author: Smyser J.

text:
    (Fifth Circuit — Delaware Co., O.,Circuit Court
    June Term, 1898.)
    Before Adams, Douglass and Smyser, JJ
    BALTIMORE AND OHIO RAILROAD COMPANY v. GEORGE M. McPEEK, and THE COLUMBUS, HOCKING VALLEY & TOLEDO R. R. CO.

      Railroad — Not located, within county where suit brought — Service in other county when sued jointly with railroad within ■ the ■county—
    (1.) A railroad company may be served with summons in a county through which it does not run-when properly joined as a co-defendant.

      Same — Railroads may be joined in action for joint negligence—
    <2.) Railroads may be sued jointly for injuries occasioned by their joint negligence.

      Negligence — Necessary averment—
    {3.) Negligence must be averred in the petition to constitute a good cause of action.

      Ordering verdict for defendant, when groper—
    {4.) Court should direct a verdict for defendant when such contributory negligence clearly appears from the plaintiff’s evidence as will preclude recovery.

      Jury — Interrogatories—Duty to answer—
    {5.) Duty of jury to fairly and honestly answer an interrogatory submitted to them, especially so, when there is no conflict in the evidence upon the fact submitted in the interrogatory.
   Smyser J.

The Baltimore and Ohio Railroad Company prosecutes error in this court to reverse a judgment recovered against it and the defendant, the Hocking Valley Railroad Company, in the court of common pleas of this county.

McPeek filed his petition in that court against the Baltimore & Ohio Railroad and the Hocking Valley Railroad Companies, claiming damages against them jointly,for injuries sustaind by reason of a collision with a certain train running on the track of the Hocking Valley Railroad Company. The railroad companies answered separately to this petition, and to these answers replies were filed, The case was tried to the jury upon the issues presented by these pleadings, and a verdict was returnd in favor of McPeek against both companies. Motions for a new trial were interposed, overruled, and exceptions taken, and a bill of exceptions embodying all the evidence was likewise taken, and is before the court. Numerous errors are assigned in, the petition in error, twelve in number. The Hocking Valley R. R. Co., the defendant in error, files a cross-petition-in error assigning the same errors as the petition in error, except perhaps one, and for all purposes we will consider alone the petition in error.

The first error assigned and urged upon the attention of the court by tbs Baltimore & Ohio Railroad Company is the action of the common pleas court in overruling is motion to quash the service of summons, The summons was served on the Baltimore & Ohio R. R. Co., in Franklin county, Ohio. The motion is as follows:

“Now come the defendant herein, the Baltimore & Ohio R. R, Co., for the purpose of filing this motion, and for no other purpose whatever, and be shows to the court that this defendant corporation is not situated in Delaware county, Ohio,.nor is its principal oifi.ce or place of business located in said county; and, that no part of its-line of road is located into or through said county, and there is no property of or debts owing to this defendant in said Delaware county, and that it is not found therein. And this action is therefore improperly brought in the said' county of Delaware, and there is no authority for issuing’ summons herein to the sheriff of Franklin county, Ohio, and that there has been no legal service of the same upon-the defendant. This defendant, therefore, moves that saidf summons and the service thereof be quashed.”

This motion is duly verified by affidavit.

The correctness of the holding of the common pleas court involves the consideration of three sections of the Revised Statutes, 5027, 5031, 5085.

The plaintiff in error contends that under sec. 5027, it can not be sued in Delaware county. That section provides as follows:

“An action against the owner or lessee of a line of mail stages, or other coaches, for an injury to person a property upon the road or line, or upoD a liability as carrier, and an action against a railroad company, may be brought in any county through or into which such road or line passes.”

The motion and the affidavit in support thereof, standing alone, would not warrant the action of the court in holding the service good.

The petition, however, charges a joint liability upon the Baltimore & Ohio R. R. Co., and the Hocking Valley R.R. Co.,and alleges that the Hocking Valley owned the road on which the accident complained of occurred, and alleges that “it was in Delaware county,” Now, under sec., 5027, the venue against the Hocking Valley R. R. Co. is properly laid in Delaware county. The common pleas court clearly had jurisdiction of the subject matter, and the jurisdiction of the Hocking Valley being beyond question, the common pleas court might possibly, by reason of that fact, have jurisdiction over the Baltimore & Ohio R. R. Co., even though the Baltimore & Ohio did not own or operate the road in question, and owned and held no property in Delaware county.

Sec. 5031 provides that every other action must be brought in the county in which the defendant resides or may be summoned, etc, But this section may or may not govern as to venue, depending entirely upon the case properly made.

The petition avers a joint liability against both companies. The jurisdiction of the common pleas court over the Hocking Valley is conceded. That railroad companies may be jointly liable, we think, is beyond question. 20 N. Y., 492; 34 Am., 49. It is not the office or function of the motion to quash the service, to attempt to dispute the averments in the petition as to the cause of action set forth in the petition,and, if this be true, we must look tó tub statute for ’ authority to serve the Baltimore & Ohio R. R. 0o. with summons. It can scarcely be contended that if McPeek had a cause of action against the two railroad companies jointly, that he would be compelled to seek redress by separate actions against, them, in separate and distinct forums,. We think sec. 5038 furnishes the authority for bringing a defendant, foreign to the jurisdiction in which the suit is brought, into court. That section provides:

“When the action is rightly brought in any. county according to the provisions of chapter five of this division, a summons may be issued to any other county, against one or more of the defendants at the plaintiff’s request, etc.” ’

It will be observed that this can be done when the action is rightly brought, and if the action is rightly brought in Delaware county against the Hocking Valley R. R. Company, and the petition avers a joint liabiliy, as it does in this case, the common pleas court would acquire by the summons issued to the foreign county, as complete jurisdiction over the Baltimore & Ohio R. R, Co., as if that company owned and operated the rod-bed in Delaware county on which the accident occurred. We cite the 11th Ohio St., 374; 32 Ohio St., 595, in support of our views in this respect, The syllabus in the 11th Ohio St. is as follows:

“In order to give the court of common pleas jurisdiction in an action against a defendant, resident and served with process in another county than ■ that in which the suit is brought, under the 53rd and 58th sections of the code, the other defendant or defendants resident or served with process in the county in which the suit is brought, must have a real and substantial interest in the subject of the action adverse to the plaintiff, and against whom substantial relief is sought.”

The case in 32 Ohio St., was an action to recover damages under the act requiring compensation for causing the death by wrongful act, etc. The action was begun in Cuyahoga county. Cunningham was served in Cuyahoga county, and Carrington and Casey, co-defendants, were not found and served in Cuyahoga county, but were served in Lucas county. The court held that Cunningham, Carrington and Casey were properly joined as defendants. The third paragraph of the syllabus is as follows:

“Where the allegations of the petition upon its face make a case in which all of the defendants are rightfully joined, and service is made on one or more in the county where suit is brought, and on the others in another county, the question of the jurisdiction of the court over the persons of the defendants served in such other county, must be raised by answer, under sections 87 and 89 of the civil code.”

The question of joint liability on the part of these two railroad companies could not be raised by motion, and the allegations of the petition in that respect must be taken as true, and, if so, the sections of the statutes, and the authority cited, would confer complete jurisdiction on the common pleas court, The motion to quash the service of the Baltimore & Ohio B. R. Co. was, therefore, properly overruled. If it should turn out, however,on the trial, that the Hocking Valley R. R. Co. was not liable, the common pleas court of Delaware county would possibly have no jurisdiction to render a judgment against the Baltimore & Ohio R. R, Co. This jurisdiction could only be acquir. ed in the manner already indicated,and depending upon the fact,of the Hocking Valley R.R. Co. being rightfully sued. The 11 Ohio St., and 32 Ohio St,, already cited, are conclusive upon this proposition.

The second error urged upon the court is that the petition does not state a cause of action. The petition is as follows: - ■ ■

“George M, McPeek alleges that'the defendant, the Columbus, Hocking Valley & Toledo R. R. Co., is a corporation duly oganized under the laws of the state of Ohio, and, on the 7th day of February, A. D. 1893, owned and operated a certain railway, known as the Columbus, Hocking Valley & Toledo Railroad, from Columbus,Ohio,through said county of Delaware, to Toledo, Ohio, with the tracks, cars, locomotives and the appurtenances thereto belonging, and was engaged in the business of carrying passengers over the same for hire and reward.
“Plaintiff further says that the defendant, the Baltimore & Ohio R. R. Co., is a corporation duly organized under the laws of the state of Maryland. Plaintiff further says that on the 7th day of February, A. D. 1893, the said defendants were jointly running and operating over the road of the first named defendant an excursion train consisting of a locomotive and several passenger cars, the property of said second named defendant, and said excursion train was run and operated by the employes and agents of the said the 0., H. V. & T. R. R. Co., and the B. & O. R.R.Co., jointly, and over the road of said first named defendant as aforesaid. Plaintiff further says that on said 7th day of February, A. D. 1893, at about the hour of 9 o’clock and thirty minutes A.M., he, together with his brother, James McPeek, was traveling in a buggy drawn by one horse upon the public highway leading from the village of Bell-point in said county of Delaware, to the city of Delaware, which crosses said railroad track near the city of Delaware, and while in the act of crossing the railroad track of said defendant, the C., H. V. & T. R. R. Co., he was struck by the locomotive of said defendant, the B. & O. R. R. Co., run by said defendants jointly as aforesaid,and thrown from his buggy, and without any fault on his part was seriously and permanently injured as follows: He was greatly bruised about his back, shoulders and neck. - The muscles and ligaments of his back were torn and stretched, and by reason thereof, his spine was injured, weakened, and curvature of the spine produced, and further the drum of his right ear and the parts of the same have become thickened, and by reason thereof, he has become almost entirely deaf in said aar. He further says that the train causing the accident, being the excursion train above mentioned, was an irregular train, and in approaching said crossing was run with great speed, and omitted to give any signal by bell or whistle of its approach, and was not running upon any time fixed for trains passing that point; that the said plaintiff knew the time for trains, and knew that none were then due at that place, and relied upon that fact in part for safety. Plaintiff further says that the approach on said highway from the west, being the direction from which he was coming, is and was obscured by buildings so that persons traveling along the same cannot see or hear the trains on the railroad approaching the crossing until the trains are near the crossing. And he further avers that there was no sign-post at said crossing warning travellers to look out for the approach of trains. That by reason of the premises,the said plaintiff could not have avoided the-accident and injury by the exercise of ordinary care. That by reason of said injuries, the said plaintiff was sick, and greatly suffered for the period of three months and more, and has been permanently injured and disabled from performing work and labor, and has necessarily expended for physician’s and other services the sum of $ — —in all,to his damage in the sum of Twenty-Thousand Dollars ($20,000).

The gist of the plaintiff’s action is the negligence of these companies in operating the train named in the petition. A mere inspection, the most casual reading of this petition, will exclude every other theory of liability,

Now, what constitutes a good petition for damages on account of, or by reason’ of, negligence? The facts constituting the negligence complained of must be set forth so that the ultimate fact of negligence shall clearly appear from the complaint. Negligence must in some manner appear from the complaint. It is absolutely essential to allege what it is necessary to prove, to authorize recovery.

Does this petition meet this requirement? Bliss in his work on Code Pleading, sec. 210, says,

“The facts which are but the logical conclusion from other facts which must be stated, and the facts from which they are inferred are but evidence, not to be pleaded. But a conclusion of law is not a statement of fact — is not a pleading. It may not be possible to formulate a definition or statement that shall fully describe what is meant by a conclusion of law, as to distinguish it from the ultimate fact.”

In Sec. 210:

“On the other hand, a general allegation of negligence is allowed; the negligence is the ultimate fact to be pleaded, and it is not a legal conclusion, as, that ‘the, defendant, by,’ etc., ‘did run and manage one of their cars in such a grossly careless, and negligent manner that,’ etc, or, the defendant, ‘whilst running their locomotive with,’ etc., ‘negligently struck,’ etc. The law draws the conclusion in both cases.

And again, in the same section:

“But on the other hand, negligence is not a term given by the law to certain conduct, but forms part of the act from which an injury has arisen. Negligence is the absence of care in doing an act; it is not the result of such absence, but the absence.”

The averments in the case are, he further says, that the train causing the accident, being the excursion train above mentioned, was an irregular train, and in approaching said crossing was run with great speed, and omitted to give any signal by bell or whistle of its approach, and was not running upon any time fixed for trains passing that point. And he further avers that there was no sign-post at said crossing warning travellers to look out for the approach of trains. In considering the question of the sufficiency of this petition, however, it must be borne in mind, that the railroad companies may be liable in a two-fold capacity: First: negligence jointly in the operation of their trains for which they may be required to respond in damages if injuries result, and which may be properly characterized “common law negligence”. Second: the companies may be liable for the omission of statutory duties imposed upon them, which gives rise to liability if in consequence of such omission injuries result. The acts alleged against the companies are, first, an irregular train; second, running with great speed; third, ommission to give signals by bell or whistle; fourth, the train was not running'on a time fixed for trains to pass the point in question where the accident occurred; fifth, no. sign-post at the crossing to warn travellers of the approach of the locomotive. There is a total absence of any averments of negligence in respect to any of these facts, separately; nor, is there any averment of the ultimate fact of negligence taken from these facts collectively. Take the facts alleged, the fact of an irregular train, great speed, and not being scheduled at the time of the accident, how can a naked statement of these facts be a predicate for a recovery on the ground of negligence in the absence of proper averments? To call a train irregular in the absence of other averments is meaningless. What duty did these companies owe McPeek, and to the public, that would preclude them from running an excursion train, or running a train with great speed, or at a schedule as they, the companies, might seem fit. Their right to so manage and operate their trains as their business may require and necessitate, cannot be questioned provided always, that they shall not be guilty of negligence.

If they owed a duty in the respects named to McPeek, and failed, the companies are entitled to be advised of their dereliction. Not’ only that, but it is incumbent upon him to allege the duty they did owe as a predicate for recovery.

The same is true as to the rate of speed, sign boards and signals, etc. The manner in which these companies failed in their duty toward McPeek should be set out. Negligence must in some way be made to appear. And there is a conspicuous absence of any averment in this petition that they were in any manner negligent. But it is urged in favor of the petition that the words, “that by reason of the premises,’’were an averment sufficient to charge the company with liability for the accident, and supply the ordinary averment of negligence wanting in the petition. Perhaps this might be true if the words related to the specific acts set forth in the petition, but such a construction, even the most liberal construction, will not justify such a conclusion. It will be observed that the petition recites that the approach on said highway from the west, being the direction from which the plaintiff was coming, is and was so obscured by buildings, that persons traveling along the same cannot see or hear the trains on the railroad approach the crossing until the trains are near the crossing. “That, by reason of the premises, the said plaintiff could not have avoided the accident and injury by the exercise of ordinary care. ” These words were not intended by the pleader to charge the result of the collision upon the railroad companies, but were intended solely to excuse McPeek from the consequences of the collision, and to relieve him from the imputation of contributory negligence. Their only meaning,standing as they do in this petition, is equivalent to saying that the accident occurred without fault on his part, which was a necessary averment in his case. See 32 Ohio St., 66; 44 Ohio St., 51; 31 Ohio St., 555; 45 Ohio St., 484; 28 Ohio St., 340.

The case in 45 Ohio St., is not decisive of the question made here, but is very suggestive that, when negligence is properly charged, as to what facts may be proven under a proper charge. On page 485 the court says:

“The contention of counsel presupposes that no act of negligence can be proved, except it be alleged in the petition. This position in untenable. The allegation in a pleading that the party complained against negligently committed the particular act which led to the injury whosp redress is sought, furnishes the predicate for proof of all such incidental facts and circumstances, both of omission and commission, as fairly tend to establish the negligence of the primary fact complained of.”

And again, page 486:

“To plead specially the facts and circumstances from which the negligence could be inferred, would be to plead evidence instead of facts.”

In the Rathgeb case, page 72, 32 Ohio St., the court says:

“Before, therefore, plaintiff can recover, because signals were not given, he must cause it to appear that this failure of duty brought about the disaster.”

And it is a fair inference from these authorities to say, that if it was necessary to make it appear, there must be an averment that the omission occasioned the injury. But there is another view to be taken of the sufficiency of this petition. The statute imposes some duties upon the railroads, and likewise, some liabilities for failure to observe or perform such duties. Sections 3323, 3336, and 3337 imposes such duties.

Section 3323 requires railroad companies to erect at all points where its road crosses the public road, at a sufficient elevation from such public road to admit of the free passage of vehicles of every kind, a sign, with large and distinct letters placed thereon, to give notice of the proximity of the railroad, and warn persons to be on the look-out for the locomotive; and, a company which neglects and refuses to comply with this provision,shall be liable in damages for all injuries which occur to persons or property from such neglect or refusal.

Section 3336 required the company to have a bell on the engine and a steam whistle, and requires the engineer or.person in charge of the engine in motion approaching a crossing,to'ring the bell and sound the whistle, etc.

Section 3337 imposes a liability upon the engineer or person in charge of the engine, for failure to comply with the provisions of section 3336, and provides further, that the company in whose employ such engineer or person in charge of an engine is, as well as the person himself, shall be liable in damages to any person or company injured in person or property by such neglect or act of such engineer or person.

If these companies in the operation of this train, or the persons in charge of the train, failed to observe these statutory requirements, the companies would be liable to McPeek if such failure caused his injury. Such ia the plain reading of the statutes. ] But, in order to entitle McPeek to recover by reason of"such)failure,he must aver that such negligence or failure caused his injury. 32 Ohio St., 66; 31 Ohio St., 555. The last case cited is very much in point. The syllabus is:

“In an action to recover damages resulting to domestic animals from the failure of a railroad company to construct and maintain good .and sufficient fences along the line of its road, as required by the act of April 26, 1871, (68 Ohio Laws, 78), the facts upon which the company’s liability depends must bs stated in the petition, and, if not admitted, must be established by the proof.”

The petition is set out injthis case, and we think it is a much stronger case as stated than the one under consideration. In deciding the case Judge Boynton says:

“The case seems to have been tried on the theory, as respbcts this ground of liability, that neither an averment of the facts, nor the introduction of evidence was necessary to establish the right to recover. There was an entire absence of both.
“The only allegation in the petition on the subject is,that the company was, by law, bound to fence and inclose said track,and that in consequence of the neglect and failure of the defendant to fence and inclose the same, the mare entered said track without difficulty. It is not alleged that the injury resulted through want or insufficiency of such fence, nor is there any statement of facts upon which the liability of the' company arising from the failure to build and maintain such fence depends.”

The case in 32 Ohio St., 66, is much like the case under consideration. On page 72 the court says,

“It is evident from this language that thejfailure to give signals must have occasioned the accident, that is, must have been the proximate cause of it, before recovery can be had. The injury must happen ‘by neglect’ of the engineer. ”

And we think that the proximate cause must be averred. There being no such averment in this petition, we are constrained to hold that it does not state a cause of action. We áre strengthened in our conclusion by an examination of many authorities, not only in Ohio, but elsewhere. With unanimity in all cases we have examined the averment of negligence appears. Two well considered cases directly in point are P., C. & St. L. R. R. v. Coon, 104 Indiana, 64; Chicago & Northeastern R. R. v. Miller, 46 Michigan, 532.

At the conclusion of the plaintiff’s testimony, the railroad companies asked the court, by separate motions, to direct a verdict in their favor. These motions are not predicated on the ground that there was no evidence to authorize a verdict. That would involve the scintilla rule, and courts and counsel are familiar with that rule, to-wit: if there is any evidence tending to support the claim made,it would be error to direct a verdict, but the cause must be submitted to the jury. The contention, however, on behalf of the motions is, that conceding negligence proven against the companies which,standing alone,might warrant a verdict against them, that the plaintiff's own evidence clearly established such contributory negligence as to necessarily preclude a recovery. That upon the facts as proven at the conclusion of the plaintiff’s case, the force and effect of which was admitted by the motions, there was no room for differences of opinion among reasonable men as to the inference to be drawn from such facts. That being true, it was the duty of the court, as a matter of law, to direct the jury. Now, if the facts proven and admitted were as claimed if there could be no difference of opinion; if reasonable men could not fairly draw different conclusions from these facts, and they showed contributory negligence on the part of McPeek so as to preclude a recovery, it was error in the court not to accede to these requests asked for by the motions of the railroad companies. The rule is so familiar that it is needless to cite authority in support of this contention.

In the consideration of this alleged error, we assume that at the conclusion of the plaintiff’s testimony the following facts against the companies were clearly established: First, high rate of speed of the train: Second, no signal of approach by bell or whistle: Third, the train was an irregular one, not scheduled to pass that point at the time it did: Fourth, no sign-board at the crossing to warn approaching travellers. From these facts,standing alone,the jury might be warranted in finding the company guilty of neglect.

What are the facts established by the plaintiff’s own evidence against himself, about which there could be no dispute and from which but one inference could be drawn? This was a grade crossing. McPeek and his brother were traveling on the public highway toward the crossing in a northeasterly direction. They were in a top buggy with side curtains on. McPeek was driving. His horse was under control. That he approached the railroad track and crossing on a trot at the rate of six or seven miles per hour. That he was familiar with the crossing. That he knew the scheduled time of the trains, and that there was no train scheduled at the time he attempted to cross. That for quite a distance as he approached the railroad track and crossing, along the highway that he travelled, the railroad track and crossing could be seen. That the Tracy house to the right of the road he was travelling, momentarily obstructed his view of the track and train. That before he reached the Tracy house, he leaned forward and looked to the right for the train. He neither saw nor heard a train approaching, That after he passed the Tracy house, he neither looked nor listened. The wind was blowing in the direction in which he was traveling. MePeek had neither defective eye sight or hearing. It was broad daylight. That after passing the Tracy house, approaching the track and crossing, the view of the railroad and approaching train was unobscured. MePeek, himself, testified that as he approached the track he could see to the right, possibly a quarter of a mile. That the train occasioning the injury was both seen and beard by other persons at the time and place in question and, along the same road that MePeek was traveling approaching the crossing.

From these facts, what inferences are tobe drawn? Did Pe see and hear this train so as to enable him to avoid the accident? If not, why not? According to his own testimony, he had a view of the approaching train for a quarter of a mile. Had he exercised the most ordinary care he could not have failed to have seen and heard the train. It was not necessary even for him to stop to look and listen. Had he slackened the speed of his horse, leaned forward as he approached the track, as he could have done, for he did before he reached the Tracy house, it would have been utterly impossible for him not to have observed this train. That it was his duty to do this, admits of no doubt. This rule is too well settled in Ohio. It appears that he took no precaution for his own safety and in this case an allegation in connnection with the petition should be remembered which,if true, would increase the precaution on his part. He alleges in his petition that the view of the railroad and train was obstructed by intervening buildings. Knowing that fact,he must be correspondingly careful in his approach. To us it seems that he exercised no care, whatever. In ' support of the view we take as to his duty in approaching this track under the circumstances, see 32 Ohio St., 66; 24 Ohio St, 631; 40 Ohio St., 338; 28 Ohio St., 340; and 8 Circuit Court Reports, 41.

We think that upon the plaintiff’s case, at the conclusion of his testimony, the defendants were entitled to have the court direct a verdict in their favor, and in refusing to grant the request the court erred.

Another error urged upon us is the refusal of the court to direct the jury to answer a special interrogatory propounded to the jury which was in substance, “Could McPeek at a distance of thirty to forty feet from the crossing have seen the train approaching had he stopped to 'look and listen?” The answer to this interrogatory by the jury was, “Doubtful.” Immediately, the counsel for the company requested the court to ask the jury to retire and answer the interrogatory, claiming that the answer returned, was under the circumstances, no answer at all. Was this error? We think so. This question went to the very vitals of the case, and the companies were entitled to have it answered one way or the other. It was very apparent what the effect of a certain answer to this interrogatory would have been. We think the jury simply evaded an unpleasant duty. It appears from the record that the jury viewed the premises. They had an ocular demonstration as to whether or not McPeek could have seen the train approach had he stopped to look and listen. The undisputed evidence of all the witnesses was that for many feet — some putting it as high as one hundred and twenty feet — from the crossing down along the highway, a train approaching on the track could be seen for hundreds of feet.

For the reasons indicated the judgment will be reversed.


source: Caselaw Access Project

author: Smyser, J.

license: Public Domain

text:
    (Fifth Circuit — Licking Co., O., Circuit Court
    March Term, 1898.)
    Before Adams, Douglass and Smyser, JJ,
    SAMANTHA CLARK v. AUGUSTUS S. CLARK.

      Erroneous statement of burden of proof as ground of reversal—
    (1.) An apparently erroneous statement of the burden of proof, will not warrant a reversal where, from the whole charge, the jury could not have been misled by such statement.

      •Omission to charge — Duty of counsel—
    (2.) Where the Court inadvertently omits to charge in respect to certain matters, it is the duty of counsel to call the attention of the Court to such omission. And the omission to direct the jury must be in reference to a controlling question.

      General verdict—
    (3.) Where different issues are submitted to the jury and a general verdict is returned, a judgment rendered upon such verdict, will not be reversed if no error is apparent as to the one issue submitted which may have been the controlling issue. The controlling issue may be one inartificially expressed in the pleading.
    Error to the Court oí Common Pleas of Licking county.
   Smyser, J.

The case of Samantha Clark v. Augustus S. Clark, et al., is here on error to reverse the judgment of'the court of common pleas. We have a paper here, in form a bill of exceptions, and styled a bill of exceptions. It does not contain the evidence pertinent to a single issue involved in the case that is sought to be brought before this court. But we have endeavored to extract from what is before us what was tried in the court below, and determine whether there was error. The petition of Samantha Clark embraced four different causes of action upon promissory notes, asking judgment for various amounts, and a foreclosure of a mortgage given by the defendant Augustus S. Clark and wife to secure the payment of these notes. A supplemental petition was filed during the progress of the ease, alleging that all the notes are now due. To this petition, an answer and cross-petition was filed, and an answer, an amended answer to amended petition and an additional answer. It was sought to make various defenses. Oue was that the notes set out in the petition were without consideration; that they were mere accommodation notes, so understood by plaintiff when she received them, and that they were not to be paid. Also a defense that in 1885, while Samantha Clark was administratrix of her husband’s estate, Augustus S. Clark recovered a judgment against her, as such administratrix, in the sum of $2100; that this money received by him from her should have been credited upon that judgment. That the judgment had never been paid. Also that pending the administration of the husband’s estate some controversy arose between the administratrix and widow, the heirs and Augustus S. Clark. That they endeavored to adjust and did adjust their difficulties by an agreement in writing, a copy of which is set out in the amendment to the amended answer. That by the terms of that written agreement, although he had a judgment for $2100, he was to receive out of the moneys in the bands of his mother,as administratrix, the sum of $1500, in discharge of his judgment, and as his full share in the estate; that after the payment of that sum to him, the mother was to retain a thousand dollars of the assets of the estate for her own use and benefit, the residue to be divided among the other heirs. In the pleading styled “additional answer,“a copy of the bond of Samantha Clark as administratrix is set out, and it is alleged that she had made no payments, and was indebted to him on this judgment in the sum of $2100; and in several of these pleadings he avers that he is willing to have that money applied in payment of the debt, either from her as administratrix, or, if she is liable individually, off-set whatever is due him against those notes. The issue is not very lucid, or very clear. To this, however, neither motion nor demurrer was interposed. A reply to that was filed in which Mrs. Clark admits the recovery of the judgment, but says that it was a default judgment obtained through the fraud of Augustus S. Clark practiced upon her; that he fraudulently, and without, her knowing what she was signing, procured her to sign a waiver and enter her appearance; she did notepntest the claim, and the judgment was taken by default. She recites further, that in 1887 or 1888, after this agreement had been entered into by the mother, the other heirs and Augustus, she filed her final account in the probate court, in which account she states the amount due to Augustus at $1500, the payment of the same, and a release or receipt, showing the receipt by him of the amount due him as his share in that estate.

Upon the- issues thus made up, this case was tried to a jury. The jury found a general verdict in favor of the defendants. Upon that verdict, judgment was rendered, a motion for a new trial filed, and error is prosecuted here- — ■ not by a bill of exceptions, because the paper purporting to be a bill of exceptions does not contain any evidence at all, except the record of the probate court as to the filing of the account by Samantha Clark, and the receipt executed by Augustus S. Clark. The bill of exceptions recites that evidence was offered “tending to show that the $1500, which, by the settlement agreement mentioned in the amendment of the answer and the reply thereto, was to bs paid, had been paid”. “And evidence was given by Augustus S. Clark tending to maintain the issues on his part.” All the evidence that is here is, as I have said, the account in probate court. After the evidence was submitted, the court charged the jury. Before delivering the charge, however, the court was requested by the plaintiff to give some special requests, which the court refused. That is assigned for error. Some exceptions are taken to the charge as giyen, and it is also assigned for- error that the court did not charge certain things that ought to have been given in the charge to the jury.

The first request made by the plaintiff was, “that if the final account of Samantha Clark as administratrix of the estate of Sylvester Clark, deceased, shows that said Augustus S. Clark was paid the sum of $1500 by said administratrix, and,that said account' was found correct by the probate court in March 1886, and no objection has been taken thereto by said Augustus S. Clark, he is barred from claiming said sum of $1500 in this action by way of set-off or otherwise.”

The majority of the court think that ought to have been given. They take the view that an account filed by the administratrix in the probate court, and passed on, and especially where a part of it is in the nature of distribution, it is conclusive and binding, and the only way to get rid of the effect of it is by appeal or prosecution of error. Speaking for myself, I do not concur in that view. This administratrix was not required, in my judgment, to file this account there. I do not think the probate court could have cited her to have filed this account, and I think if the probate court would have seen proper he could have declined to have heard the account. It was an adjustment of family affairs, and with that the probate court, in my judgment, had nothing to do. But the majority of the court think, from the issue as presented, that this ought to have been given.

Plaintiff also requested the court to give the following instruction to the jury: “That in order to recover on the bond of the administratrix of Sylvester Clark, it must appear that defendant, Augustus S. Clark, demanded the payment of the $1500 from the said administratrix,” Whether that ought to have been given or not, we are unable to determine, bcause we have nothing before us showing just what the proof was, as to whether that charge would have been applicable or not.

The court, after stating the issues, said: “The burden of proof is upon the plaintiff.” There had been a general denial interposed here, so that technically, perhaps, this was not wrong; but, at any event, the court saysjhis: ‘‘To maintain her action, she must satisfy you by a preponderance of the evidence of the" truth of all the material allegations contained in her petition.” If that were all of this charge, it might possibly be erroneous; but the court takes up specifically the claims of the defendant, and points out to the jury that the burden is upon the defendant in respect to each claim made by him by way of defense or counterclaim, or whatever sort of defense he was conducting to this proceeding. We think that the jury could not have been mislead by that statement, from what followed subsequently in the charge in respect to the burden being upon the defendant.

Some exceptions were taken, and, without enumerating them all, several of them, we think, were properly taken. Several exceptions are taken because the court did not give in the charge to the jury certain matters. It does not appear from the record that the attention of the court was called to some of these matters that the|court omitted to give in the charge to the jury. We think it is as much the duty of counsel engaged in the trial of a cause, where they see that the court has possibly or evidently overlooked some matter, to call the court’s attention to the omission, as it is that of the court.

I have already indicated the errors that we think are apparent here. But, ought this judgment to be reversed? In 25 Ohio St., 50, I read from the second paragraph of the syllabus:

‘‘Where the jury has been misdirected in reference to a controlling question in the case, the judgment should be reversed and a new]] trial granted, although the weight of evidence may seemjjto support the verdict,”

The failure to direct the jury in respect to a controlling question involved might also be error. But that leads us to the consideration of the question of what was the controlling question in this case. Nobody can determine. We suspect by the finding of the jury that the controlling question in this cáse was the want of consideration in these notes. Because there was a general finding for the defendant that would simply go to defeat recovery on the part of the plaintiff, and, under the instructions as given by the court, and probably according to the proof, if the defendant was entitled to $1,500, he would have been entitled to a verdict for the difference between what was conceded on the notes and tne $1,500. There were clearly, as I have indicated, distinct issues in this case. I read from 52 Ohio St., 64:

“When distinct issues are submitted to a jury, arising upon distinct defenses, and the verdict of the jury is general, the erroneous admission of evidence on one of the ibsues does not of itself render the judgment entered upon the verdict erroneous.”

The case from which I have just read was a suit on a note. There were several defenses: a parol agreement made at the time of the execution; failure of consideration; fraud in obtaining the note, and a subsequent agreement. All these issues of fact were submitted. The court found that the parole evidence offered was incompetent. But the court say:

“We are of the opinion that the evidence was improperly admitted, as tending to vary the terms of a written instrument. The note became operative on its delivery, and the evidence could only tend to defeat it by establishing a condition subsequent, and, being in parol, was not competent for such purpose. But the issue on this defense was not the only one submitted to the jury, and, as the verdict was general,for aught that appears from the record, the defendants may have been entitled to judgment upon one or all of the other defenses. Hence, on the authority of Sites v. Haverstick, 23 Ohio St., 626, the judgment must be affirmed. ”

So, here there were clearly distinct issues submitted to the jury, and a general verdict found; and, on the theory that the controlling issue was the want of consideration, we think there was no prejudicial error in the court not charging specially as to the effect of the record in the probate court.

Without going further, because this indicates sufficiently the views we have of this case, under the circumstances, we think this .judgment should be affirmed.

I might add, however, that the want of consideration, as plead here, is not plead very artificially; but a want of consideration between the parties is a good defense, and, if stated in so many words that there was no consideration, is good; the party can, by motion, avail himself of the right to make that answer more definite and certain. In the 15 Ohio St., 225, where in just so many words the plea was the want of consideration, upon the issue as thus made up the case went to trial, and,after verdict and judgment,complaint was made that the defense of the want of consideration was not properly stated. Judge White, in deciding the case, on page 250, says:

“It may be remarked, however, that so far as the evidence may have been deemed inadmissible on the ground of not conforming to the allegations in the pleadings, the objection should have been made when the evidence was offered, or, &t least, before the close of the testimony, so that the objection might have been obviated by amendment, if remediable in that way. See Hoffman v. Gordon & Bro. decided at the present term (15 Ohio St., 221). Butin this case the defendant has set up as his second defense, in general terms, that the note was wholly without consideration,and void. This the plaintiff might have required tobe made more definite, by a statement of the facts upon which the defense was based; but he waived this right, and joined issue. Under the broad issue thus chosen by the parties, any evidence would have been admissible, which tended to impeach or sustain the consideration of the note, and, it would have been clearly erroneous for the court to have required the jury to disregard all the evidence tending to prove a waiver by the defendant of the supposed conditions contained in the subscription.”

J. B. Davies and S. M. Hunter, for Plaintiff in Error.

Waldo Taylor, for Defendants in Error.

No objection having been raised to the form of the plea, and want of consideration being clearly a defense to the note and submitted to the jury, and the jury having returned a general verdict, we cannot say that there is error in this record, and the judgment will be affirmed.


author: Swing, J.;

text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Jan. Term, 1898.)
    Before Cox, Swing and Smith, JJ.
    JOHN WENTZEL v. ELIZA HAYES et al.

      Homestead exemption — Condition that claimant has eare of etc. of minor child does not apply to widow—

      Widoio’s mortgage on her own interest does not preclude her from claiming homestead exemption against judgment against interest of others — ■
    Error to the Court of Common Pleas of Hamilton county.
   Swing, J.;

Cox and Smith, JJ, concur.

We think the judgment of the court of common pleas should be affirmed.

Eliza Hayes was entitled under section 5441 to the homestead exemption therein allowed. She was a widow, and as such she was entitled to the homestead exemption, although not having in good faith the care, maintenance and custody of a minor child. These provisions do not apply to a widow.

The mortgage given by her in this case on her interest of eight-twelfths of the land does not preclude her from asserting her homestead exemption out of the judgment and mortgage which she held against the two-twelfths interest of others.

The court did not err in refusing, after judgment, to permit Burkham to file his answer setting up the fact tnat this prior judgment was void because no service had been had on the answer and cross petition of Wentzel, for it does not affirmatively appear that service was not waived or appearance entered.

John Wentzel, for the Plaintiff in Error.

James B. Mason, and John li. Holmes, contra.


author: Norris, J.

text:
    (Third Circuit — Hancock Co., O., Circuit Court
    May Term, 1898.)
    Before Day, Price and Norris, JJ.
    W.T. HECK et al. v. THE FINDLAY WINDOW GLASS CO. et al.

      Officer appointed under unconstitutional statute — Validity of acts—

    (1.) The official acts of one, who performs the duties of an office created by an unconstitutional statute, are, until the statute which creates the office and enjoins the duties, is declared invalid by a court of competent jurisdiction, the acts of a de facto officer.

      Judgment — Settles status of property—

    (2.) Until impeached for cause, or reversed, a judgment not only binds the parties to the action, but it settles the status of property in controversy, against anybody who would question it by a title, other than one paramount to the title ascertained by the judgment.
   Norris, J.

In their petition the plaintiffs, Heck, Morrison and Mun-slow,allege that they constituted the firm of Heck, Munslow & Company, a co-partnership doing business in the city of Findlay, Ohio. At the January Term, 1896, by consideration of the court of common pleas of this county, this firm recovered a judgment against the Findlay Window Glass Company,and caused an execution to issue which was levied upon certain real estate in the city with the glass .plant thereon, as the property of said Findlay Window Glassi. Company, and said company, at the time of said levy, and still is, in fact, the owner of the real estate upon which the levy was made.

That on the 18th of January, 1894, the Findlay Window Glass Company,by deed of general warranty, conveyed this real estate to the defendants Deitsch, Cusac, Harris, Parker and Karst,as trustees in trust for the city of Findlay, These trustees were created by an act of the legislature, passed May 21st, 1892,to be found on page 168 of the laws of that year, vol. 89. The consideration in this deed is $12,500,

On the 27th of February, 1894, the trustees leased said premises back to the Findlay Window Glass Company for ten years, commencing May 21st, 1894, for the aggregate rental of $12,500, to be paid in semi-annual installments of :$625 each. The lease provided for the expenditure of a large sum by the Findlay Window Glass Company in betterments of the property, and upon performance of the agreement ■stipulated in the lease and the payment of the rent, the city, through these trustees, was to reconvey the property to the Findlay Window Glass Company.

Plaintiffs claim that this deed and lease was one transaction, and not a sale. That as between the city thus acting through its trustees, and the Findlay Window Glass Company, the $12,500 expressed as the consideration in said ■deed was a loan to said company, and said conveyance was a mere security for the loan. That the city had no power to acquire this property, and that the law under which the trustees acted was unconstitutional and void, and that the ■entire transaction was ultra vires, and neither the deed or lease conveyed any title, and as against plaintiffs have no effect.

The plaintiffs aver that the city paid no money or thing of value to the Findlay Window Glass Company, and that -the conveyance is totally without consideration. That the Findlay Window Glass Company retained possession of this property until September, 1895, when,without authority of law, it was ousted by the city, and the city then put the defendant, the Globe Window Glass Company, in possession, which company has since and still is operating the property.

The Findlay Window Glass Company has no property except this real estate, and its rights and equities therein, and otherwise is wholly insolvent.

The petition states that the other defendants claim some interest in the property, and asks to have the liens marshal-led and this deed and lease set aside, or,if the deed be held valid, that it be decreed to be an equitable mortgage, and that there be an accounting, and the property be sold and the proceeds distributed.

The city of Findlay answers and admits tne execution of the deed and lease; that it put the Globe Window Glass Company in possession of the property, and that said company is operating the plant; and further pleads, that as enacted in the law of May 21st, 1892, and taking the steps therein directed, and for the purposes of carrying out its provisions, this board of trustees of the city improvement fund was appointed and organized, and on the 10th of January, 1894, while this law was in force and its validity unassailed, the Findlay Window Glass Company and said board, acting for the city of Findlay, made a contract in writing in terms substantially as recited in the petition, by which the company agreed, upon receiving the consideration of $12,500, to convey the property described in the petition to the city, and for the purpose of carrying out this agreement, the Findlay city council,under the authority of this act, for the purpose of raising the consideration to be paid, issued and sold the bonds of the city to the amount of $12,500, and on the 18th of February, 1894, the Find-lay Window Glass Company, act'ng through its authorized officers, executed and delivered to said board its warranty deed for said property, and upon the delivery of said deed, the board in the manner provided in this act paid to said company $12,500,the proceeds of said bonds,in cash,and on the 21st of February, 1894, the board made its written contract with the Findlay Window Glass Company,of lease and release of said property to said company. That after this contract was made, the company entered into possession of the property under it, made some improvements, and for a few months operated the plant as a glass factory, but because of its insolvency the company, on the 1st of July, 1895, permanently closed the plant, quit business, vacated the premises,and through its authorized officers notified the board that it could not pay the rent or in any wise carry out its contract with the city, and made application to be released from the liability imposed by the contract; and the board, about the 1st of July, 1895, as a compromise, agreed to rescind the contract of lease and re-sale upon surrender of the contract and re delivery of possession of the premises, and further that the company would, in payment of $1,250 of rental then due, transfer about $600 worth of cullet or melted glass,, then in a tank on the property; and all this the company did,and the city, through its board, took quiet possession of the premises.

The city further says, that one of the stipulations of this contract was, that if the company made any default in performance,or allowed the sale of its interest under said lease or any of its property on execution, the lease should terminate as to the defendant, and the city could re-enter and possess itself of the property. It says that had said contract not been rescinded as alleged, that at the commencement of this action thére was due to the city $2,500 rental, which, together with rental since accruing, would be due and payable. That after the company abandoned said premises, suits were commenced and executions were issued against the company, levy was made on its property located on the premises, and the property was sold to satisfy the writs. That said executions were also levied upon defendant’s property,and it was compelled to defend its rights, and that by reason of all this it was entitled to take possession of the premises, even if by agreement the contract had not been rescinded.

After the property had been surrendered as claimed by the company, to the city, and about the 15th of August, 1895, this board, still acting for the city under said law, made with defendants A. W. Marshall and D. B. Cratty a contract of lease and sale of these premises to them, and under this contract Marshall and Orhfcty took possession, and they,together with the Globe Window Glass Company, to which they conveyed their interest under the contract, ever since had and still have possession. That these last named parties made very valuable improvements and betterments on said property. That the Findlay Window Glass Company knew all about this transaction and the improvements, and made no objection,until in December, 1895, the Findlay Window Glass Company commenced a suit in the common pleas of this county against the city of Findlay to set aside its deed of conveyance, and that by this silence it acquiesced in these transfers, and is estopped from seeking relief from the effect of them.

That at the time of these various contracts and rescissions and transfers, plaintiff and crediior defendants had no judgment against defendant, the Findlay Window Glass Company, and the debts upon which their judgments are founded, were created after the city had become the owner of the property, and after it was known by them that the city was the owner of the property,

The Globe Window Glass Company answers, and in substance pleads as is pleaded in the anwser of the city of Findlay; alleges its improvements and betterments of the property, its full compliance with its contract, the knowledge and acquiescence of the Findlay Window Glass Company and plaintiff and the creditor defendants in the purchase and improvement of the property by the answering defendant, and avers that its ownership under the contract of lease and sale, is not open to attack by the plaintiff and the defendant creditors.

By its supplemental answer the Globe Window Glass Company pleads, that in an action commenced in the common pleas of this county,case No. 11543, wherein the Find-lay Window Glass Company was the plaintiff, and the city of Findlay and the board of trustees of the improvement fund of the city of Findlay, the Globe Window Glass Company, A. W. Marshall, and D. B. Cratty and the creditor defendants in this case were defendants, all of the issues tendered by the petition in this case, calling in question the contracts and leases-and transfers of this property recited in this petition, and challenging the interests taken and rights acquired under them by the defendants here who were parties to that action, were joined there and were all adjudicated and determined in that suit, and that it was in said case No. 11543 by the court of common pleas adjudged, that the Findlay Window Glass Company had no title to the property here in controversy; that the city of Findlay was the owner df said property; that the deed of conveyance from the Findlay Window Glass Company to the city of Findlay and its board of trustees of the improvement fund, was a valid conveyance for the consideration in said deed expressed, and fully cast the title. This decree is in full force and unreversed; that the defendants here all being parties to that suit, are concluded by it, and that the plaintiff claiming by virtue of the rights of the Findlay Window Glass Company is estopped by it.

By a supplemental answer the same matter is pleaded by the city of Findlay.

The various other defendants, and there are many of them, file their answers and cross-petitions admitting and adopting the allegations of the petition,and denying the answers of the city of Findlay and of the Globe Window Glass Company.

Plaintiff and all defendants adverse to the city of Findlay reply to the answer of the city and the Globe Window Glass Company, and aver, that at the time of these transactions, Marshall was an officer of the Findlay Window Glass Company, and was also at the time it appeared upon the scene, an officer of the Globe Window Glass Company,and had full knowledge of all conditions, and that all of said parties had notice and knowledge before any improvements of this property were made by the Globe Window Glass Company, of all the rights of the parties, and that the Findlay Window Glass Company had been unlawfully dispossessed by the city and Marshall and Cratty and the Globe Window Glass Company, and that this was all brought about by the conspiracy of the city and Marshall and Cratty and the Globe Window Glass Company,and this, while Marshall was acting as an executive officer of the Findlay Window Glass Company, and that neither said last named company, nor any of the creditors of said company, have in any manner acquiesced in the transaction.

This reply avers that the property was worth at the time cf these transfers $40,000 or more, and that if the deed and lease pleaded are valid, then plaintiff and defendant creditors are entitled to a-n accounting of the equities of the Findlay Window Glass Company under the provisions of the lease, and it denies that there was any rent due the city at the time claimed in its answer.

In reply to the supplemental answers which plead the judgment in case 11543, in bar in this action, the plaintiff and the creditor defendants of the Findlay Window Glass Company admit that the issues in said case 11543, were in substance as alleged in said supplemental answer, and that a trial of said case was had and the issues found as alleged in said supplemental answer; but they claim that plaintiffs are not affected by that adjudication because they were not parties to it, and bad no knowledge of it, and because plaintiff’s claim and the defendant’s claims against said Findlay Window Glass Company existed before, and some of them were in judgment before case 11543 was commenced; and that this decision of the common pleas is now being questioned in the supreme court of this state by proceedings in error therein pending; and further allege,in substance, that facts existed which, if they had been called to the attention of the court, in that case, would have insured a different determination of the action. These are the issues as I have succeeded in excavating them from the immense accumulation of verbiage to be found in the almost endless pleadings in the case, and were presented to this court, together with the evidence on appeal.

It is not controverted that the board of trustees of the city improvement fund of the city of Findlay was appointed and qualified and organized under and by the authority of an act of the general assembly, passed on the 21st of May, 1892. The board as then constituted, on the 10th of January, 1894, made the contract with the Findlay Window Glass Company, in consummation of which, on the 18th of February, 1894, the Findlay Window Glass Company conveyed to the city of Findlay, by deed of general warranty executed to said board of trustees, the premises described in the petition; and the city, through this board, paid to the grantor $12,500 cash, the purchase price of the property, which fund was the proceeds of the sale of Findlay city improvement bonds.

On the 21st of February, 1894, the board of trustees, made a contract with the Findlay Window Glass Company which is here called a contract of lease and re-sale, by the terms of which, the city agreed to lease to said company, the premises so conveyed for the period of ten years, comuaencing on May 21st, 1894, for the aggregate rental of ■112,500, to be paid in semi-annual installments of 1625 ■each; and upon the further terms, that the company should put the property in such repair, and make such betterments, •as would fit it for the manufacture of window glass, and make the plant a successful competitor in that line of manufacture.

It is not controverted that this company did expend money in an attempt to repair this property, and that after some months' trial it ceased to run the property.because it could not do business without loss, and because it had not sufficient funds with which to operate the plant, and because the plant as a glass works was a failure. In no way and to no degree does the city of Findlay appear to have contributed •to this result. The fact is established by the evidence, that at this time the company was in arrears to the city for rental, and failed to comply with the terms of the contract by it to be performed; and this being the condition, the company notified the city of its predicament. A proposition was made, by its board of directors, that it be released from tbs liability and burdens of the agreement; and on the 1st -of July, 1894, the company surrendered possession of the premises to the city, and the contract of lease and re-sale was surrendered, and its terms by mutual consent no longer held by the parties to be binding and effective. The bona fides of this transaction, is not impugned by the position of the parties, or their relation at this time to others. The Findlay Window Glass Company was largely indebted to the city, which bad come to its rescue, and out of the proceeds of the sale of the city bonds, under a law which at that time was deemed by both parties to be valid, and in a manner which they both looked upon as legitimate, had attempted to put the company on its feet by furnishing it with many thousands of dollars, and while the city took title to the company’s property, yet made its contract with the company to reconvey; and compliance upon the company’s part would have made it again the owner of the plant and the proprietor of an extensive, and to be hoped, profitable establishment. In doing ail this, it is not claimed, that the provisions of the law of May 21, 1892, under which' the city, through its board of improvement, acted, was not scrupulously observed and adhered to. It is true that improvements were made by the Findlay Window Glass Company, and the very funds then acquired were expended in repairs, and more. It would appear that some of the claims' of these answering creditors, and perhaps all of them, arose-from purchases of material, to go into these improvements. But it was not a success; it was a dismal and pitiless failure, and appears to have ended in total collapse.

The conveyance to the city was made before any of these-debts arose. Now, if the city of Findiay could acquire title at all before any of these debts arose, it had acquired’ it; and if this agreement could be upheld at all between the-parties, the company’s right to a conveyance depended upon its compliance with the agreement, It is not claimed' either in evidence or argument that the company did thisy it failed to do it. By the weight of the evidence, the property was at this time worth no more than the amount the company owed the city. Some witnesses say much more, and others of equal credit put it much less than the amount still unpaid, but it is sure that the plantas it proved then, was merely a mass of material, which a vast outlay would' perhaps work over into a window glass factory. So that the-surrender of the contract of re-sale, and possession of the property, and of the few hundred dollars worth of cullet, in consideration of release from a liability for more than the property was worth, bore no semblance of fraud, either, upon the part of the one who gave or the one who took possession. Upon the company’s part it was a legitimate riddance of liability, and upon the part of the city it was a-successful effort to make itself not more than whole, and it was not in fraud of the rights of any creditor. Surely the city of Findlay, whether the law under which it parted with its money was valid or invalid, had a right, in the absence of fraud, and as long as the law under which it acted was presumed valid, to make itself whole, if possible.

On January 14th, 1896, the act of May 21st, 1892, was declared by the supreme court of this state to be unconstitutional and invalid. If by the invalidity of this act such rights as the city here claim were swept away or never existed, then there is but one way out of this case, and that a very short and very speedy way.

If however, the alleged rights of the city arising from acts performed under this law in good faith by both parties, may be still upheld because of the fact that while the acts were being performed and the rights were attempted to be acquired, this law under which the city exercised its supposed authority, had not yet been declared invalid, and was still presumed by the parties to be binding and of force when these transactions took place; if because of this, the rights of the city are saved, the event of this controversy will assume a very different character, However this may be, there is no doubt that the case, so far as it depends upon the determination of this phase of it, ends here; for no matter what was donej^with the property after the title passed to the city if it did pass, and no matter to whom it was conveyed; and if the city acquired nothing, still no matter where the city attempted to cast the title or interest in it. So that the contract with Marshall and Cratty, and their assignment toUthe Globe Window Glass Company does not cut a very serious figure; for their title must stand or fall with the ’title of the city of Findlay.

This is not an attempt to enforce a contract totally unexecuted, entered~into?under.^an invalid act. In this case a contract,made in good*faitb,and executed in all its terms by all the parties to it, and under which large property rights have been irrevocably parted with, and all this before the law was declared void — and with the supposition and presumption that the law under which the parties acted was valid — is sought to be set aside, because the law was in fact not a valid law. On the authority of the case of the Railroad against the Commissioners of Clinton county, 1 Ohio St., 77, until otherwise declared by a judicial tribunal, the presumption is always in favor of the validity of an act of the general assembly; and this is good' sense. For however long a period its provisions may regulate the conduct of the citizen, it is deemed tobe the true guide until otherwise adjudicated by a court of competent jurisdiction to determine the matter, and this, in a controversy in which it becomes necessary to pass upon its validity. Litigation after litigation might grow up and pass through our courts, in which rights most valuable and sacred, arising und'er such a law, would collaterally appear in the controversy, and still remain unassailed on the ground that the law upon which they were founded was unconstitutional, and this because the issues in the case could be disposed of without an attack upon that which is presumed to be the law of the land. And this might so frequently occur, and the act remain unimpugned for such a period of time, that the jeople, who as a mass, are not indifferent to the adjudications of our courts,and are not oblivious to the general trend of decisions, might well be warranted in considering it a tried and true rule of action; and still, when the real test comes, in the crucible of judicial determination, it would be branded as inimical to the organic law of the state, So that,in the language of Judge Bradbury, in the case of The State against Gardner in 54 Ohio St,, 31, “It is deemed to best comport with public policy that the official act of one acting in an office created by an unconstitutional statute, should be regarded as falling within the principle that sustains the acts of de facto officers, until the statute has been held unconstitutional by competent judicial authority, in a proceeding appropriate to that end.”

This board of trustees of the city improvement fund was so acting when the deed and contract here presented for criticism were made. This being the case, we are compelled to find that said contract and conveyance were not affected by the adjudication of the supreme court afterwards declaring invalid the law under which the board acted.

If a prosecution for offering a bribe, to one who is acting as an officer by virtue of a law which does not create the office because of its invalidity, can be maintained, as in Gardner against the State, how much less right has the creditor of a grantor, to attack the title of a grantee who has paid full consideration for the debtor’s property, and who holds under a deed executed before the debt was created, all in good faith, and while the law under which the grantor acted was presumed to be valid.

And now,coming to the adjudication in case 11543, which is pending in error in the supreme court.of this state, and is here pleaded in estoppel of this plaintiff and these credit- or defendants, it cannot be successfully denied that the judgment in that case is in force. It is in substance admitted that the issues tendered by the pleadings there, are as alleged in the supplemental answer of the city and of the Globe Window Glass Company here. That judgment is not void, and is not attacked for fraud; and until impeached for cause, or reversed,binds not only the parties to the action, but settles the status of the property in controversy, against any body who would question it by a title other than one paramount to the title ascertained by the judgment. In the case at bar the plaintiffs claim, and the defendant creditors claim rights founded upon the title of the Findlav Window Glass Company, who was the plaintiff in case 11543. and against whom the decree was rendered, and whose alleged title to this property was held to be unfounded; and this in a case where it was not only appropriate upon the issues tendered to determine the question, but where it was determined, and determined adversely to the Findlay Window Glass Company. We conclude that the judgment in case 11543 is such an adjudication as to estop the plaintiff and the creditor defendants, and debar them from asserting their claims here, and so find. And upon the whole matter the court finds for the defendants,the city of Findlay and the Globe Window Glass Company, upon their respective answers and supplemental answers and cross-petitions, and against the plaintiff and the other defendants, whose petitions and answers and cross-petitions are dismissed at their cost, and execution for costs is awarded, and the case is remanded to the common pleas for execution.

Barber & Fuller,and Geo. H. Phelps, for Plaintiff.

Boss & Kinder, for Defendant.


author: Parker, J.

text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Jan. Term, 1898.)
    Before Marvin, (of the Eighth Circuit); Wilson, (of the Second Circuit), and Parker, (of the Sixth Circuit), JJ.
    (Sitting in Hamilton County Circuit Court.)
    BROWNE, ASSIGNEE, v. WALLACE, ASSIGNEE, et al. (Two Cases.)

      Construction of section 640S, R. S., as to appeals by trustees to common pleas court, and section 6407, R. S., as to whether an order confirming a sale is a final order —

   Parker, J.

1. An order confirming a sale, where there is no adjudication as to priorities, but merely a finding that the proceedings .for the sale were regular and in accordance with the order for sale, is not a final order,and an appeal from it will not lie.

Follett & Kelley, and F. W. Browne, for Plaintiff in Error.

Wilby & Wald, contra.

2. The recital in the journal entry of the court of insolvency that notice of appeal was given by a trustee who wished to appeal in his trust capacity and therefore is not obliged to give bond, is not a compliance with Revised Statutes 6408 requiring that notice of appeal must be given in writing, inasmuch as it does not appear affirmatively that the notice referred to in the journal entry was in writing. In this holding the court follows the decision in Willis, Adm’r. v. Willis, a case from Washington C. H., decided by the circuit court for the second circuit and affirmed in the supreme court without report, 57 Ohio St., p. 668, where the question presented here was the only question made.

3. In the case at bar another journal entry contained the recital what an oral notice of appeal was given. The court ^old that this, on its face, was not a compliance with the statute.

Both judgments of common pleas in dismissing appeals from the court of insolvency, affirmed.


text:
    (Third Circuit — Hancock Co., O., Circuit Court
    May Term, 1898.)
    Before Day Price and Norris JJ.
    THE LAKE ERIE & WESTERN RAILROAD COMPANY v. LEVI FALK et al.

      Railroad — Causing -fire — Sec. 3365-5, R. S., constitutional—
    (1). Sec. 3361-5, R. S., which provides “That every railroad company operating a railroad within the state of Ohio shall be liable for all loss or damage by fire originating upon land belonging to'such railroad, caused by operating such railroad and etc.,” extinguishes no property rights and interferes with no privilege of the railroad company ; and is not an infringement upon constitutional inhibition.
   Norris, J.

The defendants in error, Falk and Zay, as plaintiffs in the court of common pleas of this county, filed their petition against the Lake Erie & Western Railroad Company, in which, after asserting jurisdictional facts, they allege that defendant’s railroad runs near the premises of plaintiff Falk in this county, upon which, on the 17th day of August, 1895, was situated a hay barn of the value of $200, In the hay barn was hay of the value of $90.48, and straw worth $1.60; also standing on the premises was a grain elevator owned by said Levi Falk, in which was stored property of plaintiffs Falk and Zay, consisting of 41 bundles of bailing wire, worth $51,25, and other chattels named, all together with the hay building amounting to the value of $366.33, the property of the plaintiffs Falk and Zay.

Plaintiffs say that on this 17th day of August, 1895, defendant’s railroad company negligently omitted to use a spark arrester upon its locomotive, and in running its locomotive over its railroad opposite the premises upon which the property was located, defendant negligently permitted the locomotive to throw out sparks, which, falling upon the elevator, set it on fire. The fire destroyed the elevator, spread to and destroyed the hay building,and burned up all the property described in the petition. For this loss plaintiffs Falk and Zay seek to recover.

The answer of the railroad company is in substance a denial of the allegations of the petition. The issues thus made up were submitted to a jury which returned its verdict for the plaintiff. Defendant’s motion for a new trial was overruled. Taking exceptions to these proceedings of the trial court, the defendant, as plaintiff in error, here prosecutes this suit for reversal. The reasons assigned for reversal are found in the motion for new trial and in the petition in error, and are:

First. The verdict is against the weight of the evidence and contrary to the law of the case.

Second. Error in the charge as given.

Third. Error in refusing to charge as requested.

Fourth. Error in admission of evidence offered by the plaintiff below, and in rejecting evidence offered by the defendant to maintain the issues upon its part.

Fifth. And the court erred in overruling defendant’s motion for new trial.

We find no error either in the admission or rejection of evidence by the trial court.

Coming now to the assignment that the verdict was not sustained by the weight of the evidence and is against the law, and that there is error in the charge as given and in the refusal to give the propositions requested by the defendant to be given, these objections may be considered together, resting as they do upon the validity of section 3365-5 of the Revised Statutes of this state, which provides:

“That every railroad company operating a railroad within the state of Ohio shall be liable for all loss or damage by fire originating upon the land belonging to such railroad company caused by operating such railroad, and the existence of such fires upon such railroad company’s lands shall be prima facie evidence that such fire was caused by operating such railroad.”

Plaintiff in error insists that the section of the statutes which thus declares, is inimical to those provisions of the constitution of this state which assure to every person a remedy for injury; which secure to each his lands and goods against every challenge except by the due process of the law; and notably that it controvenes section 19 of article 1, which holds private property only subservient to the public welfare, and aside from that inviolate,

Though not so alleged in the petition, it is conceded as one of th9 facts in this case, that that portion of the elevator building where the fire in this instance originated, was upon lands belonging to the railroad company. Witnesses who almost saw the ignition, who saw the blaze when it was scarcely larger than a man’s hand, also testify that defendant’s locomotive had but a moment before been standing on the track nearly opposite this grain elevator, and had but a moment before started up and passed within twenty or thirty feet of this building. Those within the building say that there was no fire within the building when the blaze was discovered on the roof, and those who first saw the fire testify that in appearance it had just commenced to burn as if starting on the outside of the roof. The evidence tends to prove that this locomotive carried a device to prevent the emission of sparks, such as was in general use at that time by railroad companies; and while this is true, the evidence tends further to show, that for all the precaution taken by spark arresters such as the one in use on this locomotive, that at times sparks and pieces of live cinder would escape despite all such care to prevent it. The movement of this locomotive over its line at this time and place was one of the acts of the plaintiff in error in the operation of its railroad, so that the fact that this fire did originate upon the lands belonging to this railroad company, and was caused by the operating of-such railroad, is almost beyond question in the controversy, and if the plain provisions of section 3365-5 are not incompatible with the organic law of this state, the verdict of the jury is in all respects warranted by the weight of the evidence.

It is urged by plaintiff in error that section 3365-5 provides a summary method of depriving the plaintiff in error of its property. That both in creating the liability and determining the question of proof which fixes the liability, it establishes a system of procedure which the law-making power is not sustained in enacting

It is not an open question that the “general assembly has authority to prescribe the circumstances that shall constitute prima facie evidence of a fact in issue in an action.” This doctrine is broadly laid down in the case of The Pennsylvania Company against McCann, 54 Ohio St,, 10, from the syllabus of which I have just quoted. Indeed, says Judge Bradbury in that case: “The authorities that bear in some degree upon that question are so numerous that it is impracticable to cite all of them;” and I find this true. Legislative enactments of this character the courts class, “not as among the law of rights, but as belonging to the law of remedy”, and by them the nature of the controversy is not changed, nor does it affect the process by which the rights of the parties to the controversy are determined,

In fixing the liability, the authority of the legislature might well emanate from that undefined quantity known as police power — the power to regulate and control — If from no other source. This section extinguishes no right of property of the plaintiff in error, it makes no attack upon its franchise, it does not challenge any privilege that it might legally exercise in its corporate capacity. A railroad corporation never had the right to set a man’s property on fire and burn it up. As the law stood before this enactment, it may have been excused from liability when the facts failed to establish want of ordinary care upon its part, but it never had the right to do this either by design or accident; so that in declaring the responsibility for injury from fire which originates on the land of the railroad company, caused by operating the railroad, and in fixing upon the railroad company the liability in the face of due care in operating the railroad, was not taking away a property right or circumscribing or curtailing the use of property; but was simply saying that a person who to carry on a business for profit uses in a certain way a dangerous and destructive element, of which he, and only he, has control, and injury from which he has the best means to prevent, is under certain circumstances, and without fault upon his neighbor’s part, responsible for the consequences to his neighbor; that under such conditions a man whose property is destroyed without fault upon his part,may not suffer the loss and be without remedy, even though the one who causes the loss is free from substantive negligence, but without whose act the loss would not have occurred'.

A. & J. Blaclcford, for Plaintiff.

John Poe, and H. F. Burkett, for Defendant,

Viewing the case in this light, we are not of the opinion that the section is an infringement upon constitutional inhibition, and hence find no error in the charge as given, and in the refusal to charge as requested. No error therefore appearing upon the face of the record, the judgment of the common pleas is affirmed at the cost of plaintiff in error, without penalty, and the case is remanded for execution.


text:
    (Third Circuit — Hancock Co., O., Circuit Court
    May Term, 1898.)
    Before Day, Price and Norris, J.J.
    F. S. SMITH v. JACOB WHISTLER, et al.

      Marshalling liens — Other party’s interest — Necessary averments—
    (1.) Though a plaintiff in his petition to marshal liens is not required to set out another claimant’s cause of action and the facts which constitute his claim; yet where the plaintiff does attempt in his petition, to define such person’s interest m the property sought to be subjected to his liens, he must — in order that a default will operate to preclude such person — allege facts, which will make it clearly appear that their interests are adverse; and that there is issue between them, in the determination of which the rights of such person in the property will be in some manner affected.

      Same — Bar of party joined, when—

    (2.) In order to operate as a bar, it must further appear, that the judgment entered by default and offered in bar, is based upon the facts so pleaded, either as they are shown by the evidence, or undenied in the controversy.

      Dower — Set aside by agreement of parties — Absence of approval of probate judge — Creditor of one of heirs bound—
    (3.) The widow of a deceased husband and his heirs, having the next immediate estate of inheritance in his property, being all of age, entered into a written contract which, by its terms, purported to set off to the widow certain of the real estate as and for her dower. Under it the widow took possession, made lasting and valuable improvements, and in compliance with its terms, released to said heirs all her statutory dower in the residue of her husband’s estate. All the terms of the contract being executed by the parties to it, and the assignment of dower being fair as to value,and as it relates to residue of the estate,

      Held — That the absence of a written approval by the probate judge, on the document thus assigning the dower (sec. 8707, R. S.), can not be taken advantage of by a creditor of one of said heirs whose debt arose after dower was thus assigned. And that the signing of the contract by the widow was an acceptance of the assignment under sec. 5707, R. S.
   Norris, J.

This case comes in this court by appeal. Some time before April 6th, 1894, one Samuel Whistler, late of this county, died intestate and left Julia Ann Whistler, his widow, and the other defendants, his only children and heirs at law. Samuel Whistler died seized of property, real and personal, to the value of about $16,000, about $7,000 of which was personal. A part of his real estate was 491-acres of land, and the homestead consisting of house and lot.

On the 6th of April, 1894, by a written agreement, defendants, the widow and heirs of Samuel Whistler, who had in this property the next immediate estate of inheritance, and who were all of age, made amicable partition of this estate, executed deeds to each other, and undertook to set off and assign to Julia Ann Whistler, the widow, her dower interest in the property. The agreement which purported to be the voluntary assignment of dower to this widow by writing under the hands of these heirs, was never indorsed by the written approval of the probate judge of this county. The widow is a party to and signed this agreement. Since the date of this alleged assignment of dower the widow has been in possession of this property, made valuable and lasting improvements upon it, received its rents and profits, kept it in repair and paid the taxes, and has ever since and still claims it as her dower interest in her deceased husband’s estate. She has conveyed and released to her children all her interest in the residue of his property,real and personal.

In December, 1896, by the consideration of the court of common pleas of Wood county, one A. B. Landis recovered a judgment against A. D. Whistler, one of these heirs, and caused an execution to issue upon said judgment, which was levied on the undivided one sixth part of this real estate so set off to the widow, which the judgment creditor claims is the interest of A. D. Whistler as tenant in common. The judgment was assigned by Landis to one George W. Ozias. To subject this property to the judgment, an action was commenced by Ozias in the common pleas of this county, the petition in which recites that the judgment debtor, A. D. Whistler, is seized in fee simple of the one undivided sixth part of this property, subject to the dower of Julia Ann Whistler as the widow of Samuel Whistler, deceased, and asks that the liens be marshalled and that the interest of said judgment debtor be sold to satisfy the judgment. To that action Julia Ann Whistler was made a party, and made default for answer,and did not defend. Other defendant lien holders answered in that case, among them the plaintiff in this case, F. S. Smith, setting up their respective liens, asking that the interest of A. D, Whistler in the property be sold and the proceeds distributed to the respective claimants.

Such proceedings were had in this case of Ozias against A. D. Whistler aqd others, that the interest of A. D. Whistler in this 49-| acres and the homestead was sold, subject to the dower interest of Julia Ann Whistler. At this sale the plaintiff F. S. Smith became the purchaser, and as such purchaser, and under the title so acquired, he demands partition of the property in the action at bar, of which he claims the one undivided sixth part; and concedes that Julia Ann Whistler, as the widow of said Samuel Whistler, deceased, is entitled to dower, and asks that his interest be set off to him in severalty, or in the alternative, that the premises be sold.

To this petition of Smith, Julia Ann Whistler answers and sets up the contract between herself and her children heretofore recited, her compliance with all of its terms, one of which was her release and conveyance to the children of all her dower interest in the residue of the estate of her deceased husband. That she was put in possession under the contract of the property here sought to be partitioned, and that she is still in possession; that she has made valuable improvements upon the faith of all this, and she holds up the contract and her performance and possession as the legitimate assignment of her dower in her husband’s estate rounded up in the premises described in the petition, and denies Smith’s right to the possession of any of . it, and asserts that whatever his interest be, it is subject to her life estate as doweress.

The plaintiff replies and admits the execution of the contract, but denies that it extends the estate of Mrs. Whistler-beyond a mere statutory dower in the property described in the petition. He pleads the adjudication in the Ozias case as conclusive against her claim,and as barring her from asserting any interest other or further than her dower which he says is recognized in the petition.

These issues being submitted to the court of common pleas, resulted in a denial of partition, a dismissal of Smith’s petition,and an affirmance of the contract as the evidence of. Mrs. Whisler’s life estate in the property. From this judgment and finding of the common pleas, the plaintiff Smith takes his appeal, and upon the pleadings and evidence submits the issues here.

It is insisted by the plaintiff that the judgment of the common pleas in the case of Ozias against Whistler fully adjudicates her rights in the property in controversy, and that said adjudication was adverse to her claim as she here asserts it. There was no issue made as to her dower right in that action; the petition declares it; the finding of the court postponed the interest of A. D. Whistler to it, and the land was sold subject to it. Her default was a silent acknowledgment that she was thus interested in this property, and she still claims to be.

It is true that while a plaintiff, in marshalling liens, is “not required to set out another lien holder’s cause of action and the facts which constitute his claim,” yet he must, at the same time, in order that the proceeding may constitute a bar, at least, by naked assertion, or by setting up a state of facts which will bear the conclusion, advise the party to the suit that his interest will be barred if he fail to disclose it. And where the plaintiff does attempt in his petition to define such person’s interest in the property sought to be subjected to his own lien, he must, in order to preclude him, allege facts admitting of no misconstruction, which will make it appear that their interests are adverse, and that there is issue between them, in the determination of which the rights of such person in the property will be in some way affected. And in order to bar such person, it must appear by the record, pleaded in bar, that the judgment of the court is based upon the facts so pleaded, either as they are shown by the evidence, or are undenied in the controversy.

Case No. 12347 of Ozias against Whistler, the record of which is interposed by the plaintiff to estop this woman from asserting her rights under this written agreement, which she claims to have been the voluntary assignment of her dower in her husband’s estate, rested solely upon the petition. It is the lone pleading in that case that mentions her in any way, or alludes to her rights; and nobody answers who does not acquiesce in it, in so far as it concerns her.

In that petition no issue is raised between Ozias and Julia Ann Whistler. No party to that action was seeking to disturb her interest, and could not if he would. She was not a claimant whose lien could be shuffled to one side or the other, by a determination of priorities; she was not a lien holder at all, but she was fhe owner of the most favored estate that could attach to the property. She claimed to hold her property by virtue of being the doweress of Samuel Whistler. The petition does not in any sense, set up a claim that can by sophistry or construction controvert this assertion. Upon the contrary, it acceeds to it, and alleges it, and the court in its decree declares it in terms; to which the facts, as she avers them, are equally as applicable,as is the claim that her interest touches only the statutory dower in the realty. So that we are not of the opinion that the judgment in case No. 12847 debars her from claiming as she claims in this case.

It is urged by the plaintiff that the writing between Julia Ann Whistler and her children, — those who took the next immediate estate of inheritance in this property, —is not a voluntary assignment of dower as contemplated by law; that it does not comply with section 5707 of the Revised Statutes in this: That the evidence faifs to establish that the

property is not incumbered.

If the voluntary assignment of dower in this land is open to this attack, the fact of incumbrance which precludes assignment is a matter of affirmative defense to this widow’s claim, and in order to defeat an assignment that had gone into effect so far as the acts of the parties could make it effective, it should, to be of avail to the assaulting party, by him be made to appear, that this condition which preceded a voluntary assignment, existed at the time this writing was executed. But this can be of little moment, as the evidence does disclose that the estate of Samuel Whistler was not a debtor estate.

It is claimed that this attempted assignment of dower was never approved by the probate judge of this county, and hence binds nobody. This widow is not attacking this assignment of dower, nor are these heirs, nor is any creditor of this estate, It is assailed by one who is subrogated to a creditor of one of these heirs who signed the contract and who put his mother in possession, and who, as the facts show, received all the benefits of the residue of this estate, thus stripped of her dower, to which he was entitled; and this before the judgment was rendered and before the debt was created. This creditor must stand or fall by his debtor, whose acts and rights and knowledge are his. What sort of a figure would he cut, this son who made this agreement, took his mother’s dower interest in the rest of the estate and spent it, put her in possession of the land hewed out of Isaac Whistler’s estate as and for her dower interest in the estate, saw her make improvements and repairs, and pay taxes, and enjoy the profits, and treat it, and consider it, arid accepted it, as her assignment of dower; what sort of an onslaught could he make upon the old lady’s rights, as vouchsafed by his agreement? Surely none that would disturb her much. How could he, or one who claims under him, avail himself of the omission of the probate court to approve in writing a contract that he had solemnly made and executed so far as he could execute it, and upon the faith of which the old lady had taken possession, made valuable and lasting improvements, and conveyed to him valuable interests. The question is not answerable either in equity¿or in law.

The approval of the probate judge, as contemplated in section 5707, is evidently for the protection of the widow that she may not be imposed upon; to see thát the heirs are dealt with fairly, and that the minors who are bound in a proceeding of this sort by the act of their guardian, are not overreached. Creditors of a deceased person might have rights that could be jeopardized by an unfair assignment of dower. Nothing but this interposition of the judge could prevent the heirs from giving all the property of an estate to a widow under such an assignment if they were so disposed. And that no injustice to any of the interested parties be the consequence, a proceeding of this sort is kept under the supervision of the probate court.

It does not appear that the estate of Samuel Whistler owed any debts, and it is not claimed that this assignment of dower is unjust or inequitable. So far as it relates to these heirs, indeed it would seem that had dower been assigned to her by the ordinary method, she would have received more than the value of this life estate. The written approval of the probate judge, so far as the good faith of this proceeding, and the fairness of this assignment is concerned, is a formality that in this instance would change nothing; and in the face of the fact that all parties have complied with the agreement, this objection in the mouth of the plaintiff avails him nothing.

It is deemed by the plaintiff fatal to this assignment of dower, that the widow did not accept it in writing on the contract. A sufficient answer to this is that she does accept it in writing on the contract; she is a party to and signs the agreement, and by every act since has approved it, and here endeavors to enforce it. We would think this a compliance with the requirement of the statute in that regard. So as the matter looks to us, we find for the defendant Julia Ann Whistler upon the answer, and against the plaintiff, dismiss his petition, adjudge the costs against him, award execution, and remand the cause for execution.

II. II. Barber, A. G. Fuller, W. F. Briokman, for Plaintiff.

John Poe, for Defendant.