text:
    WILLS.
    [Cuyahoga (8th) Circuit Court,
    May 27, 1912.]
    Marvin, Winch- and Niman, JJ.
    Benj. F. Rice v. Minnie M. Rige.
    Vesting of a Life Estate Subject to the Accumulation of a Fund.
    A devise óf real estate to testator’s son, “to have and to hold and the use thereof during his natural life, and should his wife, Edith Rice, outlive him, then she shall have the use thereof during the remainder of her life, and at the decease of both, said property shall become and. be the property of their children and their heirs forever,” coupled with a direction that, “It is my will that my son, Benj. F. Rice, shall out of the income of aforesaid property, erect a monument upon the graves of myself and my husband; Jos. P. Rice, within five years after my decease, at a value not less than five hundred dollars,” vests in the son a life estate in said real estate, charged with the payment or accumulation of a fund, of $500 for the building of a monument, and the son’s interest in said real estate is subject to attachment.

      Green, Znmnt & Zmunt, for plaintiff in error.

      Sterlmg Parks, for defendant in error.
   NIMAN, J.

The defendant in error, Minnie M. Riee, brought her action in the court of common pleas to recover from the plaintiff in error, Benj. F. Rice, on a claim for the care and support of Phyllis Rice, the minor child of said parties.

The defendant below, at the time of the commencement of the action, ivas a resident of Pennsylvania. The plaintiff, on affidavit in the form required by law, obtained an order of attachment on the ground that the defendant was a non-resident of the state of Ohio, and certain real estate located in Dover township, Cuyahoga county, Ohio, was attached by the sheriff pursuant to the order.

Service by publication was then obtained upon the defendant. After the completion of the publication, the defendant filed his motion to quash service on the ground that the property attached was not subject to attachment. This motion was overruled and the defendant, the plaintiff in error here, prosecutes this proceeding in error to secure a reversal of the judgment of the court of common pleas, overruling his motion to quash service.

The land attached in the action below, formerly belonged to Almeda Rice, who died in September, 1911, leaving a will which was duly probated, the second, third and fourth paragraphs of which are as follows:

“Second. I give, devise and bequeath to my adopted son, Benj. F. Rice, the mortgages which I hold against his property, to be his and his heirs’ forever and all my real estate and personal property, to have and to hold and the use thereof during his natural life, and should his wife, Edith Rice, outlive him, then she shall have the use thereof during the remainder of her life, and at the decease of both, said property shall become and be the property of their children and their heirs forever.
‘ ‘ Third. It is my will that my son, Benj. F. Rice, shall out of the income of aforesaid property, erect a monument upon the graves of myself and my husband, Jos. P. Rice, within five years after my decease, at a value not less than five hundred dollars.
“Fourth. I hereby appoint my son, Benj. F. Rice, executor of this my last will and testament.”

The decision of the question presented by the petition in error in this proceeding depends upon the proper interpretation of the provisions of the Avill of Almeda Rice, above quoted.

It is contended on behalf of the plaintiff in error that-under these provisions of the will, Benj. F. Rice Avas to hold the property mentioned therein, Avhieh is the real estate attached, until the income for the monument shall have been accumulated; that until then Benj. F. Rice holds said real estate either as executor or testamentary trustee, and not as life tenant, and that property in the hands of an administrator or executor, as this is claimed to be, is not subject to attachment.

We think it clear, however, that the Avill gave a life estate to Benj. F. Rice in the real estate of the testatrix, and that such real estate was not taken by him as executor or testamentary trustee to be held in that capacity until a fund for the monument Avas accumulated. The real estate in question vested at once in Benj. F. Rice as life tenant, charged, however, Avith the payment or accumulation of the fund of $500 for the building of a monument.

This being the ease, the authorities cited by counsel for the plaintiff in error, to effect that property or money held by an executor or administrator of an estate in a representative capacity, can not be reached by attachment or garnishee process in an action against the heirs or legatees before an order of distribution has been made, have no application.

By virtue of the will of Almeda Rice, the plaintiff in error had a life estate in the lands attached, subject to the provision for the creation of a fund out of the income of the property for the erection of a monument, costing not less than $500. This life estate is subject to attachment, and service by publication upon the defendant below, following the attachment of the real estate, was authorized by law and regularly made. The court’ of common pleas committed no error in overruling the defendant’s motion to quash service.

Judgment affirmed.

Winch and Marvin, JJ., concur.


source: Caselaw Access Project

author: MARVIN, J.

license: Public Domain

text:
    DAMAGES — INJUNCTION.
    [Cuyahoga (8th) Circuit Court,
    June 3, 1912.]
    Marvin, Winch and Niman, JJ.
    John A. Arnold v. Wladyslaw Bukowski et al.
    For Breach of Covenant Not to Engage in Business — Damages Instead of Injunction Allowed.
    In an action by the purchaser of a grocery store against the person from whom he bought it under a covenant that the latter would not engage in the grocery business within one mile of the store sold, to enjoin the violation of said covenant and for damages for its breach, if it appear that pending the suit the purchaser has given up his store and eeased business, and is financially unable to continue business, an injunction against the defendant will not be allowed, but damages for violation of the covenant will be allowed the plaintiff.

      Henry Du Lawrence, for plaintiff in error.

      Hidy, Klein & Harris, for defendant in error.
   MARVIN, J.

There are painful features about this case. The testimony of the parties to the ease is such that one is almost forced to the conclusion that somebody has committed perjury wilfully. We can by no possibility know certainly who has committed such perjury, but there can be no doubt that in answer to some of the questions put to Amelia Bukowski she answered what was not true. This is certainly true in reference to the purchase by her of the store in which she is now in business. The fact that she gave this- testimony, which is not true, tends to shake our faith in all her testimony where it is to her interest to have the facts appear as, she states them.

We do not regard it as necessary to here give the details of this litigation. If the written instrument which is in evidence and is signed by the defendants, Wladyslaw Bukowski and Amelia Bukowski, is the contract into which they entered with the plaintiff, then that contract has been violated by these two defendants, and although we can't certainly know whether the written instrument which is in evidence is exactly as it was when it was signed by these parties, we think the evidence is such that we should say, and we do say, that we find that the contract read when signed as it reads now. True, there are some things about its appearance that give color to the claim made by the defendants that the restrictive clause in this instrument was written after the instrument was signed and delivered to the plaintiff, but on the whole we think the evidence is not sufficient to justify us in saying that the instrument is not now as it was when it was signed, and that being so, the' Bukowskis were Trader contract, for which they received a valuable consideration, not to enter into the grocery business within one mile of the business'which they sold to the plaintiff on November 14, 1911, yet, on February 18, 1912, they bought out a grocery from John Woisvill in the immediate neighborhood of the grocery which they had sold to the plaintiff, and went right on with the grocery business which they had thus bought and there continued in that business to the present time, all in violation of their contract with the plaintiff.

At the time this suit was begun and at the time of its trial in the court of common pleas, the plaintiff was in business at the place which he bought from the Bukowskis; he is not now in business there. He says that if he shall be successful in this litigation, he expects to go on with'the business there, or rather to again open up the business which he has been compelled to give up. We do not think he can ever open up this business successfully. We think, in short, that so far as carrying on a grocery business in the neighborhood .where this business was carried on, he is down and out.

We think, further, that he has suffered damage at the hands of the Bukowskis by their violation of their contract with him, but not to the degree that he and his counsel think that he has suffered. In his earnestness for his client, counsel for the plaintiff has brought himself to think that the defendant Amelia Bubowski is Michiavellian in her designs and ability to plot for the success of her schemes, and that she had in mind from the beginning that she would secure what money the plaintiff had and then, not only destroy his business, but as counsel expresses it, ruin the plaintiff, and that she has succeeded in preventing him from doing any business, and that he would have done a profitable business but for her plotting and scheming.

In this we think counsel for the plaintiff somewhat overstates the results to the plaintiff from the acts of the defendants Bukowskis. The plaintiff was a stranger in the city of Cleveland when he bought this business; he had no knowledge of the grocery business, and it was a mistake for him to have gone into business. It took almost all his money to pay the Bukowskis for the property and the good will of the business, in addition to the note for $350 which he gave them as a part of the consideration, which note is still held and owned by them, no part of it having been paid.

With the small amount of money which he had left, even if he had been experienced in the grocery business and had been acquainted with the wholesale dealers, it is yery doubtful whether he could have gone on with a profitable business. He thinks he made $500 the first month he was in business. We think he has no such means of estimating the cost of the goods which he sold and the profits therefrom which would accrue on such goods, to know that he has made any such profits, and that he must be mistaken in putting the profits at that amount. He says that in his second month he lost some money. During his second month the defendants weren ’t in business in his neighborhood, so that it was not because of the violation of the contract on their part that he did business at a loss the second month. It was three weeks after the close of his second month in business before the Bukowskis went into business, and during all that time he was losing money. His credit became bad with the wholesale dealers, not because of any dishonesty, on his part, for we see nothing in his conduct in this matter in any way to indicate any dishonesty, but from the fact that his credit was bad with the wholesale dealers, and it was bad because his business was bad; it became very hard for him to supply himself with such goods as his customers needed, and we think it very natural that, as is said by some of the witnesses, they ceased to do business at his store, because they were unable to obtain the goods they wanted.

It is said in answer to this that though the plaintiff was losing money for the seven weeks or more immediately preceding the entering into business by the defendants in violation of their contx-act, yet this was because the defendants, especially the defendant Amelia Bukowski, was inducing customers to leave the store of the plaintiff, and because she induced an employe of the plaintiff who had been her' employe, and who gave his special attention to the xneat business, to leave the plaintiff's employxnent. We think another reason, to wit, the one given by the employe himself, that he failed to get his wages, was sufficient reason why he might naturally have left the employment of the plaintiff, and not only that but, though good morals and good faith should have prevented Mrs. Bukowski from seeking to divert trade from the plaintiff or seeking to induce any employe of his to leave his employment, yet there was nothing in the contract to prohibit her doing this other than the prohibition against her or her husband going into business themselves.

The fact that the defendants went into business in violation of their contract conduced to the failure of the plaintiff to successfully carry on his business, but we think it only hastened the time when he was sure to Have to go out of business. Another store of a similar kind had been started in the immediate neighborhood shortly after he went into business, which tended, of course, to take away his trade. Our sympathies are with the plaintiff; his misfortunes in the grocery business are attributable in part to his want of experience, his want of acquaintance in the neighborhood, his want of capital, and in part to the violation on the part of the defendant Bukowskis of the contract which they made with him for which they were paid.

It is impossible for us to fix exactly what part of the damages which he suffered resulted from the violation of the contract by the Bukowskis; we can only make an estimate. We know that many of the customers who had been customers of the Bukowskis when they kept the store which the plaintiff bought, and who were customers of the plaintiff when he first went into business, are now customers of the Bukowskis, but a considerable number of them had 'already quit buying from the plaintiff some weeks before the Bukowskis opened up in their new place of business, and we have reached the conclusion, first, that the plaintiff is now entitled to an injunction against the defendants, though as the facts were when this suit was begun, he was entitled to such injunction, and if we felt that the failure of the plaintiff to be able to go in business was chiefly, due to the violation on the part of the Bukowskis, perhaps the injunction should be allowed even as the facts now are, although by the direct terms of the restriction he would not be entitled to it, because the restriction was to only cover the buyer while he was in business at the place which he bought from them. But as already said, we think he can not carry on a business there successfully even though the defendants be enjoined, and so no injunction will be allowed, to prevent the defendants from continuing their business, but an order will be made directing that the note given by the plaintiff to the defendants be canceled and delivered to him and the defendants perpetually enjoined from asserting any claim under that note. In addition to this, we award to the plaintiff additional damages in the sum of $500, and the costs of this action will be adjudged against the defendants Wladyslaw Bukowski and Amelia Bukowski. If it shall appear that the- damages allowed are somewhat large as compared with the loss of profits which the plaintiff might probably have made, the ánswer is that the defendants have brought this upon themselves by, their own wrongdoing, and are entitled to no sympathy whatever from the court.

Niman, J., concurs.

Winch, J., not sitting.


author: NIMAN, J.

text:
    NEGLIGENCE — VERDICT.
    [Cuyahoga (8th) Circuit Court,
    May 27, 1912.]
    Winch, Marvin and Niman, JJ.
    John Gutt v. Pennsylvania Co.
    Verdict Directed in Absence of Negligence Shown.
    The requirement in Sec. 9018, G. C., that in all actions brought against a railroad company for personal injury to an employe, all questions of negligence and contributory negligence shall be for the jury, assumes that there must be evidence tending to establish negligence on the part of the defendant, and if the undisputed facts in the case do not tend to show that the defendant has been guilty of negligence, there is no question of fact to be submitted to the jury, and it is the duty of the court in such case to apply the law to the undisputed facts and direct a verdict for the defendant.
    Error.

      8. Doerfler and C. W. Dille, for plaintiff in error.

      Squire, Sanders & Dempsey, for defendant in error.
   NIMAN, J.

The action, out of which this proceeding in error arises, was begun in the court of common pleas by John Gutt to recover damages from the Pennsylvania Company on account of personal injuries sustained by him while a brakeman in the company’s employ.

On the trial of the case in the court below, the court on motion of the defendant directed a verdict for said defendant at the close of the plaintiff’s evidence.

The plaintiff’s motion for a new trial was overruled and judgment entered against him on the verdict.

A reversal of this judgment is now sought by the plaintiff in error on the ground that the court erred in directing a verdict in the manner indicated.

The only witness who testified on behalf of the plaintiff was the plaintiff himself. It appears from his testimony that on the night of July 25, 1910, he was in the performance of his duties as yard brakeman for the defendant, assisting in the work of taking a train of coal ears out of the defendant’s Bedford yard, seven or eight miles from Cleveland; that his duties in general were to couple up cars, pass signals and assist in the switching of cars; that on this particular occasion he was instructed by the conductor in charge of the train that was being switched, to station himself near the head end of the train, and await a signal to be given by the conductor, who then went to the other end of the train, composed of about forty cars, to see that the right-of-way was clear; that the plaintiff then sat down on a switch stand about fifteen or twenty feet from the end of the engine, and about two feet and a half from the track on which the train was to be moved; that the head end of the engine was coupled to the train, and the headlight attached to the back of the engine; that while the plaintiff was sitting on the switch stand he became unconscious and while in a state of unconsciousness his hand rested upon or close to one rail of the track; that the train was started by the engineer Avhile the plaintiff was in this position, resulting in his hand being run over by the train, and causing the injuries foiwwhich he sought to recover damages in the court below.

There Avas no evidence tending to show that the engineer knew of the plaintiff’s position of peril, but there was evidence tending to show that if the engineer had looked ahead on' the track he might have discovered the plaintiff’s situation. A rule of the company was also introduced in evidence whereby an engineer is required to keep a constant lookout on the track for signals and obstructions.

On this state of facts it is contended for the plaintiff in error that the ease should have been submitted to the jury.

In Erie Ry. v. McCormick, 69 Ohio St. 45 [68 N. E. 571], a case identical in principle with the one before us, it was held, quoting from the syllabus, paragraph 3:

“In an action against a railroad company by one who, by his own fault, is upon its tracks and in a place of danger, to recover for a personal injury caused by the failure of its employes operating one of its trains to exercise due care after knowledge of his peril, it is necessary to show actual knowledge imputable to the company. ’ ’

Unless the law, thus laid down by the Supreme Court, has been modified by the enactment of the statute of February 28, 1908 (99 O. L. 25), it must control the decision in this case. Section 2 of that act, which is Sec. 9018 G-. C., provides:

“In all actions hereafter brought against a railroad company operating a railroad in whole or part within this state, for personal injury to an employe or where such injuries have resulted in his death, the fact that he was guilty of contributory negligence shall not bar a recovery when such negligence was slight and that of the employer greater, in comparison. But the damages must be diminished by the jury in proportion to the amount of negligence attributable to such employe. All questions of negligence and contributory negligence shall be for the jury.”

The effect of this statute is to relieve the plaintiff who seeks to recover damages from the defendant on account of the latter’s negligence, of the consequences of his own contributory negligence. All questions of fact relating to negligence and contributory negligence are to be submitted to the jury. The statute does not, however, attempt to define negligence, nor to take from the court the power of passing upon questions of law. The requirement that all questions of negligence and contributory negligence shall be for the jury, assumes that there must be evidence tending to establish negligence on the part of the defendant. If the undisputed facts do not tend to show that the defendant has been guilty of negligence, there is no question of fact to be submitted to the jury, and it is the duty of the court in such case to apply the law t,o the undisputed facts and direct the verdict for the defendant.

Referring again to the Erie Ry. v. McCormick, supra, we find in the opinion on page 53, this language:

“The concrete rule upon this subject is, that if one is upon the track of a railway company by his own fault, and in peril of which he is unconscious, or from which he can not escape, and these facts and conditions are actually known by the engineer, it is his duty to exercise all reasonable care to avoid the infliction of injury. It does not impose the duty to exercise care to discover that one so upon the track is in a place of danger, but it does impose a duty to be exercised upon actual discovery.”

Under this rule of law laid down by the Supreme Court, there is not any duty imposed upon a railroad company of exercising care to discover one who is by his own fault upon the tracks of the company and in a place of danger, of which he is unconscious, and from which he can not escape. There being no such duty, a failure to use such a care is not actionable negligence. The duty of using ordinary care, to avoid injuring such a person begins only with actual discovery, and for the violation of such duty a right of action would exist in favor of the one injured.

This being the law announced by the Supreme Court, we are, of course, bound to follow it, whatever may be our views as to what we think the law on this subject ought to be.

Applying the principle of the case of the Erie Ry. v. McCormick, supra, to the facts in this ease, it is apparent that, since there, was no evidence tending to show actual knowledge imputable to the company of the plaintiff’s presence on the track, there was as a matter of law no actionable negligence on the part of the company shown, and no question of fact to be submitted to the jury.

If it should be admitted that the plaintiff was upon the track in an unconscious condition without fault on his part, as is claimed on his behalf, and therefore not guilty of contributory negligence, the evidence would still fail to disclose a situation tending to establish negligence on the part of the defendant company. His position in that event would be analogous to that of a mere licensee, and the company’s duty to use reasonable care to avoid injuring him would begin only upon discovery of his position by some one whose knowledge would be imputed to the company. Such is the-holding in the Cleveland, A. & C. Ry. v. Workman, 66 Ohio St. 509 [64 N. E. 582; 90 Am. St. 602].

The trial court committed no error in directing a verdict for the defendant, and the judgment is affirmed.

Winch and Marvin, JJ., concur.


author: METCALFE, J.

text:
    CONTRACTS.
    [Cuyahoga (8th) Circuit Court,
    June 18, 1912.]
    Marvin, Niman and Metcalfe, JJ.
    (Judge Metcalfe of Seventh Circuit Sitting in Place of Judge Wineh.)
    Jewel Tea Co. v. Vm. J. Wilson.
    Employe Relieved from His Agreement by His Wrongful Discharge.
    When an employe under agreement not to engage in the same business in the same city for one year after leaving his employment, is wrongfully discharged by his employer, his agreement will not be enforced against him.

      White, Johnson & Cannon, for plaintiff.

      11. C. Boyd, for defendant.
   METCALFE, J.

The plaintiff and defendant entered into a written contract, by the terms of which the defendant became the employe of the plaintiff for the sale of teas and coffees, etc. The contract was entered into on August 19, 1911, and about January 13, 1912, the employment was terminated, and the defendant entered into the employment of the Grand Union Tea Company, which is said to be a rival concern.

The contract between the parties contained the following stipulation:

‘ ‘ The party of the second part further agrees as a condition precedent he will not engage for himself or any other person or company in the tea and coffee business, nor offer for sale any teas, coffees, etc., during the life of this contract, nor during a period of twelve months after leaving the employ of the first party for any cause, whether before or after the termination of this contract, in the city of Cleveland, Ohio. ’ ’

By virtue of this provision the plaintiff seeks by injunction to prevent the defendant from continuing in the employ of the Grand Union Tea Company, and from selling teas and coffees and other products dealt in by the plaintiff.

The defendant claims that he was wrongfully discharged from the employment of the plaintiff, and for that reason is not bound by the clause above quoted. He also claims that he has not in any way violated the terms of the contract by disclosing any of the trade secrets acquired by him while in the plaintiff’s employment or by dealing with any of the plaintiff’s customers.

So far as this is concerned, that is to say, whether the defendant has or has not disclosed the trade secrets of the plaintiff, or dealt with any. of the plaintiff’s customers, we think that is immaterial. The contract binds him for a period of one year not to engage for himself or others in the tea and coffee business after leaving the employ of the plaintiff within the city of Cleveland, Ohio. That such a contract is binding upon the parties and will be enforced, is too well established to require discussion. Lange v. Werk, 2 Ohio St. 520; Gage v. State, 24 O. C. C. 724 (1 N. S. 221); Lufkin Rule Co. v. Fringeli, 57 Ohio St. 596 [49 N. E. 1030; 41 L. R. A. 185; 63 Am. St. 736], 35 Ohio St. 666; Grasselli v. Lowden, 11 Ohio St. 349.

And it is equally well settled that such a contract must be construed reasonably and can not be used oppressively, or extended beyond its plain terms. See the authorities above cited and other Ohio cases.

The defendant in this case claims that he was wrongfully discharged. It appears that he-was called into the office of the company by the manager and informed that his services would no longer be needed.

There is a provision in the contract allowing either party to terminate it upon giving two weeks’ notice to the other. Mr. Wilson inquired if he would be permitted to have two weeks’ notice, and was informed that he would. The following week when he eame to the office, he had made no report for the week; the manager inquired why he did not do so, and was informed that he had been sick. The manager refused to accept his explanation and immediately discharged him.

He testifies, however, that he offered to continue Wilson in the employment of the company on commission but not on a salary.

The evidence of Wilson is undisputed as to the fact of his sickness during the week, and the action of the manager in discharging him immediately seems to have been rather hasty and ill-considered, and suggests the idea that he was seeking an opportunity to discharge Wilson from the employment, so we are inclined to think that the evidence in this ease is insufficient to show that the defendant was rightfully discharged, or rather, that he was discharged for sufficient cause under this contract.

We think it would be both oppressive and unreasonable that an employer should discharge an employe without cause and at the same time hold the employe to the literal terms of the contract, and for that reason a decree in this case will be for the defendant.

Marvin and Niman, JJ., concur.


author: RICHARDS, J.

text:
    RAILROADS.
    [Lucas (6th) Circuit Court,
    January 13, 1912.]
    Wildman, Richards.and Kinkade, JJ.

      Margaret Hill, Adm. v. Pere Marquette Ry.
    1. Engineer on Duty Fifteen Hours Not Applicable when Switchman Guilty of Contributory Negligence.
    When the evidence shows that the decedent switchman met his death through his own contributory negligence, the fact that the engineer of the locomotive which struck him had been on duty for more than fifteen consecutive hours without an interval of eight hours rest, in violation of Sec. 9007, G. C., does not operate to render the raillroad company liable.

      2. Comparative Negligence Statute not Retroactive in Operation.
    Section 9018, G. C., introducing to a limited extent the doctrine of comparative negligence, is not applicable to an accident occurring before its passage, notwithstanding it contains the provision that the statute shall apply to all action “brought” after its passage.
    Error.

      O. S. Brumback, for plaintiff in error.

      J. II. Tyler, for defendant in error.

       Affirmed, no op., 88 Ohio St. 599.

   RICHARDS, J.

The plaintiff in this ease’was plaintiff in the court of common pleas and brought the action in that court for the purpose of recovering damages by reason' of the death of John E. Hill, alleged to have been caused by the negligence of the railroad company.

The injury resulting in the death of Mr. Hill occurred at 1:15 o’clock in the morning of November 16, 1907, in the railroad yeards of the defendant company in the city of Toledo. Hill was a switchman in the employ of the railroad and on the occasion under consideration he was riding upon a foot-board at the rear of the tender while th'e engine was proceeding forward down the lead track for the purpose of doing some switching on siding No. 13. The switch being open to siding No. 9 the engine ran in on that siding a short distance — the error being promptly discovered and the engine stopped. Whereupon, it seems that Hill stepped off immediately behind the tender. The engineer, without being signalled so to do and without giving any warning by ringing the bell or otherwise, started the engine backward and it ran over Hill and killed him.

It appears from the admissions of the answer to the amended petition that the engineer, whose name was Howell, began work at seven o’clock in the morning of November 15, 1907; that he continued at work until noon; that he took one hour for rest and luncheon; that he began work at one o’clock in the afternoon and continued at work until six o’clock of that evening; that he took one hour for rest and supper and began work.at seven o’clock in the evening; that he continued to work until midnight, at which time he took one hour for rest and luncheon; and that he' again began work at one o’clock in the morning of November 16, 1907, and that the injury and. death of Mr. Hill occurred some fifteen minutes later.

The court of common pleas at the conclusion of the-evidence offered in behalf of plaintiff, directed a verdict in favor of the defendant. It is insisted in this court by counsel for plaintiff that the railroad company is shown to have permitted the engineer to work for fifteen consecutive hours and to then again go on duty without at least eight hours rest, and that such conduct constituted a violation of See. 9007 G. C., and that this resulted directly in the injury of which complaint is made. If it be conceded that the company was violating the section to which reference has - been made, it is not apparent from the record under review that such conduct produced the injury and resulting death of Mr. Hill.

It appears from the testimony of William L. Woodling, who was fireman upon the switch engine, that the engineer during the night was active and on the lookout and attentive to his duties, and this evidence does not seem to be controverted.

The act of Mr. Hill in remaining upon the track immediately behind the tender when, from all the circumstances, he must have known that the engine would immediately back up in order to get on the main lead and pi’oeeed forward to siding No. 13, manifests such negligence as would bar a recovery by his administratrix. It is urged, however, in argument that Sec. 9018 G. C. is applicable to this ease, and that therefore the plaintiff should be allowed to recover although Hill was guilty of negligence, his negligence being slight and that of the employer greater in comparison. That section was intended to introduce to a limited extent the doctrine of comparative negligence in actions of employes against their employers, but by its terms is only applicable when the negligence of the employe is “slight” and that of the employer “greater in comparison.” It does not appear from the record that the contributory negligence of the employe was “slight” and that of the employer “greater in comparison.” Indeed, we do not find any evidence tending to show that the railroad company was guilty of negligence. It is conceded that -the engineer was the fellow-servant of the switchman, so that the company would not he liable for any negligence of which the engineer alone may have been guilty.

The section to which reference has just been made, namely, Section 9018, was enacted by the General Assembly of Ohio on February 28, 1908, 99 O. L. 25, while the injury and death of Mr. Hill occurred upon November 16, 1907. We think for that reason the section can not be applied to this case. If the railroad company, immediately after the injury had a good defense under the then existing law by reason of the negligence of Hill having contributed directly to his death, the right to that defense was a vested right which could not thereafter be taken away by statute. It is true the section by its terms purports to apply to all actions brought after its passage, but it must, in order to avoid the constitutional inhibition against retroactive laws, be held to apply only to such causes of action as may arise after its passage. Constitution of Ohio, Art. 2, Sec. 28; Hamilton Co. (Comrs.) v. Rosche Bros., 50 Ohio St. 103 [33 N. E. 408; 19 L. R. A. 584; 40 Am. St. 653]; Cooley, Constitutional Limitations, 6th Ed. 455; Black, Constitutional Law, 543-544: Black, Interpretation of Law, 256, and following.

We find no error of the trial court in the- admission or rejection of evidence. Counsel for plaintiff in argument dwelt upon the claimed negligence of the railroad company in failing to have the bell ringing attachment in order; it being claimed by him that the attachment was intended to work automatically, but was so defective that it would not work in. that manner. It is sufficient to say that the amended petition contains no allegation that the company was negligent in that respect, and that while the bell would not ring automatically, it was in such condition that it could readily be rung by the hand with the use of a rope supplied for that purpose.

The circumstances of the case as disclosed by the evidence preserved in .the record indicate to our minds that if the case were re-tried and the issues submitted to a jury, the result would not be different, and therefore that substantial justice has been done to the plaintiff in error.

The judment of the court of common pleas will be affirmed.

Wildman and Kinkade, JJ., concur.


text:
    ATTORNEY AND CLIENT — ERROR.
    [Cuyahoga (8th) Circuit Court,
    June 17, 1912.]
    Marvin, Niman and Metcalfe, JJ.
    (Judge Metcalfe of Seventh Circuit Sitting in Place of Judge Winch.)
    Harry Koblitz v. Lizzie Bartlett et al.
    Attorney Claiming Interest in Judgment not Party and Cannot Prosecute Error.
    An attorney claiming an interest in a judgment rendered in favor of his .client, but not a party to the action in which it was recovered, can not prosecute error proceedings in his own name to any order of the court made in said action.
    Error.

      F. A. Henry, for plaintiff in. error.

      Wing, Myler & Turney, for defendant in error.
   NIMAN, J.

The action out of which this proceeding in error arises was begun by the defendant in error, Lizzié Bartlett, to recover from the defendant in error, Theodore Poplowsky, administrator of the estate of Andrew Besenz, deceased, on a claim for caring for the said Andrew Besenz during the period extending from March 10, 1904, to September 16, 1907, while he was incapable of earing for himself.

Such proceedings were had in the original action, that the plaintiff recovered of said administrator a judgment for $1,141.80.

Thereafter the plaintiff, herself, made application for leave of court to remit all her judgment in excess of $500. This application was granted and she was given leave to, and did remit from the amount of her judgment all in excess of $628.50. The discrepancy between the amount mentioned in her motion and that contained in the journal entry authorizing the remittitur is probably due to the fact that interest was calculated on the sum of $500 from the time, it became a claim against the estate of Andrew Besenz, deceased. At the time the plaintiff was given leave to remit from her judgment, a former order of the court ordering a remittance from the judgment in like amount on the ground that the judgment wás too large, was vacated and set aside as being erroneous.

Harry Koblitz, the plaintiff in error, was not a party to the action below, but it appears from the journal entry that an exception was noted in his behalf, to the action of the trial court in granting leave to the plaintiff to make the desired remittitur.

From the bill of exceptions filed by him, it appears that lie was present, by counsel, at the hearing and resisted the plaintiff’s application, not on behalf of any party to the action, but on his own behalf. The ground of his objection was that the plaintiff had previously assigned to him as compensation for legal services in obtaining the judgment, that portion thereof which she sought to remit.

In his petition in error he sets forth the recovery of the judgment for $1,141 by Lizzie Bartlett against Theodore Poplowsky, administrator of the estate of Andrew Besenz, deceased, and avers the subsequent assignment to him by the plaintiff below of the judgment in excess of $500 and the action of the trial court in allowing said plaintiff to remit from the judgment all in excess of $628.50.

He assigns as error the action of the trial court in permitting the plaintiff to remit from her judgment, and states as follows:

“1. That the said Lizzie Bartlett was not the real party in interest in said judgment at the time of the making of the application and of the making of said remittitur.
“2. That the said Harry Koblitz, plaintiff in error herein, was the real party in interest, and was in fact and in law the owner of said judgment.
“3. That the said order allowing and entering said remittitur is contrary to the evidence introduced in said hearing.
“4. That the granting of said order allowing said remittitur is contrary to law.
“5. That there are other errors in the proceedings apparent in the record, to all of which the said plaintiff in error duly excepted. ’ ’

It is made to appear that there was no controversy between the original parties to the action over the plaintiff’s application. She was anxious to remit from her judgment all in, excess of $500. The defendant could not consistently resist the application, and did not in fact do so.

The plaintiff in error claiming to be the owner of that portion of the judgment sought to be remitted was present in, court at the hearing, but the record fails to show that he ever obtained leave to become a party to the action, or that he ever in fact in any way became a party thereto.

We have therefore before us a bill of exceptions, containing the evidence taken at a hearing on an application by a party to the action, and resisted by one claiming an interest in the judgment by assignment, but who was not a party to the action so as to be entitled, as matter of right, to be heard.

We are asked to review a decision of the trial court by one who was a party to the action in which the decision was rendered, and who has no other rights than those possessed by him at the time of the hearing of the court below.

In Murdock v. Kramer, 10 Circ. Dec. 799 (20 R. 665), it was held:

“Where a judgment is rendered affecting the intei’est of a party not a party to the suit, such party is not authorized to institute error proceedings to such judgment. ’ ’

We are of opinion that the plaintiff in error, not having been a party to the action in which the decision complained of was made, can not bring the decision here for review.

Even if the plaintiff in error had become a party to the action below, it seems doubtful whether or not he would have accomplished what he desired in the hearing on the plaintiff’s application to remit. His controversy is with the plaintiff over the validity of an assignment of that part of the judgment sought to be remitted, a subject entirely foreign to any issue involved in the original action. If that assignment is valid the plaintiff had no power to remit. She could not relinquish rights in something she did not possess, and her act would be a mere nullity. In such event the plaintiff in error still has an enforcible judgment against the defendant below, to the extent of the amount assigned to him. If the plaintiff had the right to remit from the judgment, she needed no assistance of the court to enable her to do so.

The controversy between plaintiff in error and defendant in error, Lizzie Bartlett, would, seem to be the proper subject-matter of an independent action rather than one to be settled upon hearing of a motion.

This furnishes an additional reason for holding that the question sought to be raised by this proceeding in error can mot be considered on its merits. •

The petition in error will, therefore, be dismissed.

Marvin and Metcalfe, JJ., concur.


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    APPEAL — CONSTITUTIONAL LAW.
    [Cuyahoga (8th) Circuit Court,
    June 17, 1912.]
    Marvin, Niman and Metcalfe, JJ.
    (Judge Metcalfe of Seventh Circuit Sitting in Place of Judge Winch.)
    Ernest J. Hull v. Abraham Kaufman et al.
    Appeal without Bond from Justice Court to Municipal Court Constitutional.
    Section 11 of the act creating the municipal court of the city of Cleveland and providing'for appeal without bond from a court of a justice of the peace to said municipal court, in certain cases, is constitutional.
    Error.

      II. Preusser, for plaintiff in error.

      Joseph Morganstern, for defendant in error.
   NIMAN, J.

The plaintiff in error recovered a judgment against the defendants in error in the court of R. T. Morrow, a justice of the peace in and for Cleveland township, Cuyahoga county, Ohio. Within five days after the rendition of this judgment the defendants filed notice that they desired to appeal from said judgment to- the principal court of the city of Cleveland. Thereupon said justice of the peace transmitted to the clerk of the municipal court the papers in the action and a transcript of the docket showing the. proceedings in the action.

The plaintiff then, .filed a motion to strike the original papers and transcript of the docket entries in the action,. transmitted, from the court of said justice of the peace, from the files. This motion was overruled by the municipal court and on error proceedings in the court of common pleas, brought to reverse the decision of the municipal court, the overruling of said motion was sustained- The plaintiff in error now seeks by this proceeding in eri’or to secure a reversal of the judgment of the court of common pleas, affirming the action of the municipal court in overruling said motion.

The facts before us, and the error assigned, call for a determination of the constitutionality of Sec. 11 of the act creating the municipal court of the city of Cleveland (101 O. L. 364), as amended 102 O. L. 158.

The first paragraph of Sec. 11 reads as follows:

“In an action in a court of a justice of the peace which is appealable to the municipal court any party thereto may file with said justice, within five days after the rendition of a judgment or the making of a final order therein, a notice in writing that he desires to appeal from said judgment or final order to the municipal court, and forthwith all further proceedings in such action in the court of the justice of the peace shall cease, and the appeal shall be considered as perfected, and the appellant shall not be required to file bond. Said justice shall thereupon immediately transmit to the clerk of the municipal court all papers in said action, a transcript of his docket showing the proceedings and the costs of his court, and any moneys held by him in the action and the justice shall order the constable to turn over any property held by him in the action to the bailiff of the municipal court to be by him held as in like cases originating in the municipal court.”

It is contended for the plaintiff in error that this section is unconstitutional, because it authorizes an appeal without bond, and therefore his motion should have been granted.

The section under consideration is claimed to be unconstitutional because, it is said, the subject of appeals from the judgment of a justice of the peace is of a general nature, and all laws dealing therewith must have uniform operation throughout the state, and since this section does not have uniform operation throughout the state, but applies to the municipal court, it violates Art. 2, Sec. 26, of the constitution. .

There can be no question of the power of the General Assembly to establish such a local or special court as the municipal court. State v. Bloch, 65 Ohio St. 370 [62 N. E. 441]. The constitutionality of the act creating the. municipal court of the city of Cleveland is conceded.

Having power to create such a court, it necessarily follows that the legislature has power to define its jurisdiction. In exercising this power the legislature has provided for appeals from the judgments of justices of the peace to the municipal court, and has authorized the taking of such appeals from the judgments of justices of the peace to the municipal court, and has authorized the taking of such appeals without bond. This in no way interferes with the jurisdiction of justices of the peace from whose courts actions may be appealed. It pertains solely to the jurisdiction of the municipal court, and the jurisdiction of that court is not a subject of a general nature. The fact that in appeals from justice courts to the court of common pleas, bond is required of the party appealing, imposes no obligation upon the legislature to require bond to be given in appeals to the municipal court.

In omitting to require bond of the party appealing from a judgment of a justice of the peace to the municipal court, the legislature doubtless had in, mind the correction of certain evils believed to exist in the justice court system and to facilitate the appeal of eases to the municipal court. It was a proper exercise of power to provide for appeals without bond, and Sec. 11 of the act creating the municipal court, as amended 102 O. L. 158, is not unconstitutional.

The argument that the party who has recovered a judgment in the justice court is deprived of his right to have execution on his judgment -without security of a bond, in case the losing party appeals to the municipal court, is one more clearly addressed to the justice or policy of the law than to its constitutionality. Moreover, the judgment in such ease is not a finality. It is obtained in contemplation of the law relating to appeals and the party obtaining it must be deemed to know that the jurisdiction of the municipal court may be invoked by the losing party.

Judgment affirmed.

Marvin and Metcalfe, JJ., concur.


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    COUNTER CLAIM AND SET-OFF.
    [Cuyahoga (8th) Circuit Court,
    June 17, 1912.]
    Marvin, Niman and Metcalfe, JJ.
    (Judge Metcalfe of Seventh Circuit Sitting in Place of Judge Winch.)
    F. T. Peitch Co. v. Hattiesburg Trust & Banking Co.
    Set-Off Disallowed where Claimed Against Assignee of Invoice and Bill of Lading.
    When an invoice and bill of lading made out in the name of the consignee for goods sold the consignee are assigned by the consignor to a bank for an advance of 80 per cent, of the face value of the invoice, in an action thereon by the bank against the consignee, the latter can not off-set a claim against the consignor of which the bank had no notice, the course of dealing between the parties showing that the consignor reserved the right to ' control the goods shipped.
    Error.

      Hauxhurst & Sanger, for plaintiff in error.

      Patiison é Austm, for defendant in error.
   NIMAN, J.

The plaintiff in error was defendant, and the defendant in error was plaintiff in the court of common pleas. A jury was waived in the court below and the cause tried to the court. Judgment was rendered against the defendants there:

This proceeding in error is prosecuted to secure a reversal of said judgment.

On June 14, 1909, the F. T. Peitch Co. placed with the Forest Lumber Co. au order for lumber which was duly accepted and the lumber ordered was delivered to the carrier at Columbia, Miss., on July 15, 1909, by the Forest Lumber Co., through the agency of the Marion Lumber Co., which acted for the Forest Lumber Co. The lumber was consigned to the F. T. Peitch Co., at Cleveland, Ohio. . After the lumber was delivered to the carrier, the Forest Lumber Co.' assigned the invoice therefor and the bill of lading to the Hattiesburg Trust & Banking Co. and then received therefor a sum of money equal to eighty per cent. (80%) of the face value of said invoice.

On July 19, 1909, the Hattiesburg Trust & Banking Co. mailed the invoice, with an assignment written thereon by the Forest Lumber Co., together with the bill of lading to the F. T. Peitch Co., requesting a remittance therefor. The invoice and bill of lading were received by the F. T. Peitch Co. before the lumber reached said company. The F. T. Peitch Co. refused to remit for the amount of said invoice to the Hattiesburg Trust & Banking Co. for the reason that it claimed to have a set off against the Forest Lumber Co. on account of the failure of said company to deliver a certain shipment of lumber under a former order accepted by it, whereby the F. T. Peitch Co. was compelled to go into the open market and purchase lumber at a figure claimed to be $239.27 in excess of that which the Forest Lumber Co. had agreed to furnish the lumber.

After the refusal of the F. T. Peitch Co. to pay the invoice, the Hattiesburg Trust & Banking Co. brought suit against it to recover thereon, and said the F. T. Peitch Co. thereupon, in its amended answer, set up the damage it claimed to have suffered on account of the failure of the Forest Lumber Co. to fill the said former order and prayed that the amount of said damage be set off against the plaintiff’s demand. This set-off was refused by the trial court and judgment rendered in. favor of the plaintiff for the amount representing the advance made by it on the assignment of said invoice and bill of lading together with interest thereon.

At the time the banking company took an assignment of said invoice and bill of lading and advanced eighty per cent, of the face value of the invoice, it had no knowledge of any set-off in favor of the F. T. Peitch Co. against the Forest Lumber Co.

We are therefore called upon to decide what rights the Hattiesburg Trust & Banking Co. acquired in the assignment of the invoice and the transfer of the bill of lading to it and the advancement thereon of eighty per cent, of the amount called for in the invoice, without notice on its part of any set-off in favor of the consignee of the lumber against the Forest Lumber- Co.

It is claimed on behalf of plaintiff in error that the title to the lumber passed to it upon its delivery to the carrier by the Marion Lumber Co., and that the -Hattiesburg Trust & Banking Co. became a mere assignee of an account which is subject to the equity which the plaintiff in error had against the Forest Lumber Co. on account of the set-off mentioned.

It is contended by the defendant in error that the bill of lading was the symbol of the property described in it and by the transfer of such bill of lading to the banking company, it in effect acquired a special ownership of the property as security for the advancement made by it.

We consider the case of Emery’s Sons v. Irving Nat. Bank, 25 Ohio St. 360 [18 Am. Rep. 299], decisive of the question under consideration. In that case it was held :

“1. By the rules of commercial law, a bill of lading is regarded as the symbol of the property therein described; and in case the shipper reserves to himself the jus disponendi, he can transfer the title, at any time before the property is delivered by the carrier to the consignee, ás effectually by the delivery of the bill of lading as by the delivery of the property itself.
“2. If the consignment be made by a vendor to a vendee, the question whether the consignor reserved the jus disponendi is one of intention, to be gathered from all the facts and circumstances of the transaction.
“3. If the right to control the property be reserved by the shipper, the carrier must be regarded as his agent; if not, then as the agent of the consignee.
“4. On such question of intention, the terms of the bill of lading are to be taken as admissions of the consignor, and are entitled to great weight, but are not conclusive.
“5. Nor is the fact, that the consignee had contracted with the carrier for special rates of freight, conclusive that the goods were delivered by the consignor to such carrier as the agent of the consignee.
“6. Where the vendor of goods consigns them to the purchaser, taking a bill of lading from the carrier, and intending to reserve the right of control over them, at the same time draws upon the purchaser for the price, and delivers the bill of exchange, with the bill of lading -attached, to an indorsee, for a valuable consideration, the consignee upon receipt of the goods, takes them subject to the right of the holder of the bill of lading to demand payment of the bill of exchange, and can not retain the price of the goods on account of a debt due to him from the consignor.”

In the opinion, on page 366; it is said:

“By the rules of commercial law, bills of lading are regarded as symbols of the property therein described, and the delivery of such bill by one having an interest in or a right to control the property, is equivalent to a delivery of the property itself. A consignor who has reserved the jus disponendi may effectuate a sale or pledge of the property consigned, by delivery of the bill of sale to the purchaser or pledgee, as completely as if the property were, in fact, delivered. If such a transfer of the bill of lading be made after the property has passed into the actual possession of the consignee, the transferee of the bill takes it subject to any right or lien which the consignee may have acquired by reason of his possession. But if the bill of lading be transferred by way, of sale or pledge to a third person, before the property comes into the possession of the consignee, the consignee takes the property subject to any right which the transferee of the bill may have acquired by the symbolic delivery of the property to him. ’ ’

We think the course of dealing between the parties here in previous transactions show that the right to control the lumber shipped was reserved by the Forest Lumber Co. even though the bill of lading was made out in the name of the F. T. Peitch Co.

On two previous occasions the Forest Lumber Co. had shipped lumber to the F. T. Peitch Co. and had assigned the invoice and bill of lading therefor to the Hattiesburg Trust & Banking Co. These invoices and bills of lading were mailed by the Hattiesburg Trust & Banking Co. to the F. T. Peitch Co. for collection and remittances were made.

Those transactions were sufficient to justify the trial court in reaching the conclusion that the right of control over the lumber shipped was reserved to the Forest Lumber Co. The transfer of the bill of lading, together with the assignment of the invoice, was made to the banking, company before the lumber shipped had passed into the actual possession of the consignee and the consignee had notice of this fact before it received the lumber.

We think the necessary conclusion from these facts, applying the principles laid down in the case referred to, is that the F. T. Peitch Co. took the lumber when it arrived subject to the right which the Hattiesburg Trust & Banking Co. acquired by the symbolic delivery made through the transfer of the bill of lading.

The trial court, therefore, committed no error in refusing to allow the defendant’s set-off, and the judgment is affirmed.

Marvin and Metcalfe, JJ., concur.'


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    OFFICE AND OFFICERS.
    [Cuyahoga (8th) Circuit Court,
    June 17, 1912.]
    Marvin, Niman and Metcalfe, JJ.
    (Judge Metcalfe of Seventh Circuit Sitting in Place of Judge Winch.)
    State, ex rel Charles Savage v. Cleveland (City) et al.
    Sufficiency of Charges Upon Which Police Officer Dismissed.
    If charges upon which a member of the police force of a city was tried by the director of public safety and the civil service commission and discharged from the force, are indefinite or trivial, or not such as are recognized by law or the rules made by the police department in pursuance of the law as causes for which an officer may be suspended, the judgment of suspension is void; but if the charges, or any of them, are of the kind and character which the law recognizes as sufficient to authorize the discharge or suspension of the officer from the police department, then the court will not inquire into the question whether the charges were sustained by the evidence or not, unless 'fraud is alleged.
    Appeal.

      F. F. Genisch and M. B. Exc&ll, for plaintiff.

      E. K. Wilcox and John A. Stochiuell, for defendants.
   METCALFE, J.

The plaintiff in, his petition claims that he was a member of the police force of the city of Cleveland, and that he was wrongfully discharged therefrom by the action of the defendant, the director of public safety, and of the civil service commission, and he seeks reinstatement upon the ground that the charges upon which he was tried and the order of suspension made were insufficient in law to sustain the judgment of suspension.

No evidence was introduced in this ease,' but the case was submitted to us upon the pleadings, and the only question that we have for determination, is whether or not the charges which the plaintiff sets forth in his petition, and upon which he was tried before the director of public safety, and upon appeal from his decision, before the civil service commission, are sufficient in law to sustain the action of the commission.

The plaintiff claims that on April 28, 1911, he was suspended by the chief of police, and that thereupon the director of public safety caused certain charges to be filed against him, upon which he was tried. Upon the trial on appeal before the civil service commission, he was acquitted on the third, fourth and fifth of those charges and found guilty upon the others.

We think the same rule would apply in this ease that would apply in a civil action, that is to say, that the charges upon which the plaintiff was tried must be of such a character as would sustain, the judgment. If they were so indefinite or trivial, or were not such as were recognized by the law or by the rules made by the police department in pursuance of the law, as causes for which an officer might be suspended, then the judgment of suspension upon those charges would be void; but if the charges, or any of them, are of the kind and character which the law recognizes as sufficient to authorize the discharge or suspension, of the officer from the police department, then- this court can not inquire .into the question whether those charges were sustained by the evidence or not tinless fraud is found. The only question for us to determine is, were the charges sufficient.

The first charge reads as follows:

“Violation of Art. 20 of Rule 30, conduct subversive to good order and discipline of the department.”

This charge does not inform, the defendant of any specific act that he is charged with, and we think it is entirely insufficient.

Charge 2 is as follows:

“ Violation of Rule 43, by being a member of the Forum Club, a club organized for the purpose of giving, social entertainments among the members of the police department.”

In the answer filed in this case we have a copy of Rule 43 and in it we find this provision:

“No member of the department shall * * # be connected with any club or other association or organization, whose objects or purposes may have reference to the nomination or election of any candidate for office, or for the purpose of giving any social entertainments whatsoever amongst the members of the police department.1 ’

The charge in. question charges the plaintiff with having become a member of the Forum Club, a club organized for giving social entertainments among the members of the police department. This is the only specification that it contains but so far as that specification is concerned, it corresponds with the provisions of the rule in question, so that the defendant would have full notice from that charge that it was plain that he was a member of such club in violation of the rule. Therefore we think that charge 2 is sufficient.

The sixth charge reads as follows:

“Conspiracy against the good order and discipline of the police department by conspiring with others to bring about the formation of a club known as the Forum Club, contrary to the rules and regulations of the police department. ’ ’

This part of the charge we think is definite and certain enough to notify the plaintiff that he was charged with the violation of a rule of the department, and to definitely notify him what he would be expected to meet.

The remainder of the charge is entirely too indefinite and we quite agree with the judge rendering the opinion in the court below upon the demurrer to this petition, that it seems to have been framed rather with the purpose of concealing information than in giving it. We think also that the other charges are entirely too indefinite and do not accuse the plaintiff with any offense with sufficient particularly to notify him with what he was charged. But finding as we do that the second and sixth charges are sufficient, we think the judgment should be for the defendant dismissing the petition in this case.

It is urged on behalf of the plaintiff that the rule 43, so far as it prohibited members of the department from attending any club for the purpose of giving social entertainments amongst the members of the police department, is arbitrary and beyond the powers of the department to enact.

Power, however, is given to the department to enact such rules for the government of the officers as may seem necessary to the chief of police and the director of public safety, and we can not see that the promulgation of such a rule is beyond the power of the department; with its wisdom we have nothing to do.

It is also urged here that the defendant, upon his trial before the civil service commission, was denied the privileges of a separate trial. Admitting that this is true, the civil service commission seems to have been made, under the law, a court of final jurisdiction in the determination of charges against members of the police department involving their conduct and which may result in their dismissal. This.court can not act as a court of review of the action, of that court. If it abused its discretion or its powers, we do not see that we have any power to remedy that in an action of mandamus. All that we have the power to determine is whether the charges preferred were of such a character that they would sustain the action of that tribunal.

Marvin and Niman, JJ., concur.


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    CONTRACTS — WARRANTY.
    [Cuyahoga (8th) Circuit Court,
    June 17, 1912.]
    Marvin, Niman and Metcalfe, JJ.
    (Judge Metcalfe of Seventh Circuit Sitting in Place of Judge Winch.)
    John A. Weber v. Nernst Lamp Co.
    Evidence of Verbal Special Warranty not Competent in Action on Written Contract.
    In an action on a written contract for the installation of certain lamps containing the following provision, “This contract annuls any and all agreements, quotations and understandings both written and verbal, if any, which have heretofore existed between the parties hereto, and shall * * * become a contract covering all agreements and understandings, either verbal or written existing between the purchaser and the company,” evidence tending to show a verbal special warranty of the lamps made by the agent of the vendor before the signing of said contract, will not be received.
    Error.

      T. J. Boss, for plaintiff in' error.

      H. A. Couse, for defendant in error.
   METCALFE, J.

The defendant in. error, the Nernst Lamp Co., was the plaintiff in this action in the court below.

The action was brought before a justice of the peace upon a contract to recover for the price of six lamps sold by the defendant in error to the plaintiff in error. The action was tried before a justice of the peace and appealed to the court of common pleas, where judgment was rendered in favor of the defendant in error, and error is prosecuted here to reverse that judgment.

It appears from the pleadings and the evidence in this case that on August 8, 1907, the parties entered into a written agreement by which the Nernst Lamp Co. agreed to sell to John A. Weber six lamps. The petition is based upon the agreement, but a recovery is sought for the entire amount of the contract, no payments having been made thereon.

The defendant, by way of answer, sets up, first, certain representations claimed to have been made to him by a representative of the company at the time the contract was entered into, and upon the trial of the case in the court of common pleas, the fendant asked leave to file an amended answer. The court refused to grant him leave to file such amended answer, and thereupon the defendant offered to prove certain facts.

Whether there was error in the case in our judgment depends entirely upon the question whether the facts which the defendant-below offered to prove upon the trial were of such a kind and character that they were admissible in evidence as a defense in the case. The contract contains several clauses; it does not contain any express warranty. The only part of it which it is necessary for us to consider at this time is the fourth clause, which reads as follows: .

“This contract annuls any and all agreements, quotations and understandings, both written and verbal, if any, which have heretofore existed between the parties hereto, and shall be binding upon the company only when approved by the president or the vice-president of the company and when accepted by the purchaser; and so approved, shall become a contract covering all agreements and understandings, either verbal or written, existing, between the purchaser and the company. ’ ’

The amended answer which the defendant below asked leave to file upon the trial, sets forth that the plaintiff, by fraud, procured and induced the defendant to execute and deliver the contract set forth in the petition, by representing to him, in substance, that the lamps in question had a capacity to burn from 600 to 800 hours; that the lighting capacity of six of those lamps was equal to or greater than the total number of lamps which the defendant had installed in his place of business, and that the cost of maintaining the same would be very much less than the cost of maintaining the lamps which the defendant was then using. This, in substance, covers the representations which the answer sets out and claims to have been made by the company to the defendant below.

In support of that answer, the defendant, upon the trial in the court of common pleas, made a general- offer to prove Certain things. Some question is raised as to whether this offer was sufficient. We are inclined to think that it is, provided the matter offered to be proven is pertinent to the issue and should have been admitted in evidence.

The offer, in substance, is that before the contract was entered into for the purehase of the lamps, a representative of the Nernst Lamp Co. stated to the defendant, Weber, that the lamps in question would bum for the period of 600 to 800 hours; that after examining the lights in the place of business of the defendant he stated that six of the Nernst lamps had a capacity of doing the work of all the small lights in the defendant’s place of business, and that the current consumed by the Nernst lamps and the of cost of maintaining the same was much less than the cost of maintaining the small lights then in said bar room, which he then examined, and that he would receive a greater amount of light therefrom and better service.

He then offers to prove that the lamps did not come up to the representations made by the representative of the company in lighting capacity, and that the company was notified to that effect and substituted other lamps for the first ones delivered, and that the second installment of lamps did not meet the requirements of the defendant in his place of business better than the first; and other matters of this sort.

The representations claimed to have been, made were entirely the representations of a representative of the company, and we think that any statements made by a representative would be entirely covered by clause 4 of the contract, and they could not be offered in evidence unless the statements were of such a character as to show fraud on the part of the company.

The statement made and offered to be proved would tend only to constitute a warranty; they are not sufficient to constitute fraud, and there being no warranty clause in, this contract, no express warranty, we think that the defendant can not be permitted, in view of the provisions of clause 4, which I have read, to prove an express warranty. Bagley v. General Fire Ex. Co., 150 Fed. 284.

Indeed, it seems to us that none of the matters offered to be proved by counsel for the defendant below, plaintiff here, are competent in this ease; and that the entire contract of the parties having been in writing, the law will not permit proof of matters which are clearly matters of contract and outside of the written instrument itself. For that reason we think the judgment in this case should be affirmed.

Marvin and Niman, JJ., concur.


text:
    APPEAL — DISCOVERY.
    [Cuyahoga (8th) Circuit Court,
    June 17, 1912.]
    Marvin, Niman and Metcalfe, JJ.
    (Judge Metcalfe of Seventh Circuit Sitting in Place of Judge Winch.)
    Frank Bradley et al v. W. H. K. Herron, and W. H. K. Herron v. Frank Braley et al.
    1. Action for Money Judgment Not Appealable Because Discovery Sought.
    An action on a contract for a money judgment though it require a discovery of information solely in the possession of the defendant, is triable to a jury and not appealable.
    2. Final Judgment Prematurely Rendered before Motion for New Trial Overruled.
    Final judgment should not be rendered in an action until the motion for a new trial is overruled, when one is properly filed, and when judgment is entered before the overruling of the motion for a new trial, the forty days for the preparation and filing of a ■ bill of exceptions does not begin until the overruling of the motion for a new trial.
    Appeal.

      T. H. Hog sett, M. H. Nason and William Hoioell, for plaintiffs.

      Mattheius & Orgill, for defendants.
   NIMAN, J.

Frank Bradley and L. Gr. Bradley were plaintiffs and W. H. K. Herron was defendant, in thé court of common pleas.

The defendant has appealed from the judgment of the court below, and has also prosecuted error to reverse said judgment.

The plaintiffs have filed a motion to dismiss the appeal for the reason that the cause is not appealable.

The petition discloses a cause of action based upon a contract whereby the plaintiffs sold to the defendant twenty-five shares of the capital stock of the Herron-Bradley Coal Co., and were to be paid therefor an amount not to exceed $1,250, depending upon the net profits of the corporation during the first and second years following the sale of the stock. If the corporation made no profits during this period of time, the defendant was to pay nothing for the stock.

The petition, after the title of the cause, bears the words, “petition for specific performance and equitable relief,” and contains averments to the effect that the defendant has refused to take an inventory of the property of the corporation as required by the contract under which the stock was sold; that he has refused to permit an audit of the books of the corporation; that he has so carelessly kept the books that it is impossible to discover the condition of the business without the services of an expert in auditing; and that he has refused to submit to the plaintiff any statement of the business as to profits.

The relief sought against the defendant, as expressed by the prayer of the petition, is :

“That he be required to submit the books of the HerronBradley Coal Company, and the books of its successor, the Economy Coal & Supply Company, to such proper attorney or attorneys as these plaintiffs may designate, for examination, and for the purpose of verifying the statement of said defendant as to profits. That he be required to furnish to these plaintiffs said statement as to profits for the year ending May 23, 1908, and May 23, 1909.
‘ ‘ That he be required to make a complete inventory of said corporations, and that he be ordered and required to permit these plaintiffs to be present at the making thereof. That he be required to exhibit to these plaintiffs the checks, vouchers and cash account of said corporations showing the amount of money drawn by him as salary for the two years mentioned in said agreement, and that he be required to exhibit to these plaintiffs, the vouchers, papers and books showing the cash and other items advanced by him as loans to care for the obligations of said corporations and that plaintiffs have judgment for $1,250 and interest from May 22, 1909, or for such less siim as shall be found to be the net profits of saicl business for said years, and for such other and further relief as may be just and proper.”

In spite of the fact that the petition, is called one for specific performance and equitable relief, and in spite of the prayer of the petition, conforming to the averment mentioned, it is apparent that the main relief sought by: the plaintiffs is the recovery of a money judgment for breach of contract. The case is identical in principle with Chapman v. Lee, 45 Ohio St. 356 [13 N. E. 736]. The syllabus of that case is as follows:

“1. Upon the trial of an action against several defendants, where the plaintiffs in their petition charge upon the defendants a conspiracy to cheat and defraud the plaintiffs, thereby procuring and appropriating to their own use a single sum of money which rightfully belongs to the plaintiffs, and which they are entitled to recover, and for which they seek a joint judgment against the defendants, and the answer admits the receipt of a stated sum of money, and is otherwise, in effect, a general denial, either party is entitled to demand a jury, notwithstanding the plaintiffs pray for a full discovery, and for an account of the full amount due them, and to have an equitable lien declared and enforced.
“2. In such ease the remedy of accounting in equity is not necessary to full and adequate relief to the plaintiffs.
“3. Adequate means of obtaining discovery from parties to actions at law being afforded by our statute, suits for discovery, as prosecuted in equity, before the adoption of the code, are practically obsolete in this state.5 ’

It follows that the appeal in this case must be dismissed. Coming to the consideration of the error proceedings, we are called upon to decide whether or not the bill of exceptions was filed within the required time. The case was decided by the trial court on April 3, 1912, and a motion for a new trial was filed on the same day. On April 4 the court rendered final judgment for the plaintiff without passing on the motion for a new trial. On April 6 the motion for a new trial was overruled. The bill of exceptions was filed on May 14. If. the time within which the bill of exceptions should have been filed is to date from April 4, it was filed one day too late, but if the day when the motion for a new trial was actually overruled is the date from which the forty days begins to run, the bill was filed within the required time.

Final judgment should not have been rendered until the motion for a new trial was overruled, and we think that the defendant had forty days frord the overruling of his motion within which to file the bill of exceptions.

The case below was tried to the court, who gave judgment to the plaintiffs for $750. The only error complained of is that this judgment is not sustained by sufficient evidence.

The plaintiff’s right to recover of the defendant depended upon the question of whether there were any profits made by the corporation during the two years following the making of ■the agreement sued upon. To the extent of any such profits up to $1,250, the plaintiffs were entitled to judgment.

On behalf of the plaintiffs there was evidence tending to show that the corporation had made a net profit during the two years covered by the inquiry somewhat in excess of the judgment given the plaintiffs. On behalf of the defendant, there -was evidence tending to show that the business had been conducted at a considerable loss, and that the defendant had contributed out of his own personal means sufficient money to keep the concern going. It is apparent that great difficulty must have been experienced by the trial court in arriving at any exact determination of the profits of the corporation. The books and records of the company were in confusion, and the defendant’s ownership of all the stock seems to have lead to something of an intermingling of his personal finances with company affairs.

The trial court, with the witnesses before him, on the evidence presented, rendered judgment for the plaintiffs in the amount indicated, and we are unable to say that the judgment is against the weight of the evidence.

While the burden rested upon the plaintiffs to establish by the required degree of proof that profits were made during the period named in the contract, and the amount of such profits, still the judgment should not be disturbed merely because the amount of the judgment does not correspond to the exact dollar to the profits shown, if there was evidence which would sustain a finding that the profits were at least as large as the judgment rendered. Such a judgment is not necessarily illogical, and even if it be so, it is because of the defendant’s carelessness in not so keeping the books and records of the corporation under his control, as to be able when called upon to render a clear and unimpeachable accounting of its profits.

Judgment affirmed.

Marvin and Metcalfe, JJ., concur.


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    EXEMPTIONS — VENDORS AND PURCHASERS.
    [Cuyahoga (8th) Circuit Court,
    June 17, 1912.]
    Marvin, Niman and Metcalfe, JJ.
    (Judge Metcalfe of Seventh Circuit Sitting in Place of Judge Winch.)
    John Cechvala v. David Madak et al; David Madak v. John Cechvala.
    No Exemptions Prior to Vendor’s Lien.
    There is no exemption as against a vendor’s lien, and when the premises upon which the lien is established have been sold and the money is in the hands pf the clerk of the court, the lien will be transferred to the fund, to be paid before any exemptions can be, allowed the judgment debtor.

      H. F. Payer, for plaintiff in error.

      Hart, Canfield & Croke, for defendant in. error.
   NIMAN, J.

The first of these actions is here on appeal; the others is a proceeding in error.

By the proceeding in error, the plaintiff in error seeks to reverse the judgment of the court of common pleas overruling his motion for the allowance of $500 exemptions in lieu of a homestead out of a certain, fund in the hands of the clerk of courts, which the defendant in error seeks to have applied on a judgment rendered in his behalf in the action below against the plaintiff in error.

Inasmuch as the right of a judgment debtor to have exemptions allowed him in lieu of a homstead depends upon the existence of certain facts, those facts must be established by evidence of the proper kind, and when it is sought to review the action of a court in passing upon a motion for an allowance of such exemptions, the evidence on which the trial court acted must be brought before the reviewing court. There is no bill of exceptions here, and we are unable to pass upon the question raised in the error proceeding, and the petition in error will be dismissed.

In the appeal ease, the following state of facts appears:

Prior to October 25, 1910, the plaintiff, John Cechvala and Burt Madak,- were the owners of a piece of real estate in the city of Cleveland and a saloon business conducted on said real estate. Each party owned an undivided one-half interest in the real estate and saloon business. On the day mentioned the defendant, David Madak, purchased the interest of the plaintiff in the real estate and saloon business for $700, according to the claim of the plaintiff, which was disputed by said defendant, who claimed to have bought the plaintiff’s interest in the property for $20. The plaintiff was not paid at the time of the sale, and was given no note or security of any. kind.. Á few months after this transaction took place, David Madak and Burt Madak sold the premises to the Hanover Realty Co. for $3,000. The company, after paying various incumbrances out of the purchase price, had left in its possession a balance of $613.43 due the Madaks. Burt Madak assigned his interest in the money, which was a one-half interest, to David Madak.

The plaintiff, after the sale had been made to the Hanover Realty Co., began suit against David Madak to recover the sum of $700. The Hanover Realty Co. ivas made a defendant in the action. The petition contained averments to the effect that said company had in its hand the balance of the purchase price due ■ Burt and David Madak, and a part of the prayer asked that the company be ordered and directed to pay over to the plaintiff the net proceeds of the sale.

The plaintiff also obtained an attachment and the Hanover Realty Co. -was made garnishee. The company then filed an interpleader and was ordered to pay the clerk the money in its hands belonging to the defendant, David Madak. •

David- Madak then filed aii ‘answer and cross-petition in which he denied the claim of the -plaintiff, and prayed that the money in the hands of the clerk be paid to him.

The ¡jury returned a verdict for the plaintiff against the defendant, David Madak, for’ $721, on which judgment was duly entered. '

The defendant then filed a motion for the allowance of $500 in lieu of a homestead out of the fund paid to the clerk by the Hanover Realty Co. It is this motion that is now before us. We are met with the contention on behalf of the plaintiff that this is not such a judgment or final order as may be appealed from.

The plaintiff claims the fund in the hands of the clerk as against the defendant’s -demand for exemptions on the theory that he had a vendor’s lien, on the premises sold to said defendant, and that the fund arising from the sale of real estate should be charged with this lien. There being conflicting claims to- the fund in question, and one of those claims involving the application of equitable principles, we are of the opinion that the motion should be treated as one in. effect asking for an order of distribution, and that either party concerned might appeal from the decision -of the court on such motion.

This leaves for decision, then, on the facts before us in the form of an, agreed statement of fact, and the evidence offered, the one question whether, under a vendor’s lien the plaintiff is entitled to an order for the payment to him to apply on his .judgment, the entire fund, or any part thereof, except that in excess of $500 which he is admittedly entitled to recover in the hands of the clerk, representing the balance of the price of the premises sold by the Madaks to the Hanover Realty Co.

The defendant, David Madak, is entitled to $500 exemptions 'in lieu of a homestead out of this fund,, provided he is not prevented from receiving it on account of the- lien claimed -by the plaintiff.

In Neil v. Kinney, 11 Ohio St. 58, it was held:

“A vendor’s lien upon land sold for the purchase money, is 'an equitable right arising from a constructive trust, and is independent of the possession of the land to which the lien attaches as an incumbrance.”

The plaintiff had a vendor’s lien upon the real estate sold to David Madak for the unpaid purchase price. The real estate has been sold and the balance of the money received from the sale, after paying incumbrances and other claims, is in the custody of the court and under its control. The lien which the plaintiff had against David Madak’s interest in the real estate may therefore be transferred to the fund. Since the plaintiff, however, sold to David Madak only an undivided one-half interest in the real estate, his lien will attach to only one-half of the fund. The other half was acquired by David Madak from his brother Burt Madak, by assignment. As to this interest in the money in the hands of the clerk, the plaintiff can have no lien, and to the extent of such one-half interest the defendant is entitled to have his claim for exemptions allowed. The other half will be ordered paid to the plaintiff.

Marvin and Metcalfe, JJ., concur.


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    BILLS AND NOTES.
    [Lucas (6th) Circuit Court,
    February 10, 1912.]
    Wildman, Richards and Kinkade, JJ.
    Monroe P. Holmes v. Frank Cairl.
    Giving Judgment on Joint Promissory Note Against One Maker without Finding as to Liability of Other, Erroneous.
    When the liability on a promissory note is joint only, it is error to adjudicate as to the liability of one maker, without passing judgment as to the liability of the other joint obligor.
    Error.

      F. J. Flagg, for plaintiff in error.

      George C. Bhyce, for defendant in error.
   RICHARDS, J.

In the court of common pleas Frank Cairl brought an action against Monroe P. Holmes and Dale G. Holmes to recover upon a joint note executed by them to him, dated July 5, 1909. The defendants answered separately, setting up a claimed breach of warranty and false representations in the sale of a horse, and claimed the invalidity of the note and asking a judgment against Cairl for damages.

Cairl filed a pleading denominated a reply and answer to the amended answer and cross-petition of Monroe P. Holmes. In that reply he sets forth the allegations contained in a petition filed against him by Monroe P. Holmes, averring facts tending to show the invaliditiy of this same note and asking to have its transfer enjoined and the note declared a nullity, and praying for damages in that action for $255 and for an injunction. He sets up further in the reply that the prior action was tried to a jury in the common pleas court of Lucas county and resulted in a verdict and judgment in favor of said Frank Cairl. To this defense contained in the reply, Monroe P. Holmes filed a demurrer. The court of common pleas overruled the demurrer and the defendant, Monroe P.'- Holmes, not desiring to plead further, the court rendered judgment against him for the amount claimed upon the note, leaving the action to proceed further in „the common pleas court against the remaining defendant, Dale G. Holmes. To this judgment Monroe P. Holmes prosecutes error in this court, insisting that the judgment in the pior ease as set forth in the reply, is not a bar to this action. He cites and relies upon two cases, Cramer v. Moore, 36 Ohio St. 347, and Porter v. Wagner, 36 Ohio St. 471. A careful examination of those cases indicates that in each case the decree which was held not to be a bar was one in equity, dismissing the petition which, for manifest reasons, ought not to be a bar to a subsequent action brought at law.

In the case now under consideration, it appears that the claims set up were litigated and adjudicated by a trial before a jury in the original case set forth in the reply, and we think the _pourt of common pleas did not err in holding that the prior action was a bar, and in overruling the demurrer to the repty. --.The common pleas court, however, went further and entered a final judgment against the defendant, Monroe P. Holmes, for an amount claimed to be due upon this joint promissory note, without passing upon the liability of the other maker of said note. In so doing, we think the common pleas court erred to the prejudice of Monroe P. Holmes. The liability upon the note being a joint one only, and not joint and several, the court had no power or authority to adjudicate as to the liability of one signer without at the same time determining as to the liability of the other. We call attention to the following cases, which seem to be conclusive upon this matter; Carr v. Beckett, 1 Circ. Dec. 43 (1 R. 72); Aucker v. Adams, 23 Ohio St. 543; Hempy v. Ransom, 33 Ohio St. 312, 317; McCoy v. Jones, 61 Ohio St. 119 [55 N. E. 219] ; Schuck v. Groh, 10 Circ. Dec. 815 (20 R. 709).

For the single error in entering final judgment against Monroe P. Holmes before the final determination of the case, the judgment will be reversed and the case remanded for further proceedings.

Wildman and Kinkade, JJ., concur.


text:
    BENEFICIAL ASSOCIATIONS.
    [Cuyahoga (8th) Circuit Court,
    June 17, 1912.]
    Marvin, Winch and Niman, JJ.
    Katherine Pinta Koukolicek v. The Ladies' Catholic Ben. Assn.
    1. Remedy in Beneficial Order Exhausted Prerequisite to Appeal to Courts.
    Where an individual becomes a member of a fraternal beneficial association, he is bound to exhaust the remedies provided by its constitution and by-laws, not opposed to the laws of the state, which provide for the redress of grievances between members and the organization, and until he has done so he can not appeal to the courts for relief on account of such grievances.
    2. Limitation in Membership to One Church, Valid.
    The requirement that none but practical Roman Catholic women may become members of a fraternal beneficial association or of any of its branches is one which the organization has a right to embody in its constitution and by-laws.

      3. Suspension from Catholic Order for Marriage to Divorced Person.
    Marriage to a divorced person whose divorced husband or wife, as the case may be, is still living, is a violation of one of the rules or canons of the Roman Catholic Church, and a person who has committed this offense- against the church, can not, under its laws, remain a practical Catholic.

      J. W. Sykora, for plaintiff.

      Hart, Canfield & Croke, for defendant.
   NIMAN, J.

The defendant, the Ladies ’ Catholic Benevolent Association, is a mutual insurance and benefit association, incorporated under the laws of the state of Pennsylvania and transacting business in the state of Ohio. It insures the lives and health of its members and maintains social relations between its members.

The defendant, the St. Cecelia Branch No. 349 of the Ladies’ Catholic Benevolent Association, is one of the subsidiary organizations of the defendant association first named.

Section 4 of Title I of'the supreme constitution of the association provides for the qualifications of members in the following language:

“None but practical Homan Catholic women may become members of the Ladies’ Catholic Benevolent Association, or of any of its branches. ”

The plaintiff became a member of the St. Cecelia Branch of the association, and thereby of the association itself, on December 3, 1903. She thereby became entitled to all of the rights and benefits belonging to members of the organization, and acquired insurance upon her life for the sum of $1,000 payable to certain beneficiaries.

At the time the plaintiff joined the St. Cecelia Branch of the association, she possessed the qualifications necessary to render her-eligible to membership in the association. She remained a member .in good standing until November 7, 1907, when she was suspended. Her suspension was followed by such action on the part of the organization, that on or about June 4, 1908, she was expelled.

The ground of her suspension and expulsion from the association was, that on or about September 3, 1907, she had married a- divorced man whose divorced wife was still living, and had thereby violated one of the rules of the Catholic Church, and had ceased to be a practical Catholic.

By this action the plaintiff seeks to enjoin the defendants from refusing her the rights and benfits of a member of the association, and from cancelling or making void her insurance in the organization, and in ease such relief can not be granted her, she asks for an accounting of the money paid by her as premiums or assessments and a recovery of the same. Her right to the relief sought is disputed by the defendants on the ground that she had not exhausted her remedies within the association, and until she had done so, she has no standing in the civil court to obtain redress for the alleged wrongs done her by the organization of which she was a member.

In Myers v. Jenkins, 63 Ohio St., 101, (57 N. E. 1089), it was held as follows:

‘1 The members of a lodge of the Independent Order of Odd Fellows are not liable to another member of the same lodge for sick benefits, unless there is some law of the order expressly making them so liable. The obligation to pay sick benefits, as the laws of the order in this state stood in. the year 1890, rested alone upon the lodge, and not upon the members thereof.
“When a member of such order claims to be entitled to sick benefits, he must seek his remedy in the first instance, in the lodge and the tribunal of the order and the determination of the matter by such lodge and tribunal in substantial accordance with the laws of the order, will be final and concusive of the right to receive such benefits.
“If the lodge refuses or neglects, upon proper demand, to have the right to such benefits determined in substantial accordance with the laws of the order, or refuses to pay such benefits after the same have been awarded to such member, then such member may sue in the civil courts for the recovery of such benefits. ’!

We consider it settled, then, that where an individual becomes a member of an oranization such as this, he is bound to exhaust the remedies provided by the constitution and by-laws, not opposed to the laws of the state, which provide for the redress of grievances between members and the organization, and until he has done so he can not appeal to the courts of the state for relief on account of such grievances.

Section 61, of Title I, of the constitution and by-laws of the Ladies’ Catholic Benevolent Association provides for the filing of charges against any member of a branch who violates the obligations of the association, and for the trial of such member. The sixth paragraph of the section reads as follows:

“If after a fair mid impartial trial the charges are proven, the accused may be fined, reprimanded, suspended or, expelled as a majority of the board of supreme trustees may determine.”

By virtue of other sections of the constitution and by-laws of the association, a member of a branch feeling dissatisfied at the decision rendered upon any charge or complaint, may appeal from the board of supreme trustees to the supreme council of the association.

The evidence fails to show that the plaintiff prosecuted anj^ appeal. She was notified of the proceedings against her and every opportunity was given her at every stage to protect her rights. She did not take advantage of the rights given her by the constitution and by-laws of the organization to defend herself, and having failed to exhaust her remedies within the association-she has failed in an essential part of her case. Notice to the plaintiff that she had been expelled by the supreme council does not, in our opinion, avoid the necessity of proof that she had prosecuted the appeal provided for by the constitution and by-laws. The fact that she had been expelled by the supreme council would not necessarily imply that an appeal would be taken in vain.

The requirement that none but practical Roman Catholic women may become members of the association, or of any of its branches, is one which the organization had a right to embody in its constitution and by-laws. The association also had the right •to require of its members, once admitted, that they continue to be practical Catholics, and to provide for the expulsion of those who cease to be such. •

Marriage to a divorced person whose divorced husband or wife, as the case may be, is still living, is a violation of one of the rules or canons of the Catholic Church, and a person who has committed this offense against the church can. not, under its laws, remain a practical Catholic..

- When the plaintiff married a man who had been divorced from his wife, whose divorced wife was still living, she ceased to be a practical Catholic, and under the constitution and by-laws of the association, was subject to removal as a member thereof. No law of the state and no principle of public policy is violated by the insistence of the organization on the observance of this rule of the church, as a condition of the retention of membership therein.

It follows that the relief prayed for by the plaintiff must be denied and her petition dismissed.

Marvin and Winch, JJ., concur.