consideration of the promise being the original and valid debt.</p>

<p>1. A special act creating a joint sub-school district out of two townships, is not in violation of sec. 2, art. 6, or sec. 26, art. 2, or sec. 1, art. 13, of the constitution of Ohio.</p> <p>2. A petition in quo*warranto against The Board of Education of Riley Township, and S. Fye, S. Ragsdile and J. Hawk, directors of said sub-school district, the prayer of the petition being that said board of education show cause why they exercise certain rights, and that they be ousted from the same, and that said defendants Fye, Ragsdile and Hawk, directors, show cause why they act as said directors, and that they be ousted, states two separate causes of action against several defendants. There is no connection or relation between the two sets of parties in the reliefs asked against them, and the two separate causes of action against several defendants are improperly joined. But this should be taken advantage of by aspecific demurrer under our code, and would come under the seventh cause of demurrer.</p> <p>3. So far as the board of education, as such, is concerned, there can be no ouster. Such a board is the creature of state, is a body corporate, capable of suing and being sued, and is not such a corporation as is contemplated in see. 6761, Rev. Stat. These boards are the agents of the state for the purpose of carrying on the affairs of the state, and the courts have no power to do away with them. Quo warranto would lie against individuals claiming to hold the office, but not against the office itself. Such a body has no franchise.</p> <p>4. The remedy by quo warranto is only employed to test the actual right to an office or franchise, and it can not afford relief for official misconduct, and can not be employed to test the legality of the official action of public or corporate officers. So when a public officer threatens to ex-ereise powers not conferred upon him by law, or to exercise the functions of his office beyond its territorial limits, the proper remedy would seem to be by injunction.</p> <p>5. There is no general provision of our statute which in terms provides for the election of directors in joint sub-districts created by special acts of the legislature, but the legislature created the district, and if there is any provision by which directors may be elected, it should be given effect, for the legislative intention must be, .that having passed the act, it must not fail for want of directors.</p>

<p> Accounts for attorney’s services need not be itemized. </p>

<p>Where in accordance with the provisions of Revised Statutes, section 5302, as amended March 22, 1892 (89 O. L. 124), the trial judge grants an extension of time for signing a bill of exceptions, such extension is for every purpose that may be necessary to perfect said bill of exceptions according to the requirements of the statutes.</p>

The petition in this case is for injunction and damages, to restrain continuance of nuisance. On the trial below, judgment was given for plaintiff, and an appeal taken. Application is now made to stay injunction, and allow defendant to operate plant until trial of case in this court.

<p>1. In an action under sec. 6134, Bev. Stat., for causing wrongful death, it is not essential that it be averred in the petition, “that the act, neglect or default complained of was such that if death had not occurred ■ .the party injured would have had a right to maintain an action and recover damages in respect thereof.” Such averment would be a conclusion. It is sufficient in such case, if the facts constituting the neglect, etc., causing the injury resulting in the death of the person, are such that if the party had lived he could have maintained an action therefor.</p> <p>2. In an action by the personal representative under secs. 6134 and 6135, Bev. Stat., for causing by wrongful act and neglect, the death of a party who died intestate, leaving a wife, but no children, such wife is entitled to have the amount of the judgment obtained. Under sec. 6135-such action is.to be prosecuted for the benefit of the wife.</p> <p>3. Exceptions relating to the admission of testimony contained in a voluminous bill of exceptions, will not be considered by the court unless marginal references are made, as provided for by rule one of the circuit court.</p> <p>4. Exceptions to the charge of the court must fix definitely the particular portions objected to, otherwise such exceptions shall be disregarded.</p>

<p>No property in dead bodies — Next of kin have no preference over widow in the custody and control of — Sights of widow in relation to, defined■</p>

<p>Mortgage obtained by threats of arrest and prosecution of mortgagor's son— Mortgage may be ■invalid, even if coercion do not amount to duress.</p>

<p>1. Where it appe'ared from the recoil that K. & S. liad commenced an action in the court of common pleas against M. & @o. to recover money, and that the defendants had filed an answer denying ajl of the material allegations of the petition, and that negotiations were then commenced between the parties, and it ¡was agreed that no trial of the case should be had while She negotiations were pending, on which M. & Co. and their counsel relied, and that a settlement had been agreed upon between M. & Co. and a Buly authorized agent of the plaintiffs, by whiBh M. '& Co. undertook and bound themselves to pay :t© MeK., a creditor of the plaintiffs, the claim held' by McK. againsí K. & S., which was le'ss than the claim asserted by K. & S. against M. ’& Co., and which was to be in fall satisfaction of the claim of K. & S. against M. &■ Co., aid relying upon sueh agree’ment and settlement M. & Co. did not appear to defend sueh action against them, which had, without their knowledgej-or that of their counsel, been regularly set fo>r trial in the court of common .pleas, and judgment was rendered against them fer the full amount claimed in the petition of plahitiffg, the court on a motion for a new trial on those grounds should have set aside the verdict and granted a new trial.</p> <p>2. Sueh agreement of settlement was on agcjod consideration, and was binding upon the parties.</p>

<p>1. A reviewing court on a petition in error to the action of a justice of the peace refusing to discharge an attachment, can not properly consider the question whether such refusal was against the weight of evidence as shown hy a bill of exceptions, but it may examine the same, and if there is no evidence tending to sustain such ruling, it may be reversed for this reason. But where the material statements of the plaintiff in support of the attachment are clearly and explicitly denied by the defendant, and there is no other evidence on these points, and nothing appears to show that the evidence of the plaintiff is entitled to greater weight than that of the defendant, the attachment should be discharged, as the burden is on the plaintiff • to sustain the attachment by a preponderance of the evidence, and in such case he fails to do so. Smith v. Wagner, 46 Ohio St. 52.</p> <p>2. If the decision of the justice overruling the motion to discharge the attachment was not excepted to at the time, as shown by the transcript, a statement in the bill of exceptions, subsequently allowed, that such exception was taken at the time, is not sufficient.</p>

<p>On Appeal from the Court of Common Pleas of Hamilton County.</p>

<p>Sections 5819, 5820, 5822 of Replevin Act, as amended 1891 (8)3 Ohio Laws, 274) construed</p>

<p>While the creditors of a partnership have a claim also against the individual members thereof, yet in case of the insolvency and assignment of the partnership, and the subsequent death of one of the members thereof, and where a creditor of the partnership has presented his claim to the receiver or assignee thereof, and has received substantial dividends thereon, but the assets of the partnership are not sufficient to pay the claim in full, such creditors as against the individual creditors of such deceased partner will not be entitled to share in the individual assets of such partner, if they be insufficient to pay his individual debts in full, and where such creditor held no specific lien on the property which produced the fund for distribution. Nor will the fact that after the death of such partner, such creditor recovered a judgment against the administrator of the estate of the deceased partner for the amount of his claim, alter the rule. If the judgment had been recovered against such partner before his death, it would have been a lien on his real estate in the county, and have been entitled to be paid from the proceeds thereof, according to its priority.</p>

<p>Under the provisions of section 2304, Rev. Stat., when it is deemed necessary by a city or village to make certain public improvements, twenty days written notice of the passage of the resolution declaring the necessity thereof must be given to the owners of property abutting upon the improvement who may be residents of the county; and it would seem that personal service thereof should be made, and by a person authorized to serve the same. But when such written notice is sent by mail by a person so authorized, to such owner, addressed to him at a post-office in the county in which such owner resides, and at which he sometimes receives hi,s mail matter, and such notice is actually received by him in due time, and more than twenty days before any further action is taken by the city or village in regard to such improvement, this would seem to be sufficient; but if not, the failure to give the personal notice is not so far jurisdictional as to make any future proceedings in regard thereto, void as to such person. The case would then come under the provisions of the curative statute, section 2289, as a “ technical irregularity and defect,” and in such case the property should only be held liable for so much of the assessmentlevied thereon, as may be found to be just and equitable.</p>

<p>Error to the Court of Common Pleas of Hamilton County.</p>

The error assigned in this case is that the court below erred in sustaining a general demurrer to the amended petition filed by the plaintiff in error. Said amended petition reads as follows: “Plaintiff is a corporation, duly incorporated under the laws of the State of West Virginia.

<p>Notice of the passage by the cowneil of a village of a resolution declcvring it necessary to make a public improvement, how and when to be given to owners of property abutting on the improvement, under the provisions of section 2304, Rev. Stat., (as it stood before the amendment of March 15, 1889), so as to make it obligatory upon them to file their claims for damages within a certain time after such notice, or be barred therefrom.</p>

<p>Special taxing districts — The assessment for a sidewalk on the Madison-ville road.</p> <p>Under the provisions of the act passed April 15, 1892 (vol. 89 O. L. 640), a special taxing district is created. And where the trustees of the township, under the provisions of such statute, have constructed a sidewalk for a part of the distance only on the east side of the road mentioned therein, and assessed two-thirds of the cost thereof on the lots and lands abutting thereon, by the foot front, and the other one-third thereof on the lots and lands on th'e west side, opposite thereto, by the foot front, such assessment is not made in conformity with the provisions of such statute. The assessment for the sidewalk already constructed, and for the sidewalks hereafter to be constructed under such law, should be on all of the lots and lands in such taxing district by the foot front, viz: two-thirds on those on the side on which such sidewalk is constructed, and the other one-third on those opposite thereto.</p>

<p>Improvement of road in accordance with act of legislature — Practice—Injunction, when not proper remedy— When mandamus proper remedy.</p>

<p> Vacancy in office of constable occurring more than thirty days before general election —Appointment to fill vacancy can be made only to next general election. </p>

<p>Street improvement — Excessive assessment on abutting property — Suit to ascertain correct amount of assessment — From what time should interest on correct amount of assessment as adjudged by court be charged — Section 2289, Revised Statutes, considered.</p>

<p>Bastardy — A. E. N., a complainant under the bastardy act, was delivered of a dead fcetus or embryo child, twelve weeks after conception: Held,: That no recovery can be had, and the action abated.</p>

<p> Powers of council as to assessments for street improvements. </p> <p>The city of Cincinnati condemned land for the purpose of widening and extending one of the streets of the city, and assessed the cost and expense thereof on all of the lots on said street by the foot front — not only on the lots and lands abutting on the part of the street so widened and extended, but on the lots and lands abutting on other parts of such street — having declared that they also will he specially benefited by such appropriation,</p> <p>Held; That the assessment made on such lots and lands not abutting on such improvement, is invalid.</p>

<p> Inability on a note given as a subscription to an educational institution. </p> <p>Subscriptions promising to pay money for the endowment of an educational institution, are enforceable where work was done and expenditures made in reliance upon such promises.</p>

<p>Measure of damages on account of street improvement — Promise of officials to correct defect in plans.</p> <p>1. In an action brought by a village to determine the amount of damages that would result to an owner of land abutting on a proposed street improvement, it is error to allow evidence to be given by the village against the objection of the owner of such land, that his property would be greatly enhanced in value by the construction of such improvement, no claim being made that such increase in value would be in consequence of any special benefit thereby conferred upon such land, or in any way different from that which would result to other property on such street from the construction thereof.</p> <p>2. Where the plans and specifications for such improvement, adopted by the council of the village, made no provision for the extension of a culvert then under the street proposed to be improved, and necessary for the passage of the water from the land of such owner, but in fact provided for the closing(up the mouth of said culvert, it is error to allow the village to introduce the testimony of officers of such village that it was not the purpose to do this, but that the village would extend the culvert, if necessary, and take other proper steps to prevent such land from being flooded.</p>

<p>Right of appeal where several parties are claiming priority — Notice of appeal must be as to all parties necessary to a determination of the controversy.</p>

<p>1. The Dairy and Food Commissioner is authorized to print, publish and circulate such matter as may be necessary to inform dealers and the public of violations of the laws against fraud and adulteration or impurities in food, drinks or drugs.</p> <p>2. Section two of the Act of March 21, 1887, (84 Ohio Laws 216, section 7458-17, Revised Statutes,) is valid and constitutional.</p>

<p>1. The lien of a junior judgment upon whicli an execution has been issued and levied on particular real estate, within one year from the date of its rendition, becomes prior, as to such real estate, to that of a senior judgment upon which no execution has been issued and levied, and no order made equivalent to the levying of an execution, within a year.</p> <p>2. The making of an order, by the Court of Common Pleas, in a pending action to marshal liens, finding such senior judgment a lien, and fixing the order of its priority as to other, then existing, liens, but not ordering the sale of such particular real estate for the satisfaction of such liens, is not equivalent to the levying of an execution thereon, within the year.</p>

<p>Error to the Court of Common Pleas of Hamilton County.</p>

<p> Where a personal judgment and the enforcement of a mechanic's lien are asked, although not separately stated and numbered, the cause is not appealable. </p>

<p>An assessment made by a city council for a street improvement by the foot front as applied to lots, embraces the entire lot as numbered and recorded.</p> <p>An assessment made by a city council for a street improvement by the foot front as to lots, must apply to each foot front, along the entire improvement, in the same amount.</p> <p>Lots lying lengthwise upon a street, and not platted, numbered and recorded in reference to said street (corner lots), are land not sub-divided into lots, in the sense of the right to assess to pay for a street improvement. In such a case, the city council, under section 2269 of the Revised Statutes of the state, should adjust the land, so as to fix the depth of it, equal to the other lots that are numbered and recorded upon said improvement, and thus ascertain the proper frontage, for which said land should be assessed per foot front.</p> <p>The limitation of 25 per eent on the right of assessment, as provided by section 2270 of the Revised Statutes of the state, is determined by the assessed value of the lot as returned by the land appraiser, and does not include the buildings thereon.</p>

The defendants in error brought suit in the court of common pleas to set aside the will of the late Mrs. Allen of Glendale, upon the ground that at the time of its execution, she was of unsound mind. The estate devised had passed to her by the will of her husband, who died about twenty months before her. They had no children. The contestants are the collateral heirs of testatrix and her husband.

<p>An action in partition is appealable. — In Partition. Section 5756 of the Revised Statutes of Ohio, as amended March 20, 1891, construed.</p> <p>A widow is not entitled to dower in the real-estate of her deceased husband of which he died intestate, after she has elected to take under the will of her husband.</p>

<p>1. Section 5408, Bevised Statutes, which provides for the manner in which appeals in certain cases may be taken from the probate court to the court of common pleas, requires the undertaking for the appeal to be given to the adverse parly. If given to The Slate of Ohio, it does not comply with the statute, and on motion, such appeal may properly be dismissed by the court, unless the mistake is corrected by the giving of a new, or the amendment of the old undertaking, so that it shall be in proper form. And when it does not appear from the record what kind of an undertaking had in fact been given, but the journal entry states the appeal was dismissed for the reason that the appellants had not given the bond required by the statute, a reviewing court can not properly say that the trial court erred in dismissing such appeal — no motion having been made to file a new, or to correct the old undertaking.</p> <p>2. Where the record in other of these cases before the court, shows that the undertaking for appeal was made payable to the State of Ohio, and not lo the adverse party, and was in the amount fixed by the probate court, and in other respects was in accordance with the statute, and that the court, on motion to dismiss the appeal, held that the undertaking was not sufficient, and that the appeal should be dismissed, and that on the same day a motion was made by the appellants and presented to the court asking to be allowed to file a new undertaking in proper form and amount, or to amend the old one, which the court at once, on the same day, overruled, and refused to allow such amendment to be made, Held :</p> <p>First — That the making the undertaking payable to the State of Ohio, instead of to the adverse party, was such a mistake as might be corrected under the provisions of section 5114, Bevised Statutes.</p> <p>Second■ — Where, on the journal of the court, of a particular day, is an entry dismissing, an appeal for the reason that an undertaking for appeal had not been given as required by law, and a subsequent entry on the journal, of the same day, shows that an application had at once been made to the court for leave to file a new undertaking in proper form, and the overruling of such motion by the court. And it further appearing from the bill of exceptions allowed in the case, that the undertaking originally given was defective, but that the court, in the exercise of a proper discretion, should have allowed it to be amended, the fact that the entry dismissing the appeal first appears upon the journal, and before the order overruling the motion to amend, did not deprive the court of common pleas of the power to allow such amendment, or this court of the right to review the propriety of the action overruling such motion. Nor under the circumstances was it essential that the appellants should have presented to the court the new bond, when the court had refused to allow any amendment to be made.</p> <p>Third — Though not necessary to the decision of these cases, the court is of the opinion that in eases like those before us, the appellants were not required, under the provisions of section 6408, Revised Statutes, to give an undertaking in double the amount of money ordered to be paid by the assignee.</p>

<p>Where all of the original papers in a case necessary to exhibit the error complained of are not filed with the petition in an error case, this does not deprive the reviewing court of jurisdiction thereof, but such court may require the provisions of the statute to be complied with, and on a failure by the plaintiff in error to do this, may dismiss the case.</p>

<p>1. Where an appeal from thecourt of common pleas to the circuit court has properly been taken by one or more of the parties, a motion to dismiss such appeal as to other parties in the case who either gave notice of their intention to appeal, but gave no bond therefor, or who gave : neither notice or bond, will be overruled, when such parties have not' ' appeared in the circuit court, or by the filing of pleadings or other paper's, or in some other way assumed that they are proper parties to the case in such court.</p> <p>2. If the appeal properly made by some of the parties did not operate' to bring into the circuit court parties who did not appeal from the decision of the court of common pleas, such parties have no standing in the circuit court, and will not be allowed to file pleadings •therein, or present evidence or submit to the court for trial, issues in regard to their rights as made aDd decided in the trial court.</p> <p>3. In a case in equity to partition real estate among those found to be the owners thereof, all persons having or asserting an interest therein are proper parties thereto, and should be before the court. Under the laws of Ohio, however, the interests of tenants in common in land, are separate and distinct, and not joint interests.</p> <p>4. Where in a case like that before the court, the whole of the land in question is in the possession of a large number of persons claiming to be the sole owners of separate parcels thereof in fee simple, and a petition is filed by a person claiming to be owner of a certain undivided interest in the whole tract, asan heir at law of a person who originally owned the whole thereof, which asks that his interest therein may be set ofi‘ to him, and he makes defendants to such action not only the parties in possession of the land, but other persons also claiming as heirs with him of the same ancestor, and by the decree of the court it is adjudged that the plaintiff and others of such heirs have a less interest therein than was claimed by them, and that others of said heirs have no interest therein, an appeal by a part of the heirs adjudged to have some interest, will not bring into the circuit c urt the case of the parties found to have no interest in the land, who do not appeal from snch decree, hut only brings up those parties and those issues, necessary for the determination in the circuit court of the rights of the appellants. And the interest of the parties (if any), found to have no right to any of the land, being separate and distinct from that of any of the other parties who appealed, their presence in the circuit court is not necessary to a full settlement of the rights of tho other parties, and the decree against them not having been appealed from, it stands in full force.</p>

<p>Error to the Court of Common Pleas of Hamilton County.</p>

<p>Assignee for benefit of creditors — Proper expenses chargeable to the estate — Traveling expenses, made by the assignee to see creditors to secure his retention as assignee, are not a proper charge against the estate.</p>

<p>Mechanic's Lien — An order for money on the owner, given by the contractor to a sub-contractor for balance of material furnished, with the knowledge of the owner, does not give such sub-contractor a prior claim to the money yet in the hands of the owner to a mechanic's liens properly filed under the statute by other sub-contractors before such order has been accepted by the owner or by him promised to be paid.</p>

<p>1. Under the statutes of this state, “money,” including gold and silver coin, bank notes of solvent banks in actual possession, and every deposit, which the person owning, holding in trust, or having the beneficial interest therein is entitled to withdraw in money on demand held by an assignee or trustee for the benefit of creditors on the day preceding the second Monday of April, of any yearj must be returned by him for taxation for the current year, as well as all specific articles of personal property, and all “investments in bonds, stocks, joint stock companies or otherwise held by him as such assignee or trustee, which, under the law, are taxable if held by an individual, a resident of this state.</p> <p>2. From the value of such property so held, the assignee or trustee can not legally deduct the sum of the legal bona fide debts owing by his assignor at the time for making such return — no part of such property coming under the head of “credits” as defined in section 2730, Revised Statutes, from the sum of which the statute allows to be deducted the sum of the legal bona fide debts owing by the person from whom the re-> turn is made. Payne v. Watlerson, 37 Ohio St. J21.</p> <p>3. Where such assignee or trustee holds notes given to him for property of the trust estate sold by him, such notes in his hands are “credits,” from the value of which the sum of the bona fide debts of the assignor may be deducted.</p>

<p>Pleadings, Evidence and Practice in Ejectment Cases,</p> <p>1. A failure to make an averment in a petition in ejectment, that the defendant unlawfully keeps the plaintiff out of the possession of the land claimed, when it does allege “ and has so unlawfully kept her out of said possession continually since on or about the 2nd of September, 1886,” is not fatal, where no objection was made to the petition by motion or otherwise, until after verdict and judgment for the defendant, or until the filing of a petition in error by plaintiff, and where the whole case was tried in the common pleas court as if the proper allegation had been made.</p> <p>2. Where the^title of the plaintiff is denied by the answer of the defendant, and possession of the land claimed is, by force of the statute, thereby admitted by the defendant, to entitle the plaintiff to recover, he must show a better title to the laud in controversy than that of the defendant. A prima fade ease is made by his showing a conveyance to him or one of his grantors in his chain of title, by one then in the possession and occupancy of the land in question. If this is not done, he must run his title by deed or other necessary proof, to some one shown or admitted to be the common source of title to him and the defendant, and in default of there being such common source of title, back to the government. And on his failure to offer evidence tending, to do 'either, it is not error in the trial court to withdraw the evidence from the jury and render a judgment for the defendant.</p> <p>3. Whether a memorandum, made by an attorney at law in the examination of the title in question, and which he testifies he believed to be correct, and which purports to give the names of the grantors and grantees to such deed, the date thereof and the consideration named, . and the date of the record, with the description of the lot conveyed, and that it was duly signed and sealed, “two witnesses, duly acknowledged in Jefferson county, Ind.”, and where such record in the office of the county recorder, was shown to have been afterwards destroyed by fire, was competent evidence: Qnasre. But in this case, the original having been shown to have been in existence some time before the trial, and its absence not having been satisfactorily accounted for, such deed is the best evidence of its contents, and the memorandum was properly excluded by the court.</p>

<p> Disputed Election of Officers of a Corporation. </p> <p>Where at the meeting of the stockholders of a corporation for the election of officers, an agreement is made that the election be postponed until an hour agreed upon, or that takes place which justifies the holders of a majority of the stock there represented in believing that such postponement would be had, an election held by stockholders, parties to such arrangement, holding only a small amount of such stock, in the absence of the other parties, and prior to such time agreed upon, will not be upheld by the court.</p>

<p>In Hamilton county, where there has been'a sine die adjournment of each fo the separate sessions of the court of common pleas, and there has after-wards been no jointsession of the judges of said court at such term, and no one of the judges of said court thereafter was'present in said'court or transacted any business there as judge until the beginning of the next term of said court, such adjournment of all of such separate sessions operated to adjourn said court sinedie, and a bond given for the appeal of a case more than thirty days thereafter, was not given in time, and such appeal should be dismissed.</p>

<p>Where the docket of a justice of the peace noted the filing of a bill of particulars, but the same or the nature thereof was not entered on the docket, but it was only stated that the plaintiff claimed $100 for damages sustained as per bill of particulars, this is not a compliance with the statute. But where the ease proceeds to trial before the justice, and judgment was rendered for the plaintiff, from which judgment the defendant appealed to the court of common pleas, where plaintiff filed a petition setting out a cause of action of which the justice of the peace and the court of common pleas had jurisdiction, and the defendant appeared at the trial, and made no objection to the jurisdiction of the court, and judgment was rendered against him, it is too late on a petition filed to reverse such judgment to raise the question of the jurisdiction of the court.</p>

<p>When the “Dow law” tax for the year 1886, against a person chargeable therewith, was entered upon the duplicate for that year against such person, but by the mistake of the auditor of the county'llie premises on which the building was situate in which the business was carried on, was not properly mentioned or described thereon, but a wholly different property was described on such duplicate, and such tax was not paid by the person against whom it was charged, and could not be collected from him by levy and sale of other property, of which due return was made by the treasurer of the county. And when the premises on which said business had been carried on in 1886, had been forfeited to the state for the non-payment of the general taxes thereon, and at the sale of forfeited lands made in December, 1889, said premises were sold to a purchaser who had no knowledge of the non-payment of such Dow law tax, and the auditor having discovered in 1890 that such tax for 1886, had, by mistake, not been charged against such premises, placed the same on the duplicate of 1890, against the same and demanded payment thereof from such purchaser,</p> <p>Held: That this action of the auditor was not warranted by sec. 2803, Rev. Stat., or by aDy other law, and such assessment was not a valid lien on said premises owned by such purchaser.</p>

On Appeal. This is an action to enforce a sub-contractor's lien, and the cause of action is stated in the petition as follows : “ On the 10th day of September, 1890, plaintiffs began to furnish work and materials, to-wit, building materials, under a contract between the plaintiffs, as sub-contractors, and S., which work and materials were provided for in a contract between said S. and the defendant Shaw as owner, for the construction of a building on premises then and still…

<p>On Error to the Court of Common Pleas of Cuyahoga County.</p>

<p>1. Unless an exception be taken to the action of the court in overruling a motion for a new trial, a reviewing court will not consider the question whether the verdict was against the evidence. But in such case, exceptions taken at the time, to the rulings of the court admitting or rejecting evidence may be considered.</p> <p>2. A party desiring to olier independent evidence with the view of impeaching the testimony of a witness of his adversary, can not do so during his cross examination of such witness, but must wait until the time arrives for him to offer his own evidence.</p> <p>3. New evidence, or evidence of new facts first offered by a party in rebuttal, may afterwards be rebutted by his adversary.</p>

<p>1. Where a written instrument is put in issue, the party claiming thereunder is bound to make strict proof of its execution.</p> <p>2. Such instrument, when produced and freed from suspicion, must be proved by the subscribing witnesses, if any. or at least one of them, before other proof of its execution is admissible; and this is true, although the person purporting to have signed the same admits its execution.</p>

<p>Appeal from the Court of Common Pleas of Hamilton County.</p>

<p>Where it is shown that the owners of shares of the stock of a railroad company, which by our laws is taxable here and should have been returned for taxation, for several years failed to return the same as they were required by law to do, and such failure was not justified or excused on the principles settled in the case of Ratterman v. Ingalls, 46 Ohio St. 468, though they may, without good cause shown, have been of the opinion that the same were not taxable, and when it further appears that during the same years, the same persons owning a large number of shares in the stock of other companies, which were clearly taxable, (and as to which there was no reason whatever to believe that they were not taxable), failed to return the same, such returns as to the first named shares of stock in contemplation of law were “false returns,” and the auditor of the.county was authorized under the provisions of sec. 2781 and 2782, Eev. Stat., to ascertain the true amount that should have been returned for taxation by the owners for such stock for the next preceding five years, and to place upon the duplicate the proper amount of taxes thereon, and on the taxes so found due for the years after the passage of the act of April 14,1886, a penalty of 50 per cent.</p>

<p>Sale of sevnng machine to be paid for in installments.— The contract of sale transferring the title to a machine to the purchaser, but in which the purchaser also,’ at the same time, re-transfers the title to the seller, and providing ¿hat the seller may hold the machine as security for the unpaid installments, and authorising the seller to take the machine back whenever the purchaser fails in the prompt payment of any of the installments, is within the provisions of the act of May 4, 1S85.</p>

<p>B. held the note of L., and also certain mortgage notes deposited with him hy L., to secure the payment of the first note. B., without being authorized to do so, sold these notes, held as collateral, at public auction to himself, for a sum sufficient to pay the note of L. held by him, and for a small sum in addition. He sent to L. his original note and the overplus of money, but L. claiming that the sale was invalid, refused to recognize it, but retained his note and the cash sent to him. After-wards B. received a partial payment on the notes which he claimed to have bought. L., without tendering the amount due on the original note, sued B. as for a conversion of such collateral securities, which B. still held, and which he was ready and willing to return on payment of the amount actually due to him on the original note of L. Held, That these facts do not in law constitute a conversion of such securities by B., or entitle L. to recover from B. damages therefor.</p>

In the court below Heaton & Co. brought suit against Eldrige & Pliggins upon five promissory notes aggregating $2,031.12.

<p>Shares in the Standard Oil Trust, which trust was by our Supreme Court declared to be against public policy and void, are not taxable as such. A certificate of stock, void as to all other purposes, is not valid for purposes of taxation.</p> <p>Whether any equitable interest may be taxed in Ohio, not decided.</p>