Volume 83 — Ohio State Reports, New Series

On the 29th day of September, 1909, the plaintiffs in error were tried before E. L. Bodey, mayor of the city of Urbana, on an affidavit which charged them with keeping a place in said city where intoxicating liquors were kept for sale.

Leander Jackson, being the owner of certain lands situated in the state of West Virginia, brought an action in the court of- common pleas of Jefferson county, Ohio, against the plaintiff in error.

The defendant in error, Henry Gates, was plaintiff in the court of common pleas and plaintiff in error in the circuit court. His petition was held bad on demurrer and his cause dismissed by the common pleas, which judgment was reversed by the circuit court. The Board of Commissioners brings error, asking a reversal of the judgment of the circuit court and an affirmance of the judgment of the common pleas.

The defendant in error, Charles D. Parkinson, as treasurer of Holmes county, Ohio, filed his petition in the court of common pleas of that county against Emil A. Peter, plaintiff in error herein, alleging that personal taxes to the amount of four thousand eight hundred eighty-three dollars and ninety-five cents stood charged on the tax duplicate of said county against said Emil A. Peter, that said taxes were due and unpaid, and that the defendant, Emil A. Peter, was indebted…

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

<p>Statute may include by inference — Case not originally contemplated, when — Statute making it unlawful to throw stone at railroad car — Includes interurban or traction car — Interpretation of statutes.</p> <p>A statute may include *by inference a case not originally contemplated when it deals with a genus within which a new species is brought. Thus a statute making it unlawful to willfully throw a stone at a railroad car includes an interurban or traction railway car, although such cars were not known or in use at the time the statute was enacted.</p>

I At the April term of the court of common pleas of Fulton county, held in the year 1909, the following charge was made against the defendant in error, to-wit: “The State of Ohio, Fulton county, ss. “Before me, Ed. Scott, clerk of the court of common pleas in and for said county, and in which said county Hon. J. M. Killits, judge of said court is now' sitting, personally came Fred Grandy, who being duly sworn according to law, deposes and says, that on the twenty-fifth day…

On the 25th of January, 1907, Mrs. Ramey recovered a judgment in the court of common pleas against the railroad company in an action upon contract. On the third of May, 1907, the company filed a petition in error in the circuit court for the ' reversal of that judgment.

Plaintiffs in error brought suit in the court of common pleas to recover possession of a strip of ground eight feet in width which it was admitted the trustees of the church had leased to the ancestor in title of the defendants, and they alleged that the lessee’s right of possession had been forfeited because the property had been put to other than residential uses for which alone it has been leased, and that by the terms of. the lease the premises had, in consequence of…

On October 15, 1906, the plaintiff in error, Mrs. Fickel, was indebted to the defendant in error upon a judgment of the probate court of Cuyahoga county in the sum of $1,051.37, which was subsequently reduced by a payment of $200 on October 30, 1906, leaving a balance due to the defendant in error of $851.37, with interest.

On July 21, 1908, the defendant in error herein commenced in the court of common pleas of Wayne an action against The Baltimore & Ohio Railroad Company, plaintiff in error herein, to recover for damages alleged to have been sustained by reason of the obstruction of the channel of a stream known as Apple Creek, by the erection of a bridge over and abutments in the said channel, thus obstructing the natural flow of water and causing it to back up and overflow plaintiff’s…

Arland W. Johnson, the defendant in error, filed his petition in the court of common pleas of Lorain county, Ohio, against the plaintiff in error, H. A. Dykeman, to recover upon an account for services rendered and money expended.

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

At the January term of the court of common pleas of Tuscarawas county, for the year 1909, the grand of the county presented to the court an indictment against plaintiff in error, charging him with having sold to George Kuemerly intoxicating liquors, to-wit, beer, to be used as a beverage. The sale is alleged to have been made in said Tuscarawas county on the 24th day of December, A. D. 1908, which sale was then and there prohibited and unlawful.

The record to be reviewed was made in the court of common pleas to which an appeal had been taken from the probate court, and the record of the circuit court where the former record was reviewed. The proceeding was instituted by the defendant in error who alleges that he is the duly appointed and qualified executor of the estate of James H. Nichols, deceased, but as no will appears in the record we assume that he is the administrator. of the estate of James H. Nichols.

■ Error to the Circuit Court of Champaign county. The .plaintiff in error commenced this action in the court of common pleas of Champaign county to .recover $700 and interest upon a contract for sale and delivery of oats by the defendant. The defendant in error contracted with the plaintiff in error to sell and deliver to it ten thousand bushels of oats, during the month of August, 1907, at thirty-seven cents per bushel.

At the November term, 1909, of the common pleas of Knox, the plaintiff in error, W. M. Hayner, was indicted for a violation of the act providing against the evils resulting from the traffic in intoxicating liquor, passed May 14, 1886, as amended March 28, 1906, and further amended March 12, 1909, the charge being that of soliciting, October 11, 1909, an order for the sale of intoxicating liquor as a beverage in the county of Knox, a county in which the sale of intoxicating…

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

<p>Legacy made under promise of transfer by legatee — Legatee may be declared trustee ex maleficio — Trust may be established by parol evidence — Declarations of testator, etc. — Joint legacy— Promise made by one admissible against all legatees, when— Bequest to members of lodge — Legatees prevented from converting property to own use, when — Action to have trust declared — Not barred in six years — Wills.</p> <p>1. Where a testator is induced to make an apparently absolute legacy, by a promise, express or implied, on the part of the legatee that he will transfer the legacy to another, although no express trust is created and although the legatee at the time of the promise intended no fraud, a court of equity may interfere to prevent a wrong, and declare the legatee a trustee ex maleficio for the protection of the testator’s intended beneficiary.</p> <p>2 A trust in an absolute legacy may be established by parol evidence, and the contemporaneous declarations of the testator, and subsequent declarations of the legatee, that the bequest was made for the benefit of a third person upon the promise of the legatee to hold it in trust, are admissible for that purpose.</p> <p>3. Where such legacy is a joint legacy, the trust may be established as to all of the legatees by proof that the promise was made by one in behalf of all, and the subsequent declarations of either of the legatees are admissible against all.</p> <p>4. Where a testator, desiring to leave his property to his lodge, was advised by his lawyer that he could not do so directly but that he could will it to three members of the lodge in whom he had confidence that they would do with it what he delegated to them to do, namely, to turn it over to the lodge, and he does so bequeath it to the three upon the promise of one made in behalf of all that they will transfer it to the lodge, equity may interfere to prevent the legatees from converting the property to their own use and will declare them trustees ex maleficio.</p> <p>5. An action to have such legatees declared trustees ex maleficio is not an action upon a contract not in writing, either express or implied, and as such barred in six years by the statute of limitations.</p>

<p>Motion for discharge of attachment — May be made before judgment — Although bond given — Affidavit for attachment — Must negative exceptions, when — Cannot be made before attorney as notary public — Levy cannot be upheld by amendment of affidavit —Sections 5562, 5545 and 5521, Revised Statutes.</p> <p>1. A defendant at any time before judgment under Section 5562, Revised Statutes, may move for a discharge of an attachment under which his property has been taken, although he has previously given bond for its discharge under Section 5545, Revised Statutes.</p> <p>2. In an affidavit for attachment under paragraph one of Section 5521, Revised Statutes, it is necessary to negative the exceptions in that paragraph.</p> <p>3. An affidavit in attachment cannot be made before a notary public who is the attorney for one of the parties in the action.</p> <p>4. The levy of an order of attachment, based upon an insufficient affidavit, cannot be upheld by an amendment of the affidavit.</p>

<p>Exceptions to the decision of the Court of Common Pleas of Franklin county.</p> <p>A statement of the case is found in the opinion.</p>

Motion to reinstate. Charles A. Thatcher having been removed from the bar of the state by the order of this court made in June, 1909, now moves for his reinstatement to all the rights ,and privileges of an attorney and counselor at law in all the courts of the state.

On the 16th day of August, 1888, James M. Willis died testate.

<p>Error to the Circuit Court of Cuyahoga county.</p> <p>Nellie A. Gilbert brought suit against Frederick G. Gilbert in the court of common pleas of Cuyahoga county, and in her petition avers, that in June, 1899, the court of common' pleas of Cuyahoga county on her petition against said Frederick G. Gilbert, decreed that said defendant should pay her as alimony, seven ($7.00) dollars a week, and that in February, 1901, in the same case, said defendant was adjudged to pay her as alimony $50.00 per month for and during the natural life of plaintiff, and avers that said order remains in full force and effect as a valid and subsisting judgment; that only $80.00 has been paid on the judgment and that defendant in 1901 left the state of Ohio, and went to South Dakota. She further avers that defendant is not the owner of any property subject to levy, but that 'in 1903 he became the owner of an estate in certain property left by his father. The property is described and the petition prays that same may be ordered sold and proceeds applied in payment of plaintiff’s judgment with interest.</p> <p>To this petition Frederick G. Gilbert, in an amended answer and cross-petition, avers that on April 15, 1899, plaintiff was his wife, and on that day began suit against him for alimony alone; that afterwards the court made a weekly allowance to plaintiff; that in October, 1899,'he left Ohio and went to the state of South Dakota, took up his permanent residence and has ever since resided there.</p> <p>That in February, 1901, the court on default of defendant and in his absence entered an order requiring him to pay plaintiff the sum of $50.00 per month for and during her natural life and gave judgment for costs alone against him.</p> <p>The defendant paid $90.00 for alimony pendente lite and no more. He admits that the property described is held for him, but subject to a prior lien, and admits that the lands exceed in value plaintiff’s claim set forth in the petition and denies all the other allegations of the' petition.</p> <p>Defendant further alleges that in May, 1903, he began an action for-divorce against plaintiff in the seventh judicial circuit court of South Dakota in and for the county of Pennington; that personal service of summons and copy of the complaint in said court was made on Nellie A. Gilbert on May 25, 1903, at Cleveland, Ohio, and due service by publication was also made on her according to the laws of South Dakota; that on October 10, 1903, said- action came on to be heard and this plaintiff voluntarily appeared there in court in person and by her attorneys, and that the court heard the evidence adduced by the parties and on October 17, 1903, made and filed its findings of facts and conclusions of' law; that on said day the court granted him an absolute divorce, and this plaintiff, Nellie A. Gilbert, voluntarily asked for and was allowed permanent alimony to be paid her by this defendant until the further order of the court in the sum of $30.00 per month.</p> <p>That in said cause this plaintiff applied for permanent alimony and submitted to said court the whole question of alimony and presented to said court for its consideration, “in making final decision of the rights of the parties therein on the question of alimony, the orders and doings of-this court as well as all other claims that plaintiff herein had or claimed to have against defendant herein. That by the terms of the decree in said cause the allowance of alimony therein was adjudged to be in lieu of and in full “satisfaction of all other allowance, claims and demands in favor of her against him.”</p> <p>That also on application of this plaintiff he was by said court ordered to pay plaintiff’s attorneys $100.00 for services, which he did.</p> <p>That said decree is in full force and unreversed and that by reason of the premises she is now estopped from asserting any claim on the order on which this action is based. The answer further alleges that said circuit court in and for the county of Pennington, South Dakota, is a court of general jurisdiction with full and complete jurisdiction of the subject-matter and of the persons, parties to said action.</p> <p>The cross-petition prays that the original decree set up in the petition herein be vacated and held for naught.</p> <p>A demurrer filed by plaintiff to this answer and cross-petition was sustained and defendant not desiring to plead further a decree was entered for plaintiff for $6,960.83, and an order to sell the real property.</p> <p>This decree was affirmed by the circuit court, and error is prosecuted to reverse both judgments.</p>

<p>Duty of railroad, company — To equip cars with automatic couplers — Act of March ig, igoó — Company liable to employe — For worn or defective couplers — Employe does not assume risk, when— Liability of employer.</p> <p>1. By virtue of Section two of an act entitled: “An act to promote the safety of employes and travelers upon railroads,” etc., passed by the general assembly of Ohio, March 19, 1906 (98 O. L., 75), it is the positive duty of a railway company to equip cars being used in moving state traffic, “with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the cars,” and the use of such cars without the required equipment is unlawful.</p> <p>2. It 'is the duty of the railway company engaged in moving state traffic to exercise ordinary care to keep the said couplers in working order so as to accomplish the object of said enactment and promote the safety of employes engaged in causing such cars to be coupled’.</p> <p>3. Where an employe of a railway company, whose duty is to cause cars in use by said company in moving state traffic to be coupled, and which cars are not equipped with couplers coupling automatically by impact, as required by said Section two, is killed or injured in attempting to cause said cars to be coupled, the railway company is liable in damages for a violation of said section, and, according to Section seven of said act, the employe is not deemed to have assumed the risk occasioned by the neglect of the company; nor shall he be held to have contributed to his death or injury where the company has violated the provisions of said Section two, which violation contributed to the death or injury of such employe.</p> <p>4. Where a railway company uses cars in moving state traffic, which are equipped with couplers intended, when installed, to couple automatically by impact, but from long use or other cause, they have become defective, worn and have such lateral play that they will not couple automatically by impact, and, to effect the coupling, it became necessary for the employe to go between the cars to assist in making the same, and he is injured while so engaged because of the worn and defective couplers, he may recover for the injury so caused.</p>

Plaintiffs brought suit in the superior court of Cincinnati to recover damages resulting from the failure of the defendant to perform a contract for the carriage of merchandise delivered by the plaintiffs to it for shipment.

The plaintiff in error, as administrator of Katie Kroger, deceased, instituted an action in the court of common pleas of Montgomery against the defendant in error, Michael Ryan, a practicing physician residing in the city of Dayton, to recover for alleged malpractice on the part of the physician while attending said Katie Kroger during confinement, and afterward.

On the 29th day of January, 1907, in consideration of the sum of $27.00, paid to it as premium, the Delaware Insurance Company of Philadelphia, Pa., through its agents, Hough & Reigel, of Greenville, Ohio, issued its policy of insurance, by the written terms of which it agreed to insure J. E. Turner for the term of one year from said date, in the sum of $2,000 on a quantity of leaf tobacco stored in a building located on East Fourth Street, Green-ville, Ohio.

This action was brought by the plaintiff, Mary A. Stackhouse, against George W. Close and The United States Coaster Construction Company to recover damages for injuries alleged to have been sustained by her on May 3, 1906, as the result of the fall of an elevator in a building on Summit street in Toledo, known as the Wonderland Theater owned by the defendant Close.

The plaintiffs in error sued the defendants in error, in the court of common pleas of Cuyahoga county, to recover damages to their real estate situate in the village of Nottingham, which is east of the city of Cleveland, and perhaps a suburb of that city, and for loss of business which the plaintiffs owned and conducted on their premises.

<p>Error to the Circuit Court of .Cuyahoga county.</p> <p>A sufficient statement of the facts will be found in the opinion.</p>

The defendant in error brought'suit in the court of common pleas, June 14, 1904, against Henry O. Norris, as executor of the last will of Jerome Buckingham, and others, alleging that before August 7, 1873, Jerome Buckingham and Virgil H. Wright purchased eight hundred’ and forty acres of coal land in Athens county, Ohio, at $75,962; that said Buckingham and Wright procured from the plaintiff $3,000 which they paid on the purchase money for said land; that thereupon the said…

A suit was commenced April 3, 1909, in the common pleas of Cuyahoga, by the defendants in error, N. S. Calhoun and Will G. Guenther, partners, against the plaintiff in error, W. B. White, to recover upon an account stated. April 28, following, an answer was filed by White taking issue with the averments of the petition.

<p>Error to the Common Pleas Court of Adams county.</p> <p>The facts are stated in the opinion.</p>

In Mandamus. The- relator presented a warrant drawn upon the treasurer by the .auditor of state for the transportation of troops called to Coluinbus and Newark in the months of Jüne, July and August, 1910, on account of .emotional carnivals, commonly called riots, which then occurred in those cities.

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

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

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

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

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

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

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

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

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

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

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

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

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

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