author: CALDWELL, J.

text:
    BILLS AND NOTES — CRIMINAL LAW
    [Cuyahoga (8th) Circuit Court,
    January 29, 1900.]
    Marvin, Caldwell and Hale, JJ.

      State Building & L. Co. v. Nettie E. Baker et al.
    1. Prosecution to Collect Debt Amounts to Duress.
    When a criminal prosecution is for the purpose of collecting a debt, it is commenced for an illegal and unlawful purpose; hence, although there may be a good cause for prosecution, and although the form of proceeding and the writ be perfect and without fault, yet the law will regard such a prosecution as duress and any security obtained through it may be avoided.
    2. Arrest of Brother Duress to Sister Executing Notes.
    The arrest of a brother may amount to duress when a sister executes notes and mortgages to secure the debt of the brother and save him from criminal prosecution.
    3. Duress as Defense against Bona Fide Purchaser of Notes.
    When notes and a mortgage are obtained by duress and transferred to a bona fide purchaser for value before maturity, duress being a species of fraud, may nevertheless be set up as a defense to the mortgage.
    4. Note Given to Prevent Criminal Prosecution not Bar to Defense of Duress.
    When one gives a note or mortgage under duress, even though it be for the purpose of preventing a criminal prosecution, that fact does not prevent the giver of the note or mortgage from defending an action brought upon it upon the ground of duress.
    5. Payee .of Note Obtained by Duress Becomes on Negotiation Principal Debtor and Maker, Surety.
    When one who has obtained a note and mortgage by means of duress, transfers them to an innocent purchaser for value and before maturity, he thereby becomes the principal debtor and the maker becomes the surety.
    Appeal.

      Herrick <& Hopkins, for plaintiff.

      Boynton, Horr ife Uhl, N. N. Cole and W. W. Boynton, for defendants.

       Affirmed, no opinion, State Bldg. & L. Co. v. Baker, 65 Ohio St. 564.

   CALDWELL, J.

It seems that James B. Harrington -was in the employ of .Olmsted Bros, as a solicitor, and as a collector to some extent. Soon after he went in their employ they allowed him to retain monies or they loaned him monies or, perhaps, both, to the extent of several hundred dollars, and after he had been in their employ for some time, the Olmsted Bros, claimed to have found that he was appropriating to his own use other monies that ought to have been turned over to them. When they ascertained this fact, they attempted to get a settlement out of him for the entire amount that he owed them.

This settlement was pressed from time to time upon him, and each time he made promises that he would do something, but evidently his efforts in the direction of either payment or the giving of security for what he owed, including what he had lawfully received from them and what he had appropriated, all failed, and he was unable to make settlement and his promises became wearisome to the Olmsted Bros. They called in their attorney and presented to him, not in a written form, but orally, the state of the claim between themselves and Mr. Harrington— as to that which had been loaned or was lawfully in his hands, as well as that which they claimed was unlawfully in his hands. The attorney went to his office and an arrest was made. Harrington was taken to the defendant, Nettie E. Baker, where she was teaching in this county, by the officer and she dismissed her school and went and signed the bail bond for Harrington.

This was March 15, and the case was continued until March 22; then it was continued until March 24, but on March 22 there seems to have been a settlement of this claim, and Nettie E. Baker pledged property that was in her name and of which she was the owner, at least for the present I will say that, and the prosecution was dropped. The attorney of the Olmsteds went to the justice and told him that they would not appear; and when the day arrived for the trial neither the attorney for the Olmsteds nor the Olmsteds themselves appeared, and the prosecution was dismissed.

In settling this matter, Nettie E. Baker signed a number of notes amounting to some $1,617. She signed notes falling due at stated periods in the future, and gave a mortgage on property to secure the notes. The notes and mortgage were by the Olmsteds soon after turned over to the plaintiff, the State Building & Loan Co., and was then and still is held by that company.

The first note became due and was not paid. There was an option in the mortgage to treat them all as due, if there was a default in the payment of one, and availing itself of the option of treating them all as due, and seeking to foreclose the mortgage on this property, this action was brought.

Nettie E. Baker answered, setting up duress, although that term is not used; yet the facts are set forth, and it is proper to treat the answer as setting up duress and setting up the compromise of this criminal prosecution; and, upon those two defenses, she claims that the Olmsteds have no rights against her and have no right against her by reason of her giving the note and mortgage to them. As to the bank, she claims that it was not a bona fide holder of the mortgage, and she claims that the bank can make no defense against her rights as far as the mortgage is concerned, and asks to have the Olmsteds brought in and that it be determined that as between her and the Olmsteds, Olmsted Bros’, liability upon the notes be primary, and hers only secondary to theirs. The Olmsteds endorsed the note to the State Building & Loan Co.

"We have heard the evidence in this case, and the purpose of the criminal prosecution is the first question in order to be considered.

It seems that when the Olmsteds ascertained the fact that Harrington had been taking from them and appropriating to his own use moneys that belonged to them, they did not attempt to get him to turn back to them or secure to them the amount that he had illegally appropriated, but made the attempt to collect their entire claim, and seem, as between them and him, according to the testimony, to have attempted to make his settlement before arrest the settlement of the entire claim or none of it. In Mr. Olmsted’s testimony upon this matter he at no time mentions anything but the settlement of the entire claim. When the attorney went to the office of the Olmsteds, at the time he was first called, the entire claim was presented to him and, while not put in his hands in the form of an account, yet he at that time, and at no other time, so far as the testimony shows, ascertained the exact amount that was loaned or was legally in Harrington’s hands, and the amount that he had illegally appropriated.

The prosecution was commenced for criminally appropriating a part of this money. When Mr. Harrington was arrested he was taken by the officer who arrested him a considerable distance into the country, to the school-house where his sister was teaching, and she was given to understand that he was under arrest and that she was needed to bail him. She came into the city and gave bail.

One of the Olmsted brothers testifies, substantially, that is, he admitted he so testified before and does not deny but it is true now, that the understanding between himself and brother and their attorney was, that this prosecution would be commenced and allowed to stand for a while — to hang in that condition.

The first attempt at any settlement is a little uncertain. Some of the witnesses place it immediately after the giving of bail, or very soon after; other witnesses place it after the continuance — after the first time the suit was set for trial, and it is not very clear just when the negotiations commenced to settle this claim; nor is it certain how long Mrs. Baber had to consider this matter, after it was first presented to her — I mean, the matter of her mortgaging her property.

The method in which Mr. Olmsted undertook to settle this claim — before criminal action was commenced against Mr. Harrington; the fact that the conclusion between the attorney and the Olmsteds was to commence the action and let it lie, let it rest, taken with what followed, shows that this action was commenced, not for the purpose of bringing into action the strong arm of the' criminal law of the state for the proper purposes, but for the purpose of collecting that debt. The prosecution, therefore, was commenced for an illegal and unlawful purpose; and, as we understand the law, if it is commenced for an illegal and unlawful purpose, although there be good cause for prosecution and although the form of commencing the prosecution and the writ be perfect and without fault, yet the law will not uphold such a prosecution and it will be regarded as duress. Out of many cases we have seen, I submit the language used in the case of Osborn v. Robbins, 36 N. Y. 365. I read from the opinion on page 371:

‘1 The note was executed when the principal defendant was a prisoner; and it could not be enforced by the payees if they obtained it through an abuse of legal process, for purposes of oppression and exaction. When a party is arrested without just cause, and from motives which the law does not sanction, any contract into which he may enter with the authors of the wrong, to procure his liberation from restraint, is imputed to illegal duress. It is corrupt in its origin, and the wrong-doer can take no benefit from its execution.
‘ ‘ In such a case, the element of voluntary assent is wanting. The parties do not meet on equal terms. The authority of the courts is perverted to unworthy uses. The instrumentalities employed to produce a consenting will are force and fraud, agencies which the law abhors. The prisoner is at the mercy of the accuser, and he submits to extortion, as the means of deliverance from oppression under the forms of law.
11 The party who exacts a security from one whom he wrongfully restrains of his liberty, can derive no aid from the fact that the claim which he enforced by illegal means was just. ’ ’

The next question to be considered is whether Mrs. Baker stands in such relation to this matter that she can avail herself of the defense of duress.

It has been laid down that coercing a father or using duress upon a father to secure a note given by a child, and vice versa avoids the note, and one authority says that there is no doctrine limiting that rule; that the courts have only talked about a limitation, as between blood relatives because of the fact that some courts had laid down that the rule might extend to a son who had been coerced into giving security to relieve his father from imprisonment, or vice versa, and that no rule had ever been established by any court saying it should never be extended beyond that. So far as my observation goes, that is so. It has been extended in Illinois to a grandmother who was coerced into giving security to save her grandson; and, in Wisconsin, to a sister giving security to relieve her brother from imprisonment; and it seems to be extended to all eases where there is intimate relation, blood relationship, between the parties, if the coercion is sufficient to overcome the will of the party giving the security.

We do not hesitate to hold upon all of these authorities, that Mrs. Baker can avail herself of this as completely as could her brother had he given notes and security instead of her; and that, if she gave this security to save her brother from imprisonment; if she did it to relieve him from an unlawful imprisonment she can avail herself of the defense she sets up in this action. But it is contended that ¡she had time for deliberation in this matter, and that having had time for deliberation, must now be inferred that the circumstances under which she gave this security did not deprive her of her free-will; but, having done it after time for deliberation, that the matter is supposed to have been done voluntarily on her part.

The class of cases holding this doctrine, almost all of them are cases where the party makes some payment after delivery of the security or note, or does some act, after the matter is settled in court to carry out the contract that he had entered into, after the time when the restraint or the impending calamity that is about to befall the party, has passed away and gone. And there are one or two cases where the party had time for deliberation and counsel with attorneys and friends, and then went and did it. But I find no case like this; and, as I have already stated, the testimony is very uncertain as to the time Mrs. Baker had to deliberate about mortgaging her property. I speak of mortgage, as that is the principal matter. The note was rejected when she offered to give her note; that was not relied upon; it was the property that was relied upon in this matter— that was the real gist of the matter. It is not known from this testimonjq whether it was one hour or two hours or three hours that she had as time to deliberate whether she would mortgage that property or not. It is not known whether the pressure was continued or increased up to the very moment when she gave the mortgage; but, evidently, she gave it under that pressure, and we believe she was deprived of her free-will, when she gave it, by the pressure brought to bear, the arrest of her brother and likely the imprisonment of him, and whatever was said'in regard to the settlement of the matter in her presence.

Having found these facts in the case, and the law ás I have stated, the question now remains, what can she do ?

It is claimed that this mortgage is in the hands of an innocent holder. But we have a case in this state, Baily v. Smith, 14 Ohio St. 396, which holds that while notes may be in the hands of an innocent holder and fraud can not be set up against the innocent holder of the notes, that is not true as to the mortgage. This is different from the holdings in the United States courts and in most of the states, though not in all. This was a decision made by Judge Ranney and is good law in this state and has never yet been overruled. Whether the Supreme Court would extend it beyond a ease of fraud we know not, and we need not consider it in this case for the reason that duress is a species of fraud; it is obtaining property or money against the will of the party, and fraud is exercised only to overcome the will of parties wrongfully, and duress is only to overcome the will of a party wrongfully or by fear; one is through confidence — the other through fear. They are so related that duress is a species of fraud.

This being true, and following the decision I refer to, we must hold in this case that the State Building & Loan Co. can make no more defense to this action than could the Olmsteds and can maintain no action upon the mortgage as against Mrs! Baker that the Olmsteds could not maintain.

But it is strenuously contended in this case on one side, and, upon the other side, as strenuously the other way, that there was no illegal settlement of this matter; and the attorney who settled the matter with Harrington and his sister, Mrs. Baker, is brought in to testify, and we, all of us, believe him to be a person of the utmost veracity and would not hesitate to believe anything to which he would testify. We might believe that he was mistaken, but his testimony in this case is largely a matter of argument in his own mind. Many of the things that he testified to are matters that he testifies to from his mode and method of doing business and what he now thinks he would have done under the circumstances; and his recollection is poor; he is mixed up in his dates; he is mixed up in the order in which the circumstances occur — it is a matter of want of recollection; at the time this matter was disposed of, he dismissed it from his mind, no doubt he went into many other things; and under all the circumstances of the case, it is not surprising that he should forget much of the detail of the matter and much of the conversation.

Mrs. Baker-testifies to certain matters and conversations between her and the attorney. The attempt is made to show that such did not take place as testified by her, at any such time; but the attorney is evidently very much mixed up as to the time when he undertook to say it did occur; but it is almost evident, tinder the circumstances of this case, that it must have occurred at an earlier date than he said. He testifies that he told Harrington, at the commencement of negotiations, that, of course, he could not make any arrangement or agreement to dismiss the criminal prosecution against him or not to prosecute him. Evidently, to call forth that remark on his part, there must have been some consideration upon that matter, or we see no reason why he was called upon to state that. Of course a person in negotiating under the circumstances he did, may have had more or less fear that such a result might be inferred and might, as a precaution, make a statement of that kind. Harrington testifies to a conversation on the same matter with the Olmsteds, which is denied. But, when we take into consideration the method in which the Olmsteds undertook, in the first place, to collect their claim; when we take into consideration the method of prosecution — to have it commence and then have it lie along; when we take into consideration that the day before the trial was to begin, their attorney went to the justice and said they would not appear to prosecute and they did not appear when the trial was to commence and it was dropped entirely; when all these facts and circumstances are brought to bear upon this matter — and the poor recollection of the attorney, and the hesitating manner in regard to this matter, in which the Olmsteds testify; we believe that Mrs. Baker was given to understand, and the Olmsteds and their attorney meant that she should understand, perhaps, not by express words, but by actions, and by their conduct taken in connection with what was said, that if she mortgaged her property and secured this claim, the prosecution would be dropped.

But it is contended that there was nothing said or done in this matter that would influence her. I have already noticed the fact that it is claimed she had time for deliberation.

Mrs. Baker, who was once married, has a child fifteen years old, and after she became a widow, she went to teaching school in this county, and had bought a lot and, with the aid and assistance of her father, had undertaken to put a building on it, and was struggling to make a home for her people and pay off the debt she had incurred in getting this home. It was to her a most important thing that she should be able to continue her occupation as a teacher; she had the care and support of her aged parents; and the continuing of her occupation that she might pay her debts, and make a livelihood for herself, and child and parents was at stake, and it was important to have no blot upon herself and her family. She was situated in such a way that her will would be easily overcome. Taking all these things into consideration, we believe that this lady acted without any free will, but under the pressure placed upon her by these threats and the fear of imprisonment for her brother.

Now it is contended that if the criminal prosecution was not conducted, these parties, both of them, are guilty of a criminal act in suppressing a criminal prosecution.

But this rule applies only where the parties act under a free will. There is no parum. delictum where this is not true. We have already found that she did not act under a free will. Not acting under a free will, but under compulsion, how can there be a guilty act on her part? And if she is not guilty of committing a crime, none can be imputed to her in this matter, and, therefore, not being guilty of a crime, she may avail herself of the defense of duress.

I may say I have found a large number of cases cited in the brief where this doctrine is stated: That a party who acts under compulsion and makes a contract where the ease results in being dropped, the party does not stand in parum delictum with the other parties.

She may, then, in this action, have whatever affirmative relief she is entitled to, and as against the plaintiff, the State Building & Loan Co. and, as against the Olmsteds, she is entitled to have this mortgage canceled, it being not void, but only voidable.

Furthermore, we think she is entitled, and we so hold in this case and the decree may be so drawn, that the Olmsteds, by means of fraud and duress practiced upon her, are the principals in this debt and she is the surety.

There is one other matter that the court ought to speak of. As we may be called upon to make findings of fact, we ought to state the father’s interest in the property. The testimony is all one way upon this matter, and that is, that the daughter bought this lot and paid for it. The title was taken in her name, with an agreement with her parents, that she would help to raise the money to pay for it and build a house and her father would help by contributing his work, he being a carpenter, and he would do all he could; a house should be erected on the lot, and it should be the home or place of residence for the father and mother while they lived, and, after their death, the property and the possession thereof should be in Mrs. Baker.

It is claimed that that can not give to the father a life estate, because of certain relations between them as to their both living there and both having a home there; and that she can turn him out. We do not believe that she can turn her father out of that home, under that contract. We think that he has for a valuable consideration obtained an interest in that property, and that this interest is an interest that equity will recognize as an interest in the property, or that it is a life estate. There being no deed to him for life, it is a strong equity at least, one that he could enforce, not only against her, but against any one that acquired an interest in the property with notice of his rights.

Now, as to notice of his rights. He lived there; Mrs. Baker lived there; she went away to school early in the morning, but she was there every Sunday, and the father and mother lived there. And yet it is claimed that the way in which they lived, would be notice to no one.

Now, the mere fact of his living there is notice that he is living on the property in some way, under some claim, or with his daughter, however it may be. But there is enough, in our judgment, to put any one who knows that much, upon inquiry as to his rights; and whatever that inquiry may develop, the parties must be charged as knowing. This is an old rule in equity: and the bank, therefore, and the Olmsteds must be charged with knowing his rights there as fully as Mrs. Baker knew them. That being true, we think he has a right in that property that can be protected as against the mortgage.

Marvin and Hale, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    OFFICERS
    [Cuyahoga (8th) Circuit Court,
    March 23, 1900.]
    Marvin, Caldwell and Hale, JJ.
    State ex rel Coolidge v. H. H. Hyman, Dir. Fire Dept.
    1. Appointing Officer Cannot under Civil Service Promote One not Certified.
    When an officer is required by law to appoint and promote city employes from a list of those who have attained a certain grade in competitive civil service examinations, he can not, in the exercise of his discretion, promote one who has failed to attain the prescribed grade, even though it be by the fraction of one per cent, and there are special reasons why he believed that one will be more efficient in the position to which he desires to promote him.
    2. Courts will not Interfere with Civil Service Examinations.
    While rules governing the conduct of civil service examinations, as established by the city council and the examiners, should enumerate the subjects.upon which applicants are to be examined, yet a failure so to do will not be ground for interference on the part of the courts when it appears that the examinations, as conducted, were upon the subjects upon which it would be necessary for the appointees to have knowledge.

      A. Burt Thompson, for plaintiff.

      T. E. Eogsett and Beacom, Exeell & Gage, for defendant.
   CALDWELL, J.

The statute provides tbat the mayor and the director of the fire department in the city of Cleveland shall draw up certain regulations governing the introduction of men into the fire department and their promotion from time to time in order to conduct examinations both for entering and for promotion; and it provides that an assistant engineer or fireman can not be promoted to that of an engineer when promotions are to be made, unless he has stood 80 per cent, in his examination for promotion.

The relator here, Coolidge, was promoted when he stood a fraction of one per cent, less than that.

There was another man on the list at the time who stood 83 per cent, but was not promoted.

The director of the fire department at the time of this promotion was made, claims that there is a discretion, after all, on his part, and that he could take this man and promote him, although there was another whose per cent, upon examination was higher, and the grounds for so claiming, is that in malting promotions, notwithstanding examination, the director must look to the age, the judgment, the manhood, and all such things, to guide him in all his promotions.

But, most clearly, if he would have a right to take a man who stood less than 80 per cent, and promote him when there were others on the list standing more than 80 per cent., he might carry that to a great extreme upon his ideas of judgment of men. He might take one who stood only 60 per cent, and yet, in his judgment, was the best man for the promotion.

These regulations are adopted under provisions of state law under an ordinance, and that ordinance, we think, must be followed. It is turning this department, among others of the city, into a civil service department, and the provisions of the ordinance and the law seems to be such that no one can get into the department except by starting at the foot of the ladder and climbing towards the top, and promotions are to be made strictly upon merit and not upon favoritism.

Mr. Coolidge, after there was a change of directorship, was put back as fireman or assistant engineer and brings this action to require the director to restore him to the position of engineer.

There is another complaint made — that the rule's and regulations which are adopted by the director and the mayor, and approved by the council, do not prescribe any sufficient rules and regulations governing the examination; that while they provide somewhat in detail and quite specifically as to the cadets, those who are coming into the department, yet thene is no sufficient regulation as to the method of examination as to how and upon what branches it shall be conducted when a promotion is sought.

The rules are quite specific as to what the candidate is to do to get his name before the examining board, and they are quite specific as to the board holding the examination, and all steps except, it is claimed, that there is a very serious defect in that the rules prescribe no branches nor line of examination, and that the board would be at liberty, so far as any rule adopted by the city would stand in the way, to examine him on Greek or any other language, or any branch of mathematics, or on anything that they might take a notion to examine upon. Of course, if the city examiners should hold an examination of that character, it would be very much contrary to people’s notions of what an engineer needs; above all things, he needs a practical education.

The questions and answers that have been used in order to make these examinations uniform and fair, were presented to the court and have been examined, and they pertain entirely to the practical knowledge that a man has of the position that he is seeking to obtain. There is nothing else in them; and they are well adapted to call forth all that an applicant knows on that subject. There is, however, some ground for the technical objection, and it may be that this board should proceed hereafter to indicate on just what subjects applicants will be examined; for instance, engines, pumps and the practical care of them, and remedy for any defects that may arise at any time; the use of heaters, signals, and all those things that pertain directly to the line of business; and to prescribe in the rules that the examination shall be confined to them. They have been confined there always, as the evidence shows, but the rule, perhaps, should be made definite upon that point.

But we do not feel that in this case, we ought to say for this reason that this party should be restored to the place which he had before. He had subjected himself to these rules and regulations, has undertaken to take his place in line of promotion by the rules that exist; and for us to undertake now to say that the board, the director, the mayor, and the city council have not made rules definite enough, might, perhaps, do in this department considerable injury and cause a great deal of trouble. We affirm the judgment of the board, and dismiss the petition.

Marvin and Hale, JJ., concur.


author: MARVIN, J.

text:
    GUARDIAN AND WARD
    [Cuyahoga (8th) Circuit Court,
    December 3, 1900.]
    Marvin, Caldwell and Hale, JJ.
    Catherine Wickendraeger v. John C. Hemmeter.
    When Action may be Brought for Error in Final Account.
    When a guardian is appointed to administer a fund in which two minor wards have an equal interest, and in the final account of such guardian it appears that one of the wards has been paid her half of the fund in full while all the costs of the guardianship were deducted from the share of the other ward, such manifest error and mistake as to the second ward is shown as to give him the right to bring an action under favor of Sec. 6289 R. S. (Sec. 10954 G. C.)
    Appeal.
    Win. E. Beavis and E. E. J ohnson, for plaintiff.

      Pinney & Klingman, for defendant.
   MARVIN, J.

The facts are that the defendant was guardian of the estate, by the appointment of the probate court of Cuyahoga county, of the plaintiff and her older sister, Charlotte Wickendraeger. This guardianship began on April 13, 1882, and continued until the plaintiff arrived at full age on July 18,1896. In 1897 the plaintiff filed in the probate court his final account of such guardianship, the account for the two wards being filed as one account. This account showed the balance in his hands for this plaintiff was $345.55, and that the other ward had received payment in full of the amount to which she was entitled. No exceptions were filed to the account, and the same was approved by the probate court. No appeal was taken, but on June 30, 1898, such date being within two years of the time when the plaintiff arrived at full age, she brought this suit under favor of Sec. 6289 R. S. (Sec. 10954 G. C.), which provides that:

‘ ‘ The settlement made in the probate court of the accounts of a guardian shall be final between him and his ward unless an appeal be taken therefrom to the court of common pleas in the manner provided by law, saving, however, to subsequent guardians during the minority of his ward, or to any such ward, at any time within two years after such ward shall arrive at full age, the right of opening and reviewing such settlements for fraud or manifest mistake, by civil action in the court of common pleas of the county in which sueh settlement was made, or the county where such former guardian may reside when the petition is filed, at the option of the plaintiff in such action. ’ ’

The petition avers that “there is manifest error and mistake in said guardian’s final account in that he has retained $250 from the amount due the plaintiff, for his services in his said trust,” and “that there is manifest error and mistake in the plaintiff’s deducting his fees entirely from the moneys remaining in his hands after the satisfaction of said Charlotte Wickendraeger’s half of said legacy when she became of full age. ’ ’ Other matters in the final account, as well as in partial accounts previously filed by the guardian, are averred in the petition as being manifest errors and mistakes.

When the guardianship commenced there was placed in the hands of the guardian, the sum of one thousand dollars belonging to the two wards in equal shares, the same being a legacy bequeathed to them.

Upon hearing it is urged that under the statute above named, if it be found by the court that there are manifest mistakes in any account filed by the guardian, the entire account may be inquired into and all mistakes corrected, whether the same be manifest or not. In short, that the court should, on such hearing, pass upon the accounts of the guardian as fully and completely as though the same had come into court by appeal from the judgment of the probate court.

It is further urged that there are in the accounts of this guardian, mistakes which are “manifest” and other errors in the accounts. It is said that the amount allowed to the guardian as compensation for his services was in excess of the amount which should have been allowed, and that payment for sueh services was made to him by the mother of these two wards which was to be accepted as full compensation for such services.

It would seem that the intention of the legislature in the enactment of the statute, was to provide only for the correction of accounts where no fraud is charged, to the extent that errors or mistakes are “manifest;” that is, they must be such as an examination of the account itself discloses, and unless the accounts filed by this defendant as such guardian, disclose some error or mistake, the petition in this action must be dismissed.»

We are of the opinion, however, that there is manifest error in the accounts in this: -that the guardian kept the accounts of these two wards as a joint account, charging himself for the two jointly with the one thousand dollars which first came into his hands for the two, then with the interest which was received on this money jointly for the two and crediting himself as against the two jointly for all payments made on account of such guardianship and for his services in the performance of his duties as guardian. There can be no doubt that the proper way to have kept his accounts would have been to have charged himself on account of each ward Avith the sum of five hundred dollars, and then to have taken to himself credit as against each for the payments made and services rendered *on behalf of each.

The final account as rendered by the guardian made claim for the credit of $340 for his services as such guardian; of this amount he had been previously allowed the sum of $80.80, so that there was taken out of the funds in his hands as shown by his final account, at that time the sum of $259.20. On December 5, 1894, the guardian had paid to Charlotte Wickendraeger the sum of $500, she having, at that time, arrived at full age; and this was paid to her as a complete settlement of all to which she was entitled. For this payment the guardian in his final account takes, credit, the practical result of which is that the $259.20 allowed in the final account as compensation for the guardian is all taken from the money Avhich would otherwise have been payable to this plaintiff. This error is manifest on the face of the account, and a correction of this manifest error should be made and is made here.

The true account of this ward is found by charging to the guardian upon his first account the sum of $500 of principal and one-half of the two payments of interest made to him, upon the filing of his first account, making the full amount to be charged to him on account of this ward at the time when his first account was filed, $550, and crediting him at the date of such amount with $50 paid for the support of the ward.

For the second account the principal is again $500, and one-half of the interest which he charges himself with having reeeived for the two wards is $60, giving him in this account credit for one-half of the payments made by him for the two, the amount of $64.25; this leaves a true balance in his hands of $495.75. Pursuing this course with each of the accounts, it will be found that upon the filing of his final account there would have been due to Catherine, but for the payment of $250 which he had previously paid to her and $17.54, another payment which he had made to her, and $10.99 which he had deposited with the probate court on her account and the allowance of $129.60, being one-half of the $259.20 allowed for services in said final account, the sum of $509.91, deducting from this sum these several payments, to-wit, $250 plus $17.54, plus $10 and said sum of $120.60, there remains due to the plaintiff from the defendant, the sum of $101.76, with interest from September 29, 1897, when such final account was filed, and for such last-named sum, judgment will be entered for the plaintiff, together with the costs.


author: HOUCK, J.

text:
    EASEMENTS
    [Muskingum (5th) Court of Appeals,
    January 2, 1922.]
    Shields, Patterson and Houck, JJ.
    Lee D. Dutro v. M. O. McCammon.
    Prescription Right in Alley Way on Adjoining Land not Acquired by Twenty-one Years Use.
    An easement for an alleyway is not acquired in a strip of ground running along side of plaintiff’s property and claimed by him by prescription, where the evidence discloses that the strip forms a part of the improved adjoining lot of the defendant, and that for more than seven of the last twenty-one years he maintained a building on the said strip and at one time a fence across the front, and that he has used the strip as a means of access to his store building and has left his wagons and teams there at will.
    Appeal.

      L. J. Weber and Perry Smith, for plaintiff.

      E. W. Iiuntz, for defendant.
   HOUCK, J.

The suit is one for ■ injunction against the defendant, the plaintiff claiming that defendant is seeking to and will obstruct his free use and that of the public in and to a certain alley or driveway lying between the lots of plaintiff and defendant. The pleadings raise the following issues of fact:

The plaintiff brought suit to procure an injunction against the defendant and to prevent the said defendant from building a stairway on the north side of the defendant’s building on Lot No. 6 in the I. N. McCoy addition to the village of Bast Fulton-ham, in Muskingum county, Ohio. The plaintiff owns a part of the south side of lot No. 5, to-wit, 26 feet wide by 85 feet long, and has a business building thereon which entirely covers his holding.

The plaintiff claims in his petition that there is an alley or right of way on the south side of his building and along the north side of defendant’s building and on and over Lot No. 6, and asks that defendant be restrained from building a stairway in the strip of ground between the building of the defendant located on Lot No. 6 and the building of the plaintiff, the strip of ground in question being'about nine feet wide and extending in length along the entire north side of Lot No. 6.

The defendant by his answer denies the existence of an alley or right of way between Lots No. 5 and No. 6, and in his cross-petition says that he is the owner of all of Lot No. 6 and asks that his title be quieted against the claim of the plaintiff.

The plaintiff in his answer to the cross-petition avers that for more than twenty-one years last past, the plaintiff and his predecessors in title and the public have used, without let or hindrance, said strip of ground in question, and that they have had the open and uninterrupted use of same as a road or driveway during all of said twenty-one year period and more.

The cause was submitted on the pleadings and the evidence, the latter being in the form of a typewritten transcript of the testimony taken in the trial in the common pleas court and supplemented by oral testimony taken in this court.

We have carefully read all the transcript testimony and with the oral proof analyzed and weighed the same.

The solution of the question presented embraces but a single question of fact, viz.: Did the plaintiff and his predecessors in title and the public, or either of them, have a prescriptive right over the strip of land involved in this suit?

In the light of the proven and conceded facts and the well known principles of law governing them, we must and do answer this question in the negative.

The plaintiff has failed in fact and law to sustain the claims made in his petition and the affirmative allegations of fact set forth in his answer to the cross-petition of defendant.

It was necessary for plaintiff to establish by that degree of proof required by law, in order to maintain his alleged prescriptive right or easement in the tract of land in controversy, the following facts:

(a) .Continued and uninterrupted use or enjoyment of the premises for a period of at least twenty-one years.

(b) A certain and definite road travelled.

(c) A claim of right and of such nature and character as to be adverse to the owner of the soil, which must be known to and acquiesced in by said owner.

There is an utter failure in the proof to establish these facts or either of them.

The evidence fails to show that the claimed right of way was open and visible to the owner or owners of the servient estate for a period of twenty-one years; and there are. no facts or circumstances that warrant us in finding that there has been such a continuous use of said strip -of ground, for the time required by law, as to charge said servient owner or owners with constructive notice or knowledge'of said use as would charge them with same.

We think that counsel will concede that where an owner of land and those from whom he obtained title have had the free use for more than twenty-one years, without let or hindrance, over and upon a certain well defined strip of ground of adjoining lands to a public street or highway, it constitutes an easement in and a right of way over such strip of ground so used.

The evidence in the present case is: that during the past twenty-one years, on said alleged right of way and for a period of more than seven years, a building stood on and over same, that on many occasions, and for weeks at a time, the owners of the servient estate would and did use same for their own personal benefit and to the exclusion of all others; that they placed posts and fencing across same, which remained there for weeks, and no one made complaint by reason thereof; that said owners of the servient estate used same as a means of getting to and from the store room located on said Lot No. 6 and on the south side of the right of way in question, and left their horses and wagons on said strip of land at will and for such time as they desired so to do.

Measuring these facts by the rule of law just laid down, we must and do find that the plaintiff is not entitled to the relief sought in his petition.

We cite the law as laid down in the following authorities and cases, when applied to the facts in the instant suit, as being decisive of the issue herein in favor of the defendant:

“In order, however, that the enjoyment of an easement in another’s land may be conclusive of the right, it must have been adverse, that is, under a claim of title, with the knowledge and acquiescence of the owner of the land, and uninterrupted; and the burden of proving this is on the party claiming the easement.” 2 Greenleaf, Evidence, Sec. 38.
“When one who is the owner of a tract of land uses a way over the land of another for the convenience of egress and regress to his own land, without let or hindrance and without obstruction for the period of twenty-one years, he thereby, in the absence of anything to the contrary, acquires a right by prescription to its use as an incident to his land; and the right will pass by a conveyance or descent of the land. ’ ’ Second syllabus. Pavey v. Vance, 56 Ohio St. 162 [46 N. E. 898],
‘ ‘ Title by prescription to a public street can be shown only by adverse user by the public, under a claim of right and uninterrupted for twenty-one years. ’ ’ Cincinnati & M. V. Ry. v. Roseville, 76 Ohio St., 108 [81 N. E. 178].

We have carefully considered all of the facts presented in this law suit and examined all of the authorities referred to in the briefs of counsel, and we are fully satisfied that the proven facts fall far short of making out a case for the plaintiff.

It follows that the petition of plaintiff must be and hereby is dismissed, the injunction dissolved, and a judgment is hereby entered as prayed for in the cross-petition of defendant and his titled is quieted in and to the land involved in this action.

Judgment for defendant.

Shields and Patterson, JJ., concur.


author: PER CURIAM.

text:
    CONTEMPT OF COURT — HABEAS CORPUS
    [Hamilton (1st) Court of Appeals,
    November 22, 1915.]
    Jones, Jones and Gorman, JJ.

      In re Henry S. Rosenthal, Habeas Corpus.
    Proceedings in Contempt can not be Reviewed by Habeas Corpus.
    Inasmuch as the superior court of Cincinnati had jurisdiction to try the case in which the petitioner herein was committed for contempt, its proceedings can not be reviewed by habeas corpus however irregular or erroneous they may have been.

      C. W. Baker, for Rosenthal.

      Hosea & Knight, for Sheriff.

      Petition dismissed by supreme court, February 15, 1916.

   PER CURIAM.

The superior court of Cincinnati has jurisdiction to punish for contempt of court by inherent right and under Secs. 12136 and 12137 G. C. It had jurisdiction to try the cause on hearing in which Rosenthal was committed for contempt of court. Whether testimony in that cause was properly being heard on the 5th and 6th days of November when it had previously been continued until the 12th of November raises a question merely as to the regularity and correctness of the proceedings. No matter how irregular and erroneous its proceedings may have been, they can not be reviewed by habeas corpus. A writ of error is the appropriate remedy. A writ of habeas corpus can not be used to perform the office of a writ of error. D. Fusfield, In re, 3 O. App. 224 [36 O. C. C. 72; 21 C. N. S. 62]; Shaw, Ex parte, 7 Ohio St. 81; Van Hagan, Ex parte 25 Ohio St. 426; McGorray v. Sutter, 80 Ohio St. 400 [89 N. E. 10; 24 L. R. A. (N. S.) 165n; 131 Am. St. 719].

The court of common pleas was without jurisdiction to entertain the habeas corpus proceedings in this case, and its judgment must therefore be reversed.


text:
    NUISANCE — STREET RAILWAYS
    [Cuyahoga (8th) Circuit Court,
    May 28, 1900.]
    Marvin, Caldwell and Hale, JJ.
    John Schueszler v. Cleveland, M. & S. Elec. Ry. et al.
    Electric Railway no Right to Destroy Fence Projecting over Street Line Abutting Right of Way.
    One who suffers no peculiar injury from the existence of a public nuisance, such as a fence in a public highway, has no right to abate the nuisance, when it does not interfere with public travel in the highway, and this applies to an electric railway throwing down fences projecting over the street line abutting its right of way.

      Dickey, Brewer & McGowan, for plaintiff in error.

      White, Johnson <& McCaslm and Hackney & Johnson, for defendants in error.
   CALDWELL, J.

We reverse this case and remand it for a new trial. At the beginning of the trial below admissions were made of certain facts by the attorney opening the case to the jury, and upon his statements taken as facts in the cage, the court entered a judgment against the plaintiff below, who brings the action here, to have it reversed.

The question was discussed here as to whether that is proper ' practice, but we find it unnecessary to say much on that subject. We have examined the bill of exceptions, which consists very largely of what the attorney said and what was stated on the other side in answer, and then the second statement by way of a reply made to the jury by the attorney for the plaintiff. The court supposed that the attorney had stated every fact necessary to be proved on the other side, that is, had admitted every fact in order to defeat the plaintiff, and that being true, the court entered judgment against the plaintiff.

The defendant in this action, the Cleveland, M. & S. Ry., was constructing its road along a highway at a point where a farmer had his fence a few inches or perhaps a foot or two, in the highway, just as many farmers have their fences, and the railroad company undertook to take down the fence and put it ■back on the line where it should have been.

The farmer and his wife and his son-in-law, Schueszler, came out to defend the fence, and drove off the employe of the railroad company; thereupon the company had the parties arrested for obstructing the highway, under See. 6921 E. S. (Sec. 12646 G. 0.)

Schueszler was cleared of the charge made against him, and brought this action for damages.

The statement made by the plaintiff’s attorney in opening his case seems to admit, on behalf of his client, that the fence was in the highway; and that being true the court thought if that fact was established that it would justify the railroad company in putting it back upon the line. The statement included an allegation that the public had all of the highway it needed for any lawful purpose, and that the purpose for which the railroad company was proposing to use it was an unlawful purpose.

Now, whether that was unlawful or not we do not know. If this was a steam railroad, or a railroad in the nature of a steam railroad, there is no doubt but that an appropriation in the highway would be necessary before it could go upon the highway, while if it comes under the very noted case of Cincinnati & S. G. Av. St. Ry. v. Cumminsville, 14 Ohio St. 523, and is merely the usual mode of local traffic upon the highway, an appropriation may not be necessary; and we are unable to learn from this bill of exceptions which kind of a railway it is. There is no statement that shows which kind of a railway it is and no assumption can be made that it is one kind or the other. Even an electric road may come under the head of steam railroad, Lawrence Ry. v. Williams, 35 Ohio St. 168. Electric roads are becoming of such length and of such a nature that there is a point somewhere where it becomes necessary for them to appropriate a right-of-way in the highway. ' Where the line is that marks the difference between a street railroad and a railroad that passes through the country for general traffic, we do not attempt to say. We have held, though, in another case that it was not necessary for this company to appropriate. But the proof was not very clear before us as to the character of the road they were going to build. It was insisted that the proof was sufficient to show that they were to have their tracks in such shape that no other person could possibly use it, as in the city, by driving upon it or crossing it except in such places as crossings are made. That ease has gone to the Supreme Court, where, perhaps, some law will be determined as to the character of this road. But the evidence was not very clear upon that point and we held it the same as a street railway — that they had a right to pass without appropriation.

The law in regard to this fence, like many other nuisances that exist, is, that not every person who uses the highway has a right to abate the nuisance. If a man can travel upon the highway, as everybody else does, then because some one is trespassing upon the highway with a fence which does not interfere with his travel upon the highway, he has no right whatever to abate the nuisance. A man driving along and seeing a fence that does not interfere with him, has no right to get out and knock down the fence; there must be a damage to him that is peculiar to him and interferes with his proper use of the highway before he can interfere with such a nuisance. It is a matter that belongs to the public, to the officers that have been elected to look after these things. So that if the railroad is the kind of a one that has no right upon that street or road, then it had no right to interfere by knocking down that fence, even if it did interfere with the company, because it would be there itself without right as to the adjoining owners. And if that is true then it would have no right to undertake to take into its hands the law and abate the nuisance any more than a private individual would have.- It is there simply as a private individual. Whether it has a right to use the street or not without appropriation, we do not know from this bill of exceptions. But it is said that this party is seeking to recover for damages for being arrested for a thing that he admits he did do, for he answers and admits that he was upon these premises. Schueszler is not shown to be the owner of the fence, and if he was there maintaining that fence at all it was simply in helping the owner to keep it there and that was the only offense which could be charged against him. And the right of this railroad company to use the street must clearly appear before it has a right to arrest people for using the street by having their fences out in the highway. This fact of the right of the railroad company does not appear, and it is not necessary to pass upon other questions.

There are other cases pending below; and I would say that in our investigation of these we find that this man Sehueszler stands in quite a different relation to this matter than does the man who puts his fence upon the highway and keeps it there; Sehueszler did nothing more than to keep parties from tearing it down, and whether that party had any right to take it down or not, we do not know from the bill of exceptions and, because of that lack of knowledge, we hold that the court below had no right to enter judgment in this case.

Marvin and Hale, JJ., concur.


text:
    STREET RAILWAYS
    [Cuyahoga (8th) Circuit Court,
    January 14, 1901.]
    Marvin, Caldwell and Hale, JJ.

      William Downing v. The Cleveland Electric Railway Company.
    One Injured by Driving in Dangerous Place on Highway beside Street Car Track at Curve is Guilty of Negligence.
    When approaching a sharp curve in the highway, one from choice and not from necessity, drives so close to a street car track that his wagon is struck by a car coming round the curve before he can turn out, his injury is the result of his own negligence.

      Winch & Thompson and J. H. Smart, for plaintiff in error.

      Kline, Carr, Tolies & Goff, for defendant in error.

      Affirmed, no opinion, Downing v. Cleveland Elec. Ry., 68 Ohio St. 648.

   CALDWELL, J.

The plaintiff was injured in a collision between his wagon and a car belonging to the defendant company, upon the highway in the village of Euclid in Cuyahoga county.

He came into market the evening before the injury, and was driving out in the daytime. He himself was lying down in the wagon or reclining upon some boxes, and his daughter, a girl about fifteen years old, was driving the team. As they approached Euclid and were part way down the hill going north, they met a car, and the wagon and team and he himself were injured.

The highway at the point where he was injured is on a down grade going north and in it there is a curve curving to the west and on the concave part of this curve, just off the highway, are bushes growing. On the highway next to the bushes, on the south side, is the street railway track; next to that is a dirt track for teams, and still north or west of the dirt track is a plank road. Teams can drive either upon the plank or upon the dirt road.

It appears that the plank was somewhat out of repair at the time of this injury, but not so much that it could not be used in the ordinary modes of travel. The plaintiff was driving upon the dirt track of the highway, next to the railway track, and while going down the hill, a car approached from the village of Euclid and the wagon was so near the track that it was hit by the car and the injury complained of followed.

The allegations of negligence are: in not trimming up the trees and shrubs along the south side of said road, and allowing them to remain in that condition so that the approach of defendant’s cars could not be observed; in failing to warn by sound of gong or other signal when approaching said curve; in running the motor and approaching the said curve at a high and dangerous rate of speed, well knowing the dangerous condition of the road at that point, and well knowing the difficulty of checking the speed or stopping the motor when going at such a high rate of speed; in not keeping a proper outlook for travelers, and in not reversing the motor, or even applying the brake until it was too late.

The defendant answered to these allegations, denying each one and any negligence on the part of the defendant in error, and averring that if the plaintiff received injuries, it was due to his own contributory negligence.

The case went to trial, and the court directed a verdict for the defendant, the railway company. The only grounds of error that plaintiff relies upon in this court are: that the court erred in directing a verdict for the defendant in error, which verdict was against the weight of evidence; and, second, the court erred in overruling the motion of the plaintiff in error for a new trial; and that the verdict was contrary to the law and the weight of the evidence.

The plaintiff in error contends that he had produced evidence tending to show that the defendant in error was guilty of one or all of the allegations of negligence in the petition. That this was a place where a car might suddenly appear upon a person traveling upon the highway without ability to see it before its approach, on account of the bushes that grew in the line of vision and that for that reason the railroad company should, upon approaching such a dangerous place, give some signal, and not rely upon persons traveling upon. the highway seeing the car. And he claims, further, that he was traveling upon the dirt portion of the highway where he had a right to travel; and having a right to travel upon that portion of the highway, he was guilty of no negligence; and that having shown that the defendant in error was guilty of negligence that, instead of a verdict being directed by the court against him, it should have been submitted to the jury, and that upon the evidence as produced he was entitled to a verdict by the jury; and that by reason of this misdirection of the court, he was prejudiced and is entitled to have the judgment reversed and a new trial granted.

But as the evidence stood, it clearly shows that the plaintiff in error knew that he was liable at any moment to meet a car upon the track. He knew the dangerous character of the place and with this knowledge he drove his team, or permitted his daughter to drive his team, so near to the railroad track, that, when the car did approach and did come suddenly upon them, she was unable to get the team away from the track, if she had made any attempt to do so, in time,to prevent the wagon being hit by the car.

It is true'that plaintiff had a right to drive upon any part of the highway. He had the right to drive upon the railroad if he saw fit to do so; it is a part of the highway — and there is no law forbidding him to use any part of the highway. But a clear right may be exercised under such circumstances that the party will be guilty of his own injury when that occurs through a wrongful exercise of his rights and privileges.

While it was his right to drive upon the railroad track, yet he would be guilty of negligence if he drove upon the track at a point where he could not see a ear approaching him at any distance ahead. And it was his right to drive upon the dirt part of the highway, but, knowing the dangerous character of the place and how suddenly he might be run down by a car, and knowing that he would be unable to' see the car approach, it was his duty to drive so far from the track that, if the car did suddenly approach, his wagon would not be hit.

There is no reason assigned why he might not have done this as well as to drive as close to the track as he did. The only reason that might be assigned was, that the dirt road was a better road to travel upon than the plank, but the evidence shows that the dirt road was wide enough so that he could have traveled entirely upon that and yet have been out of reach of the car.

As the evidence stood at the time the judge directed the verdict, there was no contradiction in it whatever as to where the wagon was, how close to the track; as to the manner in which it was being driven; as to the fact that the plaintiff in error knew all the surroundings quite as well as did the railroad company; and yet he permitted his wagon to be driven'so close to the track that it would be hit by a car if it approached at that point, and, in so doing,- he was clearly guilty of contributory negligence, and, as the evidence stood, that became purely a question of law for the court, there being no contradiction in the evidence whatever. The facts leading up to the’ conclusion of contributory negligence .being all established without contradiction and without any controversy, the court had a right to conclude that there was contributory negligence on the part of the plaintiff in error, and did right to direct the verdict as it did. We find no error in this case, and the judgment of the court of common pleas is affirmed.


text:
    APPEALS
    [Cuyahoga (8th) Circuit Court,
    December 3, 1900.]
    Marvin, Caldwell and Hale, JJ.
    State ex rel Larwill, v. Harry L. Vail, Clerk.
    When Appeal by One Party Operates as an Appeal as to All.
    When an appeal is perfected by several parties claiming funds in the hands of two joint defendants, and by one of the joint defendants, such appeal takes the case up in so far as any decree rendered against the other defendant in the lower court is concerned.

      J. D. Gritchfield, for plaintiff.

      C. H. Kibler and Henderson & Quail, for defendant.
   CALDWELL, J.

This is an action in mandamus, brought by the plaintiff against the defendant in this court, asking for an order from this court directing the clerk to issue execution on the judgment obtained by John C. Larwill against Stevenson Burke in the court of common pleas of this county.

In that action John C. Larwill was plaintiff, and it was brought against Stevenson Burke and Charles H. Hickox, executor of the estate of Charles Hickox, deceased, and against Lee and Hull and others. The complaint in that action was, that Burke and Hickox had in their hands, as directors of the Cleveland & Snow Fork Coal Co., certain moneys that belonged to the company, and that the company was under the control of Burke and Hickox as directors of the Cleveland & Snow Fork Coal Co., and that a prosecution on the part of the company could not be had for the reason that the company was entirely under the control of Burke and Hickox. The relief asked was that the stockholders might recover from Burke and Hickox the monej'- that was due them from the company by reason of their being stockholders in the same. Larwill claimed to be such a stockholder and was found to be such; so were Lee and Hull; and it was found that the allegations above referred to in the petition were true. A judgment was rendered in favor of Larwill for the amount of his claim as found by the common pleas court against Burke and Hickox, and a like judgment was obtained by Lee and Hull. There was a contest in that action between Larwill and Lee, and also a contest between Larwill and Hull. Larwill claimed to be the owner of the stock which formed the basis of the claim of Lee against Burke and Hickox, and that was denied by Lee.

The same was true as to the issue between Larwill and Hull. Those issues were determined severally -in favor of Lee and Hull, and against Larwill. Hickox, as administrator, appealed. The corporation, the Cleveland & Snow Fork Coal Co., was a party to the action and it appealed. Larwill appealed as to the issues found against him, which issues were between himself and Lee, and himself and Hull.

The case was brought into the circuit court by these appeals, and has been tried by the circuit court. In that trial the circuit court held that the case was of such nature that it was appealable, and it is not necessary at this time to say anything more upon that proposition, and it is not sought to have the court reverse itself as to that holding in this action.

The questions to be considered here are, whether the appeal by Hickox, as administrator, and by the Cleveland & Snow Fork Coal Co. and by Larwill, one or all of them, brings up the case as to the issues against Judge Burke. The case is one against Burke and Hickox, as administrator, as joint obligors in such a manner that they are not separated in any manner by the pleadings'or anything that was done in the case as to the other, unless it is the fact that Charles Hickox in his lifetime is said to have become liable jointly with Judge Burke for this money to the stockholders of the company, but that by his death and the appointment of his administrator, the obligations became separated and several, and that being true, the appeal by the administrator would not bring the action up as to Judge Burke.

We are unable to agree with counsel, that the death of Hickox had any such effect as is claimed for it, and it is our opinion that the appeal of Hickox brought up the case as to Judge Burke as well as to himself.

Larwill appealed, in which appeal he seeks to have the judgment obtained against him by Lee, as well as the judgment obtained against him by Hull, reversed and a different holding made.- If that appeal brings up only Lee and Hull, and Lee and Hull are unable to obtain a judgment against Judge Burke, then Larwill can get none unless Burke is in the circuit court, for setting aside the judgment of Lee and Hull by the appeal would leave money in the hands of Burke and Hickox unappropriated so far as can be done by any adjudication; and it is that money that is sought to be reached by Larwill. It appears to us that in order to reach the money that was to be paid by Judge Burke on the part of Larwill, that Judge Burke must be here as the custodian of the money, whether as trustee or in any other capacity.

Hence we conclude that the appeal of Larwill as against Lee and Hull brought up the subject-matter of their litigation, which was as to who was entitled to the money going to the person who should be held to hold the stock in litigation between them, and that the money can not be in the court without the persons who hold it are there; and that, therefore, that appeal brought up all persons connected with the case so far as any questions in this action are concerned.

The writ of mandamus is denied.

Marvin and Hale, JJ., concur.


author: KINKADE, J.

text:
    MASTER AND SERVANT
    [Lucas (6th) Circuit Court,
    June 12, 1909.]
    Parker, Wildman and Kinkade, JJ.
    General Ry. Signal Co. v. E. Valois, Admr.
    Liability for Injuries Sustained by Volunteer.
    One who calls for and procures the gratuitous assistance of a volunteer does not owe him the duty of exercising ordinary care in the furnishing of proper tools or a safe place to work; but when the volunteer is serving a purpose of his own or of his master in complying with the request for help, he is entitled to the exercise of ordinary care on the part of the one calling him or his servants.

      Smith (& Baker, for plaintiff in error.

      Stephen Brophy, for defendant in error.
   KINKADE, J.

In this ease, in which there was a judgment for the plaintiff in the court of common pleas, the plaintiff in error assigned for consideration a large number of errors, and passing for the present the errors assigned with reference to the admitting of testimony, we take up the errors to which our attention is called in the request to charge, given before argument, and in the general charge of the court. And I may say at this time that this is a case to which we have given a great deal of attention. We were cited by the defendant in error to Cleveland, T. & V. Ry. v. Marsh, 63 Ohio St. 236 [58 N. E. 821; 52 L. R. A. 142], of which it may be said that the record in the ease at bar justifies the most careful study. There are many cases similar to this from other states that we have also examined. Taking up the errors as I have mentioned in the request to charge, plaintiff asked and had given before argument requests Nos. 3, 1, 6 and 2, and exception was taken to the giving of 3,1, 6 and 4, as appears by the bill of exceptions, which leaves No. 2 as unexcepted to although it was argued here as incorrect; and it is finally stated on the records that the defendant excepts to 3, 1, 6 and 4 instead of 3, 1, 6 and 2. It seems that throughout this case the court treated the ease as if the railway signal company owed to Vincent Toda every duty that it owed one of its employes, and even more in one sense, for the court held, and the case of Cleveland, T. & V. Ry. v. Marsh, supra, justifies the holding, that the railway signal company could not escape liability if the negligence from which the injury arose was the negligence of one of its employees, who would have been a fellow-servant had Toda been in its employ. But aside from this, the court states the law as fully as it could be stated if Toda had been in the signal company’s employ, in this No. 3, which reads as follows:

“3. If the jury finds from the evidence that the decedent, Vincent Toda, was in the employ of the Toledo Rys. & Light Co. upon April 10, 1907, and was directed by said company or its agents in charge of said Toda to assist in preparing and placing concrete at the base of a pole which the defendant had undertaken to erect for said Railways & Light Co., and should you further find that there was a foreman of the General Ry. Signal Co., the defendant herein, in charge of and carrying on said work for the defendant, and that said foreman had authority to employ servants, and said foreman requested said Toda to assist in raising said pole, and if such assistance was apparently necessary, or if there was an actual necessity for him to assist in raising said pole and if you further find that in response to said request said Toda did assist in so doing, and was thereby furthering or expediting the work of the Toledo Rys. & Light Co., and in so assisting was injured by the carelessness or negligence of the foreman of the General Ry. Signal Co., or any of defendant’s servants engaged in raising said pole, which proximately caused his death, then you are instructed that the said Toda did not assume the risk of any negligence on the part of the servants of the defendant company, if there was negligence, and did not assume the risk of said work being done with appliances that were not suited to doing said work, should you find that said appliances were not suitable to carrying on said work, unless decedent Toda knew that said appliances were not suitable to carrying on said work, or knew of the negligence of the foreman and servants of the defendant. ”

We think this request as given is faulty in this regard, that it does not state, in addition to stating that Toda did not know, that Toda would not have known of the existence of these things by the exercise of ordinary care, and we'think it is further faulty in this regard, that it charges .the employer with the duty of seeing and knowing that the appliances with which Toda was invited to work were in an ordinarily safe condition for him to work with. It charges him with that duty, and we think he does not hold that duty, and that in that regard the charge is defective.

Request No. 1 (which follows) reads very much as the other request and I will not repeat it down to a given point, taking it up where he says that:

“If there was an actual necessity for him to assist in raising said pole, and if you further find that in response to said request, said Toda did assist in so doing and was thereby furthering and expediting the work of said Railways & Light Co., and in so assisting was injured by the carelessness or negligence of the foreman of General Ry. Signal Co. or any of defendant’s servants engaged in raising said pole, which proximately caused his death without fault on his part, and that decedent did not assume the i’isk, then you are instructed that the defendant is liable in this action for any and all pecuniary damages which you find the decedent’s wife and children have suffered by reason of his death.”

We think this request is faulty in this regard, that it makes the railway signal company liable if there was any negligence, regardless of its degree, on the part of those assisting the foreman. The language is, “Was injured by the carelessness or negligence of the foreman of the General Ry. Signal Co. or any of defendant’s servants engaged in raising said pole.” This request would cover as it stands the slightest negligence. The parties might be exercising ordinary care in the fullest extent that the, situation demanded and still be liable because they were guilty of some slight negligence.

My attention is called to a fact by Judge Wildman that had escaped me for the moment, that this is a request given before argument, and up to this time the court had not defined ordinary care or negligence. And this request we think is faulty in another regard, in that it submits to the., jury the question of whether Toda did or did not assume the risk. If the facts are admitted, it is a question of law whether he assumed the risk, and if the facts are not admitted, it is for the jury to find the facts under proper instructions from the court. It is not for the jury to determine whether he did or did not assume the risk.

We think that request No. 6, that was excepted to, might be in better form than it is, but we are not disposed to hold that request No. 6 constitutes prejudicial error in this case.

Passing now to the general charge, there was an exception to the language used by the court on page 93, as follows:

“If the deceased, Toda, sustained the injuries which later caused his death by reason of the failure of the defendant, General Ry. Signal Co., to exercise ordinary care in the furnishing of machinery or appliances for the erection of the pole, or if its servants failed to exercise ordinary care in the operation of raising the pole at the time Toda was hurt, and he himself was exercising ordinary care upon his part to avoid injury at the time that he was injured, the plaintiff, the administrator of Toda, is entitled to recover in this action. ’ ’

This presents perhaps clearer than any other portion of the charge, the question as to the right of a volunteer, who is not, strictly speaking, a volunteer, because he has some purpose of his own to serve, as mentioned in the Marsh case, to have the master exercise ordinary care to furnish him a reasonably safe place to work and reasonably safe appliances with which to work, and holds the master liable whether he knows the appliances are defective or not, in case they turn out to be defective. We think this portion of the charge is erroneous in this regard. We think a correct statement of the rule might be as follows:

‘ ‘ One who calls for and procures the services of a volunteer, gratuitously, does not owe him the duty to exercise ordinary care in furnishing a reasonably safe place or safe tools. * * * The duty in this respect is not the same as that of an employer to a servant. The volunteer is under no obligation to render the services solicited; he has no contract relation at all with the party who calls him, and he may serve or not serve as he pleases. In case a volunteer is serving a purpose of his own or his master in complying with the requests, then he is entitled to the exercise of ordinary care on the part of the party calling him, and also on the part of the servants of the party calling him, in anything they may do in connection with the voluntary service.”

We have examined a great many eases on this subject. It has given us no little concern, and we have been aided very materially by the briefs that have been furnished by the counsel in this case. The brief of counsel for defendant in error is especially helpful in the examination of this case, and after examining a very large number of authorities we are satisfied that a volunteer, even though having some purpose of his own to serve, as the boy lighting the lamp had in the Marsh case, receiving pay from the agent, still he must take the situation as it is, as he finds it. We see no reason why a man may not ask a volunteer to aid him in something that is in itself unquestionably hazardous, and it may be that in aiding him the volunteer is serving some purpose of his own, and it certainly can not be the law that the moment the volunteer steps to the aid of the man who calls him, a duty springs into being to make the situation which is obviously surrounded by danger reasonably safe for the volunteer to act in. A man may be called by another to aid him, if he sees fit, in stopping a runaway horse, as dangerous an occupation as he could be engaged in, probably, and the man who aids him may have some purpose of his own in aiding him, but because he volunteers it is not the law that the man who asks him must immediately put the thing in a' safe position for the volunteer to act, because it may not be possible to do so. It is very dangerous throughout, and bound to be dangerous, and the volunteer must assume it to that extent. It is a peculiar doctrine that a volunteer can hold liable one whose servant asks him to come, merely because he is receiving some pay for coming from some servant of the man who called him, without the knowledge of the real employer himself, but that is the holding in the Marsh case, and it is very clearly stated, and, as I have said before, we have considered this Marsh case with great care.

The next point in the charge to which exception is taken is found on page 94, and we think this is one of the serious things in this case. The language is:

“It was the duty of the Bailway Signal Co., in the first instance, to adopt and furnish such machinery and appliances for the erection of the poles as would be reasonably safe for the carrying on of the work. They are not guarantors of the safety of Toda, and were not required to furnish the latest or most improved appliances for the purpose, but were required to furnish such appliances as an ordinarily prudent person would customarily employ in a like enterprise. It was also the duty of the company, after having adopted such appliances, if you find that it did so, to so use the appliances adopted by it through its servants and employees as to make reasonably safe the performance of the work of erecting the pole by those engaged therein, and not to expose them to any greater danger while engaged in the work than the nature of the work itself would ordinarily involve, and which was necessarily incident to the performance of such work in an ordinarily prudent manner.”

The first thing that we note is wrong with this language is that it is squarely at variance with a very recent decision of the Supreme Court, to the effect that the duty of a master is not to make the place reasonably safe for the servants, or to furnish appliances that are reasonably safe for his use, but it is to exercise ordinary care to make the place reasonably safe and to furnish appliances reasonably safe. That is the duty relative to employees, and we can not see why the duty should be any higher relative to a volunteer, who may or who may not come as he sees fit. We think this portion of the charge is clearly erroneous. And on account of the errors in the charge to which we have called attention, we think this case must be reversed.

One request was tendered by the defendant in error that the court under the testimony should instruct the jury to return a verdict for the defendant. After a full consideration of all of the cases, we are inclined to say that were it not for the case of Cleveland, T. & V. Ry. v. Marsh, supra, we would be disposed to hold that it would have been the duty of the court to have so directed, but of course the court could not direct under the evidence in this case with the Marsh decision standing as it does.

This brings us now to errors that our attention has been called to relative to the admission of evidence, and they relate to evidence concerning the number of men necessary to erect the pole, and what was proper to be done, and expert evidence on this subject, etc. There was a general objection put in, with the consent of the court, to all this class of evidence, and an exception taken to its admission. The plaintiff in the action below sought to prove that the method by which this work was done was not correct, and to prove by expert testimony that it was not correct, and to prove that the number of men were not sufficient. We agree with the contention in the argument here of counsel for plaintiff in error that the number of men employed in this situation seems to have had nothing to do with» the case at all. There were men enough employed to raise the pole; otherwise it never could have been raised. After the pole was raised a prop was placed under it, any one who reads this record will- at once discover that the cause of the accident here was the improper placing of the prop by one, perhaps, who would have been a fellow-servant of Toda had Toda been in the employ of the railway signal company. But the difficulty is that Toda was not in the employ of the railway signal company. We will say this concerning all of this evidence that was admitted touching this feature of the case, that it is our opinion that this class of evidence should have been excluded. For the errors that I have mentioned the judgment of the court of common pleas will have to be reversed.

Mr. Brophy : Is there an assumption of risk in this case ?

Kinkade, J.: We will answer that this way, that the volunteer, Toda, did not assume the risk of the negligence of the man who called him or his assistants or his employes, the active negligence of the men. We think he did assume the risk that is incident to the appliances with which he worked. We think the Marsh case protects him against the negligence of the man calling him and against the negligence of the servants of the man calling him in their active participation in the work to assist in the doing of which he was called.

Wildman, J. :

He did not assume the risk in the sense that a person assumes it by a contract of employment between master and servant, but assumed it something in the same sense that a person walking over a defective sidewalk assumes the risk, if he knows the danger or ought to see it or ought to know it by the exercise of ordinary care. It does not grow out of contract.


author: SHIELDS, J.

text:
    FORGERY
    [Licking (5th) Court of Appeals,
    October Term, 1915.]
    Powell, Houck and Shields, JJ.
    Burt Cochran v. State of Ohio.
    1. Failure to Produce Forged Instrument.
    In a prosecution for forgery, in which a denial has been entered, the defendant is entitled to have the alleged forged instrument produced or its nonproduction satisfactorily accounted for before secondary evidence as to its contents is admissible, and a mere statement by the prosecuting attorney to the effect that he did not have nor had he seen the instrument to which the indictment refers, either before or since the sitting of the grand jury which returned the indictment is not a sufficient explanation of the reason for its nonproduction at the trial.
    '2. Confession not Amounting to Admission of Forgery by Accused, Insufficient.
    Statements made by the defendant in the nature of a confession are insufficient upon which to base a conviction of forgery, when it does not appear that the so-called confession was an admission of the forgery by the defendant to the particular instrument upon which the indictment is based.

      James F. Lingafelter, for plaintiff in error.

      J. ~W. Horner, for defendant in error.
   SHIELDS, J.

One of the errors complained of is that the state, having conceded the loss of the alleged forged check before the sitting of the grand jury finding the indictment herein and before the trial of the plaintiff in error upon said indictment, failed to allege that said check was lost or destroyed and that upon said trial no proper proof was given of its loss or destruction to authorize the state to introduce the contents thereof.

Under an examination of the bill of exceptions we are of the opinion that no such proper proof was introduced of the loss or destruction of the alleged forged check as to admit of proof of its contents. True, the prosecuting attorney said in answer to an inquiry made by the court that he did not have nor had he seen said check before or since the sitting of said grand jury. This was simply a statement made by the prosecuting attorney.

Courts have uniformly held that on the trial of a person for a forgery the instrument alleged to have been forged must be produced on the trial or its non-production must be satisfactorily accounted for before secondary evidence of its contents is admissible. Here the forgery was denied by the plaintiff in error when on the witness stand; and in a criminal case involving the liberty of a person we think it is not too much to say that the accused is entitled to have the forged instrument produced, or its non-production properly and legally explained.

In this connection it might be stated that while the record shows that the plaintiff in error made statements after his arrest in the nature of confessions, still it does not satisfactorily appear that such alleged confessions related to this identical check, nor does it appear that any diligence was used in searching for and producing said check. It may be that the witness, Parlet, had in mind, and possibly did have the check in question at the time of his conversation with the plaintiff in error, but the answers to the inquiries made by him of the plaintiff in error do not contain an admission of the signing of Parlet’s signature to this-check. Under this state of the record we think the court below erred in overruling the objection of the plaintiff in error in permitting secondary evidence of the contents of said cheek to be given to the jury and also in overruling the motion of the plaintiff in error to withdraw said evidence from the jury after given.

As to the action of the court below in overruling the motion of the defendant below to quash said indictment, and in overruling said demurrer to said indictment, we find no error in the action of said court, but for the error hereinbefore referred to this cause will be reversed and said cause remanded for further proceedings.

Powell and Houck, JJ., concur.


author: BY THE COURT.

text:
    BONDS — INJUNCTION
    [Hamilton (1st) Court of Appeals,
    April 3, 1916.]
    Jones, Jones and Gorman, JJ.

      State ex rel Campbell, v. Fred E. Wesselmann et al.
    Issue of Bonds for Insane Hospital Approved by Electorate not Enjoin-able.
    Injunction does not lie against an issue of bonds, put forth by county commissioners for improvements in an insane asylum owned by tbe county, when the issue has been approved by the people and the proceeds are disbursed in accordance with the statutory provisions.

      Campbell, Eiekenlooper, Hcmck & Capelle, for plaintiffs in error.

      Herman P. Goebel, for defendant in error.

       Affirming, State v. Wesselmann, 30 Dec. 455 (18 N. S. 564.)

   BY THE COURT.

The commissioners of Hamilton county have the • authority to provide for the issue of bonds for the construction, enlargement and repair of buildings for Longview Hospital under Section 2434, General Code, after first submitting the question of such issue to the voters of the county and receiving their approval in compliance with Section 5638, et seq., General Code.

The proceedings for the issue of bonds in the sum of $300,-000 for such purpose, which ai’e attacked in this action, are regular and valid, and fully comply with all the requirements of the law.

So much of the proceeds of these bonds as are issued for the purpose of constructing new buildings can only be disbursed and expended by a building commission to be constituted and controlled under the provisions of Sections 2333 to 2342 inclusive, General Code; and the'amount used for the repair of existing buildings must be disbursed and expended by the board of directors of Longview Hospital,

The judgment of the court of common pleas is affirmed.

Jones (E. H.), Jones (O. B.) and Gorman, JJ., concur.


author: JONES (E. H.), J.

text:
    INJUNCTIONS — MUNICIPAL CORPORATIONS
    [Hamilton (1st) Court of Appeals,
    February 14, 1916.]
    Jones, Jones and Gorman, JJ.

      Peter Dreidame v. Cincinnati (City), et al.
    Vacation of Street to Beautify Lawn of Municipal Hospital, Enjoined.
    The benefit which would result to the lawn and grounds of a municipal hospital by enclosing therein a part of a public street does not afford a sufficient reason for vacation of the street and consequent injury to the public, and such use of the street will be enjoined upon the petition of a taxpayer.
    Appeal.

      Wm. Thorndyke, for plaintiff.

      Walter M. Sehoenle and Saul Zielonka, for defendants.

       Motion to certify overruled by Supreme Court, June 6, 1916.

   JONES (E. H.), J.

The plaintiff, Peter Dreidame, first asked the city solicitor of Cincinnati to bring the action, and upon the refusal of that official brought the action in his own name as a taxpayer. He seeks to enjoin the maintaining of an iron fence on the north curb line of Goodman street in the city of Cincinnati, between Burnet and Eden avenues.

At the request of the trustees of the new city hospital the portion of Goodman street, between the north line of the street and the north curb line thereof and extending from Burnet avenue to Eden avenue, was vacated by the ordinance of the city council. This was done at the instance and request of the trustees of said hospital, so as to permit them to enclose the strip so vacated and make it a part of the grounds or lawn of the hospital.

The case was submitted to us upon an agreed statement of facts. The ordinance vacating the portion of the street above described was repealed by the city council after the iron fence was built and the strip vacated was enclosed. Later this action was brought for injunction.

There was no showing made that there is any public necessity for the vacation of said portion of the street or for the taking of this ground by the hospital authorities. By the erection of the fence the street at this point has been considerably narrowed and obstructed.

We are inclined to the opinion that under the circumstances as shown to the court an injury has thus been caused the general public here represented by plaintiff, for which there is no corresponding public necessity or demand for the ground taken which had been dedicated to the general public for street purposes. A permanent injunction will therefore be allowed against the maintenance of the iron fence and against the encroachment upon and the obstruction of the street caused thereby.

Jones (O. B.) and Gorman, JJ., concur.