Volume 89 — Ohio State Reports, New Series

<p>Creditor of insolvent corporation — Sues for unpaid stock subscriptions — Pending demurrer, trustee in bankruptcy appointed— Trustee may ■ be substituted as plaintiff — With leave to die amended petition and make new parties — Effect of substitution and amendment — Error to sustain demurrer to original petition, when — Court procedure.</p> <p>1. Where a creditor of an insolvent corporation enters suit in behalf of himself and other creditors against C. and other stockholders, to compel payment into court of unpaid subscriptions to capital stock of the corporation, C. demurs on the ground that plaintiff has not reduced his claim to judgment and exhausted his legal remedies, and, pending the demurrer, a trustee of the insolvent corporation is appointed in bankruptcy. Held-. The court has power in furtherance of justice to substitute the trustee as plaintiff with leave to file an amended petition and bring in another subscriber as a defendant.</p> <p>2. At a subsequent term, the demurrer still pending, the court on motion of C. struck out the former order of substitution as an irregular assumption of jurisdiction. Held: This was error.</p> <p>3. Meantime, between the order of substitution and the order to strike out, the trustee had filed his amended petition and issued summons to the new defendant, who answered. The amended petition of the trustee added matter explanatory of the origin of the indebtedness of C. and new allegations showing the right and title of the trustee to maintain the suit. Held: Neither the substitution of the trustee as plaintiff nor his amendment to the petition changed the cause of action or the nature of the action; the case was then pending upon the amended petition, and the defendant C. was still in court pursuant to the original summons to answer to the cause of action.</p> <p>4. Nevertheless, the court heard and sustained the demurrer to. the original petition and dismissed the cause. Held: This was error, and the judgment of the circuit court overruling the judgment of the common pleas court in striking out its original order and dismissing the cause, must be affirmed.</p>

<p>Action by railway employe for personal injuries — Contributory negligence — Assumption of dangerous position — Directed verdict for company error — Negligence a question for jury, when— Court procedure.</p> <p>A railway yard foreman ordered an employe to work with another servant between two parallel tracks in the railroad yards where freight cars were repaired by the use of a pull-jack and chain, by means of which certain parts of a car were drawn together. The pull-jack had to be attached to the rail of the track opposite to the car, upon which another car was standing, so that it was necessary for the employes to go under the latter car between the trucks, in order to attach the pull-jack to the rail and also to detach it therefrom after the operation.</p> <p>The employe was twenty-one years old and he had never had any experience about railroad tracks or yards, and so informed the foreman when he was employed four days previous to his injury. The foreman exhibited to him the manner of attaching and using the pull-jack, but gave him no instruction as to the position he should take when operating the lever upon the pull-jack, and no warning that the cars might be suddenly jostled and started while he would be at work between them. He had thus worked with the pull-jaclc but two or three hours, and he was crouched down by the side of it between the tracks with one thigh upon the rail to which it was attached, when the car was suddenly bumped by others moving upon the track, and he was pinched under the wheel and injured. Held:</p> <p>(1) The case of The Brie Railroad Co. v. McCormick, 69 Ohio St., 45, does not apply to this state of facts;</p> <p>(2) It was for the jury to decide in the light of all the facts whether it was negligence on the part of the injured employe to sit upon the rail instead of taking a position more to the middle of the space between the tracks. Therefore it was error for the trial court, at the conclusion of the plaintiff’s evidence, to direct a verdict for the defendant company.</p>

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

Exceptions by the Prosecuting Attorney to the Decision of the Court of Common Pleas of Jefferson county. John A. Mansfield was indicted by the grand jury at the December term of the common pleas court of Jefferson county for the violation of the act of the general assembly of Ohio to prevent corrupt practices at elections, passed May 31, 1911, 102 O. L., pages 321 to 331 inclusive.

In Mandamus. The material allegations of the petition are that the relator is a resident of the city of Dayton, having .all the qualifications of an elector; that said city is the only city in Montgomery county, which county under the law is entitled to a board of deputy state supervisors and inspectors of elections; that the Republican party of said county is entitled to two members of said board as its representatives, and that before the first day of May, 1913, one of…

On the 30th of December, 1908, Samuel Dunlap, a resident of Harrison county, Ohio, died leaving a last will and testament whereby Pattison Dunlap was named both as sole legatee and devisee and as executor of the instrument.

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

. The accused was indicted and convicted for administering a drug with the intention of procuring an abortion, in violation of Section 12412, General Code. He administered chloroform to Mrs. Nettie Engler, near the fifth month of her pregnancy, with her consent’ and at her husband’s request, after three examinations of her condition on three different days, and after she told him she had used upon herself an instrument for the purpose of producing abortion.

In Mandamus. In the case firstly entitled the relator alleges that at a primary election held in the city of Cincinnati on September 2, 1913, he was duly nominated by the Democratic party for the office of judge of the. municipal court of Cincinnati.

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

From an agreed statement of facts filed in this court, it appears that the plaintiff in error, Anna Elizabeth Bechtol, is now, and was from the 1st day of February, 1906, until the 16th day of October, 1908, a married woman, living with her husband on the Gambier road, east of the city of Mt. Vernon, Ohio; that defendant in error’s decedent, Margaret Bechtol, for many years prior to her death, which occurred on the 16th day of October, 1908, resided on said Gambier road, in…

Defendant in error, in his petition filed in the common pleas court of Hamilton county, averred that on or about the 9th day of October, 1909, plaintiff in error herein was the'owner of a dog which “he wrongfully and negligently allowed to go at large without being properly secured;” that on said date the dog attacked, bit and wounded defendant in error, by reason whereof he suffered a nervous shock and pain of body, became and continued sick and lame for four weeks and was…

The plaintiff, guardian of Sylvester Fackelmann, a boy who was nine years old in April, 1906, brought suit in the common pleas of Lucas against The Toledo Railways & Light Company to recover for the loss of one leg and half of his other foot by being run over by a Toledo & Western interurban car on Cherry street in Toledo in December, 1906. Plaintiff recovered a judgment in the common pleas.

The defendant in error, James. T. Welsh, recovered a judgment, in the common pleas court of Ma-honing county for damages on account of personal injuries received by him while working as a. yard conductor in the Brier Hill yards at Youngstown, Ohio. This judgment was affirmed by the circuit court, and this proceeding in error is here prosecuted to reverse the judgments of the circuit and common pleas courts.

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

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

In Mandamus. This action in mandamus was commenced in this court by the auditor of state against the auditor and budget commissioners of Hamilton county, asking that a peremptory writ issue against the defendants to compel the placing upon the tax lists ot that county the levy of the one-half of one mill provided for in Section 1 of the act of the general assembly of Ohio, passed April 8, 1913, 103 O. L., 155-158, and the act amending the same passed April 16, 1913, 103 O.…

Defendant in error, Anton Gaier, Jr., filed his petition in the common pleas court of Clark county, in which he asked that partition be made, among the tenants in common, of a parcel of real estate situate at the southeast corner of Florence and Main streets in the city of Springfield, said parcel being approximately one hundred and eighteen feet on Main street, extending southerly about the same width along the east line of Florence street two hundred and fourteen feet,…

This was a proceeding in mandamus. The relators, E. G. Wilson and others, filed their petition in the court of appeals of Cuyahoga.

Original actions were brought in the court of common pleas by the village of New Concord, in one case to charge upon real estate owned by The Simon Linser Brewing Company a fine and costs which had been adjudged against William Porter for unlawfully keeping a place where intoxicating liquors were kept for sale as a beverage in violation of the act providing for local option in counties, the offense having been committed on real property owned by the brewing company; and in…

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

This was a proceeding brought by the plaintiff in error, assignee of Frank J. D’Arcey, against the defendants in error in the common pleas of Knox county.

<p>Will contest — Under Section 12080, General Code, grantee of devisee■ — Necessary party to action, when.</p> <p>Where the devisee of real estate transfers it after the probate of the will by which it was devised, the grantee is an interested person within the meaning of Section 12080, General Code, and is a necessary party to an action subsequently brought to contest the validity of the will.</p>

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

. September 16, 1900, plaintiff instituted an action for damages for personal injuries against The Toledo, Bowling Green & Fremont Railway Company in the common pleas court of Lucas county. May 31, 1901, the service of summons was quashed. A new petition for the same cause of action was filed September 25, 1901. The first action was dismissed without prejudice, but not till January 6, 1902.

- Plaintiff brought an action in the common pleas court of Cuyahoga county against the defendants, Nick J. (Gaspard, George Meier and Catherine Gaspard, and from the petition it appears that plaintiff, on the 10th day of November, 1909, entered into a contract with said defendant, Nick J. Gaspard, to complete the sheet-metal work and gravel roofing on an apartment building for the F. Zimmerman Realty Company in the city of Cleveland for the sum of $436, and that on or about…

<p>Criminal law — Conflict of laws with constitutional amendments— Repeals by implication — Jurisdiction of supreme court — Bills of exceptions by attorney general or prosecuting attorney — Sections 13681 to 13684, General Code.</p> <p>1. Under the general policy of our law as well as the schedule accompanying the new constitution of 1912, all statutes then in force consistent with such new constitution remain in force, and all repugnant statutes are repealed by implication.</p> <p>2. Repeals by implication are not favored, and before a statute is so repealed the repugnancy must be necessary and obvious, and if by any fair course of reasoning the law and constitution can be reconciled the law must stand. (Cass v. Dillon, 2 Ohio St., 608, approved and followed.)</p> <p>3. Sections 13681 to 13684, General Code, are neither inconsistent with nor repugnant to the new constitution, and are thereby preserved in full force and virtue as to felony cases, not as conferring jurisdiction but as prescribing a rule of procedure and practice as to certain appellate jurisdiction now conferred by the new constitution.</p>

Plaintiff in error was indicted by the grand jury of Lucas under Section 12646, General Code, for maintaining a public nuisance.

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

<p>Constitutional law — Itinerant vendor license — Municipal authorities may determine local fee, when — Section 6364, General Code, constitutional.</p> <p>Under the provisions of Section 6364, General Code, in the absence of an ordinance of the municipality providing therefor, the clerk or mayor -of the municipality may determine a reasonable amount to be paid by an itinerant vendor as a local license fee, and the granting of this right to the clerk or mayor is a legal exercise of legislative power and not repugnant to the constitution.</p>

<p>Error to the Circuit Court of Coshocton county.</p> <p>Error to the Circuit Court of Licking county.</p> <p>Facts are stated, in the opinion.</p>

<p>Criminal lazo — Embezzlement of funds by state superintendent of banks — Restoration of funds no defense, when — Use of public funds by public officers a crime, zuhen — Section 12876, General Code.</p> <p>The accused was state superintendent of banks. He took $37,000 of the funds that came into his custody by virtue of his office, to New York city, and used the money there to redeem his collateral securities which he had pledged for his private debt. Some weeks later, before he was called to account for the money and before he was indicted for its unlawful conversion to his own use, he negotiated the securities which he had thus obtained, for money with which he restored to the funds the $37,000 with which he paid his debt in New York. Held:</p> <p>1. This was embezzlement, in violation of Section 12876, General Code.</p> <p>2. The fact that he returned money of equal amount to the trust fund, before his secret appropriation of it became known, was no defense.</p> <p>3. It is the'design and policy of that section and kindred statutes to prevent public officers and agents from using public funds in their possession or under their control, in any manner or for any purpose not expressly authorized by law.</p>

The judgment the reversal of which is here sought was rendered in the circuit court o.f Cuyahoga county on appeal. The case was submitted to that court upon the cross-petition of plaintiff in error, in which it sought to subject the real estate hereinafter mentioned to the satisfaction of certain judgments, the answer of J. C. Logue, trustee, the cross-petitions of H. C. Christy and Mary E. Christy, and an agreed statement of facts.

The action out of which this error proceeding arises was brought in the common pleas court of Cuyahoga county by Cortes Poak against The Variety Iron & Steel Works Company to recover damages for injuries alleged to have been sustained by reason of the negligence of the company. Poalc was in the employ of the company in the capacity of a drill-press operator.

On the 3rd day of August, 1912, Charles I. Link filed a petition in the court of common pleas of Franklin county, Ohio, making the mayor, city auditor, members of the finance committee of the city council, and trustees of the sinking fund of the city of Columbus, defendants, asking a perpetual injunction against these city officers, restraining them and each of them from selling or offering to sell bonds in the sum of $700,000 for the purpose of raising funds to pay the…

In Mandamus. Practically the same subject-matter being involved in the three cases as above entitled, they are considered together. In cause No. 14247 the relator Walton sought to compel the auditor to pay him the quarterly payment due him from the blind-relief fund of Hamilton county, in accordance with the provisions of the statute now included in Sections 2962 to 2970, General Code.

On the 8th day of March, 1906, The Petersburg Fire Brick & Tile Company accepted, in writing, a written proposition of The American Clay Machinery Company to furnish one two-mould dry-press brick machine, one eight-foot dry pan, and one agitating clay feeder, of certain styles and numbers as shown by the catalogue of the machinery company. This contract was approved on the 10th day of March, 1906, by' the secretary and manager of The American Clay Machinery Company.

<p>Evidence — Privileged communications — Physician and patient— Admissibility of testimony as to examination of injuries — Consent by patient — Section 11494, General Code.</p>

Exceptions by the Prosecuting Attorney to ithe Decision of the Court of Common Pleas of Ross county. The defendant, Albert Rose, in September, 1912, was tried under favor of Section 1654, General Code, in the probate court of Ross county upon a charge of contributing to the delinquency of' one Z. S., by having illegal sexual intercourse with her on July 4, 1911. The jury in this case disagreed after considering the case a little over three hours.

The defendant in error, Charles Reineke, was indicted at the January term, 1913, of the court of common pleas of Shelby county, Ohio, under Section 13023, General Code, for the crime of incest with his daughter, H. R., a minor fourteen years of age. Upon trial had he was found guilty as charged. Motion for a new trial was overruled, sentence impose^, and error prosecuted to the court of appeals.

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

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

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

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

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

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

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

<p>Application for writ of habeas corpus.</p>

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

<p>Exceptions by Prosecuting Attorney to Decision of Court of Common Pleas of Guernsey county.</p>

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

<p>Error to Circuit Court, of Wood county.</p>

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

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

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

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

<p>Error to Court of Appeals of Van Wert county.</p>