text:
    UNDESIGNATED PAYMENT BY DEBTOR. ON TWO OBLIGATIONS.
    Circuit Court of Cuyahoga County.
    Francis A. Harvey et al v. Mary B. Shurtleff, Executrix.
    Decided, January 20, 1908.

      Debtor and Creditor — Application of Payments.

    Where the debtor makes a payment to the creditor to whom he owes two obligations, one not yet due and the other past due, without specifying upon which the payment is to be applied, the creditor must apply it to the payment -.of the obligation which is due. '

      Mark A. Copeland, for plaintiff in error.

      Burton c§ Bake and Willimi Howell, contra.
    Henry, J.; Marvin, J., and Winch, J., concur.
   The original action in the court below was a mortgage foreclosure ease brought by one.Ryder against the plaintiffs in error and others. A decree of foreclosure was entered and other issues being reservéd for further trial, the mortgaged premises were sold, resulting in a deficit. With respect to this deficit and upon the issues reserved the case was thereupon resolved into two actions for money only, which were separately dodketed and tried, by consent of parties, and upon judgment being rendered in the second of these separated actions, this petition in error was filed.

The plaintiff in error, Frances A. Harvey, in June, 1902, owned a parcel of land at the corner of Kennard and Portland streets in this city. General Shurtleff, of whose will Mary B. Shurtleff is the executrix, through the firm of Harvey Brothers, sons of the plaintiff in error, then made a loan of $3,000 to the. plaintiffs in error, evidenced by two promissory notes, one for $2,500, bearing interest at six per cent, due five years after date, the other for $500, bearing interest at eight per cent, and due six months after date, each of which was secured by mortgage on this property.

Before the maturity of either of these notes, Mrs. Harvey sold the mortgage premises to Mrs. Malvina Green, now insolvent, who assumed and agreed to pay the said mortgage indebtedness. A few months after this sale General Shurtleff, upon being paid the sum of $1,000 by Mrs. Green, through Harvey Brothers, released certain portions of the mortgaged premises from the lien of the mortgage. The $500 note was then due, but General Shurtleff applied the sum thus paid upon the $2,500 note, which was not due. Afterwards General Shurtleff sold the $2,500 note to said Ryder, plaintiff in the original mortgage foreclosure suit. In that suit General Shurtleff, or the executrix of his will, Mary B. Shurtleff, filed a cross-petition upon the $500 note and mortgage, but no part of that note was paid out of the proceeds of the foreclosure sale, and it is upon the action for personal judgment upon this note that the present proceeding in error arises.

The action by Ryder for a personal judgment against the Harveys for the deficiency resulting from the foreclosure sale resulted in a judgment for the defendants, apparently upon the ground that General Shurtleff had, in consideration of the assumption of the $2,500 note by Malvina Green when she purchased, released the Harveys from their liability as makers thereof. The pleadings and journal entries in the original mortgage foreclosure suit, as well as in the action for personal judgment for the. deficiency due on the $2,500 note, were all. put. in evidence in this case and are included in the bill of exceptions before us.

The defenses to this action interposed by the ITarveys are three in number:

1. That General Shurtleff’s release of this personal liability of the Harveys extended as well to the $500 note as to the $2,500 note.

2. That the release of a portion of the mortgaged premises from the lien of the mortgage, at the instance of Mrs. Green, and on payment by her of $1,000, was made without the consent of the Harveys, and impaired the mortgaged security of the indebtedness by the full amount of the deficiency resulting from the foreclosure sale.

3. That General Shurtleff misapplied the $1,000 thus paid, which if applied according to law and the rights of the Harveys ’ would have extinguished the $500 note.

Upon the first defense it was alleged in the answer of the Harveys that General Shurtleff, being in the habit of lending money to or through them, had entered into a general agreement by the terms of which he had contracted to release them from personal liability on any mortgage notes which they executed to him, whenever they should sell the mortgaged premises to persons, whose responsibility upon an investigation by him, he should approve, in consideration of such purchasers’ assumption of an agreement to pay such mortgaged indebtedness; and that pursuant to this arrangement he had, upon investigation, approved of Mrs. Green’s responsibility, and had released the Harveys from personal liability upon their notes assumed by her and secured by mortgage on the premises which she purchased from them.

Upon the trial the Harveys introduced some evidence tending to show that General Shurtleff had released them from personal liability, but the court charged the jury in substance that it was incumbent upon the Harveys to prove not only a mere verbal release by General Shurtleff but a substantial compliance with the terms of the alleged general agreement between him and the Harvey Brothers so far as the same related to this transaction, and' the court declined to charge, as requested, that if the jury found that General Shurtleff had in fact verbally released the Harveys from their personal liability, in consideration of Mrs. Green’s assumption of the mortgage indebtedness, they should find for the defendants. In this we think the court erred. The material fact was merely whether, a release had actually been given. If so, it was quite immaterial whether all of the matter of inducement alleged by the Harveys in their answer was proved. No matter what General Shurtleff’s general arrangement with the Harveys may have been, if he chose to make a contract of release of their liability in this case, that would suffice to make a perfect defense to this action.'

As to the second defense, we think, upon examination of the evidence contained in the bill of exceptions, that the court was warranted in submitting to the jury, and the jury was warranted in finding, that the Harveys did consent to the release of a portion of the mortgaged premises from the lien of the mortgage, if such consent was necessary under the circumstances of this transaction.

With respect to the third defense, we find the law to be as contended by plaintiff in error namely: when payment is made by a debtor to his creditor, without stipulation as to whether it shall be applied upon a debt that is due or upon a debt that is not due, it becomes the creditor’s duty to apply it upon the former. For it would be contrary to all reason to suppose that one who owes his creditor two debts should be presumed to intend to apply the payment upon one which is not due, leaving the other which is due to be enforced at once. Barbour’s Law of Payments, 138; Stemfor Bank v. Benedict, 15 Conn., 437.

And this is true, despite the fact that in this case it was natural for General Shurtleff to desire to apply the payment .upon the obligation which bore the lower rate of interest and which was without security of the Harveys’ liability as original makers, if we suppose that upon retrial the jury, when properly instructed on the subject of the release of the Harveys’ personal liability upon this $500 note, will find as they did before.

The creditor, as between debts not due, has the option to apply payment as he pleases, if no stipulation in that behalf is made by the debtor, and if no application is made, a court of equity will apply it in an equitable manner. But under the circumstances of this case the creditor had no option. If he had made the proper application of the payment of $1,000 this $500 note would have been extinguished.

■ It is claimed, however, that the Harveys are estopped from asserting that the $500 note was paid, because it was adjudicated in the original foreclosure suit, to which both they and Shurtleff’s executrix were parties; that $500 was owing upon this note and $1,500 on the $2,500 note.

The answer to this contention is that so far as the issues then adjudicated are concerned, this finding was strictly true. The personal liability of the Harveys was an issue which was then expressly reserved, and their contention then was. and still is that no personal liability whatever attached to- them.

We have carefully examined the pleadings which they filed in the original foreclosure suit, and in the. other branch of the case, as afterwards divided, and we fail to find any allegation or admission therein, either that the $1,000 had been paid upon the $2,500 note, or that any part of the $500 note was due from them.

Shurtleff’s executrix has, moreover, failed anywhere to plead that Mrs. Green, in making the payment of $1,000 gave any direction, ■ through the Harveys or otherwise, as to how that payment should be applied, or that the Harveys themselves gave any such direction or are in any way estopped from interposmg this defense. Neither do we discover anything in the evidence which would warrant us in supposing that' General Shurtleff was under any direction or duty to apply said payment otherwise than as the law required for the preservation of the Harveys’ rights in the premises.

At' the close of the plaintiffs’ evidence in the court below a motion to direct a verdict upon this ground of defense was properly interposed, and that motion should have been sustained.

For the errors indicated, the judgment of the court of- common pleas is reversed and cause remanded for a new trial.


source: Caselaw Access Project

license: Public Domain

text:
    AS TO DAMAGES RESULTING FROM'VACATION OF STREET.
    Circuit Court of Cuyahoga County.
    Charles O. Anderson et al v. The City of Cleveland and The N. Y. C. & St. L. Railroad Company.

    Decided, January 20, 1907.

      koads and, Streets — Property Oicner Has No Claim for Compensation ■ for Vacation of Street. 'When.

      A property owner on a street or alley, a portion of which other than that on which he abuts is vacated by the city council, has no right . . .to compensation where, he has reasonable access to his property by other streets and alleys, although the distance he may have ■ to travel in some directions may be greater than before the vaca•tion.

      C. W. Toland and P. H. Kaiser, for plaintiffs in error.

      N. D. Baker and John H. Clarke, contra.
    Henry, J.; Marvin, J., and Winch, J., concur.

       Affirmed without opinion; Anderson v. City of Cleveland, 79 Ohio State, 451

   The parties stand related here as they stood in the court below. Plaintiff owns a parcel of real estate at the southeast corner; of Randon street and the right-of-way of the New York, Chicago & St. Louis Railroad .Company. Detroit avenue a shortdistan.ee north of this property forms with said street and right-of-way a small triangle. .By reason of a separation of the grades of said avenue and said' railroad at their intersection, pursuant to. ah agreement to that end entered into between the said railroad, and. the city of Cleveland, the railroad .track .at this point has been lowered; that part of Landon street between the railroad and Detroit avenue has been vacated, and in lieu of the vacated portion of this street an extension of Landon street has been opened up to .Detroit avenue, south of and parallel with the railroad’s right-of-way. The grade of this extension is upward from a point near plaintiff’s premises to the level of Detroit avenue. The distance to be traveled between plaintiff’s property and the point of former intersection between Landon street and Detroit avenue has thus been increased, but no change has been made in the part of Landon street on which plaintiff’s property abuts. Upon this state of facts plaintiff sued to recover damages sustained by him in consequence of the impaired access to and from his premises. It is not complained that the grade of Landon street extension is impracticable, and any difficulty in travel by the new route instead of by the vacated portion of Landon street may be presumed, except as to the extra distance, to be offset by the elimination of the hazards of the former grade crossing on Landon street.

We think the court below was right in holding that the rule of The Kinnear Mfg. Co. et al v. Beatty, 65 Ohio State, 264; precludes recovery on this state of facts. The second paragraph of the syllabus in that ease is as follows:

“A property owner on a street or alley, a portion of which other than the part on which he abuts, is vacated by the city council, .has no right to enjoin the obstruction of the vacated portion by the owners to whom it reverted, where he has reasonable access to h:s property by other streets and alleys, although the distance he may have to travel in some directions may be greater than before the vacation. To entitle a party to any relief in such cases, the inconvenience he suffers must differ in kind from that of the general public, and not only in degree.”

It is said, however, that the facts in that case were such that the injunction prayed for should have been denied in any event, because they disclosed that plaintiff’s access to her property was not appreciably impaired but was in fact bettered by the changes complained of. But we think the rule as expressed in the syllabus of the case is controlling and that the plaintiff in this case, as in that, is not entitled to any relief, because no legal injury arises in such case, unless the inconvenience suffered is different in kind and not merely in degree from that of the general public.

It is complained of further in this case that the lowering of the grade of the railroad tracks alongside of plaintiff’s property to a depth of less than nine feet has deprived plaintiff of the lateral support naturally appertaining to his land, whereby tbe buildings thereon have been rendered less securé and the ground itself has crumbled away. So far, however, as the mere crumbling of the ground is concerned, tbe plaintiff has in open court here waived this claim.

With reference to the buildings thereon, the excavation being of the depth indicated merely, no right of the plaintiff is thereby invaded. Belden v. Franklin et al, 8th C.C.(N.S.), 159.

The judgment of the court of common pleas is affirmed.


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    INJURY OF EMPLOYEE IN DEFECTIVE MACHINERY.
    Circuit Court of Cuyahoga County.
    James F. Goggin, an Infant, by His Next Friend, John Goggin, v. The Electric Controller & Supply Company.
    Decided, February 3, 1908.

      Master and Servant — -Negligence—Oontnbutory Negligence a Question for Jury, When — Servant May Rely on Assurance Defective Machinery Has Been Repaired.

    1. ' When a workman on a drill press notifies his employer of a- defect ■ in the machinery which allows the drill press to fall when not in use, and quits work until assured by the foreman that the defect has- been removed, and after returning to work is injured by the some,defect; Held,, That, in the absence of contributory negligence, the master is liable.
    2. The question as to whether the employee was guilty of contributory negligence in not observing that the defect still remained and in not swinging the drill clear of the base when not operating it are questions for the jury.

      Hcmilton & Smith, for plaintiff in error.

      Hoyt, Dustin & Kelley, contra.
    Henry, J.; Marvin, J., and Winci-i, J., concur.
   This is a personal injury damage ease between master and servant. The parties stand as they stood below, a verdict for the defendant below having been directed upon motion, at the close' of the plaintiff’s evidence.

The plaintiff although but thirteen years old was an experienced drill-press hand, employed in defendant’s shop. The spindle of the drill press which he operated fell down upon his hand while he was engaged in measuring the depth of a hole which he had just drilled. The spindle was normally held in its proper vertióle position by. a guide or cylinder through which it passed near its lower extremity, and it was kept from falling down by a collar or nut at the upper end of the cylinder clamped tightly around the spindle by means of a screw. On the morning of the accident, this screw had worked loose and the plaintiff had, by direction of his foreman, tightened it. Finally at noon the spindle came down and plaintiff left his work with the request to his foreman that the latter repair the difficulty. This the foreman promised to do, and when plaintiff returned in the evening to his Avork'the foreman advised him that he had done so. After working a short time upon the drill press as thus repaired, the spindle again fell down, inflicting the injury of AAffiich he complains. The defendant urges that the judgment beIoav is correct for three reasons:

First. The drill press was so arranged that the bed might have been swung around to one side while the operator measured the depth of the hole which he had been drilling. This would have.prevented any chance of injury from the turning or falling of the spindle, and plaintiff failed to take this' precaution.

Secondly. It is urged that plaintiff, experienced, as 'he' was and having the collar and screw complained of immediately before his face; should have seen the working loose of the screAv before it had loosened sufficiently to allow the spindle to fall. He had made such observation in the morning, and it is claimed he ought to have seen tile same thing in the evening.

Thirdly. It is claimed that the evidence nowhere discloses that the cause of the spindle’s fall at the time of the accident Avas the defect which plaintiff had .noticed in the morning, and Avhich the defendant’s. foreman had promised and attempted to repair.

We think none of these points are well taken. The question of plaintiff’s contributory negligence in failing, to observe the loosening of the screw and in failing to turn the bed of the drill to one side was for the jury. It can not be s.aid as a matter of fact or as a matter of law that plaintiff was guilty of negligence in either of these particulars, so far as the evidence contained in the bill of exceptions before us discloses.

On the third point at page 6 of the bill of exceptions the plaintiff testified that there was nothing else aside from the nut in question that supported the spindle in the cylinder, and on page 10 he testified, that just after the accident the nut was completely off the spindle. It thus appears, if these statements are true, that the cause of the spindle’s falling at the time he was injured, was the defective condition of the nut or the screw, which was a part of it. It was a defect in this precise place that he had observed and complained of in the morning; it was this defective condition which the foreman had promised to repair and assured plaintiff that he had repaired. The plain inference as it seems to us is that the repairs made were not complete or effectual, but that the same trouble which had twice appeared in the morning recurred again in the evening when plaintiff was injured. This, we hold, made a case for the jury, and it was error under the circumstance to direct a verdict for the defendant. The judgment below is reversed and the cause remanded.


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    ASSAULT ON PASSENGER BY CONDUCTOR AND MOTORMAN.
    Circuit Court of Cuyahoga County.
    Jacob Siegel v. The Cleveland Electric Railway Company.
    Decided, February 3, 1908.

      Master and Servant — Master Liable for Assault Made by Servant While Acting Within Scope of Employment.

      A petition which recites that plaintiff while a passenger on defendant’s car was assaulted by its servants while in the course of their employment states a cause of action.

      C'. W. Noble, for plaintiff in error.

      Squire, Sanders c& Dempsey, contra.
    Henry, J.; Marvin i J.. and Winch, J., concur.
   This proceeding in error is prosecuted to reverse the judgment of the court of common pleas rendered in favor of the defendant in error, upon its objection, sustained, to the introduction of any testimony under the petition of the plaintiff in error, who was plaintiff below. The petition below' alleges that the plaintiff was a passenger in one of the defendant’s cars; that he paid his fare but afterwards discovered that he had given the conductor two tickets instead of one; that he demanded the return of the extra and that the conductor, and later the motorman, whom the conductor called to his assistance, assaulted and beat him while they were in the employ of the defendant in the scope of the employment and in the course of business of their agency.

It is urged that the petition containing substantially these allegations, fails to state a cause of action, because it does not specifically aver that the alleged wrongs complained of occurred while plaintiff still remained a passenger upon the car, and because it alleges no facts directly connecting the assault with the demand made by the plaintiff for the return of the extra ticket, or with the performance of any duty by the conductor or motorman in their respective capacities as employes of the defendant, and because the defendant can not. be held liable for a mere malicious assault by these men, even though they chance to be in thé employ of the defendant. The ease is likened to Railway Company v. Wetmore. 19 O. S.. 110, wherein it was held:

“A master is not responsible for the wrongful act of his servant, unless that act be done in execution of the authority, express or implied, given by the master. Beyond the scope of his employment, the servant is as much a stranger to his master as any third person, and the act of the servant not done in the execution of the service for which he was engaged can not be regarded as the act of the master.”

In that case the plaintiff, after purchasing the ticket, as a passenger applied to the servant of the defendant, charged with the duty of checking baggage, to have his baggage cheeked to his place of destination, and by his importune conduct and abusive language towards the servant provoked a quarrel in which the servant to gratify his personal resentment struck the plaintiff,' and it was held that the wrongful act of the servant in striking the plaintiff could not be regarded as authorized by the master, nor as an act done in the execution of the service for which he was engaged by the master, and the fact that the blow was inflicted by a hatchet furnished by the master to be used for a wholly different purpose in connection with the servant’s business was held to be immaterial as respects the liability of the master. The assault in that ease was perpetrated by the baggage master outside of the enclosure where his business with the public was regularly transacted.

In the ease before us, however, the petition expressly avers that the act complained of was done within the scope of the employment. If this be a conclusion it is at most vulnerable to a motion to require the petition to be made more definite and certain in this behalf. The petition can not be deemed demurrable.

Whatever the facts may prove to be upon the trial of the issue, the allegations of the petition bring the case within the principle of Passenger Railroad Co. v. Young, 21 Ohio St., 518, and The Nelson Business College Co. v. Lloyd, 60 Ohio St., 448.

The judgment of the court of common pleas is reversed and the cause remanded for further proceedings,


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    FALSE REPRESENTATION AS TO REAL OWNERSHIP OF PROPERTY.
    Circuit Court of Cuyahoga County.
    Johnson McFarland v. William Purper and Barbara Purper.
    Decided, February 3, 1908.

      Trusts ancl Trustees — Trust Property Can Not be Taken to Satisfy Debt of Trustee.

    When a husband who holds the record title of real estate belonging to 1 his wife,’ represents to his creditors that he Is' the owner-of the proixerty, but his wife did not know of, or join in, these representations, the husband’s creditors can not subject the property to the payment of his debts.

      Burroivs ¡c& Mason, for plaintiff in error.

      Waller D. Meals, contra.
    Henry, J.; Marvin, J., and Wjnch,. J., concur,
   ■The question presented by this special appeal is whether the plaiiitiff having extended credit to- William Purper, one of the defendants, on the faith of the latter’s record title to certain real estate, which the latter in fact held in trust for his wife, may resort to the property for the payment of-his qlaiin,. the same having been reduced to judgment and having-been-a lien-upon said land, if a, judgment lien «an attach under, such circumstances.-

Purper’s wife acquired the property in an amicable settlemént of her parents’ estates by cross-deeds among, the heirs, hut caused or permitted the conveyance, of her share to be taken .in her husband’s name. The -property has since from time to time been encumbered by mortgage, but we find nothing in these transactions to vary the interest and right of the wife as cestui que trust. ' She paid no particular attention to the state of the legal tffle as between herself and her husband, but her joinder in mortgages and her possession of tax' receipts affected her with notice of and acquiescence in her husband’s custody of the title. He made representations to the plaintiff that he was the owner of the property, but there is no evidence that these representations were known to the wife, or that she by any affirmative conduct induced the plaintiff to extend credit to her husband.

On this state of facts the rule is as expressed in the first paragraph of the syllabus in Wright et al v. Franklin Bank et al, 59 Ohio State, 80, that lands held in trust can not be sold on execution for the payment of the debts of the trustee, and judgments against such trustee are not liens upon such lands.

See also: Manley v. Hunt, 1 Ohio, 267; Minns v. Morse, 15 Ohio, 569; Butler v. Brown, 5 O. S., 211; Lefferson v. Dallas, 20 O. S., 68; Churchill v. Little, 23 O. S., 308; Mannix v. Pursell, 46 O. S., 102.

The petition is therefore dismissed.


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    FAILURE TO ENDORSE ON POLICY CHANGE OF BENEFICIARY.
    Circuit Court of Cuyahoga County.
    Anna Herold v. The Pacific Mutual Life Insurance Company of California et al.
    Decided, February 3, 1908.

      Life Insurance — Change of Beneficiary — When Effective, Without Endorsement of Company.

    1. Where a policy holder had sent his policy to- the insurance company, requesting their endorsement upon it approving a change of beneficiary, but no such endorsement had been made at the death of the insured; Held: Equity will treat that as done which should have been done and give effect to the change.
    2. Where an injunction 'has been issued restraining the change of beneficiaries of an insurance policy, no change will be effective until said injunction is dissolved.

      J. A. Fogle, for plaintiff in error.

      Dorr & Lowenthal and F. E. Brurnl, contra.
    Henry, J.; Marvin, J., and Winch, J., concur.
   • ■ The action below was an equitable interpleader by the defendant company to determine the lawful beneficiary of a policy of life insurance as between two rival claimants, namely, Antonia ITerold, mother of the insured, in trust for his two children, and the plaintiff, Anna ITerold, his wife. The amount due upon the policy was paid into court and the contest is now solely between these rival claimants.

The facts having been pretty fully set forth in the pleadings, each claimant moved for judgment; the motion of the widow was denied, and that of the mother, as trustee, was granted. The dispute arises because of an attempted change of beneficiary made by the insured just before the death of Herold, whereby he sought to substitute his mother as trustee, as aforesaid, in place of his wife. To consummate this change, in .accordance with the provisions of the policy, an endorsement thereon by the insurance company was necessary. The insured died pending the correspondence between him and the insurance company with respect to this change, and the endorsement was never made.

The petition in error complains that the judgment in favor of the mother, as trustee, ivas erroneously rendered, and prayed that this judgment may be reversed and judgment entered upon the pleadings for the plaintiff in error.

In support of her contention the plaintiff in error alleges four grounds:

1. That no change of the original beneficiary so long as she survived was, possible under the terms of the policy; and this point we may say, in passing, appears not to be the time construction of that instrument.

2. No change of beneficiary was effected for lack of the necessary endorsement thereof upon the policy, as aforesaid; and on this point also we remark in passing, that equity in such cases will treat as done that which ought to have been done, and unless there be some other impediment in this behalf to the granting of the relief prayed for, the mere fact that the insurance company failed to do what the circumstances required it to do, when proper application in accordance with the policy was made, will not suffice to defeat the change of beneficiary, notwithstanding the intervening death of the insured. Cooley’s Briefs on Insurance, page 3756.

3. The third ground urged is that the change of beneficiary applied for imposed upon the insurance company by the new and additional burden of seeing to the proper performance of the trust thereby sought to be created in behalf of the insured’s children, and such change may not be consummated either in law or in equity without the consent of the insurance company, which in this case was withheld. But on this point we hold that the trust sought to be created was not of the character which imposes a duty to see to the ultimate application of the trust fund, and the insurance company by having paid this money into court, is acquitted of any further responsibility to the cestui que trust (represented herein by the guardian ad Mem) even though the fund should be awarded and paid herein to the trustee for their benefit.

■I. The fourth ground arises upon the alleged fact that the insured at the time he sought to make the change of beneficiary did so in violation of a subsisting injunction in an action then pending between him and his wife. This allegation in the answer and cross-petition of the plaintiff in error is denied in the reply of the adverse claimant, and therefore, if the point is meritorious, no judgment on the pleadings should have been rendered.

The point made is, that inasmuch as it requires affirmative relief in equity to enable Antonia Herold, trustee, to recover as the substituted beneficiary under the policy with respect to which the attempted change of beneficiary had not been fully consummated in contemplation of law, such affirmative relief of equity will be denied when such change could not have been attempted or consummated without violation of a subsisting order of a court of equity forbidding the doing of that very thing. This point we hold to be well taken, and the judgment of the court of common pleas is accordingly revei-sed and the cause remanded for trial of this issue.


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    TIME WITHIN WHICH TO FILE PETITION IN ERROR.
    Circuit Court of Cuyahoga County.
    In Re Estate of Aaron Bloch, Deceased.
    Decided, February 17, 1908.

      Appeal and Error — When Petition in Error Must he Filed.

    A petition in error must be filed within four months of the rendition of judgment, and not from the date of the' entry of the judgment upon the journal.

      Collision & Hallo, for plaintiff,

      Kline, Tolies <0 Goff, contra.
    Henry, J.; Marvin, J., and Winch, J., concur.
   The petition in error filed herein October 7, 1907, must be dismissed for want of .jurisdiction, because it was filedunóre than four months after the rendition, May 24, 1907, of the judgment sought to be reversed. It is not material under the circumstances disclosed bjr the transcript that the journal entry of judgment is dated June 14, 1907, which is less than four months before the filing of the petition in error. The exact language of the transcript is as follows:

“June 14, 1907. To court.
‘ ‘ This cause came on to be heard on the 24th day of May, 1907, * # »::= ?11 consideration whereof the court said 24th day of May, 1907, do find,” etc.

The case of The Eldrige & Higgins Co. v. Barrere, 74 Ohio St., 389, must be distinguished, for there the journal entry asserted in one place that the cause came on to be heard November 4, 1904, and in another place, that it was decided October 24, 1904, a plain contradiction, which would prevent the judgment thereby evidenced from becoming operative to the prejudice of the defeated party in respect of his right to invoke a revieiv of said judgment at any time before the expiration of the statutory period when reckoned from the later date.

True, there is much said in the opinion of the court, as well as in Coe v. Erb et al, 50 Ohio State, 263, to the effect that a judgment becomes operative only after the date of its actual entry upon the journal; and while this is undoubtedly true on the facts of those cases, the rule is by no means universal, nor do the syllabi of those eases seek to make it so.

This court was long ago committed to the proposition that “In the nature of things a judgment must be rendered before it can be entered.” State, ex rel Best, v. Meacham, Clerk, 6 C. C., 31, 34. The journal entry in this case plainly and consistently distinguishes between the date of rendition and date of entry of the judgment complained of.

The statute requires a bill of exceptions to be filed within four months after the rendition of judgment.

The defeated party below was not misled, because his motion for a new trial was filed May 25; 1907, the day following the rendition of the judgment, and twenty days before the entry thereof, nor was there any opportunity for such misunderstanding as sometimes results where the overruling of the motion for new trial and the entry of final judgment are contemporaneous. The entry of judgment here was June 14, 1907, whereas the motion for a new trial was overruled five days later, to-wit, June 19, 1907. There was nothing, therefore, by which the defeated party could have been misled.

Petition in error dismissed.


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    MONEY OBTAINED BY FALSE PRETENSES.
    Circuit Court of Cuyahoga County.
    J. H. Matchett v. Emma F. Allen.
    Decided, June 14, 1909.

      Bankruptcy — Claim for Money Obtained Under False Pretenses' Not Discharged.

    Under the 1903 amendment of the national bankruptcy act, claims for money obtained under false pretenses are not discharged by an adjudication in bankruptcy.

      J. G. Heald, for plaintiff in error.

      Noah S. Good, contra.
    Winch, J.; Henry, J., and Marvin, J., concur.
   Allen sued Matchett to recover money obtained of her by false pretenses. The false pretenses consisted in representing that he had money in the bank to meet a check which he induced Allen to cash for him, when, in fact, he had no funds. Matchett pleaded his discharge in bankruptcy, and actual knowledge of the pendency of the bankruptcy proceedings on the part of Allen, though the debt was not scheduled. Allen met this defense with the suggestion that the bankruptcy act does not discharge claims for money obtained under false pretenses. Matchett then'suggested that the false pretenses must be in writing.

Upon submission of the controversy to a jury, it found for Allen. This verdict was right, for Matchett’s claims are not maintainable under the 1903 amendment of the bankruptcy act.

The leading work on this subject, Remington on Bmlerupicy, Sections 2746, 2747 and 2751, read as follows:

"2746. Liabilities for obtaining property by false pretenses or false representations, are excepted from the .operation of discharge.
"This exception was added by the amendment of 1903, and took the place of the former provision that read: ‘Judgments for fraud or for obtaining property by false pretenses or false representations. ’
“2747. Not all classes of fraud come under this section (although other frauds are excepted by a later provision if committed as an officer or in a fiduciary capacity) but only such frauds as are embraced within the term ‘obtaining property by false pretenses or false representations.’ The term is more restricted in respect to the classes of fraud embraced within its exceptions than was the law before the amendment of 1903, although broader in the other respect that judgment is not a prerequisite.
“2751. The false representations need not necessarily have been made in writing in order to except the debt from the dis charge.
“Obiter, Katzenstein v. lieid, 16 A. B. R., 746 (Ct. App. Tex.) : ‘There is no requirement in amended Section 17 as to manner in which the. false pretenses or false representations shall be conveyed to the defrauded party, and we do not believe that the national Legislature intended that a requirement that such i re-tenses or representations should be in writing should be read from Section 14 into Section 17. In the first section it is provided that the bankrupt shall not be discharged if he has obtained property on credit upon a materially false statement in writing made to the person defrauded for the purpose of obtaining such property on credit; but in Section 17 it provides that such discharge will not release the bankrupt from liabilities for obtaining property under false pretenses. The two provisions are not antagonistic, and there is no warrant for reading one into the other.”

We find no errors in the record and the judgment is affirmed.


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    HORSE INJURED BY FALLING OVER PILE OF BRICK IN STREET.
    Circuit Court of Cuyahoga County.
    C. S. Horner v. John M. Spence et al.
    Decided, June 14, 1909.

      Municipal Corporation- — Nuisance in Street — Notice Necessary.

    A municipal corporation is not liable for damages resulting from collision with a pile of bricks negligently left in the street where there is no evidence to show that the city had either actual or constructive knowledge that the bricks were in the street.

      Wm. II. Miller, for plaintiff in error.

      N. D. Baker and Frank, B. Btevens, contra.
    Winci-i, J.; Henry, J., and Marvin, J., concur.
   Horner sued Spence Brothers and the city of Cleveland for damages sustained to his horse and cutter by reason of running onto a small pile of bricks in the street covered up by snow so that he did not see it. Spence Brothers were dismissed out of the suit, and, upon submision of plaintiff’s evidence as to the liability of the city, the trial court directed a verdict in its favor, on the ground that the plaintiff had failed to show Avho left the bricks in the street or that they had been there for any length of time before the accident.

There being nothing in the case to show that the city had actual or constructive notice of this nuisance in the street, the order of the trial judge was clearly right.

See cases cited in the Encyclopedia Digest of Ohio Reports, under the title “Streets and Highways,” subheading, “Liability for Defective or Unsafe Streets and Highways, Notice of Defects,” Yol. 13, page 392.

Judgment affirmed.


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    DIVORCE UNDER CONSTRUCTIVE SERVICE.
    Circuit Court of Cuyahoga County.
    Celia Epstein v. Abraham Epstein.
    Decided, June 14, 1909.

      JHvorce — Service by Publication — Section 5355, Revised Statutes, Does ' Not Apply.

    Section 5355, Revised Statutes, which provides for the opening up of judgments obtained on constructive service does not apply to divorce decrees.','
    Winch, J.; Henry, J., and Marvin, J., concur.
   • This is a proceeding in error to review a judgment of the common pleas court refusing to set aside a decree of divorce, alleged to have been obtained through fraud and perjury, and without proper service.upon the defendant in the original action.

' As to service, it seems that the defendant was living in New York City, notice of the pendency of the action was properly published and the clerk mailed a copy of the newspaper containing the notice to the defendant at her proper address, postage prepaid.

The requirement of Section 5693, Revised Statutes, that when the residence of the defendant is known a summons and a copy of the petition shall be deposited in the post office, directed to the defendant at her place of residence, was not complied with.

It is said that the plaintiff in error was entitled to the relief she prayed for under favor of Section 5355, Revised Statutes, which reads as follows:

“A party against whom a judgment or order has been rendered, without other service than by publication in a newspaper, may, at any time within five years after the date of the judgment or order, have the same opened, and be let in to defend; but before the judgment or order can be opened, the applicant shall give notice to the adverse party of his intention to make the application and shall file a full answer to the petition, pay all costs, if the court require them to be paid, and make it appear, to the satisfaction of the court, that during the pendency of the action he had no actual notice thereof in time to appear in court and make his defense; and each party may present affidavits. ’ ’

The application of this section to divorce cases is expressly held by the Circuit Court of the Fifth Circuit in the case of Mulligan v. Mulligan, 11 C.C.(N.S.), 585, but this court held the contrary in the case of Solomon v. Solomon, 4 C.C.(N.S.), 321, and we are not disposed to change our ruling, until the Supreme Court establishes a contrary doctrine and itself overrules the case of Parish v. Parish, 9 O. S., 534.

Even if Section 5355 is applicable to divorce cases, plaintiff' in error did not comply with it, and so the common pleas court committed no error in denying her application. She failed to file a full answer to the petition and from her own testimony, which we find in the bill of exceptions, full of contradictions and exhibiting an utter disregard for truthfulness, and the admonitions of conscience, the court might well have found that she had actual knowledge of the pendency of the divorce case in time to appear in court and make her defense.

Judgment affirmed.


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    UNLIGHTED AREAWAY IN APARTMENT HOUSE.
    Circuit Court of Cuyahoga County.
    F. C. Goodman v. Nellie G. Lynch.
    Decided, June 18, 1909.

      Negligence — Unlighied Arectway — Beading Law Booh to Jury.

    ]. It is negligence on the part of the owner of an apartment house not to maintain a light at an areaway leading down to the janitor’s door in the basement, when he invites the public to call there to inspect rooms for rent.
    2. It is not per se prejudicial error for counsel to read to the jury from a law book, as part of his argument.

      Klein & Karris, for plaintiff in error.

      A. W. Lamson and W. B. Beebe, contra.
    Winch, J.; Henry, J.. and Marvin, J., concur.
   AArith some doubt and hesitation we reach the conclusion that the record of this case sustains the proposition that, the plaintiff in error was negligent in not having a light at the areaway leading down to the janitor’s door in his apartment house. AVe do not think that, under the construction shown, other guard was necessary. lie should have apprehended that women and children, as well as persons of business experience, would seek this door early in the evening, but after dark, for the purpose of inspecting rooms for rent, which his sign invited.

If we are right in this, the question of contributory negligence on the part of the plaintiff below is so correlated to it, that the jury might well have” found that she was not negligent.

There is no reversible error shown on the record by the statement as to counsel’s reading to the jury from a law book. What he read is not .shown and will not be presumed to have been prejudicial. At any rate, the court properly cautioned the jury upon this subject.

There was no error, in refusing to- give plaintiff in error’s requesl !o' charge before argument, for the request did not comply with the statute, and an examination of the general charge has satisfied us that the court properly covered all the points that the plaintiff in error called to his attention and was entitled to.

• We find no prejudicial error in the three distinctions requested by the plaintiff below.

We do not agree with the claim of plaintiff in error that by the introduction of the word “solely” he has converted what would otherwise be a charge of contributory negligence into something else, nor, as before stated, do we find that there is any prejudicial error iu the charge as given.

Judgment affirmed.


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    SALES SUBJECT TO APPROVAL AFTER. TRIAL.
    Circuit Court of Cuyahoga County.
    John McMyler v. The Beckman Company.
    Decided, June 18, 1909.

      Contracts — Goods Furnished to he Satisfactory — Evidence—Letter of Managing Officer to Third Person Recommending Goods, Not Admissible, Against Corporation.

    1. A contract providing that stokers sold should be satisfactory to the , defendant, is not complied with, though the defendant kept and used them for over six months, it appearing that all that time plaintiff was working upon them, trying to make them satis- • factory, but failing therein.
    2. A letter written by the managing officer of a corporation to a third person, recommending the kind of stokers his corporation had purchased is not admissible in evidence in an action against his corporation for the value of the stokers furnished it, on the proposition that it was satisfied with said stokers.

      Weed, Miller cfc Nason, for defendant in error.
    Winch, J.; TIenry, J., and Marvin, J., concur.
   • In this case we think that it was incumbent upon the plaintiff to show that the defendant company was 'satisfied with the stokers furnished (the contract' being that the defendant would accept and pay for the same if satisfied with them), and having failed to show this material part of his case, his first cause of action was properly dismissed. The mere fact that the defendant kept and used the stokers from April to November before it ordered them out, was not sufficient to require a submission of this cause of action to the jury, for the plaintiff submitted this fact, with an explanation that continuously during that time he was working upon the stokers, manifestly because they were not satisfactory to the defendant.

There was no error in excluding the letter written by Mehling, the managing officer of the defendant company, to Lieber, of the Indianapolis Brewing Company, recommending the stokers. If Mehling had authority to_bind the defendant company by his admissions, it was only in transactions that he was authorized to carry on and to those with whom he was dealing in behalf of the company. This letter was wholly without the scope of his authority and properly rejected, being offered as substantive proof that the company was satisfied with 'the stokers. The use of the letter to contradict or impeach any evidence offered by the defendant, was not involved.

We have examined all the claims of error, and finding nothing prejudicial to the rights of the plaintiff in error, the judgment is affirmed.


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    FAILURE TO GIVE OPPORTUNITY FOR. AGREEMENT IN APPROPRIATION PROCEEDING.
    Circuit Court of Summit County.
    The Big Cuyahoga Light, Heat & Power Company v. The Turner, Vaughn & Taylor Company.
    Decided, October 11, 1909.

      Appropriation — Inability to Agree as to Compensation — Evidence.
    In an appropriation case, the jurisdictional fact that the corporation was unable to agree with the owners of the property sought to be appropriated as to compensation therefor is not shown by like propositions made to all the owners of different parcels of varying size and value, mailed to them the evening before suit was begun, without opportunity on their part to consider the propositions.
    (?. M. Anderson, for plaintiff in error.

      Allen, Waters, Young ■(& Andress, contra.
    Winch, J.; Henry, J., and Marvin, J., concur.
   The original proceeding in this ease was begun in the probate court by the plaintiff in error for the purpose of appropriating certain lands and rights of defendants in error. At the conclusion of the evidence on the preliminary hearing in that court; the probate judge dismissed the petition as to these defendants in error on the ground that the plaintiff had failed to bring itself within the requirements of Section 6415, Revised Statutes, which provides that “Appropriations can only be made when the corporation is unable to agree with the owner. ’ ’

It is said that the bill of exceptions shows that the plaintiff had made no Iona fide effort to agree with the owners before it filed its petition in the probate court. The common pleas court took this view of the case and affirmed the judgment.

We entertain the same opinion of the evidence in the case.

The propositions made by plaintiff to these defendants were all alike, offered $1,000 to each, though their properties were of different values, and were mailed about four o’clock one even-mg and the petition filed shortly after seven o’clock the nest morning, before the defendants had any opportunity to consider them or make counter propositions.

The fact that the petition pended some time before it was heard does not change the situation. These sham offers could not ripen into liona fide propositions by the mere lapse of time after the owners had been brought into court. They then had a law suit to defend and not an opportunity to come to an amicable agreement with the plaintiff. The record disclosed no further effort to agree with the owners after the filing of the petition.

Judgment affirmed.


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    INJURY AT A STREET CROSSING.
    Circuit Court of Summit County.
    The Northern Ohio Traction & Light Company v. Robert McAfee.
    Decided, October 11, 1909.

      Negligence — Driving Across Street Gar Track — Company Liable if Motorman Makes No Effort to Stop His Gar.

    Although the driver of a wagon may be negligent in attempting to cross a street car track in front of an approaching street car which he sees, still the motorman who saw the driver’s position, is negligent, and the company liable, if he fails to use reasonable efforts to stop his car in time to avoid a collision.

      Roger's & Rowley, for plaintiff in error.

      L. 8. Pardee and G. M. Anderson, contra.
    Winch, J.; Henry, J., and Marvin, J., concur.
   The injury complained of in the petition in this case for which a recovery was had at the hands of a jury, was received at the corner of Fir and East Market streets, in the city of Akron, and was occasioned by a collision between the car of the traction company and a high wagon of McAfee on which he was riding.

McAfee was crossing the track of the traction company and was nearly over when the car struck the tire of his rear wheel, his wagon was slewed around and he was spilled out.

The record discloses the fact that McAfee on the wagon and the motorman on the car had a free and unobstructed view of each other for some moments before the accident happened. McAfee knew the car was coming and the motorman knew that McAfee was about to cross the track, from the moment the noses of his horses entered upon the space between the rails.

McAfee, in his petition, claims the benefit of the doctrine of last chance. In other words, he says, in effect, that though he may have misjudged the situation and his ability to cross the track in safety before the car reached him, still, after the motorman saw him he could have prevented the collision with the rear wheel of the wagon if he had done his best to stop the car. If the speed of the car was such that the motorman could have stopped the car in the time that elapsed after the noses of the horses crossed the first rail of the track and until the rear wheel passed the second rail of the track and the overhang of the car, then it was his duty to do so and to avoid hitting the wagon.

Thus arises the question whether it was not the motorman who misjudged as to whether the wagon would clear the track before his ear reached it. This question was referred to the jury, and, though the brief of plaintiff claims that there is no evidence in the record to sustain the claim that the motorman did not use his best efforts to avoid the collision after he saw McAfee’s danger, still the same brief urges upon this court that it adopt the traction company’s evidence that the car was going at a low rate of speed, about five miles an hour, up hill, instead of at the rate of fifteen or twenty miles añ hour, as claimed by the said McAfee, and if the jury believed the traction company’s witnesses, they could easily figure out whether the motorman could, by the exercise of proper care, stop his car in a distance of about twenty-five feet.

If the motorman had time to stop his ear after he saw McAfee’s danger and didn’t do it, it is a proper conclusion that he didn’t do all he could to stop it.

The doctrine of last chance concedes the plaintiff’s initial negligence, as we have, in a consideration of this case, and, as the benefit of said doctrine was claimed in the petition, there was some evidence' to establish it and it was properly expounded in the charge of the court, we are loathe to say that there should be no recovery in this case, though it is a close one.

The requests to charge that were made by the traction company before argument and not given, were properly refused because they made no reference to the very proposition on which this judgment is sustained. The request after argument, which was refused, ignored the claim in the petition that the wagon as well as the person of McAfee, was injured.

The judgment is affirmed.


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    AS TO REGULARITY OF PROCEEDURE IN A WILL CASE.
    Circuit Court of Cuyahoga County.
    Ola Powers et al v. Sophia Magdalena Boehme et al.
    Decided, October 11, 1909.

      Charge — Correct as a Whole, Though Some Sentences Erroneous— Abstract Propositions of Law ancl No Bill of Exceptions Showing Evidence — Recalling Jury.

    1. A claim that a charge to the jury is erroneous because it gives mere abstract propositions of law inapplicable to the case can not be considered without a bill of exceptions exhibiting the evidence in the case.
    2. Where concededly correct sentences in a charge modify other sentences claimed to be erroneous, the charge as a whole being correct, no reversible error can be predicated upon the erroneous sentences, taken by themselves.
    3. It is not prejudicial error to recall the jury and emphasize certain portions of the charge previously given, if the circumstances of the trial warrant it.
    Winch, J.; Henry, J., and Marvin, J., concur.
   This was an action to contest a will. The ease was submitted to a jury and by its verdict the will was sustained.

The only claim of error asserted by plaintiff in error is that the charge is faulty in several respects. The bill of exceptions exhibits the charge in full, but gives none of the evidence adduced at the trial. We are therefore bound to conclude that the verdict was warranted by the evidence and it becomes difficult, if not impossible, to say that any technical defects in the charge, even if they exist, were prejudicial to the rights of the plaintiff in error.

For instance, the claim that certain paragraphs of the charge are mere abstract propositions of law and not made to apply directly to the ease on trial can not be considered without the facts which may, or may not, have warranted them. Certainly no prejudice can arise from the charging of mere abstract propositions of law, unless the evidence in the case makes them inapplicable.

Claim is made that certain sentences in the charge, taken by themselves, are erroneous and inconsistent with other sentences conceded to be correct. As we read .the charge the concededly correct sentences explain and modify the ones which are claimed to be erroneous and all must be read together. This charge, as a whole, is a correct exposition of the law of testamentary capacity and the degree of undue influence which must be shown to have been exerted before a testator can be said to have been overborne by it in the making of his will.

We find no prejudicial error in recalling the jury and giving it further instructions; the circumstances under which the jury was recalled are not shown. The claim that the additional charge only emphasized the original charge is correct and doubtless it was for that purpose the jury was recalled; we do not know what facts the trial judge had before him that he desired to impress upon the jury. We find no error of law in tne additional charge, if it was applicable to the facts of the ease.

There was no error in correcting the bill of exceptions at the place where the word “not” had been left out by the stenographer. The journal entry allowing this correction says that the court “found from the evidence” that a .clerical error had been made. Part of this evidence may have been a judge’s own recollection. With such bill of exceptions as we have in this case we can do nothing but affirm the judgment.


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    INSUFFICIENT ALLEGATIONS FOR. A RECEIVER. OF A FUND.
    Circuit Court of Cuyahoga County.
    Vinchenzo Drago v. George Prosser et al.
    Decided, November 1, 1909.

      Creditor’s Bill — Not Maintainable by General Creditor having no In-, terest in nor Lien on Fund.

    One who has no interest in nor lien upon a particular fund can not apply for a receiver of it and a marshalling of claims thereto, though he brings in other parties who might maintain such an action.

      Myler Turney, for plaintiff in error.

      Weed, Miller & Nason, contra.
    Winch, J.; Henry, J., and Marvin, J., concur.
   Tbe petition in this case recites that plaintiff brings his action as a creditor of Prosser and Wonn, on his own behalf, and on the behalf of one hundred and seventeen others similarly situated, or so many of the same as may desire to join in the action.

It alleges that the defendants, Prosser and Wonn, are indebted to the plaintiff in the sum of $20 for manual work and labor performed for them at their request, in and about the construction of a certain sewer system in the village of Corlett, which said partnership had contracted with said village to construct; that Prosser and Wonn partly completed their said contract, became indebted to numerous persons for labor and material which went into the work and then abandoned their contract; that the defendant, the United Surety Company, then made arrangements with the village to complete the work, pursuant to the contract, and did finish the same; that the village has in its hands the sum of $21,457.84, applicable to payment for the work, of which $6,000 was earned by Prosser and Wonn, though the surety company claims the whole amount; that certain of the defendants and other persons claim the right to participate in said fund; that a large number of attested accounts have been filed and a great number of attachments have been granted by various courts against the property of said partnership ; that the village refuses to pay out any of said money without a release from all parties claiming a right to participate therein; that the partnership and the individual members of it are insolvent and have no other property except the said fund in the hands of the village.

The prayer of the petition is for a receiver for the property of the partnership, a determination of the priority of the claims of the creditors of the firm, and distribution of the said fund to its creditors.

A demurrer to this petition was sustained and the sole question this court has to determine is the correctness of said ruling.

We find no error in it. Plaintiff has alleged no right of his own to any part of said fund, or lien upon it. He does not appear to be a judgment creditor and so is not entitled to maintain a creditor’s bill. He sets forth no 'attested account of his own which would entitle him to a lien on the’ fund, under the mechanic’s lien law, nor any assignment or bankruptcy of the partnership which would entitle him to a preference. He alleges no lien by attachment, or otherwise, obtained by himself.

The mere fact that some of the defendants have liens upon the fund and that others who have liens, for whose benefit he says he brings the suit, may have a right to participate in its distribution, does not help the plaintiff or the petition. The plaintiff shows no right of his own to participate in a distribution of the fund, and so his petition is defective. As well might a general creditor of the partnership, finding it had some money deposited in a bank, bring an action for the appointment of a receiver of the deposit and distribution of the fund to the preferred and general creditors of the firm, without first establishing some peculiar interest in or right to the particular deposit held by the bank. Such actions are not maintainable.-

Judgment affirmed.


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    LIABILITY OF TENANT FOR. UNAUTHORIZED OCCUPANCY BY A SUBTENANT OF ADJOINING PREMISES.
    Circuit Court of Cuyahoga County.
    Bardons & Oliver v. William J. Crawford.
    Decided, November 1, 1909.

      Landlord and Tenant■ — Tenant of Tenant Holding Over — ■Special Findings.

    1. A lessee of land adjoining premises of his own upon which are tenements used by his own tenants can not be held for occupancy of said adjoining premises after termination of the lease thereof, simply because his tenants continued to make use of said adjoining land, unless it be shown that they did so with his knowledge and consent.
    2. It is not error to refuse to direct the jury to make special findings requested in the event they bring in a general verdict, if the special findings submitted are not so framed as to test the general verdict.

      Thompson & Hine, for plaintiff in error.

      Samuel G. Blake, contra.
    Winci-i, J.; Henry, J., and Marvin, J., concur.
   This was an action to recover for the use and occupation of a strip of land owned by plaintiffs adjacent to certain flats or tenements of the defendant which had been originally leased to the defendant to be used by him as a means of access to said tenements. The lease was from month to month and was terminated February 1, 1903, by the plaintiffs who then demanded an increased rent. The defendant refused to pay more, but was alleged to have held over and continued to use the strip of land, not personally, but through tenants. The jury found for the defendant.

It was shown'at the trial that previous to February 1, 1903, and before he was notified of the termination of the lease, the defendant had collected of the United States Express Company a certain sum of money for the use of said strip of land as a reai* entrance to said company’s land up to April 1, 1903. The express company was not a tenant of the defendant, but used premises adjacent to both parties. It was also shown that there were coal holes on plaintiff’s strip of land connected with defendant’s tenements; that after notified that he could not longer use said strip of land at the old rental, the defendant put steps to the rear windows of his tenements opening upon a new way on his own premises, called Lakeview court, and some time later cut said windows into doors but did not close up the doors opening onto plaintiff’s land, nor said coal holes. It was also shown in evidence that the tenants continued to use said doors opening onto plaintiff’s lands and said coal holes after February 1, 1903.

It was also claimed that defendant had not notified his tenants to cease to pse the premises in question, but the only evidence on this subject was the testimony of the defendant himself who said that he had notified them to cease using the plaintiff’s premises, except in the case of one Nicholls who did not become a tenant until September 1, 1903, and when he took possession of his flat the entrance onto Lakeview court was fully completed. Nicholls and his wife testified that Crawford said nothing to them about the use of plaintiff’s land.

Conceding the law of the case to be that, upon the termination of his lease from plaintiffs, it was the defendant’s duty to notify his tenants that they should no longer use the plaintiffs’ premises, still we can not say that the jury was wrong in finding for the defendant. They might well have believed that the tenants continued said use notwithstanding their landlord forbade them to; it can not be maintained that it was the defendant’s duty to board up the openings referred to.

It is claimed as prejudicial error, however, that the trial court refused to submit certain interrogatories propounded by the plaintiff to be answered by the jury in the event it should return a general verdict, as provided in Section 5201, Revised Statutes. These questions are as follows:

“Did defendant collect rent for the use of the ten foot strip of plaintiff’s premises from the United States Express Company, covering a period subsequent to February 1st, 1903, and if so, for how long a period?”

This question was cleverly worded to avoid asking when he collected the rent, for the record shows that Crawford received it before he knew that plaintiffs would terminate his monthly tenancy.

Manifestly an answer to this question would not tend to show whether Crawford held oyer after notified that his lease was terminated, and the petition does not claim anything due plaintiffs by reason of this payment of the express company.

The next question was: “Were the coal holes on plaintiff’s land used by defendant’s tenants after February 1st, 1903, and if so, for how long?”

There was evidence tending to show such use, but the liability of the defendant depended upon his consent thereto. No question was asked, which, taken with this question, would tend to determine the defendant’s knowledge of or acquiescence in such use.

The same objection arises as to the next question:

“After the doors were cut in the tenements on Fairview court, did the tenants of defendant continue to use plaintiffs ’ premises as a means of entrance and exit ? ’ ’

Another reason for rejecting this interrogatory is that no Fairview court was mentioned in the evidence. -There was a Lakeview court opened by defendant, but no Fairview court.

These two questions if answered most favorably to the plaintiffs would not tend to “test the correctness of the general verdict.” The Supreme Court has several times stated that such must be the intent of the questions. Electric Railroad Co. v. Hawkins, 64 O. S., 391.

His tenants’ continued use of the coal holes and strip of land would be repeated trespasses on their part, and have no tendency to prove the liability of the defendant, unless followed up with proof of Crawford’s acquiescence therein or failure to notify them to cease such use. No cpiestion covering this important link in the chain was submitted and the court therefore, very promptly declined to submit the whole series of questions.

To have given them without reference to Crawford’s consent or neglect to notify, would have tended to mislead the jury as to the foundation for their general verdict.

The last question was: "Did W. J. Crawford notify his tenant, Chas. Nieholls, that he must not use plaintiff’s ten foot strip of land?” As Nieholls did not move in until six months after his landlord’s right to use this strip had terminated and until after the tenement was fully provided with other proper entrances, we think the defendant was under no obligation to notify his tenant not to trespass upon the adjoining premises.

We find no error in rejecting these interrogatories, and the judgment is affirmed.


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    REFORMATION OF MORTGAGE IN HANDS OF ASSIGNEE.
    Circuit Court of Cuyahoga County.
    Robert Scholl v. Walter Sobray et al.
    Decided, November 15, 1909.

      Mortgage may be Reformed in Sands of Assignee — Claim of Maher Against Payee of Negotiable Note Can Not be Set Off Against Solder in Sue Course.

    1. A mortgage is not a negotiable instrument, though it secures one; hence a mortgage held by an assignee of it may be reformed, if the equities between the original xiarties to it authorize its reformation.
    2. A claim of a maker of a promissory note against the payee can not be set off against a holder of the note in due course.

      Harry F. Payer, for plaintiff in error.

      H. G. Boyd, C. W. Dille and Kline, Tolies ds Morley, contra.
    Winch, J..; Henry, J., and Marvin, J., concur.
   The Goff-Kirby Coal Company appears in this proceeding by cross-petition in error, complaining of the judgment of the court below. The action in the court of common pleas was brought by the Goff-Kirby Coal Company against the defendants Walter Sobray and Jnlia Sobray to obtain a judgment upon a promissory note given by said Sobrays to one Robert Scholl, and by Scholl assigned to the Goff-Kirby Coal Company, and also to foreclose a mortgage given by said parties to secure said note.

The promissory note in question was for the sum of $5,000 and dated November 12, 1907, due in one year after date, witn interest at six per cent, per annum, and for a valuable consideration and without notice of the claims of the Sobrays, the Goff-Kirby Coal Company received this note from the said Robert Scholl, and became thereby a holder'of the same in due course.

At the time of the eoinmencement of this action the Sobrays had pending in the Court of Common Pleas of Cuyahoga County an action in which they sought to recover from Robert Scholl damages for failure properly to perform a building contract relating to the same property covered by the mortgage. By consent of all parties this action was consolidated with the action of the Goff-Kirby Coal Company, and the two causes were tried together. The issues between the Sobrays and Scholl were purely legal, and were tried to a jury, and subsequently the equitable issues, arising on the pleadings between the Sobrays and the Goff-Kirby Coal Company, were heard by the court on the. same evidence submitted to the jury.

On the trial of the action to the jury, at the close of the evidence of the Sobrays, the court, on motion, entered a judgment for the Goff-Kirby Coal Company on said promissory note, it appearing undisputed in the evidence that that company was a holder in due course of said note, and entitled to said judgment. Subsequently the court held that notwithstanding this situation of the Goff-Kirby Coal Company, the Sobrays were entitled to have the mortgage securing said note reformed so as to mate it (the mortgage) payable to said company in installments of $50 each per month until the whole should be paid. At the same time the court held that the Sobrays were entitled to have credited upon said mortgage the amount of the judgment which they had obtained against Robert Scholl, to-wit, $1,200, thereby reducing the claim of the Goff-Kirby Coal Company against the Sobrays on said mortgage by that amount.

Robert Scholl is here claiming that the $1,200 judgment against him should be reversed for errors in ruling on evidence as to the measure of damages and for want of sufficient evidence to sustain it.

The Goff-Kirby Coal Company is here claiming that the court erred in the following particulars:

“1. In reforming the mortgage, and decreeing that the Goff-Kirby Coal Company should receive payments thereon at the rate of $50 per month.
“2. In decreeing that the Sobrays should have credited upon said mortgage the sum of $1,200, being the amount of the judgment recovered by them against Robert Scholl for the breach of said building contract.”

As to the judgment against Scholl we find no prejudicial er- or; the exceptions to questions regarding the “value” of the property and the “fair and reasonable value” of the property should have been sustained, but an examination of the record shows that the witness thereafter in each ease explained his answers as meaning the “market value” of the property. This cured the previous error and made it harmless. Neither are we able to say that the jury was not right in finding that Scholl did not comply with his contract or that the amount of the damages, after remittitur entered in the common pleas court, is too great.

Nor do we find that the court was not warranted by the evidence in reforming the mortgage or that there was any error in law in reforming it in the hands of the assignee thereof. Bailey v. Smith, 14 Ohio St., 396.

However, manifestly the court had no authority to set off the $1,2Q0 judgment of Sobray against Scholl against the mortgage security of the coal company. There was no connection between the claim of Sobray against Scholl for damages for breach of a building contract and the note and mortgage held by the coal company. The two actions never should have been consolidated. Had they proceeded separately, this error would not have occurred. The consent of parties to the consolidation and their conduct in trying the two cases together without objeetion, however, makes it impossible for this court to say that reversible error grew out of the consolidation. We have the right, however, to modify the judgment rendered by the trial court and we do modify it by striking out that part of the decree which allows \a credit of $1,200 on the mortgage and finds that the conditions of the mortgage have been complied with and that the plaintiff is not entitled to foreclose the same, and by inserting a finding to the effect that the installment due March 1, 1908, and all subsequent installments are unpaid, fifteen of them for more than sixty days, whereby the conditions of the mortgage have been broken and the plaintiff is entitled to foreclose and ordering salé unless all over due installments are paid.

Judgment as modified is affirmed.


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    EXONERATION OF BAIL BOND.
    Circuit Court of Cuyahoga County.
    Henry DuLaurence v. State of Ohio.
    Decided, November 15, 1909.

      Bail Bond — Surrender—Record Only Evidence.

    The surrender of a prisoner by bis bail must be accepted by the court, and the record is the only competent evidence of the surrender which will exonerate the bond.
    Winch, J.; Henry, J., concurs; Marvin, J., dissents.
   This was an action on a baiPbond. DuLaurence admitted the due execution of the bond but pleaded surrender of his principal. No record evidence of the surrender was offered, but parol evidence on the subject was produced by both sides. Such serious errors were committed in the introduction of this evidence that the judgment must be reversed unless the record is the only competent evidence of the surrender. If such is the law, the judgment is manifestly right and the rulings complained of are immaterial and without prejudice.

The statute, Section 7177, reads as follows:

“When a person who is a surety in a recognizance for the appearance of a defendant before any court desires to surrender the defendant, he shall, by delivering the defendant in open court, be discharged from any further responsibility on said recognizance,” etc.

We are agreed that if the delivery is complete without any acceptance by the court, parol evidence is sufficient to prove it. If the delivery is not complete until the court takes some official action upon it, it would seem that such official action can only be shown by the court’s records. A majority of the court is of the opinion that delivery is not complete until acceptance by the court and that the record is the only evidence therefor.

A similar division of opinion is shown in the interesting case of Fitch v. Hall, Kirby’s Report, page 18, a case decided one hundred and twenty-five years ago, and the argument is there stated on both sides with the brevity and clearness found in the old reports.

As sustaining the conclusion here reached, reference is made to the following cases: Slate, ex rel, v. Eslc et al, 7 Ohio, 1st part, 134; Rounlree v. Waddill, 52 N. C., 309; Whitton v. Harding, 15 Mass., 504; Graper v. Barbour, 58 O. S., 669, 675.

Judgment affirmed.


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    EVIDENCE AS TO FULFILLMENT OF CONTRACT UPON WHICH PRIORITY OF MORTGAGE WAS BASED.
    Circuit Court of Cuyahoga County.
    Jennie Licker v. Mary F. Green et al.
    Decided, November 23, 1909.

      Mortgages — Priorities—Record best Evidence — Burden of Proof.

    Where the record shows the priorities of mortgages, the burden of proof is upon the one asserting a different priority to prove it, and where the evidence leaves the point doubtful the priorities will be adjudged according to the record.

      William Rothmberg, for plaintiff in error.

      A. II. Martin and McGraw & Hapxhurst, contra.
    Winch, J.; Henry, J., and Marvin, J., concur.
   This case is here on appeal and was heard on the evidence adduced by the parties.

Plaintiff’s petition sets up a mortgage on certain premises, which she claims to be a first mortgage and asks to be foreclosed. The defendant, D. A. Howard, in a cross-petition sets up another mortgage which he claims to be a first lien and likewise desires foreclosed. The plaintiff then sets up a contract between herself and Howard by the terms of which it was agreed that she should release her vendor’s lien on the -property and take a mortgage second to Howard’s mortgage, but that if Howard should neglect to advance $4,550 to the defendants, Green, the purchasers of the property, or if that amount should not be invested in improvements on the property, then her mortgage should become a first lien.

The record of the two mortgages shows Howard’s to be the first lien. The burden is then upon the plaintiff to prove that Howard did not advance the $4,550 to Green, or that it was not expended upon the property.

We'think the evidence of Howard’s advancing the money to Green is sufficient, but have had considerable doubt as to whether Green expended it upon the property. It is suggested that Green expended part of this money oh other property, but there is no evidence to show that he did. We think the vouchers he produces, while not in the best of shape, might be considered as showing the full amount went into the property here involved. However, he is not a very credible witness. There is a dispute between him and hjs mason contractor, as to whether the mason work was to come to $2,000 or $1,000, and, as to how much was paid him. We understand there is a lawsuit pending between them on this point.

Plaintiff’s expert witness, architect Gleichman, testifies that the improvements could not have cost as much as Green claims they did. On the other hand, Green’s architect, Janowitz, says the job is a fair one and he estimated it would cost $5,000 and was paid a commission on that amount.

All in all the evidence- is unsatisfactory and inconclusive. We are left with a feeling that $4,550 may have been expended upon the property, but are not sure about it. On the other hand, the burden is upon the plaintiff to prove by' a preponderance of the evidence that $4,550 did not go into the property. This burden, we think, she had not borne; the evidence is too much in equipoise.

For this reason, we have to leave the priorities of the mortgages to stand as fixed by their record and decree may be drawn accordingly.


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    WEIGHT OF EVIDENCE IN PROCEEDING IN BASTARDY.
    Circuit Court of Cuyahoga County.
    Peter Richard v. State of Ohio, ex rel
    Decided, November 23, 1909.

      Bastardy — Period of Gestation — Weight of Evidence — Exhibiting Child to Jury.

    1. It is not conclusive that one charged with being the father of a bastard child is not guilty, that the period of gestation was only 259 days.
    2. Where the bastard child, two years old, was exhibited to the jury to show its resemblance to its putative father, a reviewing court will be loth to reverse a judgment against him on the weight of the evidence.

      Berkley Pectrce, for plaintiff.

      Davis & Manah, contra.
    Winch, J.; Henry, J., and Marvin, J., concur.
   This is a bastardy case which we are required to review upon the sole question of the weight of the evidence.

It is claimed that the relator’s story is improbable in two respects, as to the manner in which the bastard was begotten and the date thereof.

The conclusion of twelve men as to the former we are not able to confute, and as to the latter, only 259 days elapsing between the conception and birth, we can not say that it is too short a period to be possible. The usual period of'gestation is forty weeks. Such is the law of England according to Lord Coke (Coke on Litt., Yol. 1, p. 123). It is common knowledge however, that old housewives count the forty weeks as beginning at the last menstrual period before conception. The evidence of Dr. Burke on this subject, as found in the record, would not preclude the jury from believing the relator’s story as to the date on which the act of intercourse occurred. We do not think her story improbable in this respect and her entire evidence seems to be that of a truthful witness.

The defendant denies that he ever had intercourse with the girl and proves an alibi for the date she gives for the occurrence.

But is his denial to be believed?

It seems that the day he was arrested, he met the relator and invited her to his office that evening where they talked matters over. I will read some of the evidence as to what occurred there, and his comments thereon. On page 81 of the bill of exceptions is the following:

“A. On the day that she brought the proceedings against me, I took her to my office and got her version of the affair, and got her to make an accusation.
“Q. She had already made an accusation before that hadn’t she? A. Well I got her to repeat the accusation, and to make some statement.”

And on page 84:

“When I asked her other questions, as I was ready to leave, I told her I couldn’t recollect of having any intercourse with her on January 6th.”

And on page 85:

“A. Well I said, when she said ‘January 6th,’ I knew instantly that she was not telling the truth.”

And on page 87:

“A. I said to her: ‘Well I can’t recollect having seen you on January 6th; I must think this thing over. If, on thinking it over, I find I recollect anything about that case to convince me that I am responsible for your condition, I will make proper sort of a settlement. That is, I will either marry you or I will provide for your child, if I convince myself that your story is right.’ I was convinced immediately on the moment that it was not true, her story.”

And on page 92:

“A. Well the first remark I made was ‘Well,’ I says, ‘when did this take place, when I got you into this fix?’ She said, it was the first Sunday in January. I took a little desk calendar and turned to it and found that that was January 6, I said, ‘is this the date?’ and pointed to it, and she said, ‘Yes’ that must be the date, January 6th.’ I said, ‘Well, I don’t remember this, I don’t remember when this happened but,’ I says, ‘I will think this over and if I can find, if I can recollect of having been with you then, I don’t recollect having been with you then, if I can however I will consider that I really did this, and I will make the proper sort of a settlement.”

With evidence like this from his lips the jury might well have believed that he protested too much when he said he had never had intercourse with the girl.

There is another reason why we are loth to disturb this verdict. The baby itself, then about two years old, was exhibited to the jury for it to determine any real or fancied'resemblance it might have, to its putative father, a practice approved by the Supreme Court in the ease of Grow v. Jordan, 49 Ohio St., 655. What weight this exhibit had with the jury we do not know, but a reviewing court has no such exhibit to examine and therefore has an added reluctance to reverse a verdict on the weight of the evidence.

Judgment affirmed.


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    RULE AS TO ASSUMED RISK CAN BE CHANGED ONLY BY THE LEGISLATURE.
    Circuit Court of Cuyahoga County.
    The Cleveland Steel Castings Co. v. Anton Lewandowski.

    Decided, December 16, 1909.

      Master and Servant — Negligence—Assumed Risk.

    The rule of assumed risk is in force in Ohio until the Legislature changes it.
    Winch, J.; Henry, J., and Marvin, J., concur.

       Affirmed without opinion, Lewandowski v. Cleveland Steel Castings Co., 83 Ohio State, 505.

   This case is here for a second time upon evidence differing but little from the evidence shown in the record of the former trial. We then reversed a judgment in Lewandowski’s favor because of insufficient evidence to sustain it. The opinion rendered in that case on March 23, 1907, points out that Lewandowski could not recover because, if the injury resulted from the insecure manner in which the flasks were piled, that was the fault of fellow-servants, the foreman not being shown to have given orders to pile them as they were piled, and if the flasks fell because of the improper sand foundation upon which they were piled, that was a risk which Lewandowski assumed, for it was open to his observation and he knew as much about it' as anybody else.

The record this time seems to destroy the explanation of the accident suggested in the first trial that Manak pushed the flasks over upon Lewandowski, and brings home to the company knowledge of the insecure character of the sand foundation, which, by the way is not pleaded in the petition, but it nowise shows that Lewandowski did not know all about the nature of the sand with which and upon which he had worked for two months. So long as the doctrine of assumed risk is the law in this state, the defendant in error can never fasten a liability upon the company, for the injury which he received. Why the trial court did not direct a verdict in favor of the defendant at the close of plaintiff’s evidence, in view of the law of the case as laid down heretofore, not only by this court, but by the Supreme Court, we can not understand, and for error in that regard the judgment is reversed, and proceeding to render the judgment which should have been rendered upon the conceded facts of the case, judgment is entered in this court for the plaintiff in error.

Reversed and judgment for plaintiff in error.


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    REQUIREMET THAT STOCKHOLDER MUST CONTINUE IN A CERTAIN LINE OF BUSINESS.
    Circuit Court of Cuyahoga County.
    Calvin D. Paxson v. The Cleveland Automobile Dealers Company.
    Decided, December 17, 1909.

      Corporations — Unlawful Provision as to Ownership of Stoclc.

    A provision in the constitution and by-laws of a corporation for profit and printed upon its certificates of stock, that a stockholder shall cease to be such and his stock be returned to the company and its face value be refunded to him upon his ceasing to be engaged in a particular business, is unlawful and unenforceable.

      Solders, Thayer & Mansfield, for plaintiff in eror.

      C. B. Haskins, contra.
    Winch, J.; Henry, J., and Marvin, J., concur.
   This case is here upon appeal and was heard upon an agreed statement of facts. The question involved is whether plaintiff can be deprived of his rights as a stockholder in the defendant company, pursuant to certain regulations and by-laws.

The defendant is a corporation for profit,’ incorporated for the purpose of “protecting, promoting and enhancing the in-' terests of the automobile dealers of Northern Ohio, also the promoting, managing and controlling of automobile show exhibits and races in Northern Ohio together with all things necessary or incidental to the carrying out of said purposes. ’ ’

Among its by-laws is found the following:

“No person shall be entitled to hold more than one share of the stock of this company.
“And no person shall be eligible to hold stock in this company, unless such person be a tona fide retail dealer in automobiles, and be determined to be such by the board of directors of this company.
“Upon the filing with the secretary of a written complaint by three stockholders, in good standing, against the continuanee of any person as a stockholder in this company, the secretary shall at once notify such stockholder of the time and place of the next meeting of the board of directors, and the secretary shall upon receipt of such complaint, forthwith transmit a copy thereof to the president and to the stockholder against whom the complaint has been filed; and the president shall bring said complaint to the attention of the board of directors, at their next meeting, for their consideration, and said board shall have the power to declare said stockholder to be disqualified to hold stock in this company, and if said stockholder shall be found to be so disqualified by said board they shall at once communicate their finding in writing to the secretary of this company, who forthwith shall tender such disqualified stockholder the sum of ten dollars ($10) whereupon the stock held by said stockholder shall be canceled, and the name of said stockholder stricken from the records of this company, and said stockholder shall thereupon cease to be a stockholder in this company.”

Pursuant to this by-law the board of directors has duly found plaintiff to be no longer a Iona fide retail dealer in automobiles, and has canceled his membership, and tendered him back $10, the face value of his share.

It is conceded by counsel for defendant that taken by itself this is an unenforceable by-law, but that by reason of certain statements printed upon the face of plaintiff’s certificate of stock it became an-enforceable contract with him when he paid his money for and received his said certificate.

The language of the certificate is as follows:

“The capital stock of this company is issued, held, owned and transferred subject to the conditions, provisions and limi-' tations as provided by the regulations and by-laws of this company which are hereby made a part of this certificate, the same ‘as though herein written.”

Of course the law writes into this the word “lawful” regulations and by-laws.

This contract, so-called, whether expressed upon the face the certificate or found only in the by-law is unlawful for three reasons:

First. It seeks to make an unrecognized distinction as to qualifications for membership. Every corporation for profit in the state of Ohio must open its books of subscription to all citizens, and having received subscriptions it can not thereafter cancel them because the stockholder ceases to possess some qualification the law does not impose.

Second. It seeks to provide that the corporation may deal in its own stock.

Third. It provides for a reduction of capital stock in a manner not sanctioned by law. The statutes point out how capital stock may be reduced, and this “contract” is not in accordance therewith.

Judgment for plaintiff.


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    JUDGMENT UPON DISMISSAL FROM JUSTICE OF THE PEACE.
    Circuit Court of Cuyahoga County.
    J. W. Sykora v. Jelena Djurdjec.

    Decided, December 17, 1909.

      Appeal from Justice of the Peace — Dismissal of Appeal — Judgment on Transcript Erroneous.

    In a case appealed from a justice of the peace to the common pleas court, upon dismissal of the appeal for failure of the defendant to comply with an order to give an additional appeal bond, it is error for the court of common pleas to thereafter enter judgment for the plaintiff upon the transcript filed in such dismissed case.

      W. C. Rogers, for plaintiff in error.

      Palda \& Svarc, contra.
    Winch, J.; Henry, J., and Marvin, J., concur.

       Affirmed without opinion, Sykora v. Djurdjeg, 83 Ohio State, 476.

   Sykora recovered a judgment against Djurdjec before a justice of the peace; the latter appealed. Plaintiff filed a petition in the common pleas court and defendant filed an answer.

Thereafter plaintiff moved for additional bail for the appeal, which was granted. The defendant neglected to comply with this order for additional bail, whereupon the court dismissed the appeal and rendered judgment for the plaintiff on the transcript.

Within the term the defendant moved to vacate the order dismissing the appeal; this motion was continued to the next term and then granted, at which time the court also vacated the judgment in plaintiff’s favor.

Error is prosecuted to this ruling.

It is conceded in argument that the court has jurisdiction on motion made within the term to vacate the dismissal of the appeal, but it is claimed that no motion was made to vacate the judgment on the transcript in plaintiff’s favor, and that said judgment therefor could not be set aside at a subsequent term.

The point is not well taken; the judgment on the transcript was a nullity. No authority for entering it up can be found in the statutes. Section 6588, Revised Statutes, applies to cases where the defendant before the justice of the peace files a bond with him but neglects to perfect his case by filing a transcript and other papers with the clerk of the common pleas court and have his appeal docketed. The defendant in this case complied w-ith the requirements of the statutes and perfected his appeal; when the court subsequently dismissed his appeal there was no case left upon the docket in which to enter a judgment; it was at an end. Plaintiff’s judgment in the justice court was still in force, after the dismissal of the appeal, and if he desired a judgment of the common pleas court thereon, he had to comply with the latter part of Section 6588, file a transcript and have the cause docketed. A transcript filed by somebody else in a case dismissed, without re-docketing, can not be held to be a foundation for the judgment authorized in Section 6588. Such looseness of practice should not be permitted in the face of a statute requiring the docketing of a cause as a new case, when a transcript is filed by the appellee.

Papers found in a disposed of case form no basis for a sub'sequent judgment in that case.

Judgment affirmed.