Volume 87 — Ohio State Reports, New Series

<p>Punishment of father for failure to support illegitimate child — May be penitentiary imprisonment — Jurisdiction of justice of peace— Section 13008, General Code — Compromise of bastardy proceedings — Section 12114, General Code — Bar to subsequent proceedings, when — Section 12970, General Code.</p> <p>!'. As the punishment provided by Section 13008, General Code of Ohio, for failure by a father to support his illegitimate child may be imprisonment in the penitentiary, this makes such offense a felony, and a justice of the peace therefore has no jurisdiction to try a person accused of violating said section, but is only authorized to conduct a preliminary examination and either discharge the accused or recognize him to appear .before the proper court.</p> <p>2. Where a bastardy proceeding has been compromised under and in full accordance with Section 12114, General Code of Ohio, and all the provisions of the compromise have been complied with and carried out by the defendant, this constitutes a complete bar to a subsequent proceeding against him under either Section 13008 or Section 12970, General Code, for failure to support his same illegitimate child.</p>

<p>Election of judicial oMcers — By separate ballot — Act of general assembly, passed February 17, 1911 — Is valid exercise of legislative power.</p> <p>The act of the general assembly of the state of Ohio passed February 17, 1911 (102 Ohio Laws, 5), entitled: “An act to provide for the election of - judicial officers by separate ballot,” is a valid exercise of legislative power and not repugnant to the constitution of this state.</p>

<p>Citizen of Kentucky• — Indicted in Lawrence county, Ohio — For failure to provide for minor child — Then being in Lawrence county — Accused petitions for habeas corpus — On ground of non-jurisdiction of Ohio court — And without just cause resulting from facts in case — Held, court having jurisdiction in such offense — Will not inquire into innocence or guilt of accused — But may remand accused to custody of arresting court, when.</p> <p>1. A citizen and elector of the state of Kentucky was indicted in Lawrence county, Ohio, for failure to provide for his minor child then being in such county. In a petition filed by him in this court for a writ of habeas corpus he avers that he now is, and always has been, a citizen of the state of Kentucky; that he was married in that state and established a home for himself and his family in the city of Ashland, Kentucky, where he has . ever since resided and where the minor child named in the indictment was born; that without any just cause therefor and without his knowledge or consent and against his wishes and desire his wife abandoned their home taking their minor child with her and came into this state where she has remained and has ever since refused to return or to permit such minor child to return to him, although he has at all times maintained in Kentucky a home for her and said child and has at all times been ready and willing to receive them and provide them with a home, food, shelter and clothing.</p> <p>Held,' that where it appears that such child is receiving its support from the mother, or from any other person at her request, the mere failure and neglect of the defendant to assert his legal right to the custody and control of his minor child does not bring him within the operation of the laws of this state relating to the duties of parents to their minor children.</p> <p>2. Where it appears upon the hearing of a petition for writ of habeas corpus that an affidavit has been filed and indictment returned in a court having jurisdiction charging the petitioner with an offense against the law of this state, the court upon such hearing will not inquire into the guilt or innocence of the accused, but if it appear that the court issuing the capias or order of arrest has jurisdiction of the offense charged it will remand him to the custody of the officer of that court.</p>

Defendant in error recovered judgment in the common pleas of Wayne county. Plaintiff in error filed his petition in error and precipe for summons in the circuit court within four months after the date of the judgment, but no summons in error was issued until several days after the expiration of four months. Defendant in error moved to. dismiss the petition in error, and the circuit court sustained that motion.

Marker brought suit in the court of common pleas to recover from the company on account of personal injuries sustained by him while in its service as a motorman operating a car upon the streets of Dayton.

<p>In action for personal injuries — Not error for court to admit in evidence photograph and diagram, when.</p> <p>1. It is not error for the court, on the trial of a cause, to admit in evidence a photograph which appears to have been accurately taken, and is proven to be a correct representation of the subject in controversy which cannot itself be produced, or of some subject incident to it, and is of such a nature as to throw light upon the disputed point.</p> <p>2. At the trial of an action for personal injuries wherein it becomes pertinent for the plaintiff, in order to make out his case, to prove his ability, prior to the accident which resulted in his injury, to perform certain difficult feats of personal agility and skill, and oral testimony has been given tending to describe such feats, it is not error for the court to admit in evidence pictures or diagrams which are proven to correctly represent the feats and are calculated to enable the jury more clearly to understand and apply the oral evidence.</p>

<p>Petition in error to review a judgment — Is separate and independent proceeding — Right to sue for malicious prosecution accrues, when.</p> <p>1. A petition in error to review a judgment or final order of an inferior court is a separate and independent proceeding.</p> <p>2. The right to sue for malicious prosecution of a civil action accrues upon the rendition in the trial court of a judgment for the defendant in the action complained of, and is barred by the statute of limitations if not brought within one year after such judgment, although a proceeding in error may have intervened.</p>

<p>Motion for leave to file petition in mandamus.</p> <p>Under the provisions of Section 5005, General Code, objections were filed with the deputy state supervisors and inspectors of elections of Franklin county, to certain certificates of nomination and nomination papers. That board being unable to agree, the matter in controversy was submitted, under the provisions of Section 5007, to the secretary of state acting as state supervisor of elections, and his decision not being satisfactory to the relator and those whom he represents, this application for leave to file a petition in mandamus is made to this court.</p>

Motion by defendant to strike petition in error from the files in cause No. 13834 on the general docket. Facts are stated in the opinion.

The defendant in error, Philip Medart, brought suit against The Palace Hotel Company, plaintiff; in error, before a justice of the peace in Cincinnati township, Hamilton county, Ohio, in June, 1909, for damages for the loss of certain personal effects and wearing apparel, which he claimed had been wrongfully taken from his room in the hotel during his absence therefrom in the daytime.

On the 28th day of February, 1911, a petition was presented to the board of county commissioners of Morrow county, praying said board to improve a public road by grading and macadamizing the same.

This was a petition in mandamus brought by Harry C. McCammon, one of the commissioners of Columbiana county, in the circuit court of Stark, against the commissioners of Stark county, and the treasurer and auditor of that county, for a writ requiring them as such officials to provide Stark county’s proportionate share of the necessary funds for the erection of a tuberculosis hospital, to be constructed in a joint district composed of the counties of Columbiana, Mahoning,…

The bank brought suit, February 1, 1909, against the plaintiffs in error, who are husband and wife, to set aside a deed of described real estate from the former to the latter and to subject the same to the satisfaction of a judgment which it had recovered against him in June, 1907, on a note executed by him to it February 18, 1907, as a renewal of a balance due on three notes which he had executed to it in August, September and October, 1906.

On motion by- the defendants in error to require the plaintiffs in error to print the bill of exceptions. Beck et al., trustees of Bethlehem township, Stark county, Ohio, brought suit in the court of common pleas to enjoin the opening of a public road which had been ordered on the petition of Meyer et al., the plaintiffs in error here.

The action below was by the administrator of William Brandon, deceased, against The Steuben-ville & Wheeling Traction Company, to recover for the alleged unlawful killing of the deceased occasioned by a collision between a car of the company and an express wagon in which Brandon was at the time riding, the accident occurring at a street crossing.

This case was begun in the court of common pleas of Franklin county by a petition in mandamus which alleged that the relator was duly appointed chief of police of the city of Columbus on the 27th day of January, 1910; that on the same day he accepted said appointment and was duly qualified as provided by law; that since that time and until the 9th day of September, 1912, he has been the duly qualified and acting chief of police of said city; that on the 9th day of September,…

<p>Indictment against county commissioners — For accepting bribe — Violation of Section 1282s, General Code — Contractors alleged givers of bribe called as witnesses — Authority of Section 12824-1, General Code — Effect of erroneous charge to jury that evidence of illegal agreement — Must be established by other testimony— Than that of contractors• — Question of reasonable doubt of good character of defendants.</p> <p>1. An indictment was found against two county commissioners for accepting a bribe in connection with the award of a contract for 'repairing a bridge, in violation of Section 6900, Revised Statutes (Section 12823, General Code), and the two contractors, who were alleged in the indictment to have given the bribe, and the third commissioner were,called as witnesses by the state and compelled to testify under' authority of Section 12824-1, General Code.</p> <p>Their testimony tended to prove that said award was made under and pursuant to a general - understanding or agreement between the two contractors and the three commissioners with reference to county work, and certain other evidence was offered by the state in corroboration thereof.</p> <p>The court charged the jury that the conspiracy or agreement claimed by the state to exist as above, “must be established beyond a reasonable doubt by other testimony and otherwise than by the testimony” of said two contractors and the third commissioner, before the jury would be warranted in finding the defendants or either of them guilty.</p> <p>Held: That the obvious effect of such charge was to entirely withdraw their testimony from consideration by the jury, whereas the same should have been submitted under proper instructions as to the weight to be given thereto, and the charge was therefore erroneous.</p> <p>2. Evidence of their previous good character was offered by the defendants in the above case, and the court included in its charge a statement that “proof of good character may of itself create a reasonable doubt, where otherwise no such doubt would exist.”</p> <p>Held: That this was erroneous, for the reason that it gave undue prominence and effect to such testimony, and the court should have instructed the Jury to consider the same in connection with all the other evidence in the case, in arriving at a verdict.</p>

On the 1st day of May, 1909, Frank L. Cornell filed his petition in the common pleas court of Franklin county, against Andrew Morrison, seeking to recover two per cent, commission on $80,000, the purchase price of certain real estate sold by Morrison to Julius F. Stone, averring among other things that he had procured a purchaser for Morrison under an agreement with him that he should do so, and that while the commission to be paid him was not specifically agreed upon, the…

The Dorr Street Savings Bank Company, of Toledo, made an assignment to C. F. M. Niles for the benefit of its creditors. Niles filed his account in the probate court of Lucas county, to which exceptions were filed by certain creditors of the bank.

Action was brought in the court of common pleas of Cuyahoga by the plaintiff in error, John Rock, against the defendants in error, The Monarch Building Company and The National Surety Company, to recover upon a certain bond executed November 13, 1905, by the defendants in error to the plaintiff in error in the sum of five thousand dollars, by the Building Company as principal and the Surety Company as surety, given to secure the due performance by the Building Company of the…

Flenry A. Fieback, the defendant in error, commenced this action by a petition in the court of common pleas of Huron county, alleging that the defendant is a railroad corporation operating a railroad from Buffalo to Chicago and passing through the village of Bellevue in the county of Huron, and that on and prior to March 29, 1908, the defendant was using in' connection with the operation of its railroad a yard located in the said village of Bellevue; that on and prior to…

Defendant in error was convicted in the common pleas of Franklin county on an indictment for obtaining property b)^ false pretenses. Held: owned and controlled said one hundred and eighty-six acres of land by virtue of certain leases, and that the said one hundred and eighty-six-acre tract of land was held by said The Moxahala Brick Company under said leases for a term of ninety-nine years; that all of said lands were then and there brick-clay producing lands; that the…

This is a suit in equity to recover the possession or value of eight certificates of $1,000 each of the stock of the defendant company, alleged to have been held in trust for Henrietta C. Vance /by her grandmother, Martha Cooper, at the time of the latter’s death, and thereafter held in the same trust by one L. A. Russell, executor of the will of Martha Cooper, and acting trustee for Henrietta, and pledged by him for money lent to him by the company; and the value of six…

This was an action brought in the common pleas court of Hamilton county by the executor of the estate of Thomas Foster, deceased, for a construction of the will of said Thomas Foster, in respect to the proper distribution of his real and personal property. The testator left surviving him a widow, Mary Foster, but no child or children — never having had any children.

<p>Jurisdiction of subject-matter fixed by law — Jurisdiction of person fixed by consent of parties, etc. — Probate court prosecutions— Under Sections 13195 and 13225, General Code — Information must be filed under Section 13441, General Code — Liquor laws.</p> <p>1. Jurisdiction of the subject-matter is always fixed and determined by law, while jurisdiction of the person may be fixed and determined by consent of parties, failure to timely and properly object, and the like.</p> <p>2. In prosecutions begun in the probate court, under favor of Sections 13195 and 13225, General Code, information must be filed by the prosecuting attorney in accordance with Section 13441, General Code, before the probate court has jurisdiction to try such prosecutions.</p>

Exceptions by the Prosecuting Attorney to the Decision of the Court of Common Pleas of Plamilton county.

This was a proceeding brought in the court of common pleas of Greene county by Charles H. Moon, as administrator with the will annexed of Clara Moon, deceased, praying the direction of the court in regard to the construction of the last will and testament of Clara Moon, deceased.

In Mandamus. The relator appeals to our original jurisdiction for a writ of mandamus requiring the governor to issue to him a commission as judge of the circuit court to which he alleges he had been elected on the 5th day of November, 1912, for the term of six years, beginning- on February 9, 1913, to serve in the sixth judicial circuit of the state.

The defendant in error began this action April 1, 1908, by petition in the short form, upon three promissory notes of date June 3, 1899,… Held: then the plaintiff will be entitled to recover * * * such amount as shall remain due upon the notes, after deducting the value of the land, at the time it was deeded to her by the trustee, less the amount she paid on the tax lien, deducting from such recovery, however, all dividends she received from both bankruptcy proceedings, if…

In Mandamus. The relator, a citizen and taxpayer of the city of Toledo, on January 18, 1913, filed a petition in mandamus in this court to compel the defendant, alleged to be a justice of the peace in Washington township, Lucas county, to issue a warrant for the arrest of the accused named in the affidavit filed with the said justice of the peace.

The plaintiff, Sarah V. Palmer, avers in substance in her petition that the defendant, William H. Humiston, was a physician and .surgeon in the city of Cleveland, county of Cuyahoga, state of Ohio; that she employed the defendant as such physician and surgeon to perform an abdominal operation to reduce a certain abdominal inflammation or remove certain internal organs as might be necessary to bring about the recovery of her health.

These three proceedings in error arise out of the same litigation in the trial court, involve the same transaction, present the same questions, and seek the reversal of the same judgment.

The National Cash Register Company made a written contract with the Noel Construction Company, of Baltimore, on June 16, 1906, to build a new factory, known as Building No. 7, on the premises of the former at Dayton, Ohio. On the 28th day of July, 1906, the Noel Construction Company entered into a written contract with The Expanded Metal Fire-Proofing Company, of Chicago, to construct the reinforced concrete work of said factory building.

<p>On application for leave to file an original petition in Mandamus.</p> <p>Facts are stated in the opinion.</p>

<p>Widow and lineal heirs — May maintain- action under Section 972, General Code — For wrongful death — Caused by non-compliance with Mining Act of April 5, 1910 (101 O. L., 52) — Sections 10770 and 10772, General Code, not applicable, when.</p> <p>1. Under the provisions of Section 972, General Code, the widow and lineal heirs of a person who dies from the result of injuries received by reason of the violation or willful neglect or failure of any owner, lessee or agent of a mine to comply with any of the provisions of the Mining Act, passed April 5, 1910 (101 O. L., 52), are entitled to bring and maintain an action for damages for such wrongful death in their own names.</p> <p>2. The special provisions of Section 972, General Code, obtain in all cases coming under the terms and provisions of said act, and the general provisions found in Section 10770 and Section 10772 do not apply in such cases.</p> <p>3. Where the death of the injured person is immediate, no right of action for the benefit of his estate survives to his personal representatives.</p>

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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