Volume 8 — Ohio Appellate Reports

<p>Mutual benefit societies—Disallowance of benefits—Jurisdiction of. courts — Denied by by-laws and constitution—Redress ties after appeal exhausted, when.</p> <p>In an action for recovery of sick or death benefits, technical defenses do not avail unless sound in fact and law; and where it appears that the claimant has exhausted the rights given him tinder the constitution and by-laws of the order without securing an allowance of his claim, he may have the matter reheard before the courts, notwithstanding the constitution and by-laws of the order specifically .provide that the decisions of its tribunals shall be final and conclusive and no resort can be had to the courts.</p>

<p>Public policy — Contract of marriage—-Entered into by a girl while a minor—Without consideration or parental consent — And immediately repudiated—Action for annulment lies, when.</p> <p>Where a young girl seventeen years of age, without the knowledge or consent of her parents or either of thém, has her mental poise disturbed and her will overcome by the persistent solicitation and urging of a strong and forceful man, with .whom she had previously had only ordinary friendly relations, and consents to a marriage authorized by a license obtained by the perjured evidence of the man, and where no cohabitation follows the marriage, and there is an immediate and continued separation thereafter, and there is no other act that would operate as a recognition of the marriage relation, and there is a prompt repudiation of the marriage contract, an action lies by her for a decree annulling the marriage contract.</p>

<p>Actions—Wrongful death — Mob violence—Judgment against county — Subsequent action not barred, when.</p> <p>An action to recover damages for negligently causing the death of t a person, against the party guilty of the negligent acts, is not extinguished by a former recovery and payment of a judgment against the county, under the provisions of Sections 6278 to 6288, inclusive, General Code, for the death of the same person from injuries received from lynching by a mob, unless the county is with the party charged jointly guilty of the same negligent acts.</p>

<p>Criminal law—Larceny — Evidence—Guilty knowledge—Receiving stolen goods—Proof of previous transactions.</p> <p>In cases involving fraud in receiving stolen goods, scienter is a necessary element to be established in order to fasten guilt upon the accused, and in such cases'.evidence of previous transactions which necessarily involve guilty knowledge by the defendant with reference to the transaction in question is admissible.</p>

<p>Mobs—Statutory remedy for violence — County not liable, when — Section 6283, General Code, construed.</p> <p>In an action to recover damages against a county under favor of Section 6283, General Code, for the death -or injury of a person by a mob, it must appear from the evidence that death or the injury was inflicted by the mob while attempting to lynch another person, and such person must at the time be the definite object of the mob’s violence. The phrase “another person” can not be construed to mean “no one in particular,” but a person certain and definite.</p>

<p>Ditches—Living streams—Division into two separate channels— Remedy of landowner where commissioners are without jurisdiction.</p> <p>1. The authority of county commissioners does not comprehend the power to divide the waters of a living stream into two separate channels. When an alteration in the channel of a living stream is made under Section 6443, General Code, provision should be made for tributaries and laterals emptying into the new channel at a convenient point near the place or places where such tributaries or laterals empty into the original stream.</p> <p>2. Where the board of county commissioners is without jurisdiction and the want of jurisdiction does not appear upon the face of the ditch proceedings, the remedy of the landowner affected is by way of an original action in equity for injunction.</p>

<p>Mechanic’s lien — Subcontractor on fund—Principal contractor discontinues work.</p> <p>A laborer who contracts to do and does perform certain of the labor required in the construction of an improvement under a subcontract with the principal contractor is entitled to a lien upon 'the building fund in the hands of the owner notwithstanding the principal contractor without notice to said laborer, who continues his labor, has sublet to> a third party that portion of his contract including such labor, or has suffered the owner' to contract directly with said third party for such portion of the improvement, even though a portion of such labor is performed' after such third party has begun the discharge of his contract, he having received, the benefit of such labor.</p>

<p> Statute of limitations—Bureau of Inspection and Supervision of Public Offices—Cause of action founded on report—Statute of limitations begins to run, when. </p> <p>The special provisions of Section 286-3, General Code, that no cause of action on any matter set forth in any report made under authority and direction of Section 286, General Code, shall be deemed to have accrued until such report is filed with the officer or legal counsel whose duty it is to institute civil actions for the enforcement thereof, and that all statutes of limitations otherwise applicable thereto shall not begin to run until the date of such filing, apply in a case founded upon a report filed after the taking effect of such provisions. This is true despite the fact that the illegal payments of public moneys were made before the enactment of Section 286-3. The legislature by the enactment of Sections 286, 286-1, 286-2 and 286-3, General Code, not only created a new right, but also provided therein a new remedy for this new right, and that the statute of limitations against this cause of action to recover an illegal or unauthorized payment of public moneys should not begin to run until the filing of the report by the state officials.</p>

<p>Executors—Action to quiet title—Right to maintain — Parties — Heirs of testator.</p> <p>Where a will directs the executor to sell the real estate of the testator and empowers him tó make deeds therefor to purchaser, such executor may maintain an action to quiet the title to such real estate against a person claiming an adverse interest therein, and it is not necessary that the heirs of the testator be parties thereto.</p>

<p>Domestic relations—Action by husband for compensation—For services rendered by wife — Waiver of separate rights—Evidence— Wife competent witness—Executor as defendant.</p> <p>1. Sections 7995 to 7999, inclusive, General Code, do not deprive the Husband of his common-law right to maintain an action for the services of his wife, where such services were performed in furtherance of her husband’s business and in connection with tier domestic duties, although a third party had agreed to compensate her therefor, when by her conduct she waives her right to the compensation for such services as her separate property.</p> <p>2. In such an action, Section 11495, General 'Code, does not prevent the husband, where the adverse party defends as an executor, from calling his wife as a witness and introducing her testimony as to facts which occurred prior to the death of the testator.</p>

<p>Wills—Demonstrative or specific legacies — Bonds of named corporation— Sold by testator before death — Bequest satisfied, how.</p> <p>1. A bequest of “$2,000.00 of the first mortgage bonds of The Gallipolis Gas & Electric Company” is a demonstrative and not a specific legacy.</p> <p>2. The bonds described having been converted by the testatrix, the legacy is not thereby adeemed, but may be satisfied from any property or fund of the estate not specifically devised or bequeathed.</p>

<p>Workmen’s compensation act—Minor is employe, when — Effect of employment under prohibited age.</p> <p>1. A minor who is legally permitted to work for hire under the laws of this state is an employe within the terms of the workmen’s compensation act, but not otherwise.</p> <p>2. Under the laws of this state, if an employer does not come within the terms of the workmen’s compensation act he is amenable to all of the other statutes of the state.</p> <p>3. An employer who employs a child under the age prohibited by statute must be prepared to show at all times that he is employed lawfully; and, when it appears that the minor is unlawfully employed, he is not an employe within the terms of the workmen’s compensation act, and such minor, if injured, has the benefit and protection of the other statutory provisions •passed for the benefit of labor.</p>

<p>Justices of peace — Forcible entry and detainer—Jurisdiction confined to township, when.</p> <p>1. In actions of forcible entry and detainer the jurisdiction of the justice of the peace is coextensive with the county, but such jurisdiction must be exercised in the township in which he is elected.</p> <p>2. Where a justice of the peace issues summons in a case of forcible entry and detainer, returnable in a township of the county other than the one in which he is elected, and hears the case and renders judgment in such other township, the judgment is void.</p>

<p>Contracts — Express and implied—Degree of proof — Services rendered decedent — Charge to jury.</p> <p>In an action for recovery on a contract for services, it is prejudicial error in charging the jury to speak of the contract as implied, without any explanation as to what proof is required to establish an implied contract, but leaving the jury to infer that an implied contract could be established by the same evidence as an express contract, where the evidence cleanly showed the kind of contract in suit.</p>

<p>Court of appeals—Jurisdiction — Second reversal on weight of evidence—■Constitutional law.</p> <p>A court of appeals has jurisdiction to reverse the same case a second time on the weight of the evidence against the same party. Section 11577, General Code, is a part of the chapter relating to the trial court, and, in the absence of express words or of words creating the inference, said section has no application to courts of appeals. . Moreover, the right of reversal granted to the court of appeals by the constitution, is jurisdictional and not procedural, and if said section may be said to apply to the court of appeals, it is, to that extent, in conflict with the constitution.</p>

<p>Real property—Overhanging cornice—Implied easement — Party •wall—Remedies — Mandatory injunction.</p> <p>1. The construction and maintenance, by a lot owner, of a cornice extending beyond the party wall, and over the lot of an adjoining proprietor, without his acquiescence or consent, is a violation of the latter’s property rights.</p> <p>2. The establishment of a party wall does not by implication give one proprietor the right to extend his structure over the adjoining lot.</p> <p>3. The fact that the overhanging cornice is constructed above the present building on the adjoining lot and does not affect the present use thereof is no defense.</p> <p>4. Mandatory injunction, is an appropriate remedy to enforce the property rights so violated.</p>

<p>Statute of limitations—Claim against estate—Defenses—Failure ' of administrator—To give notice of appointment.</p> <p>Section 10757, General Code, requires notice to be given of the appointment of a new administrator, and where there is a failure to give such notice the limitation provided by Section 10722, General Code, will not avail as a defense to an. action brought more than six months after the rejection of the claim.</p>

<p>Wills—Signature of testatrix — Mistake in arrangement of pages —Compliance with Section 10505, General Code—Signing will at end.'</p> <p>Where it clearly appears from an inspection of an original will that the lower or second sheet, as fastened together, was intended to be the first part of the will, and that the first or upper ■sheet, as fastened together, was intended to be the concluding portion of the will, and the signature of the testatrix appears at the end of the first or upper sheet, as fastened together, and immediately following the testimonium clause, and the attestation clause appears to the left of the signature of testatrix and is immediately followed 'by the signatures of the subscribing witnesses, such will is signed at the end thereof, within the meaning of Section 10505, General Code.</p>

<p>Schools—Creation of district—Remonstrance by electors — Signer may withdraw name, when.</p> <p>Electors signing a remonstrance against the rearrangement of school districts are at liberty to withdraw their names at any time within the thirty-day period, or until official or judicial action has been taken.</p>

<p>Covenants—■Running with land—Word “assigns?’ unnecessary — Right of way — Free gas for residence—Rights of grantor’s successors—Liability of gas company?s assigns.</p> <p>1. The use of the words “assigns” or “heirs and assigns” is not necessary or essential to create a covenant running with the land, and in determining whether a covenant will run with the land the material inquiries are whether the parties intended to impose such burden on the land, and whether it is one that may be imposed consistently with principle and equity.</p> <p>2. Where the owner of farm lands grants to a company, its successors and assigns, the right to lay and maintain a pipe line over said farm for the purpose of transporting .gas, in consideration of one dollar and said company furnishing gas free for one fire in the residence of said owner, and said company lays said pipe line, and it and its successors in title maintain the same, and furnish free gas in said residence to the then owner, and continue to furnish such gas for a number of years to his first and second successor in title, such covenant runs with the land, and the successor to said company will be . required to furnish free gas to the successor or successors in title of said land, according to the provisions of such contract, so long as the successor of said company continues to use such right of way to transport gas.</p>

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

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

<p>Gifts inter vivos—■Requisites — Intention to make gift — Necessity of delivery—Acceptance by donee—Burden of impeaching completed gift.</p> <p>1. To constitute a gift inter vivos, the donor must have the intention of making the gift, and he must deliver the thing intended to be given to the donee in praesenti, parting with all dominion and control over it. This, to constitute a perfect and complete gift, must be followed by acceptance by the donee of the thing given.</p> <p>2. If a completed gift be shown, the 'burden of impeaching it is on him who asserts that there is no gift.</p>

<p>Contempt—■Presumption of innocence—Degree of proof to convict —Review of finding — Weight of evidence.</p> <p>1. The judgment of a trial judge who has passed upon the sufficiency and weight of the evidence will not be disturbed, where the evidence is such that different minds might reach different conclusions.</p> <p>2. A proceeding for contempt is quasi-criminal in its nature, with the presumption in favor of the innocence of the defendant, and conviction can be had only on an affirmative showing of guilt.</p>

<p>Criminal law—Depositions of witnesses — Section 13668, General Code — Inapplicable to trial on affidavit—Sale of misbranded flavoring extract—■Variance — Identity of purchaser.</p> <p>1. Section 13668, General Code, authorizing the taking of depositions by an accused or the state, has no application when a prosecution is had before a justice of the peace, but applies only when an issue of fact is joined upon an indictment.’</p> <p>2. Where under a criminal statute an offense consists in making an illegal sale, the identity of the purchaser is not an .essential element of the offense.</p>

<p>Statute of limitations—■Federal Employers’ Liability Act—Condi-, tion attached to right to sue — Construction of federal statutes by state courts—Rule as to following construction adopted by federal courts.</p> <p>1. The rule is universal that the construction of the federal statutes by the federal courts should be followed by the state courts in construing the same statutes.</p> <p>2. The provision in the Federal Employers’ Liability Act that no action shall be maintained under the statute unless commenced within two years from the day the cause of action accrued is not an ordinary statute of limitations. It affects the right and not the remedy. A failure to bring such suit within the two year period cannot, therefore, be excused by showing a promise on the part of the defendant to provide employment and care for the injured employe, in consideration of his not bringing suit, and a subsequent breach of such promise on the part of the employer. •</p>

<p> Service of summons—Nonresident defendant—Foreclosure of common-law lien. </p> <p>No authority exists for issue or service of summons outside of the county upon a nonresident defendant who has been sued foi foreclosure of a common-law lien.</p>

<p>Sabbath desecration — Moving picture show—Theatrical performance.—•Section 13049, General Code.</p> <p>Motion picture shows fall within the provisions of Section 13049, General Code, making it unlawful to exhibit a theatrical or dramatic performance on Sunday.</p>

<p>Surety companies—Deposits with state insurance superintendent— Section 9510, General Code — Creditors entitled to such deposits, when — Contractor's bond — Federal contract performed* in Ohio.</p> <p>Where a federal act extending liability of a surety, upon a contractor’s bond, to the creditors of the principal contractor; for material and labor under the principal contract, fixes the jurisdiction over the enforcement of the rights of the creditors to the place where the contract is to be performed, and the contract is to be performed in Ohio, the contract of the contractor with his surety should be regarded as one for the transaction of business in Ohio. Under such circumstances, the creditors of the contractor, growing from the performance of the contract in question, are entitled to the benefit of a' deposit made by the surety under Sections 9510 and 641, General Code.</p>

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

<p>Schools — Suspension—Abandonment of property—Nonuser.</p> <p>Suspension of school for a period of three years in the school district in which the school property involved in the instant case is located does not constitute abandonment on the ground of nonuser.</p>

<p> Bills of exceptions—Preparation and correction of same—Duty of trial judge as to signing—Mandamus. </p> <p>A judge who ihas presided! at a trial is not required -by law to prepare a bill of exceptions for counsel and is only obligated to sign a “true” bill, or, when the adverse party files an objection or amendment, to correct the bill. The decision of the trial judge that a bill of exceptions tendered to him for signature is untrue is conclusive and final.</p>

<p>Divorce—Alimony—Wilful absence—Res adjudicata—No divorce •where separation justified — Judgment dismissing divorce action subject to review, when.</p> <p>1. A judgment of dismissal of an action for divorce without a full hearing is subject to review.</p> <p>2. No divorce can be had for wilful absence or separation where the separation on the part of the accused person is justified, and a wife is justified in living apart from her husband where she has established a right to do so by obtaining a decree for separate support and maintenance.</p> <p>3. As long as a wife is living apart from her husband and receiving alimony from him as awarded by a decree of a court of competent jurisdiction finding the husband guilty of wilful abandonment and desertion, which decree is unreversed and . unmodified, the wife cannot be said to be wilfully absent from her husband, as she is acting in accordance with her rights under such decree.</p>

<p>Wills—Evidence—Attorney as subscribing witness—Waiver of privilege—Testimony of witness impeached, how—Res gestae— Statement of subscribing witness—Reversible error—Absence of judge from court room—Discretion of trial court—Conduct of examination of witness.</p> <p>1. When a testator procures his attorney as a subscribing witness to his will, he thereby expressly consents that such attorney may testify as fully as any other subscribing witness, and thereby waives the exemption of Section 11494, General Code.</p> <p>2. The rule is well established that the testimony of a witness cannot be impeached, by showing contradictory statements, unless the attention of the witness is first called to such alleged ■statements and the opportunity afforded him of either admitting, denying or explaining the same. This rule is not changed by the subsequent death of the witness.</p> <p>8. Statements of a subscribing witness to a will, made immediately after coming out of the room in which the will was executed, do not constitute a part of the res gestae.</p> <p>4. In order to predicate reversible error in the trial of a civil suit upon the absence from the court room of the trial court during a portion of the trial it should appear that objection was made to such absence, or that the absence of the trial judge clearly 'prejudiced the rights of the complaining party.</p> <p>5. While a trial court should not unduly interfere with the examination of witnesses to the prejudice of either party, yet the trial court has a right to guide the trial, and, if necessary, develop the facts requisite to a fair presentation of the case.</p>

<p> Schools—Transfer of territory—Uninhabited property—Railroad right of way—Board of education—Powers governed by statutes. ' </p> <p>1. A comity board of education is a creature of statute, and the exercise of the powers granted to it is limited to those expressly given and those contained by reasonable intendment in the act creating it.</p> <p>2. A county board of education is not authorized to transfer vacant property, its power in this respect being limited to inhabited property.</p>

<p>Surety—Estoppel—Bond of contractor—Payment of contractors compensation before due — Consent of surety to such payment —Effect of notice to surety of suit against ovtfner.</p> <p>1. A bonding company having been notified of the pendency and nature of an action against a board of education, to which board it is liable on the bond of a contractor signed by it as surety, and having been given an opportunity to make a defense in the case, and having failed to do so, is concluded and bound by the judgment rendered in' such action, and cannot thereafter question the correctness thereof in another action.</p> <p>2. Where an owner makes a payment to a contractor in advance of the time when the same was due under the contract, but such payment is made upon the express written consent of the contractor’s surety, the surety is estopped from thereafter complaining of such payment.</p>

<p>Wills—-Acceleration of remainders—Widow elects not to take — Renounces trust in her favor—Other trusts not terminated.</p> <p>Where a widow elects not to take under the will of her deceased husband, which creates a trust in her favor, her renunciation, in the absence of any other disposition of the property covered by the said -trust, accelerates the enjoyment of the property by the remaindermen, subject to the dower interest"-of the ■widow therein but without terminating -another independent trust created by said will.</p>

<p> Municipal corporations—Building ordinances—Gasoline filling stations—Consent of property owners—Enlargement of existing structure—Refusal of permit—Manda/mus. </p> <p>When an owner of a public oil and gasoline filling station tears down an existing structure and prepares to erect a new one w'ith greatly increased storage capacity and equipment, with a new driveway and means of access thereto, and arranges to equip the new building with electrical displays, such person does not fall within the provisions of an exemption clause in a city ordinance in favor of owners or operators of filling stations erected before the taking effect of the ordinance.</p>

<p> Larceny—■Intent after tortious taking. </p> <p>If the original act of talcing was a trespass and subsequently while the defendant is in possession of the property he forms the intent to steal the crime of larceny is committed.</p>

<p> Vault—Burial lot—Title transferred, how—Disposal of the dead —Rights which stranger may acquire in burial lot. </p> <p>1. The disposal of the dead, from motives of sanitation and health, is a state function. The state, by legislative enactment, has given exclusive and complete control thereof to municipalities within the territorial limits of each.</p> <p>2. A document, in order to effectually pass title to a burial lot, need not take the form of a real estate deed.</p> <p>3. The law will not permit a stranger to acquire a certificate of title to a vault or burial lot and then found upon it the right to disturb the remains of the dead.</p> <p>4. A stranger who acquires a certificate of title to a vault or burial lot may dispose of whatever rights of burial there may be in vacant space therein, but such person by acquiring such certificate of title obtains no right to remove, disturb or in any manner interfere with the bodies and remains of the dead interred in such vault or burial lot. The dead placed in such vault or burial lot are entitled to remain there until their removal is sought by their next of kin, or until the authorities, in the exercise of their care for the public health, deem it advisable to remove them by virtue of a sale or abandonment of the cemetery.</p>

<p>Taxation—Moneys—Credits—Bank deposits—Intangible property— Situs of credits—Powers of legislature—Moneys of Ohio corporation deposited in another state.</p> <p>1. Ordinarily money deposited in a bank to the credit of a corporation or individual and subject to check by the depositor creates the relation of debtor and creditor between the bank and the depositor, and moneys deposited in a bank subject to check are credits or intangible property.</p> <p>2. It is proper for the legislature to provide what things shall be money and what shall not be money for the purpose of taxation.</p> <p>3. Section 5326, General Code, does not provide that deposits in a bank subject to be withdrawn in money on demand by a depositor are tangible .property.</p> <p>4. All credits have their situs at the residence of the owner, and not at the place where the credit is carried on the books held ¡by the person entitled to hold the credits.</p> <p>5. Moneys of an Ohio corporation deposited in a bank in another state, and subject to be withdrawn upon demand, are to be considered for the purposes of taxation as money, but nevertheless are intangible property and have their situs for the purposes of taxation at the place of the principal office of the company in Ohio.</p> <p>6. Section 5406-3, General Code, has no application to property located outside the state of Ohio, and does not affect moneys and credits, held outside the state, but belonging to individuals or corporations in the state.</p>

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

<p>Wills—Challenge of right to contest—Procedure—Legitimacy— Child begotten before marriage—And bom after divorce of parents.</p> <p>1. The question of a plaintiff’s interest or right to maintain a suit to contest a will should be made by a special plea, and should be tried and determined before the trial on the issue as to the • validity of the will.</p> <p>2. Under the common law, a child begotten before the marriage of the parents is in legal existence and capable of inheriting as a legitimate child from the date of the marriage between the natural father and mother, irrespective of shortness of time of birth of the child after such marriage. Such child can not thereafter be bastardized or rendered illegitimate by a decree for divorce between the father and mother, even where the decree is entered before the birth of the child.</p>

<p>Check — Acceptance — Payment—Banks and banking—Deposit in branch bank, effect of—Acceptance and payment of check by bank, what constitutes — Passing to credit of depositor amount of check deposited, effect of.</p> <p>1. A deposit of a check in one of the branch banks of the banking company upon which it is drawn is the equivalent of depositing it in such company’s main bank. This is true without regard to what the practice may be with reference to putting through the clearing house checks deposited in the branch banks.</p> <p>2. Where a person in whose favor a check is drawn deposits such check in the bank upon which it is drawn, and the bank passes to the credit of such person in his checking account the amount of the check, such action on the part of the bank amounts not only to an acceptance but also to a payment of the check.</p>

<p>Negligence—Proximate cause — Concurrent causes—Directed verdict— Passenger, who is—Injury by interveiung object.</p> <p>1. There may be more than one proximate' cause of an injury.</p> <p>2. Where concurrent causes are the immediate and efficient cause of an injury, it is not competent to take one of them away from the other, and say that it and not the other was the proximate cause of the accident.</p> <p>3. Where two men are standing near a street car track, in a space used by passengers waiting to board cars, and the end of a •street car being operated on a curve at a prohibited rate of speed strikes one of the men and hurls him against the other, injuring the latter, 'it is error in an action for damages by the •injured man against the street car company, to direct a verdict for defendant at the close of plaintiff’s evidence disclosing such facts, the case being one that should have been submitted to the jury.</p>

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

<p>Insurance—Deposit with state superintendent—Section 9510, General Code — Administration and distribution of fund — Rights of Ohio policy holders therein.</p> <p>1. A fund deposited with the superintendent of insurance of the state of Ohio, as required by Section 9519, General Code, should be administered by the superintendent and distributed directly to the policy holders entitled to share therein.</p> <p>2. The fact that such fund is claimed by an assignee, or other representative of an insolvent corporation, does not supersede the jurisdiction of the court to order the distribution made 'by the superintendent of insurance directly to the policy holders.</p> <p>3. Such deposit is required to be held for the primary benefit of Ohio policy holders.</p>

<p>Intoxicating liquors — Residence local option — Sufficiency of petitions— Attaching maps—Description of territory — Township lands and exempted blocks — Qualifications of signers—Registered electors.</p> <p>1. The provisions of the local option law, that maps shall be attached to petitions for establishment of a district in which the sale of intoxicating liquor is prohibited, have been complied with where a second blank form is attached for additional names, instead of placing them on a blank piece of paper and attaching that to the petition, no showing having been made of fraud or .that any resident of the proposed district was misled thereby.</p> <p>2. The requirement that the territory included in such a district be within the corporate limits is not satisfied where - a railway track is made one of the boundary lines, and a strip of land forty feet in width, forming part of the railway right of way and lying between the track and the municipal boundary line, is thus included in the proposed district; but the inclusion of such a strip may be treated by a court as a mistake and the description ordered modified by striking out the territory thus wrongly embraced in the district as described in the petition.</p> <p>3. A showing that those signing the petition are registered electors sufficiently establishes their qualification in that behalf.</p>

<p>Constitutional law—Contributing members Ohio National Guard— Exemption from jury service—Section 5211, General Code.</p> <p>Section 5211, General Code, providing that contributing members to the Ohio National Guard shall be exempt from' service as jurors, is constitutional and valid.</p>

<p>Partnership—Elements—Test of partnership — Stipulations of parties do not control—Existence of partnership depends on conduct and agreement of parties.</p> <p>1. Notwithstanding the fact that parties stipulate that they are not to be partners, the question as to the existence of a partnership is to be determined by the acts and conduct and the agreements of the parties.</p> <p>2. A partnership can be implied in law by the acts and conduct of the parties, and the agreements entered into by them, notwithstanding the fact that they have stipulated they were not to be partners.</p> <p>3. It is possible for parties to intend no partnership and yet to form one. If they agree upon an arrangement which is a partnership in fact, it is of no importance that they call it something else, or that they even expressly declare that they are not to be partners.</p>

<p> Criminal law—Suspension of sentence—Motion for new trial—Nunc pro tunc order—Effect of refusal to enter—Such refusal not subject to collateral attack—Suspension after period of sen- ■ tence. </p> <p>1. When an application is made to enter nunc pro tunc an order of suspension of a sentence in a criminal action, and such application is refused, the result of such refusal is to adjudicate conclusively that no such order of suspension was made.</p> <p>2. If such adjudication is erroneous, the remedy is to prosecute error therefrom, and such adjudication can not be impeached collaterally.</p> <p>8. The filing of a motion for.a new trial after such application for a wane pro tunc order is refused, and the failure of the court to pass upon the same, do not operate to annul the finding and judgment upon such application.</p> <p>4. The rule that under Section 13714, General Code, a trial court can not revoke a suspended sentence and proceed to execute it, after the expiration of the longest period for which the defendant could have been sentenced, does not apply in a case where the sentence contains no fixed term of imprisonment, but merely provides for imprisonment as a means of enforcing the collection of a fine and costs.</p>

<p>Mechanic’s lien — Action to foreclose — Right of appeal.</p> <p>An action to foreclose a mechanic’s lien is equitable in character and therefore appealable.</p>

<p>Will contest — Scintilla rule applies — Jury to weigh evidence — Opening statement by counsel — Evidence not limited thereby, when—Hypothetical questions— Competency.</p> <p>1. In a will contest the jury, and not the trial judge, is required to weigh the evidence and determine whether or not the contestant has offered sufficient evidence to overcome the prima facie case made by evidence of the original will and record of its probate. Hence, evidence having been offered on the part of contestant tending to prove each material fact in issue, of which the testimony of two physicians, having no personal acquaintance with testator, testifying in answer to hypothetical questions based on facts previously in evidence that testator lacked sufficient mental capacity, it is exercising the province of the jury for the court to ignore the testimony of the physicians and direct a verdict for defendants,</p> <p>2. A party is not required to state, nor is he limited by what he does state as to what the evidence in the case will be; hence, failing to make reference in a trial statement in a will contest, to a fact expected to be proved, does not justify the rejection of evidence that is competent, material and relevant.</p> <p>3. A hypothetical question should not be excluded because it is not framed upon the best evidence; it is proper and should be permitted to be answered if supported by evidence tending to prove the facts therein enumerated.</p>

<p>Carriers — Initial and connecting-—Loss in transitu — Remedy of shipper — Federal and state laws — Parties defendant.</p> <p>1. In an action against an initial and a connecting carrier for the loss of goods in transit, such action being based upon their common-law liability, and sounding in tort, no recovery may be had against the initial carrier by reason of the provisions of the Carmack Amendment of Section 20 of the Federal Act to Regulate Commerce.</p> <p>2. The remedy against the initial carrier provided by this section and Section 8994-1, General Code, may be prosecuted only against the initial carrier; and in such action a connecting carrier, or carriers, is neither a necessary or proper party.</p> <p>3. While this section is intended to provide the shipper with a special remedy against the initial carrier, thereby relieving him from the necessity of actually locating the carrier or carriers by whose negligence he sustained his loss, yet it also saves to him all his common-law rights and remedies against all carriers; but he may not prosecute both remedies under one cause of action.</p>

<p>Error — Jury trial—Waiver of jury — Merger of corporations — Dismissal of defendants — Statutory consolidation of corporations— Judgment entry, what constitutes — Effect of proceedings in error — Petition in error, time of filing — Liability for debts of merged companies — Election as to parties and remedy.</p> <p>1. Where two journal entries are shown by a transcript, the first being in form merely a finding in favor of the plaintiff and a fixing of the amount of damages and the second disposing of a motion for a new trial and in its terms a formal judgment entry in all respects except that it does not contain the amount to be recovered, the second entry is the judgment entry from which the filing of the petition in error must date.</p> <p>2. Where the prayer of a petition is for a money judgment only as against one defendant with an. alternative prayer for equitable relief against the other defendants and the defendant against whom a money judgment is sought waives a jury, such defendant cannot thereafter withdraw the waiver of a jury and insist upon a jury trial merely because the court dismisses the other defendants from the case.</p> <p>3. Where the undoubted purpose of a contract between two corporations is to merge the two corporations into one, practically making as complete a merger as an actual statutory consolidation would have done, the new company is liable for the payment of a debt of one of the merged companies, although the contract in some of its terms savors of a sale and does not comply in all respects with the requirements of a statutory consolidation.</p> <p>4. A party is required to elect only when two or more inconsistent remedial rights are given by law upon the same state of facts.</p> <p>5. A review by a proceeding in error of the action of a court in dismissing certain defendants from a case does not. serve to delay or prevent either the continuance of the trial and a judgment against a defendant not dismissed or a review of such judgment by error proceedings.</p>

<p>Deeds — Declaration as to purpose of grant without effect, when — Presumption that whole title passed — Conditions lessening estate conveyed must be strictly construed.</p> <p>The use in a deed of general warranty of the words, “for the use , and sole purpose of the Catholic church and such other erections as may be needed for the use of said Catholic church,” does not constitute a condition subsequent or engraft a limitation upon the title, but at most is a mere suggestion or unenforceable request or desire.</p>

<p>Negligence — Contributory negligence — Master and servant— Workmen’s compensation act■—•Fellow-servant rule — Assumption of risk — Degree of care required of employer.</p> <p>1. While the workmen’s compensation act (102 O. L., 524) takes away the defenses of the fellow-servant rule, contributory negligence and assumption of risk, it does not enlarge the basis for recovery on the grounds of negligence beyond what existed at common law, and the employer is only required to exercise ordinary care under all the circumstances of the case.</p> <p>2. The only test of liability under such act is whether the employer exercised the degree of care that ordinarily prudent persons are accustomed to exercise under the same or similar circumstances.</p> <p>3. Where a petition contains two allegations of negligence but no evidence is offered supporting one of the allegations, it is error to permit both questions to be submitted to the jury.</p>

<p> Landlord and tenant—Abandonment of premises by tenant—Landlord not legally bound to relet. </p> <p>Where a tenant abandons the leased premises the landlord is under no legal obligation to relet such premises, and in an action to recover the rentals accruing after such abandonment the tenant cannot interpose as a defense want of reasonable diligence to re-rent the same.</p>

<p>Negligence — Personal injury — Master and servant—Workmen’s compensation law — Res ipsa loquitur doctrine.</p> <p>1. Prior to the enactment of the Workmen’s Compensation Law the res ipsa loquitur doctrine as a rule did not apply as between master and servant, but with the common-law defenses denied an employer, the employer and employe are placed in the position of strangers to each other, in so far as that rule is concerned.</p> <p>2. The breaking of an elevator rope when bearing a load, which, ■when in proper condition, it would have borne without breaking, is some evidence that the rope had become defective and is sufficient to require the submission of the case to the jury.</p> <p>3. Attempted explanations by the defendant of the breaking of the rope may be found by the jury to be unsatisfactory, and the jury may find for the plaintiff by applying the doctrine of res ipsa loquitur.</p>

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

<p>Reviewing court—Cannot reverse a second time on weight of evidence — Notwithstanding adherence to correctness of its former action — Not error to refuse to give special instructions to the jury, when.</p> <p>1. A reviewing court is without authority to reverse a second time on the weight of the evidence a judgment against the same party and based on the same evidence, notwithstanding the court adheres to its former opinion that the judgment is one which ought to be reversed.</p> <p>2. It is not error for a trial judge to decline to submit to the jury special written propositions of law upon request of counsel after argument to the jury, where, in the court’s general charge, the law necessary for determination of the issues involved has been given in clear, plain and unambiguous language, applicable to the case as made by the proof.</p>

<p>Habeas corpus—Crimmal law — Abrogation of workhouse contract by commissioners — During period of imprisonment of defendant — Power of sheriff to transfer'defendant to workhouse provided by county commissioners — Power of court to modify judgment after expiration of term at which made.</p> <p>1. 'A-court of common pleas has no power or authority to modify its judgment after the term at which it was made has expired, except in a manner pointed out by statute.</p> <p>2. Where a defendant is sentenced by a common pleas court to pay a fine and costs and to stand committed to a certain workhouse until the fine and costs are paid or until he is discharged by due process of law, the subsequent abrogation by the county commissioners of their contract with such workhouse and the notification by the workhouse authorities to the commissioners to remove such defendant, do not authorize the court after the term at which such defendant was sentenced to modify the judgment entry 'by finding the amount of fine and costs not worked out and ordering the defendant committed to another workhouse until such sum shall be paid by the labor of the defendant or until the balance of the fine and costs should be paid by him.</p> <p>3. Under such a state of facts the sheriff of the Ciranty is authorized to transfer the defendant to the workhouse which the county had provided for the incarceration of prisoners sentenced by its courts, regardless of the lack of authority of the common pleas court to modify its judgment.</p>

<p>Taxation — Limitation of levy — Road repair.</p> <p>A levy for the repair of roads under favor .of Section 7419, General Code, when no emergency exists, is controlled by Section 5649-2, General Code, and must be within its limitations.</p>

<p>Taxation—Warnes law—Board of complaints—State tax commission— District assessor, duty of—Correction of erroneous tax return—■Listing and valuation of personal property—■Appeal from action of district assessor.</p> <p>1. Under the act known as the Warnes law (103 O. L., 786) it is the duty of the district assessor to list and value for taxation all personal property subject to taxation in the county constituting his assessment district, and if he finds any statement or return to be erroneous either in the amount of property listed or in the valuation of any item or items to correct such statement or return.</p> <p>2. Under the Warnes law no particular method is pointed out as to how the district assessor arrives at the amount of the property or its value, and no provision is made as to taking evidence by the district assessor in regard thereto, or as to making any record of such evidence. He acts as an assessing officer, and if he assesses property that is not owned by the person against whom it is listed, or if the valuation made by the assessor is in excess of its true value, relief is provided by an appeal to the board of complaints, and from that board to the state tax commission, and an appeal can ultimately be had to the courts.</p>

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

<p>Insurance—Beneficiary — Surrender of policy—■Effect of death of beneficiaries—Beneficiaries interested in policy, who are.</p> <p>A policy of life insurance was issued December 3, 1880, upon the life of L, payable to his wife within ninety days after due notice and satisfactory proof of his death, or in case she should die before the decease of her husband then the amount of said insurance should be payable to their children or their guardian. The wife died December 6, 1913. L and his wife had in all five children. Two died in infancy, one on June 30, 1876, and one on March 31, 1882. One is still living. One died February 24, 1914, without issue, leaving a widow. One died July 11, 1912, leaving three children, one of whom died July 16, 1914, and two of whom are still living. On November 27, 1914, the policy of insurance was cancelled and annulled by the insurance company upon the written release of the insured and his surviving child. Held: That the child surviving at the time of the surrender was the only beneficiary then interested in the policy.</p>

<p>Alimony—Modification of decree after term — Award in gross sum—Real estate.</p> <p>1. While as a general rule the jurisdiction of a court in alimony proceedings is a continuing jurisdiction,' it does not necessarily follow that every decree in alimony may be open to change or modification, and that the court may not by its decree, or the parties by their agreement, when the same has been judicially sanctioned by a decree of the court, completely foreclose any right to a future revision or change thereof.</p> <p>2. When a gross sum is allowed as and for alimony, and full payment thereof has been made, such allowance is generally recognized as a final adjudication of the rights of the parties, and the court’s jurisdiction is .at an end.</p> <p>3. Real estate decreed in fee simple as an allowance in gross for alimony is final in so far as it relates to such property, and the court has no jurisdiction to modify or change such a decree at a subsequent term.</p>

<p>Error—'Verdict —Evidence — Jury fees — Eminent domain—View by jury—Burden of proof — Appropriation of lands—Board of education—'Value of property taken, how established — Effect of receiving amount of judgment — Number of jurors necessary to return verdict.</p> <p>1. In a proceeding for the appropriation of lands brought by a board of education the view had by the jury necessarily cannot be limited to the property itself, but must include its immediate surroundings. The jury is entitled to, and must necessarily see, the land immediately surrounding that which is to be appropriated.</p> <p>2. There is no rule in such a proceeding as to the burden of proof, nor is the property owner required to prove the value of his property by any preponderance of the evidence.</p> <p>8. It is error in suoh a proceeding to refuse to permit the owner of the property to fix its value upon any plan most desirable to secure its sale at the best price available.</p> <p>4. There is no authority in such a proceeding for taxing against the owner of the property a charge for fees of the jury.</p> <p>5. The fact that the property owner receives the amount of a judgment paid into court in no way prevents his insistence upon any rights he may have or interferes with the prosecution of an error proceeding.</p> <p>6. There is no requirement in such a proceeding that all twelve jurors agree and sign the verdict.</p>

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

<p>Master and servant — Illegal employment—.Employers’ liability insurance— Knowledge of non-age of employe — Liability of -insurance company to insured employer.</p> <p>While it is true that it would be necessary to show that .an employer had knowledge of the non-age of an employe, in order to render him guilty of a misdemeanor in such employment, and subject to the fine and imprisonment provided by law, yet such knowledge is not necessary in order to make the employment illegal for the purpose of a suit for personal injuries or under the terms of an indemnity policy referring to illegal employment.</p>

<p>Railroad companies■—Tonnage arrangements — Intrastate traffic — Jurisdiction of state courts ■—• Optional exchange of transportation facilities-—Combination and conspiracy in restraint of trade — Ownership of stock in coal company, and in competing and non-competing railroad companies.</p> <p>1. Where one railway company is a feeder rather than a competitor of another, there is no legal impediment to the right of the latter to hold the stock of the former.</p> <p>2. An agreement providing for the joint control of a railway company by two other railway companies, it being a competitor of one of such companies, and further providing for a tonnage arrangement with reference to shipments arising thereon and for the optional exchange of transportation facilities, is inconsistent with the complete divorcement of competing systems of transportation and is therefore illegal.</p> <p>3. Despite the fact that stocks in coal companies and in a competing railway company have been disposed of by a railway company under the supervision of a United States court and pursuant to a decree of suoh court, the state is entitled to have such dissolution made permanent as to intrastate traffic and to have a supervision over the future conduct of the defendants in respect thereto, the judgment of the United States court not assuming to control intrastate traffic.</p>

<p>Workmen’s compensation —Appeal from industrial commission — Injury inflicted in another state.</p> <p>Under the provisions of the Workmen’s Compensation Law the only right of appeal from the decision of the industrial commission is that conferred by the statute, which provides that the appeal must be filed in the common pleas court of the county wherein the injury was inflicted. Where the injury is inflicted in another state, no appeal is provided and the decision of the industrial commission is final.</p>

<p>Criminal law — Homicide — Indictment for manslaughter — Assault and battery verdict — Negligent operation of automobile — Charge to jury.</p> <p>The isolated fact of death resulting from a collision of automobiles does not determine the verdict upon an indictment charging manslaughter, but the court properly may instruct the jury that conviction may be had for assault and battery as a lesser degree of the offense; especially when the proximate cause of death was not the collision, but, rather, excessive speed and negligent and reckless operation of accused’s automobile caused the collision and injury charged. (State v. Vancak, 90 Ohio St., 211, and State v. Schaeffer 96 Ohio St., 215, distinguished.)</p>