Volume 88 — Ohio State Reports, New Series

May 20, 1911, the probate court of Darke county established and admitted to probate the will of Henry M. Cole, deceased, upon the application of Elmer Cole, John Cole; William Cole and Geo. W. McClure, who alleged that. the. original will had been lost or destroyed.

This is an action to recover damages for the death of Paul Francis Rivoux, alleged to have been caused by the negligence of The White Oak Coal Company.

The plaintiff filed a petition in the court of common pleas of Trumbull county charging the village of Girard with negligence in the care of its sidewalks in the following particulars, to-wit: That on or about the 7th of August, 1909, about the hour of nine o’clock p. m., she was going north on the westerly sidewalk on a street in said village known as State street; that the sidewalk in front of the Stuttler lot was paved with flagstones; that the sidewalk in front of the…

<p>Error to the Circuit Court of Hamilton county.</p> <p>On the 22nd day of January, 1912, George O. Deckebach filed in the superior court of Cincinnati a petition against the plaintiffs in error, averring, among other things, that on the 30th day of April, 1887, he entered into a contract with Herman Goesling, John Zumstein and William Anthony, who then constituted the board of county commissioners of Hamilton county, Fred Raine, auditor, and Frank Ratter man, treasurer, of said county, which contract is as follows:</p> <p>“This agreement made and entered into this thirtieth day of April, A. D. 1887, by and between Herman Goesling, John Zumstein’ and William Anthony, members of the board of county commissioners for Hamilton county,- Ohio; Frederick Raine, auditor, and Frank Ratterman, treasurer, of Hamilton county, Ohio (or a majority of said officers) of the first part, and George O. Deckebach of the city of Cincinnati, Ohio, of the second part.</p> <p>“Witnesseth, that by this contract the party of the second part is hereby employed and appointed by the party of the first part, to diligently search for and discover in a lawful manner, omitted, concealed and unassessed taxable real estate, that has been omitted from the assessment rolls and tax duplicates of Hamilton county, Ohio, and upon which said property the taxes are lawfully due and unpaid. Said party of the second part shall honestly and faithfully report his said discoveries to the county auditor, with such facts and evidence connected therewith that will enable said auditor to lawfully subject said real estate to taxation, and enable the treasurer to collect taxes thereon.</p> <p>“For and in consideration of the above services being done and performed by the party of the second part, as compensation therefor the party of the first part covenant and agree to pay said party of the second part, a sum equal to twenty-five per cent, of the taxes actually recovered by- the treasurer of Hamilton county, Ohio, from the assessment of such omitted real estate and by reason of the discoveries and reports of said party of the second part, provided that said sum of twenty-five per cent, nor any part thereof shall be deemed due and owing until the taxes on such omitted real estate aforésaid has actually been paid into the county treasury. Payments shall be made by the county commissioners upon the certificate of the county treasurer showing the taxes to have been paid into the treasury in compliance with this contract.</p> <p>' “This contract shall continue and be in force for the term of two years from the second day of May, 1887.</p> <p>’ “Witness our hands and seals in duplicate this thirtieth day of April, 1887.”</p> <p>That on or about the 15 th day of February, 1888, plaintiff, acting under this contract and in pursuance thereof, furnished to Fred Raine, auditor of Hamilton county, the facts and evidence necessary to authorize him to subject to taxation certain tracts of land in the city of Cincinnati, owned by Cincinnati but leased to private corporations and individuals and not used for public purposes,- and requested said auditor to charge the same as taxable, which property, prior to this date, had entirely escaped taxation and was omitted from the tax duplicate; that, thereupon, said Raine, auditor, did place said omitted property on the tax duplicate for the years 1881 to 1887, inclusive, charging said property and taxes against the lessees of said property, as in his judgment it was proper so to do, in accordance with the provisions of Section 2733, Revised Statutes; that, thereupon, Said lessees brought an action to restrain the county auditor and county treasurer from the collection of the taxes so charged;’ that, upon the trial of said cause • in the common pleas court of . Hamilton county, the injunction was dissolved and the petition dismissed; that an appeal was taken to the circuit court of that county, and that court entered a perpetual injunction against the auditor and treasurer enjoining the collection of these taxes; that this judgment of the circuit court was affirmed by the supreme court; that plaintiff employed counsel prior to the furnishing of the facts and evidence to the auditor to. examine and determine the question as to the taxability of said property, and also to take part in the preparation of the defense of the auditor and treasurer in the injunction suit in the common pleas, circuit and supreme courts, and furnish the facts and evidence necessary to sustain the contention of the county officials that said property was taxable.</p> <p>That after this case of Zumstein, Treasurer, v. The Consolidated Coal & Mining Company was decided by the supreme court, this plaintiff requested the then auditor of Hamilton county to use the facts and evidence furnished by him during the existence of his contract, and charge said property and taxes against the city of Cincinnati, and continued to urge upon each subsequent auditor so to charge said taxes against the city of Cincinnati, but the same was not done until the 13th day of January, 1905, when Eugene L. Lewis, auditor, at the request of the plaintiff, did charge said omitted property and taxes on the tax duplicate against the city of Cincinnati, using the facts and evidence furnished by plaintiff in 1888 to the then auditor of Hamilton • county; that this property was still under lease, six of the tenants being the same as in 1888; that in every lease made subsequent to February, 1888, except in one instance, the lease, provided for the payment of taxes, if any, by the lessee.</p> <p>That after said property had been so placed on the tax duplicates, the city of Cincinnati brought an action against the auditor and treasurer of Hamilton county to enjoin them from collecting the -same; that such proceedings were had in that cause in the common pleas, circuit and supreme courts- that resulted in a final- judgment refusing injunction and dismissing the city’s petition; that this plaintiff also employed counsel to urge upon the different auditors their right' and duty to charge said property and taxes against the city of Cincinnati, and employed counsel to take part in the preparation of the defense of the injunction suit in all of said courts; that plaintiff furnished the facts and evidence necessary in the hearing of said cases, being the same facts and’ evidence furnished by him to Raine, auditor, in 1888; that afterwards the city of Cincinnati paid to the county treasurer the taxes charged against this omitted property, amounting to $74,369.53; that, notwithstanding the payment of these taxes by the city of Cincinnati, the county auditor, treasurer and commissioners decline to recognize the right of plaintiff to compensation out of the same, in pursuance with the terms of the statute and his contract, and threaten to make distribution of the money paid in as taxes' among the different funds to which these taxes are to be apportioned without paying any part thereof to this plaintiff; that if they are permitted to make such distribution, this plaintiff will be remediless and totally unable to recover compensation due him under his contract.</p> <p>Plaintiff asks for an injunction restraining the county treasurer and auditor from distributing these taxes among the different funds without reserving twenty-five per cent, thereof to pay the compensation of this plaintiff, and that upon final hearing the county treasurer be ordered to certify to the county commissioners that the taxes have been paid into said treasury in compliance with the contract of said plaintiff; that the county commissioners be ordered to allow the claim of plaintiff, and for such other and further relief to which plaintiff may be entitled either in law or equity.-</p> <p>To this petition the defendants filed the following demurrer: First, that the pretended legislation; upon which the plaintiff’s action is based, is in-violation of Section 26 of Article II of the Constitution of the state of Ohio, and is unconstitutional and . void. Second, the petition does not state facts sufficient to constitute a cause of action against these defendants. This demurrer was overruled by the superior court of Cincinnati, and the defendants, not desiring to plead further, judgment was entered against them, as prayed in the petition. The defendants then prosecuted error iri the circuit court of Hámilton county, and that court affirmed the judgment of the superior court. This proceeding in error is now prosecuted in this court to reverse the judgments of both the circuit and superior courts.</p>

<p> Such interpretation of a provision of the constitution—Will be given as will promote the objects of its adoption, when—Amendments Sections 2 and 6 to Article IV of Constitution—Adopted September 3, 1912—Do not revoke jurisdiction of supreme court to review cases—Decided by the circuit court prior to January 1, 1913—In which petition in error was Med in supreme court after that date—Constitutional law—Court procedure. </p> <p>1. Such interpretation will be given to a provision of the constitution as will promote the object of the people in adopting it, when such object is clearly indicated in the context, and to this end narrow and technical definitions of particular words will be disregarded.</p> <p>2. Rights to invoke the jurisdiction of courts of review, which are secured to litigants by valid laws in force during the progress of a litigation, will not be held to have been afterwards revoked by amendment, unless by express language or by provisions from which it must follow by necessary implication that such result was intended.</p> <p>3. The amendments—Sections 2 and 6 to Article IV of the Constitution—adopted September 3, 1912, and which, by the schedule adopted at the same election, went into effect January 1, 1913, do not revoke the jurisdiction of the supreme court to review cases decided by the circuit courts prior to January 1, 1913, in which the petition in error was filed in the supreme court after that date in accordance with the laws in existence at the time of the decision by the circuit court.</p>

In Mandamus. ' The petition alleges the organization and existence of thé relator, the city of Toledo, as a municipal corporation under the laws of the state; that the defendant is its duly qualified and acting auditor; that after November 15, 1912, its council passed an ordinance of which the following is a copy: “An Ordinance, . “Transferring the sum of one thousand dollars from the General Fund, to the Department of Public Service Fund, and transferring the same for the…

<p>Judgment should not be reversed for misconduct of counsel, when— Effect of retraction by counsel—And admonition of court— Court procedure.</p> <p>1. A judgment should not be reversed for such misconduct of counsel for the prevailing party as tends only to discredit the administration of justice without subjecting the claim of the adverse party to prejudicial considerations not involved in the case. For misconduct of that character the trial court is authorized to apply more appropriate correctives.</p> <p>2. A judgment should not be reversed for misconduct of counsel for the prevailing party in alleging facts which no evidence tends to establish if from the nature of the case the retraction of counsel and the admonition of the court, it appears that the natural effect of the misconduct has been averted.</p>

On September 25, 1900, the plaintiff entered suit in the common pleas court of Cuyahoga county against The Akron, Bedford & Cleveland Company, for damage for personal injuries received by him as he was about to enter a pássenger car on the interurban electric railway, then known as The Akron, Bedford & Cleveland line.

Plaintiff filed in the common pleas court of Darke county, Ohio, the following amended petition : “Comes now John F. Maher as the duty elected, qualified and acting prosecuting attorney of Darke county, Ohio, and brings this action as such prosecuting attorney, in the name of the state of Ohio and for the use and benefit of Darke county and its taxpayers, and further says: “That on or about the ninth day of June, A. D. 1906, one Abe Oda entered into a written contract with-…

On.the 8th day of May, 1913, plaintiff in error filed his amended petition in the common pleas court of Hamilton county averring among other things that he is a taxpayer of the city of Cincinnati ; that he 'had made demand on the city solicitor of Cincinnati to bring appropriate proceedings to restrain the sale and issue of bonds of that city in the amount of $125,000, issued in pursuance of the provisions of ordinance No. 201, passed April 15, 1913; that the city solicitor…

This was a proceeding for the specific performance of a written contract for the sale of eighty acres of land in Henry county and certain personal property and rights.

By the judgment under review the circuit court affirmed a judgment of the court of insolvency by which Heekin was released from the custody of the sheriff on a oetition in habeas corpus.

<p> In action for malicious prosecution of attachment case—Malice and ■want of. probable cause—Must be alleged and proven—Action for damages maintainable on statutory bond, when—Section 10254, General Code, requiring bond—Does not affect common • • law right of-action, when. </p> <p>l! A suit for damages for causing an attachment to issue as auxiliary 'to a- civil action for debt is no exception to the general rule that in all actipns at common, law- for. malicious prosecution or for the abuse of the processes of the .court, malice and want of prob- ' able cause must be alleged and proven.</p> <p>2. In such case, in the absence of malice and want of probable caús,e, no action- can be maintained except upon the statutory' bond, if any, given in the attachment proceeding.</p> <p>3. The provision of Section 102S4, General Code, requiring the plaintiff to furnish a bond before a writ of attachment shall issue, conditioned that the plaintiff will pay defendant the damages he may sustain if the order therefor is wrongfully obtained, has no application to and does not affect the common law right of action, but merely furnishes an additional statutory protection to the defendant. -</p>

The American Bonding Company of Baltimore, The United States Fidelity & Guaranty Company and the Fidelity & Casualty Company brought suit in the common pleas court of Cuyahoga county against The Fidelity & Deposit Company of Maryland, the National Surety Company, the Aetna Indemnity Company, The Metropolitan Surety Company, the United Surety Company, the city of Cleveland, The Euclid Avenue- Trust Company, The Cleveland Trust Company and The Assets Realization Company.

The plaintiff held a policy of insurance in The Teutonia Fire Insurance Company for $1,000 upon his interest in a frame building known as Wabash Elevator No. 4, in Toledo. By contract in writing he had purchased the material and lumber in the building from the Wabash Railroad Company for $2,000 and agreed to demolish the building.

On the 21st day of January, 1910, The Louisville & Nashville Railroad Company filed a petition in the court of insolvency of Hamilton county asking that a jury be impaneled to make an inquiry and assessment óf the compensation for an easement sought to be appropriated by it in certain lands situated in the city of Cincinnati dedicated to public use. This land'was dedicated by the original proprietors of the town of Cincinnati.

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

<p>\Section id, Article II, Constitution—Laws providing for tax levies not subject to referendum—Does not apply to act amending Sections 5649-2 and 5Ó49~3b, General Code—Relative to limitation of tax rate and reorganization ■ of budget commissions—Such . enactment not effective for ninety days, when—Constitutional law.</p> <p>An act to amend Sections 5649-2 and 5649-36 and repeal Section 5649-3, General Code, relative to the limitation of a tax rate, passed April 16, 1913, approved May 6, 1913, and filed in the office of the secretary of state May 9, 1913, is not a law providing for tax levies within the meaning of those words, as used . . . in. Section 1 d of Article II of the Constitution, and the same cannot go into effect until ninety days after it was filed in the office of the secretary of state:</p>

.Fouts was' conductor and one Barnes was engineer of the company’s eastbound freight train. •At 1 o’clock on the 3rd day of October, 1908, the train came to a switch, where it was cut in two for the purpose of drawing two cars out of the siding. There were ten or twelve cars in the forward section attached to the engine, and it was drawn forward till the end passed the switch points. The brakeman threw the switch to let the forward section back into the siding.

<p>Error to the Circuit Court of Montgomery county.</p>

The defendant in error filed its petition in the common pleas of Cuyahoga against the plaintiffs in error, the Board of Deputy State Supervisors and Inspectors of Elections for Cuyahoga County, seeking to enjoin them from holding a primary election for the nomination of candidates for the elective municipal offices of the city of Cleveland.

The board of education of the Canton city school district passed a resolution on the first day of April, 1912, entitled “a resolution to provide for the issuance of bonds of the Canton city school district in the city of Canton, Ohio, for the purpose of obtaining and improving school property within that school district.” • This resolution declared, among other things, that these bonds were to be issued under authority of Section 7629, General Code.

Plaintiffs in error, who were plaintiffs in the common pleas court, brought an action against defendant for damages claimed to have been sustained by them by reason of defendant’s unlawful and forcible entry upon their land and for the cutting down, carrying away and manufacturing into lumber and converting to its own use a large amount of timber.

On or about the 15th day of September, 1910, The First National Bank of New Bremen, Ohio, brought suit against the Burnses on three several promissory notes which said Burnses had executed and delivered to one Julius Boesel, on July 10, 1908. Said banking corporation alleged that it had purchased from said Julius Boesel, the payee, certain notes for value and before maturity.

Albert McCoy was indicted by the grand jury at the January term, 1912, of the court of common pleas of Jackson county, Ohio. The indictment contained two counts, shooting with intent to kill and shooting with intent to wound. He was tried at the September term following and found guilty of shooting with intent to wound, as charged in the second count of the indictment. A motion for a new trial was overruled and the defendant sentenced.

<p>Supreme court jurisdiction—To review judgments of cases in lower c our ts~Cases pending in the circuit courts on January I, 1913, subject to appeal, to and review by supreme court, when—All cases pending in the courts of common pleas on January 1, 1913, subject to review only by court of appeals except, when—Limitation of seventy days from date of judgments of court of appeals— For tiling of application for hearing in supreme court except, when—Court procedure—Rules for advancement from lower to upper courts.</p> <p>1. In determining the manner in which the exercise of the authority of this court to review judgments of the court of appeals in “cases of public or great general interest” under the constitutional amendments of 1912 shall be invoked conclusive effect should be given to the following provisions of the fourth article which relate especially to that subject: “In cases of public or great general interest the supreme court may, within such limitation of time as may be prescribed by law, direct any court of appeals to certify its record to the supreme court, and may review, and affirm, modify or reverse the judgment of the court of appeals;” and “All pending cases and proceedings in the circuit courts shall proceed to judgment and be determined by the respective courts of appeals, -and the supreme court, as now provided by law, and cases brought into said court of appeals after the taking effect hereof shall be subject to the provisions hereof.” In order that such effect may be given them, the provision of the final schedule that “all cases pending in the courts on the first day of January, 1913, shall be heard and tried in the same manner and by the same procedure as is now authorized by law” must be regarded as meaning that all cases pending in the several courts of the state shall proceed in such courts according to existing procedure.</p> <p>2. In the procedure prescribed by the provisions of the fourth article all judgments which the court of appeals may render in cases involving questions arising under the constitution of the United States or of this state, in cases of felony (on leave first obtained) and in cases which originated in the court of appeals, ■without regard to the time when the cases may be brought into that court, there may be a review by this court by proceedings in error instituted in accordance with the laws in force January 1, 1913; and the same course may be taken for the review of judgments, of the court of appeals in cases of public or great general interest, if the cases were pending in the circuit court on said first day of January.</p> <p>3. As to cases brought into the court of appeals after said first day of January, a proceeding to obtain a review by this court of a judgment of the court of appeals in a case of public or great general interest, and not within our jurisdiction for any other reason, must be instituted by an application for an order of this court directing the court of appeals to certify its. record in the case to this court, such application to be made by motion showing from the record (a) that the case is of public or great general interest, and (b) that error has probably intervened; notice of such motion to be given in accordance with the general rule.</p> <p>4. No limitation as to the time of making such application having been prescribed by law, a limitation of seventy days from the date of such judgments in cases of public or great general interest as the court of appeals may hereafter render is hereby prescribed, and in cases of that character in which the court of appeals has already rendered final judgment since said first day of January, including the cases in which the motions now under consideration are filed, applications may be made at any time before the first day of January, 1914.</p> <p>5. All proceedings in error instituted here for the review of judgments of the court of appeals in cases not within our jurisdiction, except as they may be cases of public or great general interest, and instituted without obtaining an order of this court to the court of appeals to certify its record, will be dismissed, but without prejudice to the right of the aggrieved party to apply here for such an order in accordance with propositions 3 and 4 of this syllabus. All motions to dismiss proceedings in error instituted here in accordance with the practice prescribed for proceedings in error by the law in force on the first day of January, 1913, in cases which at that date were pending in the circuit court will be overruled.</p>

<p> Municipal corporations—Compensation oy telephone. company—For use of streets—Franchise stipulation for percentage of gross annual receipts—Not an assessment for general revenue, when. </p> <p>1. A municipality has the power to demand and receive from a telephone company, for the privilege of digging ditches and laying and maintaining subsurface conduits for telephone wires under its streets, compensation beyond what is necessary to restore the pavement to its former state of usefulness. (City of Columbus v. The Columbus Gas Co., 76 Ohio St., 309, approved and followed.)</p> <p>2. A stipulation in the ordinance granting the privilege, which requires the company to pay, among other considerations, a certain percentage of its gross annual receipts into the municipal treasury for the use of the general expense fund, to which the company assented, though under protest, is not an assessment for general revenue in the nature of a tax.</p>

Ten days prior to the regular session of the Eightieth General Assembly, a petition duly signed and verified as required by Section 1, Ar-tide II of the Constitution, was filed with the secretary of state, to initiate a proposed law set forth therein, which was entitled thus: “To Prohibit the Shipment, Conveyance or Receiving of Intoxicating Liquors into Territory in which the Sale of Intoxicating Liquors as a Beverage is Prohibited.” This petition was duly transmitted to…

<p>Error to the Circuit Court of Hamilton county.</p> <p>Facts stated in the opinion.</p>

<p> Motions by both plaintiff and defendant for directed verdict—Subsequent motion to submit case to 'jury—Case to be submitted to jury, when. </p>

<p>Error to the Circuit Court of Lorain county.</p>

<p>Error to the Circuit Court of Richland county.</p>

<p> Sufficiency of averments of petition—To rescind contract—No averments of fraud or mistake—Mere claim of insufficiency of consideration—Petition demurrable. </p>

<p> Newspaper account of facts of cause—Published during trial—Does not constitute reversible error—Unless proof establishes that jurors read account—Misconduct of counsel during trial. </p>

<p>Error to Circuit" Court of.Montgomery county.</p>

<p>Error to Circuit Court of Darke County.</p>

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

<p>Error to Circuit Court of Clermont county. Messrs. Kinkead '& Rogers; Messrs. Healy, Ferris & McAvoy and Mr. Lewis Hicks, for pláintiff in error.</p>

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

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

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

<p>Error to Circuit Court o.f Muskingum county.</p>

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

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

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

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

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

<p>Petition for Writ of Habeas Corpus.</p>

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

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

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

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

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

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

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

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

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