text:
    CONTRACTS EXPRESS AND IMPLIED.
    Circuit Court of Cuyahoga County.
    Hubert J. Turney, Administrator, v. Rose L. Wooley.
    Decided, June, 1912.

      Implied Contract — Meeting of Minds Essential.

    The only difference between an express and an implied contract is as to the mode of proof, and it is as essential that there be a meeting of the minds of the contracting parties in one as in the other.

      Wing, Myler & Turney, for plaintiff in error.

      S. Doerfler, contra.
    Pollock, J. (sitting in place of Winch, J.) ; Niman, J., concurs; Marvtn J., not sitting.
    This is an action in error seeking to reverse the judgment of the court of common pleas of this county.
   The defendant in error, Rose L. Wooley, brought suit against the plaintiff in error in the court below on an account which was claimed to be due her from defendant’s intestate. The petition was the short form of petition on an account, and the account consisted of one item, as follows

"To board, room, washing, care, nursing and attention rendered to Thomas C. Lavin, deceased, from July 19, 1904, to November 4, 1907, 171 weeks at $10 per week, $1,710.
"By cash received, $495. Balance due, $1,215."

The petition recited thaf the- claim had been presented to defendant, administrator, and rejected. 'To lMs petition the .de.Pendant below filed an answer admitting his appointment as administrator,, admitting that the claim was presented and rejected, and denying each and every other allegation in the petition.

After the jury was impanneled, and before any testimony was offered, the defendant objected to the offering of any' testimony on the ground that the action was brought on an account, as if the person were alive, under the short form, and claiming that to support such claim as the one sued on, it should be founded upon contract.

Whether this position was well taken or not need not Ik determined in this action, for the reason that the court below allowed the plaintiff to amend her petition, which she did, sol-ting out the facts, and no further objection was made by the defendant.

At the close of plaintiff’s testimony there was a motion made to direct a verdict, which was renewed at the close of all the testimony. These motions were overruled by the court. The overruling of these motions is urged as error, and included in the argument is the fact that the verdict is against the great weight of the testimony.

It is urged that when a stranger comes into the home of a husband and wife and there receives boarding and lodging, that the presumption is that the contract is made with the husband, and for that reason the plaintiff below, at least, could not recover for the board and lodging of defendant’s intestate.

We are not disposed to deny this proposition of law, but equally true is the proposition that if there are facts which show that the contract was made, whether it be an express contract or an implied one, with the wife, that she would have a right to recover upon the contract for boarding and lodging. The testimony in this ease shows, in short, the intestate was an uncle of this plaintiff below; that he came to the home of the husband and wife about the time stated in the petition and re-ma-ined there about that time. Witnesses testify to the fact that he required a great amount of attention, took his meals frequently in his room. This is testified to by other witnesses than the husband. Then the husband is a witness and testifies that Mrs. Wooley took care of him and as to the amount of care required by him. Tie also testifies to repeated conversations between his wife and the deceased in regard to paying her for what he was receiving in their home. This witness further testifies that when the deceased came to their home, his wife showed him over the house and arranged for the room that he ■occupied. In fact, the husband’s testimony is all concerning the services of his wife and conversations that he heard between his wife and the deceased and which he had with the deceased in regard to the payment of his wife for his accommodation in their house. " ■ ;

We think that under the facts stated here it was a question of fact for the jury to determine whether or not this contract was made with the wife, and especially when the husband, the only other party who could recover for such services, is testify-ing in favor of his wife’s claim.

The only other error complained of is in the charge of the court. The part complained of commences on page 55 of the record. The court said to the jury:

“In'this case the plaintiff is suing upon an implied contract. An implied contract differs from an express contract merely in the proving of it. In general the difference between an express contract and an implied contract is the mode of proof. An implied contract is established by proof of circumstances showing that either in justice, honesty and good faith a contract ought to be implied, or that the parties intended to contract. Whether the contract is established by evidence direct or circumstantial, the consequences must be the same. The inference of an implied contract, would then be practically a matter for the sound sense and judgment, of you, gentlemen of the jury; however, to be guided in that respect by the instructions the court may give you.
“In other words, gentlemen, a contract is implied where one renders services to another and that, other receives the benefit of the services, and the services are of - such a character and are rendered under- such circumstances that it may be fairly said that in justice and equity the services ought to be paid for. In such ease the minds of the parties need not meet; for if the party for whom the services are rendered in justice and equity ought to pay for them, the law implies the contract that he should pay for them.”

And further during the charge he repeats, in substance, this definition, of the contract; and on page 56 he further says:

“If, however, on that proposition their minds did not meet, and the circumstances were such at the time that the plaintiff could not very well have turned this man out of her house or her husband’s house, considering the character of their relationship and all the circumstances, and that ‘she did not agree to take care of him and furnish him lodging and shelter for $3 a week, but that he remained there, then, if you find that in justice and.equity and good faith he ought to pay; or the estate ought, to .pay, a fair value for the services rendered, you will find there was an implied contract that they should be paid for.”

In short, the. court says to the jury that this being an-, implied contract, that even if the jury find that the minds of the parties never met to make a contract, yet if in justice, honesty and good faith a contract ought to be implied, the plaintiff would have a right to recover. Is this a correct definition of an implied contract ?

When the court told the jury that there was no difference between an implied contract and. an express contract, except in the mode of proof, he was stating a correct legal proposition. An express contract is one that is proven by the express words of the parties; an implied contract differs from'an express contract only in proof of such facts and circumstances surrounding the parties that make it reasonably certain that a contract, existed between the parties.

Now under the charge of the court the jury might have found that whatever services and boarding and lodging the plaintiff did furnish the deceased, she did it gratuitously, without any intention whatever of charging therefor, and that it was accepted as such and without any intention of paying for it by the deceased, and yet, if they found that either in justice, honesty or good faith he should have paid therefor, they would have been required to return a verdict for the plaintiff They might have found, and in fact the court said in so many words, that they could find, that although the minds of the parties to this contract never met. yet they could return a verdict in favor of the plaintiff.

“The meeting of the minds ol the parties upon its terms is necessary to the making of a contract; and this is so whether it be an express contract or an implied one, if, in the latter case, the contract to be proved is an actual one as distinguished from a constructive contract.” Ry. Co. v. Gaffney, 65 O. S., 104.

In the opinion in this ease, on page 116, they quote from Swan, and this treatise uses practically the same language as the learned trial court in this case used in its charge, and criticize it. '

Further on, on the same page, they quote from Abbott’s Trial Evidence, with approval, and in the quotation from that work say:

‘ ‘ Second. Circumstances justifying the inference that plaintiff in rendering the services, expected to be paid, and defendant supposed, or had reason to suppose and ought to have supposed that he was expected to pay, and still allowed him to go on in the services without doing anything to disabuse him of this expectation."

It seems clear from the holding of the Supreme Court in this case that the charge of the court was clearly erroneous and prejudicial to the defendant below, and for this reason the case will have to be reversed and remanded for a new trial.

We regret very much to be compelled to arrive at this conehision. Tlic services rendered by the plaintiff below were such, and rendered under such circumstances, that it seems at least in good faith she ought to be paid. But whether or not the facts proven are sufficient to show a contract to that effect, is a question that Ave feel should be passed upon by a jury under proper instructions from the court.


source: Caselaw Access Project

license: Public Domain

text:
    SERVICE OF SUMMONS IN ANOTHER. COUNTY.
    Circuit Court of Cuyahoga County.
    Louis N. Gross v. J. H. Wiener, The Wiener Bros. Co. and The Intervale Fruit Company.
    Decided, July 9, 1912.

      Parties■ — Service—When Joint Defendants May he Served in Other Counties.

    Where one by false and ■ fraudulent representations has induced another to purchase of a third party stock in a certain corporation, in an action whereby it is sought to annul the entire transaction and recover the money paid from the party making the representations and the party to whom it was paid, the party making the. representations is a proper party within the-meaning of Section , 1Í255', General Code, and when service has been-had upon, him, summons may issue to another county for the party to whom the money was paid and the corporation whose stock was purchased.

      White, Johnson & Cannon, for plaintiff.

      Kline, Tolles & Morley, contra.
    Marvin J.; Winch, J., and Niman. J., concur.

      We' áre jiroceeding to dispose of the question submitted to us in this case ’ although the transcript from the court below, now in our hands, does not show that a judgment was ever rendered in the'court below. We assume, however, that such judgmént was rendered and that counsel will have the transcript completed.
   The plaintiff’s petition was filed in Cuyahoga county, and personal service was had upon the defendant, J. II. Wiener, in said county. The two corporations which are made defendants have no residence or officer in this county but each has its place of business and home office at Akron, in Summit county.

The service of summons upon each of these two last named defendants was made by the sheriff of Summit county in Summit county.

The question presented to us is whether or not they are properly before us.

It is alleged that the relation of J. H. Wiener to the other defendants is such that a service upon him in this county does not warrant service upon the other defendants outside of this county. The petition alleges that by fraudulent representations made to the plaintiff by J. II. Wiener, he was induced to and did pay to the defendant, the Wiener Bros. Company, a large amount of money for stock which said last named company owned in the Intervale Fruit Company. The prayer of the petition is that the plaintiff be declared not to be a stockholder in the last named company, and that his name be taken from the books of such company as a stockholder; that the Wiener Company and J. H. Wiener be required to repay to the plaintiff what he has paid for the stock, and that he be relieved from the payment of a note given by him, now held and owned by the Wiener Bros. Company.

This is a brief statement of what practically the plaintiff seeks in the action.

On the part of the plaintiff it is urged that the service made upon the defendant corporations in Summit county is good by reason of Section 11282 of the General Code, which reads:

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

If, then, this action was properly brought against the defendant, J. H. Wiener, who was served with summons in this county, and if he is a proper party to be joined with the other defendants in the action, it would seem clear that the service in Summit county was proper.

Section 11255 of the General Code provides:

“Any person may be made a defendant who has or claims an interest m the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of a question involved therein. ’ ’

It is said that the primary object of this action is to have the entire transaction by which the plaintiff became the purchaser of the stock of the fruit company nullified., and that he be restored to the situation in which he was before that transaction took place, and that the defendant, J. H. Wiener, not being now and never having been the owner of the stock which the plaintiff purchased, can do nothing toward restoring the plaintiff to the relation in which he stood to the Intervale Fruit Company before the purchase was made, and that since this is true, the action w'as not properly brought against him because it is said the action is an equitable action. But conceding that this is in substance true, it is still true that the plaintiff seeks to recover money from both the Wiener Bros. Company and J. IT. Wiener. J. H. Wiener has answered in the ease, and denies the allegations of the petition in the matter of any false representations made by him, or any fraud perpetrated by him in the transaction in any wise, and therefore denies that the plaintiff is entitled to recover anything against him.

We think he comes within those named in Section 11255; that he is a person ‘ ‘ who has or claims an interest in the controversy adverse to the plaintiff.Tf he has not any claim or interest adverse to the plaintiff, there was no occasion for him to file an answer nor make any defense. He makes answer because his claim is adverse to the plaintiff. He says it isn’t true that he induced the plaintiff to part with his money; he makes that issue; it is directly adverse to the claim of the plaintiff.

We think this is borne out by wliat is said by our Supreme Court in the case of Osborn v. McClelland. 43 O. S., 284. The language of the sixth clause of the syllabus is:

“In this respect the civil code adopts the former rule in equity, which allows all parties interested in the controversy adversely to the prima facie owner, or who are necessary to a complete determination or settlement of the question involved, to be made defendants. ’ ’

The ease of Mack v. Latta, 178 N. Y., 525, was decided under a statute in effect the same as our Section 11255 and we think that bears out the proposition that J. H. Wiener was a proper party to be joined with the other defendants in this action. The court below thought otherwise, and thought, too, that J. H. Wiener was not a necessary party to this controversy, and in the opinion which we have seen, prepared by the court below, Sec■tion 11255, is quoted as reading:

“Any person may -be made a defendant who has or claims an interest in the controversy-adverse to the pláintiff, and who Ls a necessary party,” etc.

Whether this is a mistake of the typewriter, we are not advised, but if the statute read as so quoted, it would be necessary in determining the ease before us to determine the question of whether J. H. Wiener was a necessary party to this proceeding; but as .the conjunction “or” is used in the statute and not the conjunction “and” we deem it sufficient to warrant us in saying, without an examination of the question of what result we reach on the question of whether J. H. Wiener is a necessary party, we find here that he is a proper party because he has an interest or claims one adverse to the claim of the plaintiff.

. We reach the conclusion, therefore, that the parties are all properly before the court, and that therefore the ease is properly here for trial.


text:
    CONSTRUCTION OF THE VERDICT OF A JURY.
    Circuit Court of Cuyahoga County.
    Sarafino Capretta v. The J. H. Haskins Roofing Company and J. H. Haskins.
    Decided, May 10, 1912.

      Trials — Verdicts to be Construed Liberally.

    In construing the verdict of a jury the utmost favor should be extended to it by giving it a liberal construction, and where, in-a case in which there were two defendants,- the jury returns a verdict in favor of the defendant, the court properly may enter judgment in favor of both defendants.

      B. D. Nicola, for plaintiff in error!

      Treadway & Marlatt, contra.
    Pollock, J. (sitting in place of Marvin, J.); Dustin, J. (sitting in place .of Winch, J.), arid NiMAN J., concur.'

      The plaintiff in this action is seeking to have a judgment of the court of common pleas of the county against him- and in favor of the defendants, reversed for an error that he claims was committed by the court below against him in the trial of that ease. The only error complained of is that the verdict rendered by the jury was so indefinite and uncertain that no judgment could be properly entered upon it, and that the court erred in overi’uling his motion for a new trial on this ground and in entering judgment on the verdict.
   The only record we have of the case below are the pleadings and the verdict of the jury.

The plaintiff in error brought suit against the defendants in error in the court below to recover damages for personal injury which he claims to have sustained by reason of the negligent-acts of the defendants. He says in his petition that at the time he received his injuries he was engaged in digging a trench from the sidewalk to a house on one of the streets of this city; that at the same time the defendants were engaged in roofing this house; that in hoisting a bucket filled with pitch from the ground to the roof of the building, the bucket and its contents fell and struck plaintiff, inflicting the injuries of which he complains. He says that the fall of said bucket was caused by the negligent and careless acts of the defendants.

The defendants answered separately to this petition. The defendant, the J. II. Haskins Roofing Company, said that it was a corporation, and then denied each and every allegation of the petition, and further said that at the time of the happening of the occurrence complained of this corporation was not in existence, and that it had no connection with the occurrence alleged in the petition.

The defendant, J. II. Haskins, answered denying the negligent acts charged in the petition and the injury complained of by the plaintiff, and alleged contributory negligence. The plaintiff replied denying the contributory negligence. The case went to trial to a jury, and the jury returned a verdict as follows:

“Sarafmo Capretta, plaintiff, vs The J. IT. Haskins Roofing Co. et al, defendants.
“We the jury in this case, being duly impanneled and sworn do find for the defendant.”

The elaitn is made that here is a finding in favor of one of the defendants, and it was impossible for the court to determine, from the issues and this verdict, which of the defendants the jury intended to find in favor of, by its verdict.

The verdict of the jury must pass upon all the issues in the case and be free from ambiguity. The issues in this case, raised by both defendants, were submitted to the jury, and the question is whether or not this verdict responds to the issues and is so certain that the court can enter judgment on the verdict in favor of both defendants.

The verdict must be certain and positive, and free from ambiguity ; it must convey on its face a definite and precise meaning, and must show just what the jury intended. But in construing a verdict, Graham and Waterman on New Trials. Vol. 3, 1377, say:

"'The utmost favor has always been extended to verdicts, and the.y are not construed strictly, as pleadings are. Though the verdict may not conclude formally and punctually in the words of the issue, yet if the point in issue can be concluded out of the finding, the court shall work the verdict into form and make it serve.”

And our Supreme Court, in the case of Fries v. Mack, 33 O. S., 52, in the opinion on page 59, lays down practically the same rule to guide the court in the construction of the verdict of the jury. Quoting from a Kentucky ease, they say:

“Jn considering the verdict itself, with a view to its sufficiency, the first object is to ascertain what the jury intended to find, and this is to be done by construing the verdict liberally, with the sole view of ascertaining the meaning of the jury, and not under the technical rules of construction which are applicable to pleadings. And it has been said that every reasonable construction is to be adopted in support of a verdict.”

Now, applying this rule to this verdict, what did this jury mean, looking at and construing the verdict itself? Did they intend only to pass upon the issues in favor of one of these defendants, and that the issues as to the other defendant would go without a determination? We hardly think that that can be the construction drawn from this verdict. Construing it liber•ally, as required by this rule laid down by our Suprem- ■■ ’ we think that the true construction is that they found the issues in favor of each of these defendants and against the plaintiff ; and that the verdict means that the issues raised by each of the answers of the defendants were thus found in favor of the defendants, and that the court committed no error in overruling the motion for a new trial and rendering judgment in favor of each of the defendants and against the plaintiff.

Our attention has been called by the plaintiff in error to a number of cases in the courts of other states, where two defendants were sued jointly and issues raised in the action, and a verdict returned in favor of the plaintiff and against one of the defendants; that it was so indefinite and uncertain which one of the defendants the jury intended to render the verdict against that the court could not determine, and therefore the verdict should be set aside and a new trial granted.

There is much difference in construing a verdict of that kind, where there is affirmative relief found against one defendant, and no designation of -that defendant, and where the verdict is in favor of the defendant. In the first case, there is an affirmative action against one, the court can not determine which it is, and for that reason it is set aside; but in the case at bar, where the verdict is in favor of the defendant, there is no judgment to be rendered against that defendant, and for that reason the presumption is, granting a liberal construction, that it was intended to be in favor of both defendants.

The judgment of the court below is affirmed.


text:
    PASSENGER ENTITLED TO REASONABLE TIME TO PAY HIS FAKE.
    Circuit Court of Cuyahoga County.
    The Northern Ohio Traction & Light Company v. Joseph Wieland.
    Decided, July 1, 1912.

      Carriers — Passenger Entitled to Reasonable Time lo Produce Ticket or Pay Fare.

    1. A passenger on a street car or railway train Is entitled to a reasonable time in which to pay his fare or produce his ticket, and, if he is acting in good faith, the conductor has no right to eject him' without affording him such reasonable time to pay his fare or find his ticket, if it is mislaid.
    2. Where a passenger has left his-ticket in the custody of another passenger in a remote part of a crowded street car, and the conductor forcibly ejects him within a minute or two after having first demanded his fare, he has not been given a reasonable opportunity to secure and present his ticket and the carrier is liable in damages.

      Kline, Tolles & Morley, for plaintiff in error.

      A. M. Klein, contra.
    Niman, J.; Metcalfe, J. (sitting in place of Winch, J.), concurs; Marvin, J., not sitting.
    Joseph Wieland, the defendant in error, sued the Northern Ohio Traction & Light Company, the plaintiff in error, in the municipal eourt of the city of Cleveland, and recovered a judgment in that court for $200. On error proceedings prosecuted, in the court of common pleas, the judgment of the municipal eourt was affirmed, and this proceeding is brought to secure a reversals the judgment of. the eourt of common pleas affirming the judgment of the municipal eourt.
   The plaintiff in the original action by his amended statement of claim charged, in substance, that on or about the 29th day of October, 1911, he ivas a passenger on a car of the defendant, and that he was wrongfully ejected from the car by the conductor and motorman, and by reason thereof was seriously injured. The recovery sought was for damages for his alleged injuries.

It appears from the evidence that on the 29th of October, 1911, the plaintiff in the original action, with his two sons-in-law, boarded a ear of the defendant for the purpose of going to Bedford. Three tickets were bought before the party got on the car. These tickets were retained by one of the plaintiff’s sons-in-law. Whemthe three men got on the car it was crowded, and the plaintiff went forward into the smoking compartment while the other two- men remained in the back part of the car.

When the conductor collected the fares of the passengers he began at the rear end of the ear and worked forward, and when he came to the two sons-in-law of the plaintiff he was given two tickets. According to the testimony of the sons-in-law, the third ticket which had been purchased for the plaintiff had fallen into a basket, and while the men were looking for this ticket the conductor passed on forward. When the conductor came to the plaintiff he was told, according to the plaintiff’s testimony, that the plaintiff did not have the ticket but that his son-in-law had it. The plaintiff was told by the conductor to get the ticket, but he did not do so, and as soon as the conductor had finished his work of taking up tickets from the rest of the passengers, he returned to the plaintiff and made demand upon him for his ticket or his fare, and not receiving it, he forcibly ejected the plaintiff through the front door and in so doing inflicted'some injuries upon him.

■ The conductor testified that when he came to the plaintiff and asked him for his fare, the plaintiff said the two men in the other part of the ear had his ticket; that he told the plaintiff that he would have to get the ticket or he, the conductor, would have to put him off; that the plaintiff did not make a move to go back to get the ticket., and as soon as the ear came to a stop at a telephone house on the fine of the road, he put the plaintiff off the car.

The time that intervened from the first request made by the conductor for the plaintiff’s ticket until the second demand was, according to the conductor’s testimony, about a minute or two.

It is contended on behalf of the plaintiff in error that it was the duty of the plaintiff to either produce his ticket or pay cash fare upon the demand of the conductor, and that the conductor had the legal right to eject him from the car, using such force as was necessary to accomplish that purpose.

It is undoubtedly the law that a railway company may rightfully eject from its car a passenger who, upon demand of the conductor, refused to produce his ticket or pay. his fare, but the passenger is entitled to a reasonable time within which to comply with such demand. This is particularly true if the passenger has mislaid his ticket or lost his money, or from any other cause is in such a position that immediate compliance with the conductor’s demand is not possible.

In Nellis on Street Railways, Section 263, the law is said to be as follows:

“A passenger is entitled to a reasonable time to produce his ticket or pay his fare before being ejected from the train or car, and if acting in good faith, the conductor has no right to eject him from the train or car without' affording him a reasonable opportunity to make payment or to find and present his ticket, if lost or mislaid, or to provide other means of payment, if his pocketbook is lost or mislaid.” See also Clark v. Wilmington & Welvon R. R. Co.; 91 N. C., 506; Chicago & Alton R. R. Co. v. Willard, 31 Ill. App. Ct., 435; Maples v. N. Y. & New Haven R. R. Co., 38 Conn., 557.

■ The evidence before us in the bill of exceptions is such that the trial court might well have found that the conductor did not afford the plaintiff below reasonable opportunity to obtain his ticket. The car was crowded; the plaintiff was in the forward compartment while his companions who had the ticket were farther back in the car. The plaintiff did not understand English well, and there is nothing in the evidence to indicate that he was not acting in good faith. It was the duty of the conductor to afford the plaintiff a reasonable opportunity to get his ticket, and a finding that the conductor did not observe his duty in this respect would be amply sustained by the evidence. .

There is also enough in the evidence to sustain a recovery on the ground that the conductor used excessive force, or at least did not employ proper means in ejecting the plaintiff from the car. The front door of the car out of which he was forcibly pushed, or thrown, was a considerable distance from the ground. There were no steps there and the plaintiff landed on his face and hands. We have no means of knowing on which theory the trial court based his judgment, but the evidence being sufficient to sustain the recovery on either theory, or on both combined, we find no error in the action of the municipal court in rendering judgment for the plaintiff there. The judgment of the common pleas court, affirming the judgment of the municipal court, is therefore affirmed.


text:
    AS TO VALIDITY OF AN ANCIENT DEDICATION.
    Circuit Court of Medina County.
    Edith P. Minton et al v. The Village of Seville.
    Decided, October 14, 1912.

      Jtowls and Streets — No Dedication Under Act of March 3, 1831, Without Achnoioledgment hy Owners.

    No dedication of a parcel of land for street purposes can be established under the act of March. 3, 1831, providing for the recording of town plats, where the records do not show any acknowledgment by the owners of the plat as made by the county surveyor.

      Frcmk Heath and Lee Elliott, for plaintiffs in error.

      John C. Welty, contra
    Winci-t, J.; Marvin, J., and Niman. J„ concur.
    The aid of the court is invoked in this case to restrain the village of Seville from moving back the sidewalks in front of plaintiff’s premises on Center street in the village and thus widening the traveled portion of the street.
   To adjudicate the issues here involved it is necessary to determine the title to a strip of land about ten feet wide along the east side of said street between the present sidewalk and the east line of Center street, as shown on a plat recorded in the office of the recorder of Medina county and purporting to be a plat of town lots in the town of Seville in the township of Guilford, county of Medina, and state of Ohio, made by the surveyor of said county in August, .1836, and acknowledged by certain individuals whose names are given on the plat.

The evidence satisfies us that plaintiffs have been in adverse possession of the strip of land in question long enough to obtain title thereto by prescription, under the rales of law, unless during all their possession this land has been part of a legally dedicated street.

The village claims a dedication for street purposes and offers the plat referred to as evidence thereof. We must therefore examine its evidences of title. If its title fails, the plaintiffs are entitled to the relief they seek.

The act of March 3, 1831, to provide for the recording, of town plats (3 Chase’s Statutes, 1846) was-in force when the “town” of Seville was platted.

In the case of Mitchell v. Treasurer, 25 O. S., 143, the Supreme Court held, on page 154, that the first five sections of said act prescribe the mode of laying out towns on lands not embraced within the limits of cities or incorpoi’ated villages, and the sixth section of the act prescribes the mode of laying out lands within the corporate limits of cities and villages into lots, streets, etc., and of platting the same.

There is no evidence that Seville was incorporated as a village before 1853. The plat made in 1836 must, therefore, be governed by the first five sections of the act of 1831.

Section .1 of that act provides:

“That whenever any person wishes to lay out a town within this state, they shall cause the same to be surveyed, and a plat or map thereof made by the county surveyor, if any there be, of the county in which said town is situated; which plat or map shall particularly describe and set forth all the streets, alleys, commons or public grounds, and all in and out-lots, or fractional lots, within, adjoining or adjacent to said town, describing- the same by courses, boundaries and extent.”

The word “town” as used here, means a collection of habitations, its popular meaning, and not a municipal corporation, for we have never had a corporation under the name of “town” in the state of Ohio. That conclusion follow's from a reading of Section 6 which does apply to plats in municipal corporations.

Section 2 of the act provides that the lots shall be numbered progressively and that dimensions be stated on the plat.

Section 3 provides for the planting of stones.

Section 4 provides:

‘ ‘ That the plat or map, after having been completed, shall be certified by the surveyor and. acknowledged by the owner or owners of the town and recorded in the recorder’s office of the county in which said town is situated. ’ ’

Section 8 provides:

“That the map, when recorded, as required by this act, shall be deemed and considered in law a sufficient conveyance to vest the fee simple of all such parcels of land as are therein expressed, named or intended for public use, in the county in which the town is situated, for the uses and purposes therein named, expressed, or intended and for no other use or purpose whatever.”

The plat of 1836 complies with all requirements of the act of 1831, if ifwas acknowledged “by the owner or owners of the town. ’ ’

What is the evidence on that subject?

The deeds before us show that when the plat was made, one Chester Horner was the owner of three-fourths undivided interest in common in part of the land here in dispute, shown as part of Center street, and Elijah W. Harris was the ow'ner of part of it, and neither of them, acknowledged the plat.

The plat, then, was not acknowledged by all the “owners of the town” as required by Section 4 of the act of 1831, and was ineffectual to dedicate the streets shown thereon for street purposes.

Plaintiffs are not barred from claiming title by prescription under the rule that title to lands dedicated for street purposes can not be acquired by adverse possession, for these lands were never so dedicated.

It follows that plaintiffs are entitled to the relief they pray for and decree rnay be drawn accordingly.


text:
    IMPLIED WARRANTY OF A SELLER. OF FOOD PRODUCTS.
    Court of Appeals for Morgan County.
    Boyd Kean v. Delbert Bachelor.
    Decided, May 14, 1915.

      Sale of Unwholesome Food — Oivil Action for Damages — Rules of Evidence Not Affected by the (Criminal Statute — Eggs Not Inspected Until Four Days After Delivery.

    1. The criminal statute relating to the sale of unwholesome provisions in no way changes the established rules of evidente or the proof required in cases where damages are sought on account of the sale and delivery of food products in a condition unfit for use.
    2. ‘The implied warranty'of the seller, in the case of the sale of- eggs, is not available' as the basis of an action by the purchaser who received and shipped the eggs without'inspection and which were found upon inspection four days later to be unfit for use.

      M. E. Danford, for plaintiff in error.

      C. G. Middleswart, contra.
    Houck, J.; Shields, J., and Powell, J., concur.
    This cause was originally commenced in the court of a justice of the peace in and for Windsor township, Morgan county, Ohio, tried and judgment rendered and appealed to the common pleas court of this county.
   The cause was submitted to a jury in the common pleas court and a verdict rendered and judgment thereon in the sum of $90.34, in favor of the defendant in error, the plaintiff below, and to'reverse this judgment the plaintiff in error prosecutes error to this court.

The plaintiff below, Delbert Bachelor, in his amended petition says, that on the 13th day of August, 1913, he sold and delivered to the defendant below, the plaintiff in error, and at his special instance and request, chickens and butter for the agreed price of $84.52, and which sum the said Kean agreed to pay to him for same, but that he has neglected, failed and refused so to do. Plaintiff prays for a judgment against defendant for said sum of $84.52, with interest at six per cent, from August 13, 1913.

The defendant filed an amended answer, being in substance as follows:

That on and long prior to June 3d, 1913, he was engaged in the produce business, buying and shipping eggs to Pittsburg; that on said day the plaintiff sold and delivered to him, as and for good and wholesome eggs, and for the agreed price then paid for same, a large lot of eggs packed by plaintiff in eases, for shipment by defendant to Pittsburg, and with the knowledge on the part of plaintiff that they would be so shipped, without inspection or examination by defendant, and they were shipped by him without inspection; that 40114 dozens-of said lot of eggs were unhealthy, decayed and spoiled; but said condition of said- eggs was not made known at said time to defendant by plaintiff, nor did defendant know of their condition; that by reason of the premises defendant has been damaged in the sum of $74.28, for which amount he prays judgment against the plaintiff.

The plaintiff’s reply admits that he sold and delivered the eggs to defendant at an agreed price, which was paid; that they were packed in cases, but denies each, all and every other statement and allegation in the amended answer of defendant.

The plaintiff in error seeks to reverse the judgment below for two reasons:

1. He relies upon the provisions of Section 12760 of the General Code of Ohio.

2. That the court erred in its charge to the jury.

Section 12760 of the General Code is as follows:

“Whoever sells, offers for sale or has in possession with intent to sell, diseased corrupted, adulterated or unwholesome provisions without making the condition thereof known to the buyer, shall be fined not more than fifty dollars or imprisoned twenty days, or both.”

Counsel for plaintiff in error contends, that by the provisions of the above penal statute, decayed and unwholesome eggs must not be placed upon the market; that they are not the legitimate subject of sale and traffic, unless their condition is made known to the buyer; that no express warranty is necessary, nor is any false representation or deceit requisite, nor is knowledge upon the part of the seller necessary to be alleged or proved by the defendant below.

The action at bar is a civil one and not of a criminal nature, and we think it is a well established principle in law that one who pursues a civil remedy can not claim favor under the provisions of a criminal or penal statute to make out his ease. The criminal statute in question does not change in any way the well established rules of evidence, or the proof required in cases growing out of the sale and delivery of merchandise where damages are sought, nor does it change the rule of law governing express or implied warranties, as relates to the seller and buyer of merchandise.

Then, we are led to inquire, what is the law governing the case at bar ?

In the absence of any express affirmation or statement to such effect, certain warranties are always implied in every contract, relating to the sale and purchase of merchandise.

There is an implied warranty that the seller is the owner of the goods which he offers for sale, and that he has the right to sell same; that at the time and place of delivery the buyer shall have and enjoy quiet possession of the goods, and that the same will be free from any charge or claim of any third person.

And we are of the opinion that from the usages of trade that where eggs were, sold, as in this ease, to a shipper when the opportunity for inspection is slight, if at all, that there is an implied warranty from the seller to the buyer, that the eggs are fit for the purpose for which they are sold, i. e., shipping purposes, and that they are merchantable and not spoiled or decayed at the time of their'delivery to the purchaser..

' We are now led to inquire — what was the condition of the eggs, involved in this case, at the time of their delivery to the plaintiff in error?

The record discloses that the eggs were purchased by Bachelor of farmers in his community, during the week prior to June 3d, 1913, and they were packed in egg cases and delivered on that day to Kean, the purchaser; that the fillers were dry, but the eases a little wet; that Kean saw the damp cases but did not open any of them or inspect any of the eggs, but accepted them and shipped them the same day to Pittsburg; that four days later he was informed, by consignee in Pittsburg, that a large part of the eggs he purchased of Bachelor were spoiled and decayed.

Can it be inferred from these facts that the eggs were spoiled, decayed and unmerchantabe, on the 3d day of June, when Bachelor delivered them to Kean, because four days later they were in that condition in Pittsburg?

The purchaser had an opportunity to examine the eggs when they were delivered to him, but he did not elect so to do; he saw that the cases were damp, but made no complaint to the seller; if the dampness of the cases would have a tendency to cause the eggs to decay or spoil more rapidly, by reason of that fact, the purchaser was placed upon inquiry and should have applied the test, or made an inspection of the eggs, and if he had done so and found them decayed or spoiled he would have been under no legal obligation to have accepted them.

Speaking from the record, the evidence does not show that at the time of the delivery of the eggs, on June 3d, 1913, that they were spoiled, decayed or unmerchantable and we can not assume from the facts and circumstances, as disclosed by the evidence, that they were spoiled or decayed at said time.

All the law required of the seller in this case was that the eggs should be merchantable, and not in an unwholesome condition, at the time of the delivery, and that there could be no implied warranty that they would be merchantable, or free from decay four days later, and after the purchaser had shipped them to Pittsburg.

The question to be determined here is not the condition of the eggs at Pittsburg, but what was the condition of the eggs on the 3d day of June, 1913, when Kean accepted them from Bachelor?

Answering this inquiry from the evidence as disclosed by the record, they were merchantable and not decayed or spoiled and that is all that the law requires of the defendant in error in the premises.

We have examined the charge of the court, and we are of the opinion that it is a clear and concise statement of the law governing the facts in this case, and therefore we find no error in the charge of the court.

As we view this case, we find no error in the record, which is prejudicial to the rights of the plaintiff in error, and, therefore, we are of the opinion that the judgment below is right and should be affirmed. The judgment of the common pleas court is affirmed at the costs of the plaintiff in error.


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    WRONGFUL SUSPENSION OF A RETIRED POLICEMAN FROM THE PENSION ROLL.
    Court of Appeals for Hamilton County.
    State of Ohio, ex rel Jeremiah Delaney, v. John R. Holmes, as President of the Board of Trustees of the Police Relief Fund of the City of Cincinnati et al.
    Decided, May 17, 1915.

      Pensions to Retired Police Officers — Discontinuance of Payment Toy a Board, Without Authority to Act — Proper Remedy of the Officer to Enforce Payment — Application of the Statute of Limitations.

    1. Acquiescence in the action of a person or official hoard can not be charged where the person or board taking such action was without power or jurisdiction to act.
    2. Where a member of the police force has been retired for disability and placed on the pension roll, and is thereafter suspended .from said roll by a board acting without authority, his right of action for a writ of mandamus to compel the issuance of a warrant for the pension of which he was thus deprived is by analogy limited to the six years from the time when his right of action accrued.
    3. A pension being in the nature of a gratuity there is no legal liability for its payment which can be enforced in an action for money, but the remedy for recovery of a pension, payment of which has been wrongfully discontinued, is by mandamus.

      Denis F. Gash and Henry T. Hunt, for relator.

      Waller M. Schoenle and Saul Zielonka, City Solicitors, contra.
    Gorman, J.; Jones (E. H.), J., and Jones (Oliver B.), J., concur.
    Tlie' relator brings this action in mandamus to require the defendants, Trustees of the Police Relief Fund of the City of Cincinnati, to draw their' order on the treasurer of the city for the sum of $6,800 with interest, the amount of back pensions at the rate of $50 per month which he claims to be due him since September, 1903.
   The pleadings, admissions and proof disclose that in 1887 the relator became ,a member of the police force of said city and continued actively in the service until 1898 when he was obliged to discontinue active service on account of two injuries received while in the service in the line of his duty; that on February 13, 1900, while a patrolman in good standing in said force, upon the recommendation of the mayor of said city and the approval of the police commissioners he was duly retired from active service by reason of physical disability, and placed on the pension rolls of said city, as provided by law; that at that time, under the rules and regulations of the trustees of the police relief fund, duly and legally adopted and approved, he was entitled to a pension of $50 per month for life to be paid monthly on the orders of said trustees, drawn on the treasurer of said city, payable out of said fund; that said trustees thereupon duly and legally granted and allowed said pension of $50 per month pursuant to the rules of said trustees, and thereupon said pension was duly and regularly paid him, each and every month up to September, 1903, when said trustees of said fund refused, omitted and failed to pay him any further sums on aceount of said pension, and has since failed, refused and neglected to pay him anything whatsoever as and by way of a pension; that at the time of the retirement of Delaney and the granting of his pension he was in the state of Florida, and this fact was known to the mayor of the city and the police commissioner and trustees of said fund; and thereafter and up to the present time he has continued to be a resident and elector of the state of Florida. In August, 1903, the trustees of said fund adopted a resolution requesting each pensioner retired on account of physical disability to be examined by a physician as to his physical condition and furnish a certificate of such examination and that the committee to be appointed by September 1, 1903, ascertain what the pensioners are doing and if they are still entitled to pensions.

On September 8th, relator was cited to appear before the board of trustees on September 11, and show good cause why his pension should not be discontinued. At that time Delaney was in Florida, and he testified that he received no notice to appear, and that he could not have reached Cincinnati on the 11th of September if he had in due course received the notice. The minutes state that attorney Thomas Darby, claiming to represent Delaney, was present on September 11th, but Delaney testified and his testimony is uncontradieted, that he never authorized Darby to appear for him.

Certain communications were received from Florida officials concerning Delaney’s alleged misconduct and violation of the laws of Florida which were ordered filed, and the trustees of said fund on that day suspended the payment of Delaney’s pension, and ordered an investigation to be made as to whether or not his pension should be discontinued. On October 9, 1903, the payment of Delaney’s pension was further suspended and a committee was appointed to confer with the mayor and chief of police, with a view to filing charges against him to cause his dismissal from the force and a revocation of his pension.

A commiil.ee was appointed, and on November 16, 1903, reported that they had requested an opinion from the city solicitor as to the proper method of procedure. The opinion of the solicitor is not in evidence. The committee recommended that inasmuch as Delaney failed to answer summons to appear before the board of trustees and show good cause why his pension should not be revoked, that his name be dropped from the pension roll. The committee’s recommendation was not adopted, but on that date further payment of his pension was again suspended until such time as he shows good cause why his pension should not be permanently discontinued.

On December 7, 1903, the trustees directed a communication to be addressed to County Solicitor Bryan, of Duval county, Florida, stating that Delaney’s pension was suspended because lie had forfeited his residence in Cincinnati by becoming a resident of Florida, thereby removing himself from the control of the board of trustees; and that his alleged criminal act had nothing to do with the action of the board in the matter.

Nothing further occurred, as shown by the minutes of the trustees, until June 3, 1913, when Delaney made application for reinstatement as a pensioner, and his application was then and there rejected. On October 1, 1914, he again applied to the trustees for reinstatement, and on January 7, 1915, the trustees refused to reverse the action of the former board of trustees. Thereupon this action was brought.

The law governing the police relief fund and the granting of pensions is found in Sections 4616 to 4631, inclusive, of the General Code. A copy of the rules of the trustees in force when Delaney was placed on the retired list and still in force and unchanged down to 1905, were attached to the reply, and were offered in evidence (“Ex. A,” Bill of Exceptions). The amount of pension to be granted is not fixed by statute but by the rules of the trustees.

The police relief fund is raised and maintained by a tax levy not to exceed three-tenths of a mill, by donations, fines imposed on the members of the force in disciplining them, contributions from members of the force, and the proceeds of the sales of unclaimed property and money in the police department.

The board of trustees had no power or authority, under the law or their rules, to suspend Delaney’s pension or to revoke the same. Their duties are and were purely ministerial (State, ex rel Rothgery, v. Trustees of Firemen’s Pension Fund, 20 C.C. [N.S.], 13). The constitution and by-laws of the Police Relief Association, which are attached to the bill of exceptions (Exhibit A) and which constituted the rules of the trustees of the fund when Delaney was placed on the pension rolls and when the trustees undertook to suspend the payment of his pension, contain no provisions authorizing such action, nor is there any warrant or authority under the statutes governing this fund, which would authorize the trustees of this fund to suspend or revoke any one’s pension. By Rule 44 pensions in the police department were to be granted upon the recommendation of the mayor or board of directors, and the approval of the police commissioners, and when so granted it shall be the duty of the president and the secretary of the board of directors, together with the president of the board of police commissioners, to sign and attest monthly warrants for pensions. The official notification of the clerk of the board of police commissioners shall give the proper authority.

By Rule 45 it is provided that pensions may cease on restoration to duty and full pay. The police commissioners’ board under the law and the rules, was the only body authorized to recall a pensioner to duty and full pay; and whenever they did this the clerk of the commissioners under this rule 45 should notify the directors or trustees of the fund, of that fact, and thereupon the pension should cease and the officers of the directors or trustees should cease signing warrants for such discontinued pension.

By rule 46 any member of the police force who shall while in the performance of his duty, become, or be found upon examination by the board of police commissioners to be physically or mentally permanently disabled so as to render necessary his retirement from all service in the police department, upon the recommendation of the mayor, with the approval of the board of police commissioners, shall be allowed a pension of $40 a month, payable from the fund.

By rule 52 honorably retired members of the force shall have no interest in the fund other than that provided for them in the constitution and by-laws, and they shall not be subject to dues or assessments.

The mayor and the police commissioners were the only ones who had authority to grant, suspend or revoke pensions.

By the provision of Section 4699, General Code, the board of trustees shall administer and distribute the police relief fund.

By the act of April 23, 1902 (95 O. L., 223-229), paragraph (g) the rights of pensioned members were preserved, and under the law as then amended and by the act of April 20, 1904 (97 O. L., 241-251), paragraph (g), these rights were again recognized and preserved. On November 20, 1905, minutes of trustees, 362-363, the amount of the monthly pension of disabled retired members was raised to $50 per month, and that rule continues in force to this day. Removal from the state of Ohio under the law and the rules did not constitute a forfeiture of the pensioner’s rights. While the police commissioners and the mayor might have made such a rule, and perhaps the trustees of the fund might also have promulgated such a rule, as a matter of fact no such rule was ever adopted by anybody having any connection with the police department or the fund. Neither the statutes nor the rules have made violation of laws or criminal acts or conduct on the part of the pensioner a cause of forfeiture of his pension; and no authority is lodged by statute or the rules of the trustees in the board of trustees of the fund, to deprive a pensioner of his pension, or to suspend or revoke the same.

Delaney’s pension was never revoked by any body. The trustees undertook to suspend it, from time to time, but their acta, in this regard were without authority and wholly null and void. Such actions of the trustees had no more effect on Delaney’s rights than if they had been taken by the city treasurer or any other person or body. There ivas no jurisdiction in the board of trustees to suspend Delaney’s pension.'

It is urged that Delaney had misconceived his remedy and that he has an adequate remedy at law in an action against the city to recover the amount of his withheld pensions. We think that the pension being a gratuity, there is no legal liability which could be enforced in an action at law to recover either damages for breach of contract or for moneys due. His remedy is in mandamus, and he is properly before this court. State, ex rel Rothgery, v. Trustees of Firemen’s Pension Fund, 20 C.C.(N.S.), 13; Karb v. State, 54 O. S., 363; Commrs of Wood Co. v. State, ex rel Holz, 41 O. S., 423; State, ex rel Weiss, v. Keefer et al, 20 C.C.(N.S.), 366.

Mandamus is now held to be a civil action and may therefore be 'subject to the statute of limitations, if there be facts to show that the statute operates. State v. Philbrick, 69 O. S., 283.

We do not think that Delaney is chargeable with laches or acquiescence in the suspension of his pension, because the board of trustees having no power to suspend his pension their action was null and void and there was no legal action in which he could acquiesce. Before one can be charged with acquiescence in a wrongful action, the person or body taking the action must have had power to act, but acted wrongfully, unjustly or without proceeding properly. There can be no acquiescence where the action taken is without jurisdiction or power. Where there is no power to act, the case stands as though no action had been taken.

We think this case is ruled by the case above cited, State, ex rel Rothgery, v. Trustees of Firemen’s Pension Fund, 20 C.C. (N.S.), 13.

We are of the opinion, however, that by the failure and neglect of Delaney to assert his rights, his claim is subject, by analogy, to the rule that would apply to a case where the statute of limitations could be invoked. This statute which might be invoked if it were an action to recover the money, is Section 11224 — Sub. 4 — the four years statute. An action shall be brought within four years after the cause thereof accrued. 4. For an injury to the rights of the plaintiff not arising on contract nor hereinafter enumerated. His right to bring mandamus would accrue or arise each month. "When his pension became payable, a refusal to issue a warrant in his favor by the trustees, would give him a right to sue in mandamus; so that part of his claim which ante-dates four years from the commencement of this action should not' be allowed, but he will be entitled to a writ commanding the defendants to issue a warrant upon the city treasurer for a sum equal to fifty dollars per month for the four years preceding the filing of the petition herein, and from that date, together with interest on each installment of $50 from the date the same should have been paid, up to the date of the decree herein.

Henry T. Hunt and Denis F. Cash. for plaintiff.

Walter M. Schoenle and Saul Zielonha, City Solicitors, contra.

Gorman, J.; Jones (E. H.), J., and Jones (Oliver B.), J., concur.

Judgment accordingly.

Opinion on Rehearing.

State of Ohio, ex rel Jeremiah Delaney, v. John R. Holmes, etc., et al.

Both parties filed motions for a new trial in this case.

Defendants set out several grounds upon which they claim the motion should be granted. The court does not consider any of the grounds well taken by defendants, and does therefore overrule their motion for a new trial.

The plaintiff’s motion for a new trial is based upon the ground that the decision of the court is contrary to the law and the evidence and against the weight of the evidence. In the argument to the court on this motion plaintiff’s counsel claimed that the court erred in holding that the plaintiff could not recover his pension beyond a period of four years prior to the commencement of this action, and in holding that although the statute of limitations does not apply to this ease, nevertheless by analogy the rule laid down in Section 11224 limiting the recovery to four years, when the action is a civil one for an injury to the rights of the plaintiff not arising on contract nor hereinafter enumerated.

The court was in considerable doubt as to whether or not the plaintiff would be barred from a recovery by reason of his laches, and if so what rule of the statute of limitations by analogy should be applied to this case. Upon further consideration we are of the opinion that the better rule to apply is the one laid down in Section 11222, General Code, which limits actions upon a contract not in writing, express or implied, or upon a liability created by statute other than a forfeiture of penalty, to a period of six years after the cause thereof accrued.

In a case somewhat similar to the one at bar, entitled Merrill v. Board of Education of Cincinnati, 4 C. C., 97, the circuit court of this county held that where there had been such conduct on the part of the relator as amounted to a waiver on his part of compensation for a part of the time he acted as a school examiner, in analogy to the statute of limitations the court should now refuse a writ of mandamus requiring the board of education of the city of Cincinnati to fix the compensation of the relator for any period prior to six years before the commencement of this proceeding.

In that case the court by analogy applied the rule laid down in Section 11222, General Code. We therefore conclude that the rule laid down in the above entitled case should be followed by us, and there will be a modification of the opinion heretofore rendered herein limiting the right of the plaintiff to recover to a period of six years prior to the date of the commencement of this action.


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    DEFENSES OF WANT OF JURISDICTION AND ON THE MERITS.
    Court of Appeals for Columbiana County.
    John H. Smith v. George Freshwater et al.

    Decided, April 8, 1915.

      Jurisdiction — Defense of Want of, Must be Made at Threshold of the Case and Continued to the End — Effect of Objection to Jurisdiction Not Destroyed by Subsequent Answer on the Merits.

    Where a defendant has interposed by motion an objection to the jurisdiction of the court over his person, he does not upon the overruling of the motion submit to the jurisdiction by filing an answer in which he challenges the jurisdiction of the court in the first defense and in a second defense answers to the merits of the cause.
    W. F. Lones and Geo. T. Farrell, for plaintiff in error.

      Billingsley, Moore & Van Fossan and Hughes & Tripplehorn, contra.
    Houck, J. (of the Fifth Appellate District, sitting in place of Spence, J.) ; Podlock, J., and Metcalfe, J., concur.
    This is an error proceeding. The parties to this case stand here in the same relation to each other as in the court below.

       Motion to direct the Court of Appeals to certify its record in this case to the Supreme Court, overruled July 2, 1915.

   The plaintiff brought suit in the common pleas court of this county against the defendants, claiming damages from them in the sum of five thousand dollars, as the result of injuries and damages to a vein of coal belonging to plaintiff. Summons was issued for all of the defendants, but was only served upon two of them. The defendants, George Freshwater, Lee Freshwater, Philip Freshwater, Milton .Freshwater and Elmer Freshwater, were not served with summons. Their attoimey appeared and filed a motion solely and wholly for the purpose of attacking the jurisdiction of the court over their person, and asked that the summons be quashed. Why the motion was filed we do not know, and the record does not disclose. They then filed an answer, setting up two defenses: first, attacking the jurisdiction of the court over their person; second, answering to the merits of the cause set out in the petition of plaintiff. The cause was heard, and the action was dismissed as to them, and to their dismissal the plaintiff excepts.

The only question to be determined is, whether by answering in the first defense in which they challenged the jurisdiction of the court, they submitted themselves to the jurisdiction of the court, by interposing a second defense in which they answered to the merits of the cause? We think not.

In support of the view of the court in this ease, we desire to call counsel’s attention to the case of Long v. Newhouse et at, 57 O. S., 368. We might say, in the first place, as the court views it, he who attempts to invoke the authority that a court has no jurisdiction over his person, must do so at the very beginning of the case, and continue it until the end. In other words—

“It must be at the very threshold of the defendant’s appearance to the action. The reason is a plain one. If a party may at the same time invoke the jurisdiction of a court on the merits of an action, and deny its jurisdiction over his person it would work great injustice. ’ ’

The court here, in distinguishing and passing upon the ease in 11 O. S., 379, and also in 7 O. S., 234, say:

“He could under such practice, if the judgment on the merits is in his favor, avail himself of it as a har to another action, but if it should be against him, he could set it aside for want of jurisdiction of his person. Hence it is said, that, ‘If a party wishes to insist upon the objection that he is not in court, he must beep out for all purposes except to make that objection.’ In Allen v. Miller, the court is careful to observe that Miller embraced the first occasion which offered, to-wit, in bis answer, to assert his objection to the jurisdiction of the court; and distinguished the case from, that of Evans v. Iles, 7 O. S., 234. where the defendant had previously filed a demurrer, and, although withdrawn, had, as the court held, subjected the defendant to its jurisdiction. And, commenting on the withdrawal of the demurrer, the court said: ‘It ceased to be of any consequence in the case; but as a fact, the evidence of which was indelibly fixed on the journal of the court, and constituting of itself an appearance in the ease, it was as significant and as operative after the demurrer was withdrawn as it was before.’ ”

Therefore, in the case at bar, the defendants in question interposed an objection to the court’s jurisdiction over their person. And after the motion was overruled, filed an answer, and in the first defense again challenged the jurisdiction of the court over their person; and we think that having pursued this from the beginning until the end the court was without jurisdiction over the person.

"We therefore find no error in the record, and the judgment of the court below is affirmed.


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    REVOCABLE GRANT FOR THE LAYING OF TELEPHONE CONDUITS.
    Court of Appeals for Hamilton County.
    State of Ohio, ex rel The Cincinnati & Suburban Bell Telephone Company, v. The City of Norwood and Harry J. Pierson, Director of Public Service.
    Decided, February 5, 1915.

      Municipal Corporations — Contracts with Utility Companies Which May be Terminated or Modified — Rights Under a Municipal Grant Not Determinable in a Mandamus Proceeding.

    1. An ordinance granting the right to a telephone company to construct and maintain underground conduits in the streets, avenues and public ways of a municiptlity, but imposing conditions of so meager and indefinite a character as to necessarily imply that the real conditions are vested in the discretion to be exercised by the director of public service, and which ordinance had not been accepted by the company or acted under by it, is subject to revocation, and the revoking ordinance under consideration in the present case is held valid.
    2. A controversy between a municipality and a telephone company as to the right of the latter to be granted a permit to lay conduits in certain streets can not be determined in a mandamus proceeding.

      Miller Outcalt, J. W. Heintzman and Frank Cook, for plaintiff.

      S. A. Headley, contra.
    Jones (Oliver B.), J.; Swing, P. J., and Jones (E. IT.), J., concur.
    The relator in this case, a telephone company under the laws of Ohio, seeks by writ of mandamus to compel the director of public service of the city of Norwood and the city of Norwood to issue a permit to it to construct and maintain underground conduits, with the necessary manholes and laterals for same, in five certain avenues in the city of Norwood.
   The right is granted to a telephone company regularly organized in Ohio to use the highways of the state by provisions of law found in Title 9, Div. 2, Subdiv. 2, Chapter 2, of the General Code (Sections 9170 to 9198), but it is provided by Section 9170 that the construction of such line “shall not incommode the public in the use thereof,” and by Sections 9197 and 9198, that consent of the city or village must be obtained therefor, and in the construction and maintenance of underground wires and pipes or conduits and other fixtures that consent shall be given by council. These sections indicate sufficient official control to prevent the public from being incommoded by these utilities in the use of public highways.

Tn a municipality the council and the director of public service have the care, management and control of the streets and the highways (General Code, Sections 3714, 4240, 4324, 4325 and 4326). And the municipal authorities have power to determine on the mode of use.

In Telephone Co. v. Cincinnati, 73 O. S., 64, 81, it is determined that where wdres are to be laid underground, “that the consent of the city is thus made an essential condition.” No terms are fixed by the statute as to the mode and manner of the use of the streets, but it is left to the determination of the. municipal authorities. It was clearly not the intention of the Legislature to confer a carle blanche to such companies to use as much, or as little of the public streets or highways as they might see fit, and it was evidently intended to confer upon the municipality sufficient authority to deal with the subject and to impose proper terms upon the company in granting its consent. Columbus Telephone Co. v. Columbus, 88 O. S., 466, 468, 469.

Council of the city of Norwood on December 18, 1913, passed an ordinance authorizing the relator telephone company to construct and maintain underground conduits in the streets, avenues and public wmys of said city, one of the conditions of . the ordinance being that;

“No streets, avenues, alleys or public ways shall be disturbed, for the purpose of constructing conduits until said telephone company shall secure a written permit from the service director of the city of Nortvood.”

The ordinance fails to specify what streets or public ways are ■to be used; whether the wires and conduits are to be placed in thoroughfares or in back streets and alleys; whether all public ways are to be used, or those to be selected by the company or those to be selected by the city authorities; how many conduits are to be laid in any street; what size, form, or what material, or what manner of construction is to be used; how much and what portion of the street is to be occupied; how deep they are to be laid and what provision is to be made to prevent interference with sewers, water pipes, gas pipes and house connections for same. The only conditions provided by the ordinance are:

1. The one quoted above, that the company must secure a written permit from the director of public service.

2. That the conduits shall be of sufficient depth and strength to permanently maintain the surface of the streets without breaking, and constructed under the supervision and to the satisfaction of the city engineer, and that the street or public way shall be restored to “its former state of usefulness” and the city saved harmless from damages caused to persons or property.

3. A reservation of sufficient space in each subway for wires for the fire and police departments of the city.

4. The giving of a bond of $2,000 to secure faithful performance of the provisions of the ordinance.

All the other provisions and conditions for the protection of the city of Norwood must evidently have been intended to be covered by the written permit which the ordinance requires must be first secured from the service director before any street or public way should be disturbed for the purpose of constructing such conduits. This necessarily confides to this important officer, who is made by law the chief administrative officer of the city, a high degree of official discretion to be exercised by him in determining what conditions shall be imposed upon the issuance of this permit. It can hardly be claimed that the service director is a mere automaton vested with no official discretion, and that he is compelled to issue a blanket permit to open any street or avenue at any place, for the purpose of constructing conduits of any kind or description that the telephone company may be pleased to request.

The defendants in their answer, however, deny that the ordinance was ever accepted by the telephone company, and allege that it was repealed by an ordinance passed February 16, 1914, and as no time was fixed in the ordinance for the duration of the grant and nothing had been done by the telephone company under the terms of said grant, the city was within its legal rights in the repeal of said ordinance.

It appears from the evidence that the telephone company on December 31, 1913, deposited with the clerk of the council of the city of Norwood a bond in the sum of $2,000 guaranteeing that it would faithfully comply with the provisions of said ordinance. No written acceptance, unless said bond can be considered such, was filed with the city, and no action is shown to have been taken by the city council looking to the approval of said bond or showing that it had in any way been brought to the attention of the council. It also appears that between December 18, 1913, and January 15, 1.913, certain plans and blueprints were prepared at the instance of relator, a copy of which was attached to the application made by said company to the director of public service for permission to construct conduits in certain parts of Wayland avenue, Regent avenue, Hudson avenue, Elsmere avenue and Floral avenue, and which application was dated February 18, 1914. It appears that these plans were actually prepared before the ordinance became effective, and there is no evidence to show that the preparation of these plans had in any way been brought to the attention of any of the municipal authorities of said city of Norwood prior to the date of said application. On February 16, 1914, the council of the city of Nor-wood duly passed an ordinance repealing its former granting ordinance No. 2585 which had been passed December 18, 1913, and under which the relator claims to have secured vested rights for the construction of said conduits. The application for permit was made February 18, 1914.

Under this state of facts it therefore becomes a question whether a contract or franhise had been created between the parties, which had become irrevocable without mutual consent. It is undoubtedly essential, to create such a grant, that an acceptance must be had on the part of the grantee. This is usually evidenced by a formal written acceptance filed with the granting authority, but such written instrument is not absolutely necessary, but the acceptance may be evidenced by the acts of the parties.

When a franchise has been created by a grant duly accepted, it can not be revoked merely at the will of the grantor. Louisville v. Cumberland Telephone Co., 224 U. S., 649; Grand Trunk Western Ry. v. City of South Bend, 227 U. S., 544; Owensboro v. Cumberland Telephone Co., 230 U. S., 58; Russell v. Sebastian, 233 U. S., 195.

In each of these eases it appears that there was no question of acceptance, operation and large expenditures of money under the grant.

But if no formal acceptance has been had, and no steps have been taken amounting to an acceptance by the acts of the parties, and no money has been expended under said grant, it would appear that by proper action the granting authority might withdraw its proposed grant and change the terms and conditions thereof, or revoke it entirely.

In Matter of New York Electric Lines Co. v. Empire City Subway Company, 201 N. Y., 321, the following language is used in the opinion of the court, page 331:

"The question thus arises as to whether a bare acceptance of the permit granted by the resolution of the common council amounted to an irrevocable franchise granted by the city. Clearly in the absence of partial performance under the permit, by which some vested interest in property is acquired, the state does not become bound by such permit. ’ ’

And on page 334:

“Should a public service corporation be permitted to acquire an irrevocable franchise by mere acceptance without spending a dollar by way of performance, and then hold up the public in its enjoyment of the privileges contemplated by the grant indefinitely, or until they can be bartered away for a fortune? Should the municipalities to whom the Legislature has delegated the right to grant permits for the use of their streets for public service purposes be denied the power to revoke licenses granted in case of failure of the grantee to render substantial performance ? We think not. No reasons for the deprival of the municipalities of such power are suggested and none are apparent to our minds. We, therefore, incline to the view expressed by the trial court that the mere granting of a permit by a city to a corporation to use the streets for a purpose, is a license merely, revocable at the pleasure of the city, unless it has been accepted and some substantial part of the work performed contemplated by the permission sufficient to create a right of property and thus form a consideration for the contract.”

This case has been reviewed by the Supreme Court of United States, where the judgment of the New York Court of Appeals was affirmed, and will be published in 235 U. S., 179.

The principle laid down in the case of East Ohio Gas Co. v. Akron, 81 O. S., 33:

“Where the contract between a'municipal corporation and an incorporated company is silent as to the duration of the franchise, such franchise is not perpetual but the duration thereof is simply indeterminate, existing only so long as the parties mutually agree thereto, ’ ’

would further support the right of the municipality to repeal a granting ordinance before any acts, operations or expenditures had been had thereunder by the grantee.

In the case at bar, considering the meager and indefinite character of the conditions imposed by the granting ordinance, which necessarily imply that the real conditions are vested in the discretion to be exercised by the service director in granting the permits thereunder, it can not be claimed that anything had been done which would cause this so-called franchise to become irrevocable by the city, and in the opinion of the court the action of the city council in passing the revoking ordinance must be held to be valid.

Even if the court should be wrong in its conclusion in the matter of the effect of the revocation ordinance,- it would still be a question as to whether relator has established in this ease the right to the writ of mandamus sought herein. The writ is defined by Section 12283 and the succeeding sections of the General Code. It can only issue in a ease where there is a clear right and an absolute obligation and where there is no adequate remedy in the ordinary course of law. The office of a writ of mandamus has been very fully considered and carefully analyzed in the opinion of Shauck, J., in the case of Fraternal Mystic Circle v. Fritter, 61 O. S., 628.

In the case of State, ex rel Gallinger, v. Smith, 71 O. S., 13, a writ of mandamus was refused against a county auditor where the right to require him to do the thing sought was not clear and the duty was not one specifically enjoined upon him by law.

In Mt. Vernon v. State, 71 O. S., 428, the third proposition, of the syllabus states:

“A controversy between the parties to a contract as to their respective rights under the contract can not be determined in proceedings in mandamus. ’ ’

State, ex rel v. Moore, 42 O. S., 103:

“If judgment or discretion must be used by an officer, his exercise of them in the absence of fraud, bad faith or abuse of discretion will not be controlled or directed by mandamus.”

A clear right to the issuance of the permit not having been shown, and the director of service being undoubtedly vested with official discretion in regard to same, the writ of mandamus prayed for must be refused.


text:
    CONSTRUCTION OF COUNTY BRIDGES UNDER THE EMERGENCY STATUTE.
    Court of Appeals for Tuscarawas County.
    S. A. Swanson et al v. Board of County Commissioners of Tuscarawas County, Ohio, et al.
    Decided, June 11, 1915.

      County Commissioners — Power of, to Construct a New Bridge in Case of an Emergency — Approval of the Prosecuting Attorney — Notice Not Required■ — Pleading in an Action Involving the Contract.

    1. In an action involving the contract for the building of a county bridge under the emergency statute, an allegation that the prosecuting attorney approved in writing the form and correctness of the contract as entered into by the county commissioners, is a sufficient compliance with the requirement of Section 2356, General Code, having reference to contracts exceeding $1,000.
    2. The provisions for notice of an intended purchase or improvement, found in Section 2444, do not apply to the construction of a new bridge in case of a casualty requiring prompt action.
    3. A petition drawn under favor of Section 5638, involving the replacing of a county bridge at a cost exceeding $18,000' without a vote of the electors, is not open to demurrer for indefiniteness of statement as to whether the new bridge is to occupy the site of the old one. An objection of that character can only be reached by motion.

      Lynch & Day, D. A. Hollingsworth and J. F. Greene, for plaintiffs in error.

      W. V. Wright and E. E. Lindsay, contra.
    Houck, J.; Powedd, J., concurs; Shiedds, J., dissents.
    This cause is here on error to the common pleas court of this county.
   The court below sustained a general demurrer to the petition of plaintiffs in error, the plaintiffs below, and judgment was rendered against plaintiffs in error for the costs, and error is row prosecuted to this court to reverse the judgment of the common pleas court in sustaining said demurrer.

The right is claimed, by plaintiffs, to maintain their action and their petition is drawn under favor of Section 5638, et seq. of the General Code of Ohio which provides for the construction of a bridge in a case of casualty, at a cost exceeding $18,000, without a vote of the electors, when “an important bridge belonging to or maintained by any Gounty becomes dangerous to public travel, by decay or otherwise and is condemned for public travel by the commissioners of said county, and the repairs thereof, or the building of a new bridge in place thereof, is deemed by them necessary for the public accommodation, the commissioners, without first submitting the question to the voters of the county.” * * *

Counsel for defendants, rely upon three grounds in support of the demurrer, to-wit:

1. That the contract, between plaintiffs and defendants, was not approved by the prosecuting attorney, as required by law.

2. Failure to publish notice of intention to erect bridge.

3. That the averment in the petition “that the contract provided for the construction of a new bridge to be built at or not far distant from the point where the old bridge stood” — is not sufficient, and does not comply with the sections of the General Code hereinbefore referred to.

.We have given each and all of the grounds of the demurrer careful consideration, and as to the first, we are of the opinion that the allegation in the petition — “that the prosecuting attorney of the county also in miting approved the form and correctness of the contract” is a compliance with the requirements of Section 2356 of the General Code, which provides:

‘ ‘ Before work is done or material furnished all contracts that exceed one thousand dollars in amount shall be submitted by the commissioners to the prosecuting attorney of the county. If found by him to be in accordance with the provisions of this chapter and his certificate to that effect is indorsed thereon, such contract shall have full force and effect, otherwise they shall be null and void.”

The second ground of the demurrer attacks the validity of the petition, for the reason, that Section 2444 of the General Code was not complied with. This section of the code provides:

“Before the county commissioners purchase lands, or erect a building or bridge, the expense of which exceeds one thousand dollars, they shall publish and circulate handbills and publish in one or more newspapers of the county, notice of their intention to make such purchase, erect such building or bridge, and the location thereof, for at least four consecutive weeks prior to the time that such purchase, building, or location is made.' They shall hear all petitions for, and remonstrances against, such proposed purchase, location or improvement. ’ ’

Statutes are construed according to their intent and meaning.

The petition, in this case, was drawn under favor of Section 5638 et seq. of the General Code, which provides for the construction of new bridges in case of casualty. It is a special statute and to be used on special occasions, and was enacted by the Legislature to cover particular cases as they might occur, and which needed prompt action on the part of the county commissioners, and for which other statutes did not provide.

Giving to Section 5638 et seq. that fair and liberal interpretation that the Legislature certainly intended they should have, and for the purposes for which they were enacted, we are unable to see where Section 2444 of the General Code has any application to the case at bar, and therefore are of the opinion that this branch of the demurrer is not well taken.

Coming now to the third branch of the demurrer, which is the real problem to be solved, will say that it is a question of importance and has caused us much study of the numerous authorities cited by counsel, as well as an exhaustive research on the part of the court of other authorities.

Counsel for the demurrer, in their brief, contend that the commissioners have no right to contract for a bridge to be constructed at a point — ‘ ‘ not far from the old bridge, ’ ’ but they do not say anything concerning the word “at,” which precedes the above language and is followed by the word “or.” The language in the petition is “at or not far from the point where the old bridge stood.”

"Would it not be just as reasonable to say that the bridge was to be built at the place where the old bridge stood? ITow can a court relying wholly and entirely upon the language used infer Unit the bridge is or will be constructed not far from the point where the old bridge stood? Has not-the court the same right to rely upon the word at and say that the bridge will be built at the point where the old bridge stood ?

The court in passing upon the demurrer has no right to go outside of the petition for information, but must rely wholly and entirely upon the language used in the petition.

The demurrer challenges the language of the petition as not being sufficient in law, but must and does admit all the allegations to be true.

Can it be properly claimed from the language used that the contract does not provide that the new bridge can be built at a point where the old bridge stood? We think not. And if this be true then the petition is good as against a general demurrer.

If the defendants did not know, or could not ascertain from the language used in the petition, whether the new bridge was to be built at a point where the old bridge stood, or not far from the point where the old bridge stood, then it was their privilege to file a motion, asking that the petition be made definite and certain in this particular:

The most that can be claimed for the language used, is that it is indefinite; if so, then the objection should have been raised by motion and not demurrer.

The sufficiency of pleadings under the code, as to certainty, precision, definiteness and consistency of allegation, and indeed in respect of every other variety of defect of allegations which does not amount to such an absolute omission of fact as to constitute no grorind of action or defense, must be taken advantage of or objected to by motion under the provision of the code, and can afford no ground for demurrer.

The demurrer admits all that is expressly alleged and properly set forth in the petition, and also whatever can, by a fair and reasonable intendment, be implied from the allegations of fact contained therein.

Taking this view of it, and upon the whole case, a majority of the court is of the opinion that the common pleas court erred in sustaining the demurrer, and the judgment below is reversed, and the cause remanded to the court of common pleas with direction to overrule the demurrer to the petition, and for further proceedings according to law.


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

text:
    TIME LIMIT FOR. FILING A BILL OF EXCEPTIONS.
    Court of Appeals for Hamilton County.
    Joseph B. Kelley, Administrator, etc., v. Louis P. Hermann et al.
    Decided, December, 1914.

      Bills of Exceptions — Construction of the Statutes Relating to the Time Limit for Filing — General Code, 11472.
    There is no warrant for considering a bill of exceptions which was not filed in the court of appeals .until eighty days after the entering of the judgment in the common pleas court, notwithstanding said judgment was entered more than a month before the overruling of the motion for a new trial and the bill of exceptions was within proper time allowed and filed in the trial court within seventy-seven days. Had it been filed in the court of appeals on the same day as in the common pleas court it might have been considered.
    W. F. Chambers and J. B. Kelley, for plaintiff in error.

      Simeon Johnson, contra.
    Jones (Oliver B.), J.; Swing, J., concurs; Jones (E. H.), J., concurs in a separate opinion.
    This cause comes before the court on a motion filed by a defendant in error to strike from the files the bill of exceptions filed herein because the same was not filed within the time provided by law.
   The record shows that a final decree was rendered in this ease February 20, 1914. Motion for new trial was filed February 21, 1914, by the present plaintiff in error, who was defendant below, which motion was overruled on March 21, 1914. On April 16, 1914, a bill of exceptions was prepared and filed by the defendant below, plaintiff in error here. After objections and an extension of time this bill of exceptions was allowed and filed in the trial court, May 8, 1914. On May 11, 1914, the bill of exceptions with an additional transcript showing its filing below was filed in this court. The petition in error, original papers other than the bill of exceptions, and the original transcript, were filed in this court March 30, 1914. It will be observed that the bill of exceptions was originally filed on the 26th day after the overruling of the motion for a new trial, and was within the time prescribed by Section 11564 of the General Code; and it was finally allowed and filed in the trial court on the 48th day after the overruling of the motion for a new trial, which was within the time prescribed by law.

It is contended by defendants in error that under the provisions of Sections 32263 and 12270, General Code, as amended, a bill of exceptions must be filed in the court of appeals within seventy days, and that if filed later than that date it can not in any event be considered. This brings the court to a construction of the terms of Section 11572, General Code, which is as follows:

“A party desiring to have a final judgment or order reviewed, on error, may file his petition in error, his transcript and other papers in the proper court, without waiting to perfect a bill of exceptions, and thereupon may, if he desires, secure a stay of execution of such judgment or order, by giving the bond therefor as provided by law. Thereafter, within the time limited by law therefor, he may prepare, have allowed and signed, a bill of exceptions, which, when duly allowed and filed in the trial court, he also may file in the error proceeding; whereupon it shall be be received and considered by the reviewing court as if filed with his petition in error. ’ ’

The words found in the last sentence of this section, “within the time limited by law therefor,” refer to the time fixed for the original filing of the bill of exceptions in Section 11564, and for the signing and allowing of same by the trial judge, including any extension of time made by him under Sections 11565 to 11571 inclusive. And the words in the same section “which when duly allowed and filed with the trial court he may also file in the error proceeding,' ’ fix the utmost limit within which a bill of exceptions may be filed in the error proceeding as the time when it must be filed in the trial court if beyond the seventy day period fixed by Section 12270, General Code.

In this case the final allowance and filing of the bill of exceptions by the trial court, May 8, 1914, was seventy-seven days after the entry of the judgment, and if the bill of exceptions had been filed in the reviewing court on the same day that it was filed in the trial court, under the terms of Section 11572, it might be received and considered, even though it were filed seven days after the limit of time ordinarily fixed. But plaintiff, on whom the duty rested, failed to file the bill of exceptions in this court within that time, but filed it three days later, which is outside of the utmost limit allowed by law, and there is therefore no warrant for its consideration by this court.

Motion to strike it from the files will therefore be granted. And it appearing from an inspection of the .record that a bill of exceptions is necessary to show any of the errors claimed in the petition in error, the judgment of the court below must be affirmed.

Jones (E. H.), J.

I agree with my associates in the construction of Section 11572, General Code. I most reluctantly concur in the action of the court in striking the bill of exceptions from the files, and do so only because the question seems to have been settled in this state by the language of the court in deciding the case of Young v. Schallenberger, 53 O. S., 291, and by Dowty v. Pepple, 58 O. S., 395.

The construction which I think our statutes bear is discussed and expressly disapproved by Judge Williams on page 299, et seq., of the opinion in the former case. It will be noted that it was claimed by counsel for plaintiff in error in that case “that the judgment was prematurely entered, and for the purposes of the question here should be treated as rendered at the time of the overruling of the motion for new trial.” The Supreme Court found against this contention. At that time six months were allowed from the date of the judgment within which to file a petition in error and it is quite likely that situations such as this did not often arise.

But with the time reduced to seventy days they become less rare. Within two months this court has stricken from the files four bills of exceptions. In at least two instances the motions for new trial were still pending, and in one case it had not been argued, seventy days after the entering of the judgment. The motions for new trial in all of the cases, as in this, were filed under authority of Section 11576, General Code. That section is found in Chapter 5, Part 3, Title 4, Division 3 of the General Code. In this section and throughout the chapter where it is found, the motion for a new trial, such as was filed in this case, is described as a motion after ‘ ‘ a verdict by a jury, a report of a referee or master, or a decision by the court” (see Section 11575, General Code). This chapter bears the heading “New Trial.” Chapter 6 of Division 4, Part 3, Title 1 of the General Code, bears the heading “Other Relief after Judgment.” This is probably only important to show the construction placed upon these sections by the codifiers and the views they held which led to this collection and arrangement of the provisions of the code with reference to the re-submission of a case.

I think that the judgment by the court below in this case was entered prematurely. The section under which the motion for new trial was filed contemplates, and indeed expressly provides, that such motion must be filed after the decision, verdict or report.

The understanding which I have of this and the following sections is that the motion and the decision thereon must antedate the judgment. "When the Legislature provided that the motion should be made within three days after the decision, the intention was that it should be made before the judgment, and this is as clear to my mind as if the words “before judgment” were incorporated in the statute. A judgment entry made prior to the disposition of a motion for new trial is not void but is, with due respect to the opinion of the Supreme Court, prematurely entered. And for the purpose of this motion the judgment should be considered as having been entered at the time or after the motion for new trial was overruled.

Such a construction would obviate much of the difficulty and awkwardness in which attorneys and clients are placed by the unauthorized haste in which judgments are entered in cases like unto this. A situation in which a lawyer finds that he is required to prepare and file a petition in error and bill of exceptions while his motion for new trial is still pending, and before he can be sure he will have any complaint to urge in a reviewing court, certainly calls for new legislation or a new construction of that which we now have. I am of the opinion that no new legislation is necessary and that, if practicable, the matter should again be presented to the Supreme Court for consideration.