Volume 8 — Ohio Circuit Decisions

<p>WILLS — COMMON LAW.</p> <p>Revocation of a Wiee by Marriage.</p> <p>The common law rule that marriage alone does not revoke a will of the husband made before marriage is not abrogated in this state by reason of the statute of descent making husband and wife heirs to each other. '</p>

<p>MOB VIOLENCE LAW.</p> <p>1. Section 4 oe act, 92 O. D., 136, Fixes a Minimum Regardless or Injuries.</p> <p>The provisions in sec. 4 of the act, 92 O. L. 136, for the suppression of mob violence, mean that any person who is assaulted by a mob and suffers lynching, which, as defined by said statute, is any act of violence, may recover five hundred dollars regardless of what his injuries are.</p> <p>2. The Difference Between Actual Injuries and Minimum Damages is a Mere Gift.</p> <p>The difference between actual injuries and the prescribed minium, above referred to, is a mere gift to the individual on behalf of the county.</p> <p>■3. Act in Question in Excess or Authority of Legislature and Void under Supreme Court Rulings.</p> <p>Therefore the act in question is, under above rulings, in excess of the power of the legislature, in fixing the minimum amount to be paid, and in taxing the public for private interests, and is void under Board of Education v. State, 51 O. S-, 531 and Telegraph Co. v. Meyer, 28 O. S., 521.</p>

<p>NEW TRIAL.</p> <p>Motion for New Triad — Computation of Time.</p> <p>Sunday is not excluded in computing the three days’ time allowed for filing a motion for a new trial.</p>

<p>SIDEWALK ASSESSMENTS.</p> <p>I, Notice to Abutting Property Owners is Necessary.</p> <p>Notice to abutting property owners is necessary to give a municipality jurisdiction to levy an assessment against such property for either a sidewalk or a street improvement.</p> <p>2. Failure to give such Notice — Effect.</p> <p>Failure to give or to attempt to give such notice is not a mere technical irregularity or defect, and an assessment where there has been such failure therefore is not brought within the provisions of the curative statutes.</p> <p>3. Right to Order, a Re-Assessment.</p> <p>But where the whole assessment is rendered invalid by such failure, there is saved to the municipality the right (if any it has) under sec. 2290, to order a re-assessment.</p>

<p>NEW TRIAL — BILL OF EXCEPTIONS.</p> <p>1. Journal Entry as to Overruling oe a Motion for a New Trial Must Govern.</p> <p>Where it is shown by a journal entry that a motion for a new trial was overruled on a certain day, but the bill of exceptions recites that it was overruled on a different day, the former must govern.</p> <p>2. Time for Allowing a 3ill of Exceptions Begins to Run From Date of Journal Entry.</p> <p>A motion for a new trial was overruled on July 22d, but was entered on the minutes as having been overruled on the preceding June 29th, the laát day of the term at which the trial occurred. A bill of exceptions was allowed and signed on September 9th, forty-nine days after the overruling of the motion: Held, that the fifty days allowed for signing the bill began to run from the date of the entry and not from the date of the overruling of the motion as shown on the bill.</p>

<p>APPEALS — GIFTS—ADVANCEMENTS—EVIDENCE.</p> <p>1. To Establish a Gift by way of Advancement the Evidence must be Clear and Convincing. »</p> <p>Where a decedent, at his death, holds promissory notes and a mortgage executed to him by his daughter and her husband, in order to establish a claim that the money for which such instruments were given was a gift to the daughter by way of advancement or otherwise, the .evidence must be clear and convincing.</p> <p>2. Insufficiency of Evidence to Establish an Advancement, or a Gift inter vivos or causa mortis.</p> <p>Evidence that such money was advanced by the, father to build a home for the daughter, with the intent that interest thereon should be paid to him during his life and that the principal should be the daughters, at his death, is not sufficient to establish an advancement, or a gift inter vivos or causa mortis.</p>

<p>CONTRACTS — AGENCY.</p> <p>1. Acceptance of Deed does not Amount to a Ratification.</p> <p>Where the evidence fails to show that one of the grantees to a deed failed to authorize the other party to act for her as her agent, or that she at any time or in any manner assented to the proposition which the grantor claims to have made for the purchase; the acceptance of the deed and the benefits therefrom by such grantee do not amount to a ratification of the contract, which the grantor claims was made and which the grantees deny.</p> <p>2. Mutuad Mistake in Contract.</p> <p>If the contract which one party honestly and reasonably supposes he is making is essentially different from that which the other party at the same time honestly and reasonably supposes it to be, then there is a mutual mistake, and no-contract legally results, and the proper remedy is not to attempt to enforce the contract, but to have it set aside.</p>

<p>BOARDS OF EDUCATION — CLASSIFICATION OF CITIES.</p> <p>1. Act of March 23, 1898, Providing for the Reorganization of Boards of Education Applies to Toledo.</p> <p>The act passed by tbe legislature, March 23, 1898, entitled, “ An act to provide for tbe reorganization of boards of education in districts of a city of tbe third grade of the first class,” applies to tbe city of Toledo, and the board of elections of said city is justified in placing upon .the ticket the names of the candidates placed in nomination under this act.</p> <p>2. Toledo is a City of the Third Grade, First Class.</p> <p>The city of Toledo is a municipal corporation of the third grade of the first class.</p>

<p>VERDICTS — STREET RAILROADS — NEGLIGENCE.</p> <p>1. The Court wilt. Indulge every Possible Presumption in Favor gif a General Verdict.</p> <p>Where error is prosecuted on account of the trial court having overruled a motion for judgment on the answer to special interrogatories notwithstanding the general verdict, and where the evidence is not before the court of error it will indulge every possible presumption m favor of the general verdict.</p> <p>2. General Verdict must Prevail, When.</p> <p>The general verdict must prevail if reconcilable with, the answers to the special interrogatories upon, any state of facts provable under the issues in the case.</p> <p>3. Evidence not in Variance with Allegations of His Petition.</p> <p>Under an allegation that plaintiff while a passenger on defendant’s street car was violently thrown therefrom and injured because of a collision of the car in which plaintiff was riding with another car, and that such collision was caused by the negligence of defendant’s servants operating such cars, the plaintiff might prove that she was thrown from the car before the actual collision of the cars, or that she jumped from her car to escape the impending peril of a collision about to occur, aud such proof in either case as to the manner in which she was injured would not amount to a material variance.</p> <p>4. Special Finding not Repugnant to the General Verdict.</p> <p>Therefore, a special finding to the effect that plaintiff had left the car before the collision and was not upon it at the moment of the collision, is not irreconcilably repugnant to the general verdict in her favor.</p>

<p>ASSIGNMENT FOR CREDITORS — COURTS-JURISDICTION.</p> <p>1. Nature oe Action in Foreclosure.</p> <p>An action in foreclosure is in'the nature of an action in rent.</p> <p>2. Application oe Sec. 5055, Rev. Stat.</p> <p>Such being the case, sec. 5055, Rev. Stat., applies, and no interest can be acquired by third persons in the subject-matter as against plaintiff’s title.</p> <p>3. Jurisdiction oe the Court oe Insolvency. _</p> <p>_ The jurisdiction of the court of insolvency, while original and exclusive as to all matters pertaining to the settlement of the estate of the assignor, is nevertheless limited to the matters which the assignor is capable of transferring to the court through his assignment; and where the court of common pleas has previously obtained jurisdiction of subject-matter, by the terms of the statute, the assignor has not the power to transfer the jurisdiction to the court of insolvency.</p>

<p>ALIMON Y — INJUNCTION.</p> <p>1. Decree for Alimony Against a Non-Resident who has not been Personally Served is not Enforceable.</p> <p>Where the de'feudant in a divorce proceeding is a non-resident and is not personally served with the process within the state, or has not voluntarily submitted himself to the jurisdiction of the court, a decree awarding alimony has no extra-territorial validity, for, to that extent, it is merely a personal judgment, and the defendant to such decree is entitled to an injunction enjoining the plaintiff in such action from proceeding to subject his property to the payment of such alimony.</p> <p>2. Jurisdiction of a Court to Award Alimony.</p> <p>It does not necessarily follow that because the court has jurisdiction to decree a divorce where no personal service is had upon the defendant, that it has jurisdiction to award alimony. •' ' -</p>

<p>NEGLIGENCE.</p> <p>Violation of Rule of a Railway Creates no Liability unless it is the Proximate cause of the Injury.</p> <p>Violation of, or dispensing with a rule of a railway company, relative to notices and signals when rails are removed in repairing the track, creates no liability on the part of the company unless such violation was the proximate cause of the injury.</p>

<p>PARTITION.</p> <p>Aeeowance fob. Moneys Invested for the Benefit of the Property.</p> <p>Upon the partition of property a court of equity has power to repay, out of the proceeds of sale, moneys invested or expended for the benefit of the property. Such a claim, however, does not stand in the position of a lien upon the property, to be paid with fixed interest, but rather in the nature of an investment, out of which claimant is to have a share of rents and profits, and an allowance with reference to the amount invested and the deterioration of the property or loss by fire.</p>

<p>PUBLIC HIGHWAYS — PARTIES—VACATION.</p> <p>1. Conveyances which are Sufficient to Constitute a Legally Established Highway.</p> <p>A quit-claim deed of a right of way for plank road purposes, with provision that in case of abandonment by the plank road company all rights should revert “to the public,” and the sub-equent conveyance of said right of way by the plank road company to the county commissioners, with the same provision, constitutes, under the laws of Ohio, a legally established public highway, from the date of the conveyance to the commissioners.</p> <p>2. Village or Hamlet Trustees ark Proper Parties in Action to Vacate.</p> <p>The trustees of a village or hamlet, within the limits of which the road in question lies, represent the interests of the public therein, and are proper parties to and have a right to contest an attempt to vacate the same.</p> <p>3. Commissioners have Control only of Improved and Macadamized Road.</p> <p>Section 4906, Rev. Stat., giving county commissioners control of highways, relates to improved and macadamized roads and not to highways of the class above referred to. - .</p> <p>4. Commissioners cannot, by Contract, turn Public Highway over to Private Individual.</p> <p>The commissioners of a county cannot, by contract, executed or otherwise, turn a public highway over to a private individual so as to deprive the public of its use, without proceeding in the form and manner prescribed by statute.</p>

<p>JUDGMENT — SUMMONS.</p> <p>Summons must be Served at beast Three Days Before Time of Appearance.</p> <p>Where service of summons is had less than three days before the day of appearance, the judgment rendered in such action is void.</p>

<p>PARTNERSHIPS — SERVICES.</p> <p>Failure to Form a Partnership.</p> <p>Where A and B agree to form a partnership, and on account of B’s failure tocomply with his part of the contract, such partnership agreement was never consummated : Held, that B could not recover from A for any services rendered during the tnchoate agreement to form a partnership, there being no agreement to pay B for such services and the law will not imply a pro.mise to pay for them.</p>

<p>BILL OF EXCEPTIONS.</p> <p>Triar Judge roses Jurisdiction Overa Birr of Exceptions, When—</p> <p>The trial judge loses jurisdiction over a bill of exceptions which is not presented until forty-five days after the overruling of the motion for a new trial.</p>

<p>MUNICIPAL CORPORATIONS — CONTRACTS.</p> <p>A Virrage is without Power to Enter into a Contract under the Provisions of a new Ordinance, When—</p> <p>A village is without power to enter into a contract under the provisions of a new ordinance until ten days after the final publication of the ordinance.</p>

<p>BILL OF EXCEPTIONS.</p> <p>Bill oe Exceptions Rendered, Invalid When—</p> <p>A bill of exceptions is probably rendered invalid where subsequent to its being signed, sealed and allowed, special charges asked and refused are added thereto and the bill as thus enlarged is not resigned and sealed and allowed.</p>

<p>CONTRACTS.</p> <p>Settlement with an Ignorant Man not to be Avoided Simply because his Attorney was not Present. ■</p> <p>An ignorant man, merely because he has not an attorney when he makes a contract (which in the case at bar, was with a street railway company for injuries) and because he can neither read nor write, no advantage being taken of him in any way, cannot avoid his contract.</p>

<p>SEWER ASSESSMENTS,,</p> <p>Whether a Lot needs Drainage or not, is not Regulated by any Fixed Standard.</p> <p>In determining whether a lot needs drainage or not is largely a question of opinion merely, and not regulated by any fixed standard; and, therefore, a lot is not necessarily exempt from an assessment for the construction of a sewer, on the ground that it does not need drainage or has local drainage.</p>

<p>GUARDIAN’S ACCOUNT.</p> <p>1. When Probate Court cannot Open up Guardian's Account.</p> <p>The probate court has no power after an account rendered by the guardian of an imbecile bas been passed upon in due form, at a subsequent date or year, upon mere motion, suggestion or request, of the heirs of such imbecile, charging neither fraud, mistake nor misconduct, to open up such account, place the matter in statu quo, and impose upon the guardian the duty of going back and again establishing every item of debit contained in his account.</p> <p>2. When Probate Court has .Power to Reform and Correct Guardian’s Account.</p> <p>But any such settlement made by such guardian, at any time within two years after the appointment of another guardian, or after the disability of such ward may be removed, or said ward may die, may be opened and reviewed upon motion of the guardian, or heirs of such ward, and the accounts attacked, upon the showing of good reason therefor, and if it shall appear that any mistake or fraud entered into the settlement, to that extent, and to that extent only, may be reformed and corrected.</p>

<p>DOWER.</p> <p>Wire’s Right or Dower in Lands Mortgaged Prior to her Marriage can only be Defeated by those Claiming through Mortgage.</p> <p>Only those claiming through the mortgage instrument can defeat the wife’s contingent right of dower in lands of the husband, which were mortgaged before her marriage. Therefore, as against a mere judgment creditor, she has a right of dower in the whole premises.</p>

<p>DEFAULT JUDGMENT.</p> <p>Proceeding to set Aside a Default Judgment.</p> <p>Where a party is in default before a justice of the peace and judgment is rendered against him, after which he attempts to appeal the case to the common pleas, but fails, and the appellee under the provisions provided for in sec. 6588, perfects the appeal and a judgment is entered similar to that entered by the justice: Held, that nothing short of a plea in the common pleas at the time the latter court was ashed to enter a similar judgment can avail — that is, a plea setting forth want of jurisdiction, by way of a cross-petition under which affirmative relief may be asked against the judgment, and that not having been done, such judgment as rendered by the justice must stand.</p>

<p>APPEALS.</p> <p>1. Right to Appear.</p> <p>In an action upon a building contract in which plaintiff avers his full performance of it and prays that the balance due thereon be paid him; and the defendant in his answer and cross-petition undertakes to set out an equitable cause of action, but fails to insert all the material allegations that are essential to such cause of action: Held, that if the complaint be of an equitable nature, such defendant may appeal, and obtain further leave to amend and perfect the allegations of his petition in the appellate court.</p> <p>2. Construction oe Statutes Regurati'ng Appears.</p> <p>The right to appeal is given in the broadest sense and the language of the statute cannot be construed to confine this right in cases in which the contention is in whole or in part over the facts of the case, and such right cannot be defeated by the defendant’s setting up in his answer a legal cross-demand and which compels the plaintiff to take issue upon, or be defeated in his action.</p>

<p>Error to the Court of Common Pleas of Lucas county.</p>

<p>AMENDMENTS.</p> <p>Authority to File a Second Amended Petition.</p> <p>Under the provisions of sec. 5114, Rev. Stat., the courts have a right to authorize a second amended petition to be filed, and a motion made by the defendant to strike such petition from the files will be overruled.</p>

<p>JUDGMENT — PLEADING -NEGLIGENCE.</p> <p>1. Plaintiff’s Failure to File a Reply denying Defendant’s Allegations of Contributory Negligence.</p> <p>Where plaintiff recovered a judgment in an action for personal injuries alleged to have been caused by the negligence of defendant and through no fault of plaintiff’s, to which defendant answered, averring that plaintiff was guilty of contributory negligence: Held, that the defendant, after having elected to go to trial without any objection, could not afterwards have such judgment set aside on the ground that plaintiff failed to file a reply denying the allegations of contributory negligence in defendant’s answer.</p> <p>2. The Mere Fact that Plaintiff saw the Defect in the Walk would not Prevent her from Recovering.</p> <p>In an action for injuries caused by a defect in the sidewalk, the mere fact that plaintiff saw the hole or depression in the walk, would not of itself be sufficient to prevent her from recovering, unless she knew, or, by the exercise of reasonable care, might have known that it was dangerous to pass over such walk.</p> <p>S'. 'Evidence Showing that the City had Notice of Defects in its Sidewalks.</p> <p>Evidence that the street commissioner of a city has been notified of defects, existing in a certain sidewalk and which he afterwards corrected, but allowed the cause of such defect to remain) which cause was open and obvious to such, commissioner as well as to others, and which subsequently caused the same detect to reappear: Held, that such evidence was sufficient to warrant the-jury in finding that the city had knowledge of the defective condition of this-sidewalk, and therefore that the city was negligent in maintaining that, and is liable in damages for an injury resulting therefrom.</p>

<p>Appeal from the Court of Common Pleas of Sandusky county.</p>

<p>NEGLIGENCE.</p> <p>Railway Company not Responsible where there is Needless Violation oe its Rules.</p> <p>A railway company is not responsible for accidents which are the immediate result of a needless violation of its rules, as where a brakeman in coupling cars, used his hands instead of a stick, the latter method being required by the rules, and it appearing from the evidence that the coupling could have been easily made with a stick.</p>

<p>PRACTICE — DAMAGES.</p> <p>1. Entry op Filing of Bill of Exceptions not Showing Term Presumed to be Filed as of the Term at which Case was Tried.</p> <p>Thirty days from the close of the January term of common pleas court was allowed, in which to prepare and file a bill of exceptions. The April term of said court began immediately upon the close of the January term and the entry upon the journal of the filing of the bill of exceptions merely gave the date and did not of itself appear to have been made as of the January term: Held, however, that it should be presumed to have been made as of the January ’ term and that the bill of exceptions became part of the record.</p> <p>2. Rule of Damages as to the Sale of Personal Property upon False Representations.</p> <p>In an action for damages for false representations made by the seller in a sale of personal property constituting the furniture and household articles of a boarding house, regarding the amount of income derived from the business, and the renewal of the lease of the premises, the measure of damages is the .difierence between the value of the property thus sold in its situation with the conditions as they in fact then were, and what would have been its value had the representations been true.</p> <p>3. Interest may be Included in Awarding Damages Actions for Tort.</p> <p>Under the authority of Lawrence R. R. Co. v. Cobb, 35 O. S., 94, in awarding damages resulting from a tort interest may be included.</p> <p>4. Circuit Court May Reverse as to one Defendant and Affirm as to the Other.</p> <p>Under the authority of Rongler v. Lilly, 26 O. S., 48, the circuit court is authorized, in actions of this character, to reverse the judgment, upon the weight of the evidence, as to one of the defendants and affirm it as to the other.</p>

<p>VERDICT.</p> <p>Setting aside a Verdict upon the Weight of the Evidence.</p> <p>The probative force of the testimony of a witness is the final resultant of al? his asservations bearing upon the matter in question when considered and analyzed with reference to themselves and to known circumstances and facts; and when an issue of iact is submitted to a jury and the testimony on one side is clear, consistent and in harmony with known and settled facts, and the testimony on the other side, though conflicting therewith, is inconsistant with itself and with known or established facts, the case does not present such conflict of testimony as will prevent a reviewing court from setting aside a verdict manifestly erroneous.</p>

<p>Error to the Court of Common Pleas of Eucas county.</p>

<p>DEATH BY WRONGFUL ACT.</p> <p>Liability of Railroad Company for Causing Death to a Person Wrongfully upon its Track.</p> <p>A railroad company is not liable for causing the death of a person in the circumstances recited in the opinion in this case, which do not show negligence on the part of the defendant, but show negligence on the part of the plaintiff’s intestate contributing to cause his death.</p>

<p>MASTER AND SERVANT — COURTS—PRACTICE-EVIDENCE.</p> <p>1. Exercise oe the Court’s Discretion Regarding Cross-Examination oe Witnesses.</p> <p>Where, during the cross-examination of a witness, the counsel on the other side interrupts such cross-examinations by asking the witness questions which the court allows to be answered: ' Held, that such action on the part of the counsel is irregular, but that it is within the discretion of the trial court to allow such an irregularity to take place, and, therefore, does not constitute error.</p> <p>2. Practice oe Bringing in Witnesses in Rebuttai,.</p> <p>It is not an abuse of the court’s discretion in the trial of a case, to allow one of the parties to bring witnesses in rebuttal to testify to certain matters that were claimed to be properly matters in chief, concerning which such party had examined certain witnesses.</p> <p>3. Form oe Question Put to Expert Witnesses.</p> <p>Where the record in a case shows that the form of the question put to expert witnesses was in general somewhat irregular and a departure from the ordi- . nary and better form. Held, that unless such irregularity in the form resulted in some prejudice fairly appearing upon the record, it will not act to defeat the verdict or the judgment that may be rendered.</p> <p>4. Duty of Master, to ms Workmen. '</p> <p>A master iu the construction of a building is in duty bound to furnish appliances that are reasonably safe, for his workmen to work upon and he is charged with the duty of using ordinary and reasonable care to determine whether such materials are safe or not so, although he may not have known of the defect, still if by the exercise of ordinary and reasonable care he would have known it, he will be charged with notice of a defect that subsequently is shown to exist.</p>

<p>MUNICIPAL CORPORATION — CONTRACTS—BIDS— BONDS.</p> <p>1. Awarding op Contracts without.having Advertised por Bids.</p> <p>Where the Board of Natural Gas Trustees of the city of Toledo enter into contracts with a certain pipe company to furnish a certain amount of gas pipe, the trustees understanding that said pipe was already manufactured and therefore deemed it materials, as distinguished from work and Ipbor, and therefore such pipe was purchased without advertising for bids to furnish the same: •Held% that a contract “for furnishing pipe,” is comprehended by a reasonable construction of the language used in secs. 2419 and 2420, Rev. Stat., and such contract being made without having first advertised for bids, as provided for in the above mentioned sections, is not valid or binding on the city. .</p> <p>2. Issue op Bonds Under Sec, 2701, Rev. Stat.</p> <p>The mere existence of claims against a city for which in some manner it may be made, or is liable, is not a sufficient basis for the lawful issue of bonds under the provisions of sec. 2701, Rev. Stat., as it now stands; but such indebtedness must be such as the city has power to levy a tax to pay, and must be already evidenced by bonds of the corporation, or must be such that, on account of it, the city had power to issue its bonds when such indebtedness was contracted.</p>

<p>LIBEL — DAMAGES.</p> <p>1. Newspapers are Privileged to Publish Proceedings in Court.</p> <p>Newspapers are privileged to publish proceedings in court under the single limitation that what they publish must be a fair, impartial and honest report.</p> <p>2. To Recover Damages eor such Libelous Publication it must be Proved to be both False and Malicious.</p> <p>In a suit for damages for libel in the publication of such proceedings, it is necessary not only to allege but also to prove that the publication was both false and malicious.</p>

<p>APPEAL.</p> <p>In a Case where either Party is Entitled to a Jury, the Case is not Appealable.</p> <p>Where money is sued for, and it is brought into court because of a controversy • as to who is entitled to it, any of the parties in interest is entitled to a trial by a jury, and the case is not appealable.</p>

<p>MORTGAGES.</p> <p>Foreclosure — Effect of Mortgage — Conveyance of Whole Title.</p> <p>A mortgage to T., “ his heirs and assigns forever,” was treated by him subsequent to the death of F. as belonging to the estate of F., of which he had been appointed administrator. A second mortgage, afterward substituted for the first, was made to T., administrator of F., “ his successor and assigns forever,” etc., the word “ heirs ” not being used in connection with the grantee or mortgagee in any of the clauses of conveyance or warranty. At a still later date the mortgagor conveyed the mortgaged property to the present defendant in fee. In a suit to foreclose the second mortgage, the court having found from the evidence that there was a valid consideration.</p> <p>Held: That the mortgage was not simply to T., for his lifetime, or that of a successor in trust, but that it operated as a conveyance of the whole title of the mortgagor to the land mortgaged.</p>

<p>DEBTOR AND CREDITOR.</p> <p>Payment of an Amount less than the Sum Due Sustained as Settlement in Full.</p> <p>Payment by an insolvent debtor, during pendency of proceedings to revive dormant judgment against him, of an amount less than the indebtedness, same being accepted by creditor and release executed, sustained as a settlement in full in the absence of a conclusive showing of fraud or mistake.</p>

<p>INSURANCE — AWARD OF APPRAISERS — EVIDENCE.</p> <p>1. Attack on an Award of Appraisers may be made.in the Suit on a Policy of Insurance. Pleading and Evidence.</p> <p>An award of appraisers, made in pursuance of a condition in a policy of insurance, upon disagreement of the parties, which award assured claims to be invalid on the ground that the appraiser selected by the insurance company was incompetent, interested, prejudiced and biased, need not be attacked in a separate action, to be brought before suit on the policy can be maintained. It may be adjudicated, in such action and wheie the defendant’s answer presents the award as a defense to the suit on the policy, the attack on the award is properly presented in the reply. And the court may allow the proof to follow the order of the issues made by the pleadings but it is not error for the court to require plaintiff, in order to attack the award, to offer his evidence bearing upon that point in connection with his other evidence in making out his case.</p> <p>2. Validity of the Award may be Determined by the Court but Submitting it to Jury not Prejudicial, When—</p> <p>And while the question of the validity of the award might have been determined by the court yet submitting it to the jury could not have been prejudicial to the defendant, and particularly so inasmuch as the court, in passing upon a motion for a new trial, necessarily passed upon that issue.</p> <p>S. Meaning of Provision Relative to Appraisal of Property Damaged by Fire.</p> <p>The provision that competent and disinterested persons shall “estimate and appraise the loss, stating separately sound value and damages,” means that the appraisers are to state separately the sound value and damage to each and every article injured by the fire, not the sound value and the damage to the stock of goods insured.</p> <p>4 Report of Appraisers Invalidated by their Inability to Know or Estimate Value of Property Totally Destroyed.</p> <p>And a report setting forth the damage to the articles in existence, stating a gross sum, and containing a statement that this included the articles totally destroyed by fire, without stating what they were, made without calling for testimony, is invalid for the reason that the appraisers could not, by the process adopted, know the number, character, quality or value of the articles totally destroyed. -</p> <p>B. Statements of Appraisers after Appraisal, too Remote.</p> <p>Statements made by the appraisers during the appraisal are competent, but evidence detailing on the following day what one of the appraisers said that the other appraiser said, is incompetent. It is too remote.</p>

<p>EVIDENCE.</p> <p>1 Conclusions of Witness as to Convenience or. Inconvenience of Doing Certain Work, Incompetent.</p> <p>It is not competent for a witness, having stated exact facts and situations, relative to the manner of doing certain work, (moving, loading and unloading cars) claimed to be dangerous, to state to the jury whether it was convenient or inconvenient or how convenient or inconvenient. This is a fact or conclusion for the jury to determine.</p> <p>2. Testimony Volunteered by Witness Relating to Violation of Written Rule, incompetent when.</p> <p>Where a witness volunteers a statement that certain acts were against the rules of the company and upon further examination it appears that the rule referred to was a written rule, and no violation of such rule is charged in the petition, the testimony becomes incompetent and irrelevant and should be excluded.</p> <p>3. Recalling Plaintiff for Cross-Examination after Plaintiff Rests. Not Error.</p> <p>After plaintiff had rested, defendant offered to read the cross-examination of the plaintiff upon a former trial of the same case. This was objected to by-plaintiff and defendant then asked to have plaintiff recalled for further cross-examination: Held, The court did not err .in permitting plaintiff to be recalled.</p> <p>4. Record Accompanying Second Petition in Error should show Former Reversal.</p> <p>The record accompanying a petition in error in a case which has been reviewed and reversed by an appellate court, and remanded for another trial,should, upon being again presented to the appellate court, show the former proceedings-in the appellate court.</p>

<p>MAYORS.</p> <p>1. Mayor has no Authority to Revoke License Granted by Council.</p> <p>A mayor has no authority to revoke a license (for a concert saloon) granted by city ordinance, upon the mere complaint of a citizen or citizens that the place is disorderly, and to send a policeman there to break up the business. The city, therefore, is not responsible for such unwarranted act of the mayor.</p> <p>2. No Action Lies to Recover License Money — Only Claim is eor Damages.</p> <p>And a petition seeking to recover from a mayor the license money paid, states no cause of action. The plaintiff’s remedy, if he has any, is against the mayor for an unlawful and unwarranted interference with his business.</p> <p>3. Mayor Personally Liable eor Unwarranted Interference.</p> <p>There would be no responsibility for interfering with such business if it was being conducted in an illegal or disorderly manner, justifying interference of the public authorities. But if the mayor, without proper cause, attempted to exercise the authority of a mayor and directed the police authorities to close the business or interfere with the manner of its being conducted, he is responsible, just as any citizen would be responsible for interfering with the conduct of any private business.</p> <p>4. Measure oe Damages is not License Money Paid, but Injury to the Business.</p> <p>The measure of damages in such case would be such damages as the party may have sustained by such unwarranted interference, not for the license money which has been paid into the city treasury.</p>

<p>INSPECTOR OF BUILDINGS.</p> <p>Statute eor Appointment oe Buiebing Inspector Invaeid.</p> <p>Section 2575, subdivision 53, Rev. Stat, providing for the appointment of an inspector of buildings by the mayor of every city of the first grade of the first class is unconstitutional because of a general nature and lacking uniform operation throughout the state.</p>

<p>PRIORITY — JUDGMENT CREDITORS.</p> <p>Equity Against a Dealer is Equally Against a Judgment Creditor Whose Tien is Obtained Subsequently to Prior Creditor Enforcing His Equity.</p> <p>P. bad a decree under a first mortgage and levied by execution upon the personal property. B. had a second lien by mortgage upon the real estate, but had no lien upon the personal property: Held, that as B. had a right to compel P. to first exhaust his levy upon the personal property on which B. had no lien, it is not competent for another creditor to come in and by a subsequent levy upon a subsequent judgment displace such right.</p>

<p>INSOLVENCY — SETOFF.</p> <p>Bank may Offset Deposit by Indebtedness of an Insolvent Debtor.</p> <p>Insolvency of a debtor affords sufficient grounds for the application of the doctrine of equitable setoff. Therefore, a bank having a deposit subject to check may apply and set off that deposit against the indebtedness, though not yet ' due, of an insolvent debtor of the bank.</p>

<p>INJUNCTION.</p> <p>Where there is a Doubt that Property Rights have been Invaded — Injunction Dissolved.</p> <p>Where the facts established do not clearly show that a street railroad in a public highway invades property rights, and there is a doubt that such is the case, an injunction should be dissolved and the party left to such other remedy as he may have.</p>

<p>PLEADING AND PRACTICE.</p> <p>1. Account Piled in Probate Court Showing Distribution is Binding ane Conclusive in another Action.</p> <p>An account filed by an administrator in the probate court, and passed upon, showing distribution of an estate, is conclusive and binding upon the distributees, and, unless avoided by appeal or prosecution of error, is a bar, when filed in another action in another court, to a claim by a distributee, by setoff or otherwise, to the sum which, by said account, he is shown to have received. '</p> <p>2. Burden oe Prooe — Erroneous Statement Cured by the Whole Charge.</p> <p>A statement of the burden of proof which might possibly be erroneous if left to stand alone will not warrant reversal where, in view of the whole charge, the statement could not have misled the jury.</p> <p>3. Duty oe Counsel to Call Court’s Attention to Possible or Evident</p> <p>Omissions.</p> <p>It is the duty of counsel engaged in the trial of a cause, where they see that the court has possibly or evidently, in the charge to the jury, overlooked some matters, to call the court’s attention to the omission.</p> <p>4. 'Omission to Charge not Prejudicial Error unless in Regard to Controlling Issue in the Case.</p> <p>Where there are several distinct issues in the case, an omission to properly direct the jury upon a certain matter, is not prejudicial error unless such omission was in regard to a controlling issue in the case.</p> <p>5. Plea oe no Consideration, Stated in so Many Words, Good, When.</p> <p>A plea of no consideration, if stated in so many words, though not artificially, is good, when no objection is raised until after verdict and judgment.</p>