author: Per Curiam.

text:
    (Sixth Circuit — Huron Co., O., Circuit Court
    Oct. Term, 1897.)
    Before King, Haynes and Parker, JJ.
    THE WHEELING & LAKE ERIE R. R. CO. v. WILLIAM McLAUGHLIN et al.

      Railroad — Damage to property ‘ ‘near to” R. R. track, but not abutting—

    The owner of a Grist Mill and appurtenances,situate upon village lots abutting upon a street, may recover from a railroad company ' which occupies a part of such street with its tracks, damages resulting to such property from a diminution of the value thereof, caused by sparks, cinders, smoke or noise produced by the operation of locomotives while upon such track and within the limits of the street, if such place is near to his property, though it may not abut upon that part of the street so occupied by such track.
    Same—
    Second: — A point from three hundred to three hundred and fifty feet distant therefrom, may be “near to” such property, within the meaning of sec. 3283, of Rev. Stats.

      Same — For what damages may be recovered — Injury other than that suffered by general public—

    Third: — The owner of property so situated, cannot recover damages on account of any obstruction to the street caused by such tracks or by running cars and engines over the same which does not cause him injury different in character from that suffered by the general public, although his injury therefrom may be greater in degree; and the rule of the common law as to such injuries is not abrogated, or modified by said sec. 3283.

      Error to the Court of Common Pleas of Huron county.
   Per Curiam.

Monroe street, in the village of Bellevue,has a northwesterly and southeasterly direction through the village and by the premises of the plaintiff. Railrdad street- runs north and south through the village, passing the premises of the plaintiff on the west, and intersecting Monroe street at the point where said premises are situated. Harrison street extends east arid west through the village,intersecting, Raili road street at the point where plaintiff’s premises are situated (passing on the north side thereof) and intersecting Monroe street a short distance west of Railroad street, the angle of the intersection being such as to cause thereat, a thoroughfare somewhat broader than either street at all points, and nearly as broad as both streets at the point where the defendant company’s transfer track, hereinafter mentioned, crosses the same.

Plaintiff’s premises consist of three angular shaped lots, all comprising les3 than an acre of laud, namely, lots 126, 120 and 121,and the buildings thereon. The west front of lot 126 abuts upon Railroad street, and the northerly front upon Monroe street. The west front of lot 120 abuts upon Railroad street, the north front of lots 120 and 121 upon Harrison street,and the southerly front upon Monroe street. Lotl21 joins lot 120 on the east. A grist mill, erected before plaintiff became the owner of the property, stands upon lot 126, and upon the other lots are situated certain cooper shops and structures appurtenant to said mill, the whole forming what is designated by the parties as the “Mill Plant” of the plaintiff.

Two main tracks of the M. S. & L. S. R. R. and one side track run east and west immediately south of said mill, the side track running very close to the mill,so that grain,flour, and other produce is conveniently transferred from the cars to the mill, and from the mill to the cars. All these tracks cross Monroe street a few feet south of the mill. -

. The main tracks of the N. Y., C. & St. L. R. R. and of the C.jS.&H. R. R. run north and south in Railroad street, immediately to the west of said mill. Railroad, street just north of Harrison street, is filled with the main and side tracks of the two railroads last mentioned to an .extent that materially reduces the width thereof accessible for travel thereon for vehicles drawn by horses.

The main track of the defendant company crosses Monroe street and Railroad street in an easterly course from 250 to 300 feet north and northwesterly from plaintiff's mill, crossing Monroe at its intersection with Harrison, and running then west in Harrison.

Immediately south of said mill are two transfer tracks connecting the tracks of the C., S. & H. R. R. and the N. Y., C. & St. L. R. R. with the L. S. & M. S. R. R., said transfer tracks curving to the north and east passing within about one hundred feet of plaintiff’s mill, and crossing Monroe street just east of said mill.

■ A track used to transfer cars from the track of the N.Y., C. & St, h. R R., starting from a point in Railroad street immediately west of plaintiff’s mill, and curving to the north and east through and across lots 120 and 121, and joining the main track of defendant company just north and east of lot 121, was in operation when plaintiff became the owner of said mill and premises, and before this suit was commenced, but was taken up by defendant at plaintiff’s request, shortly before defendant built the first track hereinafter described.

This gives the situation and condition of the mill and the premises in the vicinity at the time defendant built the additional tracks', on account of the building and using of which plaintiff complains, and the situation remaining the same with the exception of such additional tracks to the time of the commencement of this suit, and all but one or two of said tracks were so located and in use when plaintiff became the owner of saidjmill property.

' In the nse of these tracks many trains of cars drawn by locomotives passed along upon them daily; besides there was much running and switchiung of cars done thereon in the vicinity of said mill, with the usual incidents of smoke, cinders, noise, danger of fire, and dangers and inconveniences to those using said streets for travel or hauling in vehicles drawn by horses,or incident to allowing horses to stand in the vicinity of said mill while wagons to which they may have been hitched were being loaded or unloaded, or for any proper purpose.

In August, 1889, the defendant constructed a transfer track, leaving the north side of its main track at a point west of plaintiff’s mill, curving to the northeast, crossing Monroe street about three hundred and thirty feet northwest of said mill, and connecting with the track of the N. Y., C. & St. L. R. R. in Railroad street. In October, 1898, the defendant constructed two additional transfer tracks, which have the same general direction and course as the transfer track last mentioned, but on either side and within ten feet thereof. No part of plaintiff’s premises abuts upon Monroe street at the point where defendants’ said transfer tracks cross said street, said lot on which the said mill is located being at the nearest point at least three hundred feet from the nearest of said tracks.

Upon the trial the plaintiff offered evidence tending to prove that said transfer tracks were constructed on a grade about five feet higher than that of Monroe street, as it then existed, at the point where said tracks crossed said street; and that the approaches thereto were so steep as to make it difficult to pass over said track with loaded wagons: but it appears from the evidence that not long thereafter the grade of said street was raised so as to obviate that difficulty, at least in a large degree. The plaintiff also claims that the railroad company in its operation of these tracks sometimes allowed cars to stand across a part of the street so as to narrow the passageway sometimes down to fourteen, sixteen, or twenty feet.

The plaintiff claims that he purchased this property for use as a mill, and ever since its purchase has been using it for grinding different kinds of grain and buying the same and selling the product, and that a large part of his supplies are brought into the village of Bellevue from the west and northwest, and in order to reach the mill, the most convenient way was Monroe street, and if farmers or those drawing grain came in from the west or north, they would go along Monroe street, crossing these transfer tracks before reaching his mill. Plaintiff claims that the street was obstructed with these tracks; that those tracks were used to transfer cars and run engines upon ;Nhat there was considerable noise from the operation of trains on these tracks — and from all these causes traffic to and from his mill has fallen off and gone elsewhere: that the result has been that his property has depreciated one-half in value; and he offered considerable evidence tending to show£all the above facts, and some evidence tending to show that there had been a depecrjt tion in the value of his property because his business had fallen off, and that his business was dependent on this traffic from the north and west of the village. There was a claim that there was some smoke from engines operating on these tracks; it is doubtful whether that amounts to very much in the condition of thejrecord as presented.

Numerous objections to the testimony occur all over the record which, we think,may be disposed of¡by determination of the question, whether the plaintiff is entitled to recover for the diminution in the value of his property occasioned by the fact that the traffic of his mill has been prevented or is changed from his mill to other markets,' because of the inconvenience of crossing these tracks, and liability of horses to become frightened, and the dangers incident to traveling upon a railroad track,or crossng one

It is claimed that all this evidence was competent, because, under the provisions of the statute, sec. 3283, every company which lays a track upon any street,shall be responsible for injuries done thereby to private or public property lying upon or near to such ground; and if not entitled to recover under the statute, then upon the general principles of common law. It will be noticed that this statute relates to damages recoverable against a railroad company that has laid its track in a public street or other public ground by or under an agreement-with the authority having control of the street; or in case of inability to agree, that the railroad company has appropriated the right to lay its track in such street. It has been intimated in argument that plaintiff would not come within the provisions of this statute, because no such agreement or appropriation has been shown in this case authorizing the railroad company to lay these tracks. We think from the condition of the record in this case, there being an entire absence of proof offered by either party to show any agreement, that it may be assumed that the railroad company laid these tracks in pursuance of such an agreement, either expressed or implied; and we think,if the plaintiff suffered the injuries complained of as a direct result of the construction of these tracks, and that íhe same are different in kind or character from those sustained or suffered by the general public — that the plaintiff would come within the provisions of this statute; and we are further inclined to hold that the phrase in the statute,"near to,” as applicable to the plaintiff in this case, would authorize a recovery for certain injuries sustained by the construction of a railroad track across or in a public street, even though the property alleged to be injured does not abut upon the street at the place where the track is built along or across it.

Prior to the passage of this statute in its present form, a number of cases were decided in Ohio sustaining the right of a private owner to recover damages for changes in the established grade of a public street by a municipal corporation in front of an improved lot or property. The most important of these are the cases of Crawford v. Delaware, 7 Ohio St., 459, Railway v. Cummingsville, 14 Ohio St., 523,and later the case of Railway Co. v. Lawrence, 38 Ohio St., 41; and in the case of the Eagle White Lead Co. v. Cincinnati, 1 Cin. S. C. 154, it is decided that the city is not liable for changing the grade of a street at a point near to, but not abutting the property of the plaintiff, and to the same effect is the doctrine laid down in the case of Jackson v. Jackson, 16 Ohio St., 163. It Í3 claimed in argument that the rule established by these'latter cases has been changed by the case of Railway v. Gardner, 45 Ohio St., 309,, and in that connection we are also cited to the case of Shepherd v. B. & O. R. R. Co., 130 U. S. 426, Grafton v. B. & O. R. R, 21 Fed. Rep., 309.

We have carefully examined all these cases as well as all others cited and a great many not cited by counsel for either party. There is considerable conflict in the authorities outside of the state of Ohio, but among Ohio cases none that may notbe reconciled. It ought to be said here that we are referred to the case of Fliehman v. C., C., C. & St. L. Ry. Co., 27 Weekly Law Bulletin 302,and C.,C., C. & St. L. v. Reeder, 6 C.C. Rep.,354. The case in the Bulletin was decided by the Superior Court of Cincinnati, and the opinion of the learned judge reviews at considerable length all the principal cases in Ohio as well as some elsewhere upon this question. Espcially does he refer to the case in 130 U. S. supra. In the 45 Ohio St. the only thing decided is that in an action by an owner of property abutting on a public street occupied by a railroad track, and which action is brought under sec. 3283 for injury to property by the laying of the track, that it is competent to take into consideration evidence of substantial injury and loss of property (not common to the community at large), caused by smoke, noise, and sparks of fire occasioned by running locomotives and cars along the track in front of the property, but that cannot well decide such a case as we have here, and perhaps it)has little, if any, bearing upon this question. The case referred to in the 27 Bulletin is one almost exactly like this. In' that the court held that the owner could not maintain an action for damages to his property or land resulting from an occupancy of the street where such injury was caused,by inconveniences which were common to the public at large, and which did not directly affect property abutting upon the street at the place occupied by the railroad track. To the same effect is the holding in the 6th C. C. 354. It is said the case in the 130 U. S. is one similar to this, but an examination of it discloses that the facts were very different, and the holding of the court in that case is to the effect that the construction of the railroad track at the point and place where so constructed was a direct obstruction to the access of the plaintiff to his property from the street, although plaintiff’s property in this case did not abut directly upon the street at the point where the railroad track was constructed, but was 25 feet away. Now, we think a careful examinaiton of these authorities will show that the plaintiff in the case before us as not entitled to recover the depreciation in the value of his property occasioned by the interference with the public travel on Monroe street, and which he claimed caused the public or his customers to cease coming to his ' mill with their products. The cessation in this business or impairment of it may have accrued from many reasons not disclosed; but assuming that his customers sought another market because of the inconvenience in crossing this railroad track or because they feared their teams might become frightened and the teams or themselves injured from locomotives and cars running on these tracks, or beeause there was so much smoke or noise as to render the street at that .point, unpleasant to them, we think that plaintiff cannot require the railroad company to make up to him what he has lost through these causes; for while it may be true he has lost more than any other, it is equally true that any person who has been inconvenienced by these tracks or been compelled to seek another and a less valuable market for his product because of the inconvenience of this travel or its discomforts, would also have the same cause of complaint against the company based upon the same ground as the plaintiff, though it may be for a less amount, and hence the plaintiff’s damages so sustained are of the same kind as those sustained by the community in general, although greater in amount. We think it clear from these authorities which we have cited, and many others that might be, that the plaintiff cannot recover in such case for damages so caused. In addition to the authorities referred to, the following cases might be cited, bearing upon this question sustaining our conclusion: Davis v. County Commissioners, 153 Mass., 218; Morgan v. D. M. & L. Ry., 64 Iowa, 589; Penna Co. for Ins. v. R. R, 151 Penn. State, 334; 9 vol. Am. & Eng. Enc. Law, p. 414,and authorities there citred.

There will be found a distinction between inconveniences that may arise from a partial obstruction in the street, and those arising from a complete obstruction of a public street. In some of the cases it is held where there is a complete abandonment of one end of a street requiring the plaintiff to go in another direction to get out from his property, he has a right of action. A case in 25 Mo. App., 527, is of that kind, and it is also held that if the obstruction cuts off a means of public access to his lot or property, the owner may have an action for damages, although such obstruction is not in front of the lot. Wilder v. DeCou, 26 Minn., 10.

J. H. Tyler and Jessie Vickery, Attorneys for Plaintiff in Error.

6r. T. Stewart and Andrews Bros., Attorneys for Defendant in Error.

It follows, then, that the court erred in the admission of all evidence admitted in the case to show the depreciation in the value of this property occasioned by the loss of custom and the interference to public travel on Monroe street by the creation or the operation of these railroads across it, and equally that the court erred in its general charge to the jury, especially because the court has placed the case before the jury upon the theory that these obstructions at that point were an obstruction to the access of the plaintiff to his premises from the public street; and the court likewise erred in its refusal to give certain requests asked by the defendant below, especially requests Ncs. 1, 4, 6, and 7. By this we do not mean to hold that the plaintiff may not have sustained damage by reason of the smoke, cinders, fire, or noise coming from the operation of these tracks upon this street, provided it may be shown somewhat approximately the amount of such damage directly attributable t© the defendant and its operation of these tracks, and its cars thereon in crossing the street, and as distinguished from like inconveniences and nuisances occasioned by the numerous other railroad tracks at the other places where they are located in and about his mill.

We find no other errors in the record, and reverse the judgment on the grounds stated.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    (First Circuit — Clermont Co., O., Circuit Court
    Oct. Term, 1897).
    Befrre Cox, Smith and Swing, JJ.
    THE STATE OF OHIO EX REL. WELSH v. THE BOARD OF EDUCATION OF TATE TOWNSHIP.

      Access to school by children — Bridge ashed for — Insufficient averments in petition—

    1. The petition m this ease does not state a good cause oí action against the defendants for the reason that it does not allege facts which show that the improvement which it is sought to require the board of education to erect, was necessary for the comfort or convenience of any of the school district attending the public school therein.

      Same — Discretion of Board in administrative functions not to be interfered with by court—
    2. Even if it had appeared in tlie petition that such was the case, and there was any statute mandatory in its character, or which gave the right to the board of education to make such an improvement, (which is not the case), the decision of the question whether such an improvement should be made at all, or at any particular place, is one of the administrative functions of such board, and its discretion in the matter can not be controlled by the courts by a suit for mandamus.
    Error to the Court of Common Pleas of Clermont county.
   Smith, J.

In this case it is assigned for error that the court of common pleas erred in sustaining the demurrer of the defendant below to the petition of the relator, and on failure to amend, in dismissing the action. Was there error in this ruling?

In substance the petition alleged, that the relator was a resident of sub-school district No. 2, Tate township, Clermont county, Ohio; the owner of real estate therein, and a tax payer therein. That he had a daughter thirteen years of age living with him and constituting a part of his family, and entitled to all the rights, privileges and conveniences provided for her by the school laws of the state and that the defendant is the duly organized and acting board of education of said Tate township.

The petition of the relator further avers that the defend, ant has failed, neglected and refused, and still refuses, though often requested so to do, .to make provision necessary for the convenience and prosperity of the school now being taught in said sub-district, in this, to-wit: ■ to provide any means of crossing Poplar creek, at the public road crossing of said creek,near the school house.in which school is taught in said sub-district, although said creek is impassable a part of the school year for the children of the relator and a number of other children of school age residing in said sub-district, who are compelled to cross said creek in order to attend said school; that there is no bridge, foot track, or other means provided for crossing said creek within said district, nor has there been any during the ■present school year, although a foot track, or other means of crossing has been, and still is necessary in order that the' children of school age in said district may attend the public schools therein.

He further alleges that there is money in the treasury of ■the defendant to the credit of the fund out of which the expense of providing said crossing could be paid, sufficient for that purpose, and not otherwise appropriated.

Therefore he prayed that a writ of mandamus may issue requiring the board to provide a means of crossing the said creek, in said district, at the public road-crossing of said creek, near the school house in said sub-district, and for other relief.

Even if it be considered that in a proper case, and where it clearly appears that a board of education has failed and refused, on proper request, to make provision necessary for the comfort and convenience of the scholars (or part of them) in a particular district by the making of an improvement like that sought in this case, we are of the opinion that on the averments of this petition, a good cause of action is not stated. In the first place, it should appear that such an improvement is necessary, and this does not appear in this case. It is averred that said ■creek is impassable for a part of the school year, at the public road-crossing thereof, near the school house in question, but for how much of said school year does not appear. It may be only for an hour, a day, or a few days. It is further averred that there is no bridge, foot track, or other means provided for crossing said creek within said district. For all that appears there may be already such a crossing outside of the district, and which would be just as convenient for the children who have to cross the stream as a bridge at the public crossing referred to. In the second place, we see no provision of the statute, mandatory in its character or otherwise, which requires or authorizes boards of education to make any such improvement, or give to it any power to erect a bridge over or along a public highway, or condemn the right to do so. But even if the petition contained facts which showed that the bridge at this point was necessary, and the law conferred upon the board of education the right to erect such structure at this point, we think the case of State ex rel. v. County Commissioners,vol. 49 Ohio St., 301, affirming the judgment of this court, shows that an action of this kind can not be maintained. It is there held,that “the expediency of the construction or repairs of a bridge under sec. 4938, Rev. Stats., rests in the administative discretion , of the county commissioners, and such discretion can not be controlled by mandamus.”

Frazier & Hides, for Plaintiff in Error:

Nichols, Pros. Atty., for Defendant in Error.

The principle decided in that case applies much more strongly to this. Sec. 4938, is much more mandatory id its terms requiring the commissioners to build and. keep in repair all necessary bridges in the county on county roads, (and it was conceeded that the bridge there in controversy was a necessary one), than any statute providing for improvements for school houses, by boards of education. And yet the court held that the question whether a particular bridge shall be constructed by them, was for the determination of the commissioners, in the exercise of their administrative functions.

For these reasons the judgment of the court of common pleas will be affirmed.


author: King,- J.

text:
    (Sixth Circuit — Lucas Co., O., Circuit Court
    Oct. Term, 1897.)
    Before King,[Haynes and[Parker, JJ.
    LESLIE L. BARNES, v. THE STATE OF OHIO.

      Perjury — What indictment need not aver—

    1» In an indictment for perjury it is not necessary to allege;

      a. Whether the alleged false testimony was given orally[oPin writing.

      h. Such facts as will show that the same was material.

      Same — Disposition of ease — What evidence sufficient—
    2. On the trial of such indictment, the state need not offer the journal entry to show the trial and disposition of the case in which the alleged false testimony was given, it having shown, by the records of the court, the pendency of such case,[and by oral evidence,given without objection, the trial thereof.

      Same — Materiality of false statement—
    3. Evidence which might affect or influence a court or jury in a given case, is material to the issue therein.

      Same — Materiality—
    4. On the trial of one charged with perjury, it is not error to exclude evidence offered by him to show that the court did not consider the alleged false testimony in giving its judgment in such case.

      Same — Materiality question of law—
    5. Whether certain testimony is material to an issue on trial, is a question of law, and not of fact.
    Error to the Court of Common Pleas of Lucas county.
   King,- J.

This is a petition in error to reverse the judgment of the court of common pleas in an action in which the state of Ohio prosecuted Leslie L. Barnes for the crime of perjury. He was convicted in the court of common pleas, and sentenced to á term in the penitentiary, and it is claimed here that several errors occurred in that court in the course of his trial which were prejudicial to him, and for which the' judgment should be reversed. Some of these I will notice later.

The indictment charged, in substance, that Barnes had testified in an action brought by him against his wife for divorce; that he had no acquaintance with one Adams, alias "Wight, before October 17, 1896; nor had he met him after November 18, 1896, more than four times; and that said' statements under oath were false, and were material.

To this indictment the defendant pleaded not guilty. Shortly after, and at the same term of court, the case came on for trial. The jury disagreed, and ah the following term it was again tried, and resulted in the verdict which this proceeding seeks to have set aside.

It is urged that this indictment is insufficient, because it does not aver whether the oath or the matter deposed and declared in the-indictment was orally deposed, or in writing; and second, that there is no matter pleaded in the indictment which would show upon the face of it that the alleged false testimony given in the case referred to was material to the issues in that case; and third, it is said that the innuendoes are insufficient and are not connected with the matter pleaded. To the last of these I need only say that we do not think there is any material difficulty with the innuendoes,the objection mainly being to the innuendo which states that the statement made by him that he had not seen Myron Wight before he came to Barnes to rent a room, or came to his apartments to rent a room, does not sustain the innuendo that he meant thereby that he had not seen him before the 17th. day of October; but the allegations-denying the truth of these statements in the indictment show that in both respects they were false. In other words, the statement that he had not seen him before he came to his apartment was false, and he had not seen him before the 17th.' day of Oct., was likewise a false statement. So far as the-indictment itself is concerned, in the absence of a motion to quash, or demurrer, we think it is sufficient to put the defendant on trial.

As to whether the indictment should have stated whether the words were orally deposed, or in writing, and whether it is sufficient upon its face to show the materiality of the statements, and that the statements are material, it is, I think, sufficient to say ' that it is covered by sec. 6897, which I will read:

• “Whoever, either verbally, or in writing, on oath lawfully administered, willfully and corruptly states a falsehood, as to any material matter, in a proceeding before any court, tribunal, or officer created by law, or in any manner in relation to which an oath is authorized by law, is guilty of perjury. ”

In that connection T will'read sec. 7221:

“In an indictment for perjury, or for subornation of perjury, it shall be sufficient to set forth the substance of the offense charged, and before which court or authority the oath was taken, averring such court or authority to have full power to administer the oath, together with the proper averments to falsify the matter where the perjury is assigned, without setting forth any part of any record or proceeding, or the commission or authority of the court, or other authority, before which the perjury was committed.”

The statute says that if he does this either verbally or in writing, or if the oath be as to any matter material in a proceeding — -not necessarily a cause, but any proceeding — that it will be sufficient to allege generally what the matter was which is claimed to be false, and averring that it was false, without setting forth any part of the record. There would be some reason, perhaps, for saying whether it was verbal or in writing, but at the same time we are not prepared to hold, since the forms laid down in Wilson’s Criminal Code do not put those words in, nor do they allege any facts which show upon the face of the indictment that the indictment itself was material. But on the matter of form we think. the case of Dilcher v. The State, 39 Ohio St., 130, in which the indictment is set forth in full, is an authority to the effect that it is not necessary to allege either of those things. That was an indictment for testifying falsely, and there is in that indictment no allegation that tbe words were verbal or in writing. There are no allegations of fact showing that they were material other than the single allegation that they were material. It is said that is a conclusion of law, but it is the language of the statute in that respect, and taking the statute which defines the crime in connection with the last statute which I read, and we think it is the intention of the legislature to say that it would not be necessary to set forth all these facts which would go to show why or wherein tbe testimony claimed to have been false, was material in the proceeding before the court. It will be noticed in the case in 39 Ohio St., that the indictment was almost in the language of the one in .this case. The court say on page 131:

“Tt is not necessary to aver wherein the alleged false testimony was material; it is sufficient to - allege generally that it was material, and the indictment need not charge more than is necessary to adequately express the offense. It is not necessary that the testimony upon which perjury can be predicated, must have the effect, if true, of establishing or deciding the matter in issue. It is sufficient if it has a legitimate bearing on that issue. If it tends, within the rules of law, to influence the court or jury in deciding the issue, it is material.”

So we think the objections to the indictment cannot be sustained.

As I have said, the defendant pleaded not guilty, and went to trial, without making any motion or demurrer to the indictment. On the trial a number of witnesses were called on both sides to show that.on the 13th. . day of January,' 1896, there was on trial in tbe court of common pleas of this county, Judge L. W. Morris presiding, a case of di. vorce and alimony in which the plaintiff in error was plaintiff and his wife at that time was the defendant. These witnesses were called, five of them for the state, and testified that they were present in court; that the case was called for trial; that it was tried; that the plaintiff in error here"was called as a witness; that he was sworn. One of them, perhaps, only testified to the fact that he was sworn, but the others all testified that he was called as a witness, and that he testified. And they proceed then to prove all these allegations of material facts contained in the indictment in the testimony of Mr. Barnes. No objection was made to any of that testimony by the defendant upon any grounds that are urged here, and in fact,no objection was made to any of the witnesses stating the fact that the case, naming it, was tried in the court of common pleas. The defense proceeded to introduce as many more witnesses, and they called at least five other witnesses, who testified that they were present in the same court room, before the same judge, and on the same day, and that they heard the testimony in the case on trial — that of Leslie L. Barnes v. Cora E. Barnes, — and that they heard the plaintiff in that case and the defendant in the criminal case, Barnes, testify. In addition to that, the state offered the petition and answer in the divorce case, also a copy of the appearance docket; but it did not offer the journal entry of.the court — for a complete record had not been made-showing the trial or the disposition of the case of Barnes v. Barnes; and it is urged that the fact required to be proved in order to maintain the prosecution on this indictment, that the case of Barnes v. Barnes was then and there and in that court pending, and then and there and in that court tried, can only be proved by the records of the court of common pleas, and that there is no such record here. I think that part of the record admitted does not show the trial of the case of Barnes v. Barnes, in the court of common pleas, on the 13th of January, 1896; it does .'show, however, that such a case was commenced, and that it was pending in the court of common pleas a short time before; but it does not show what disposition was made of it. In the light of that record, then, the sfate offered certain witnesses', and they, without objection,testified that that case was called for trial, and tried upon the testimony that was offered in the case, and decided by the court. And the defense offered as many more witnesses to prove the same fact. Now, upon error, can the plaintiff in error here avail himself of the objection that there was not offered evidence of record? We think not. We think if that was a pertinent objection, he should have made it at the time of the introduction of the state’s testimony, or at least before he entered upon his defense; that he has waived it, if it be a pertinent objection; but we hardly think it is a pertinent objection in the light of the condition df this record. This case was shown by the records to have been pending in the court of common pleas shortly before the trial, the precise day it is not necessary to recite; as there was nothing in the record to show the disposition of it, the presumption would arise that it was still pending'on the 13th day of January. The fact of the trial of that case before Judge Morris, it seems to us, could have been proved by witnesses orally — ■ certainly proved by them if no objection was made to that class of testimony; and this record abundantly supports the fact, both on the part of the state and on the part of the defense; for these witnesses are asked, all of them, if they were present in the court of common pleas when the proceeding — using the precise word which is named in the statute, a “proceeding” — in which the case of Barnes v. Barnes was on trial or hearing before Judge Morris. They say it was. We do not think it would be a justifiable holding to say that with the record in that condition, showing absolutely the pendency of the case a short time before this trial, showing by witnesses offered here without.objection, and on the part of the defense as well, its actual trial, that there is no proof here of a trial of that case on the 13th of January, 1896.

No question was made of that until the court came to charge the jury — and I may as well notice that at this point —when the defendant’s counsel requested the court to say to the jury that—

“As a matter of law that an essential element of the proof in this case is that the alleged false testimony was given in a cause on trial in the court of common pleas of Lucas' county. Before the jury can so find, there must be sufficient evidence to that effect; and oral evidence that a trial was pending would not be sufficient. Such fact must be established by the journal or other record evidence; and unless' such evidence was produced, the jury must acquit.”

2. “The jury are instructed as a matter of law, that no legal ox sufficient evidence has been offered in this case that the case of Leslie L. Barnes v. Cora E. Barnes was on trial at the time it is alleged in the indictment the alleged false testimony was given.”

Those requests were made upon that point, and the court refused to give them. I have said, we do not think it was’ error for which this judgment should be reversed in refusing to give those requests as made.

Many questions have been argued bearing upon the materiality of these statements contained in the indictment. It is urged in the argument, that conceding that Barnes testified as alleged in the indictment, still it was not material. The case of Barnes v. Barnes was an action for divorce, and the allegation of the plaintiff in his petition was that his wife was guilty of adultery with one Adams; and the proof in the case tended to show that on a certain occasion in November Barnes went to his apartments or' rooms in the Schmidt building in company with some other persons, and caught or found Adams, as he called him at' that time and as he was then known, in a room with his wife in a position and situation that was at least compromis-1 ing to her. On the trial he was asked about his acquaintance with Mr. Adams, perhaps on cross-examination, possibly in chief, or both, and he testified that the first time that he saw Mr. Adams was when he came to see him where he was at work at the court house, and inquired of him for rooms, and he told him to go and see his wife at their apartments, and see whether she had any room that she would rent him; that that was on the 17th. of October, as fixed by the proof in the casé. He testified further in that case, that he never had known Adams before. The state in this case offered evidence tending to show that Mr. Barnes, had known Mr. Adams sometime before, and that Mr. Adams’ real name was Myron Wight: that Barnes knew it; that he had associated with him before; that Barnes introduced Wight to his wife under the name of Adams, knowing that his name was Wight. Barnes also testified in the divorce case, it is claimed, that after this occasion when he had found Adams in his wife’s room and then had expressed his dissatisfaction with the proceeding, he had had no other acquaintance with him other than that he had casually met him not exceeding four times. The state in this case offered evidence tending to show that he had met him frequently, and a great many more than four times; that he Lad dined with him; they had been together in a room which Mr. Barnes afterwards occupied, and that they were acquaintances. Now, as we have already held, it was unnecessary to set out all those things in the indictment to show it as material in the divorce case to inquire of Mr. Barnes to testify as to his acquaintance and relationship with this man; but it was upon the trial of the divorce case certainly pertinent to show the relations that existed^ between these men, and that regardless of whether the defendant in that case had in her answer alleged that this divorce was a matter of conspiracy between her husband and this man, or a matter of connivance, or a criminal matter, or anything of that sort. It was material for the court trying that case to have inquired' of its own motion, and to have satisfied itself whether this man Wight, who came upon the witness stand and testified, and this man Barnes, who testified to those acts which pointed at least towards adultery, testified to a transaction that was bona fide, without the consent and knowledge of the husband, or whether it was a thing he had some knowledge of, and which he had winked at. This was certainly material. Counsel might have inquired, and if they did not, the court might have inquired of him — for it was the duty of the court,to ascertian whether the proceeding in divorce was prosecuted honorably and in good faith — • ■as to these things. If Mr. Barnes on the witness stand, in answer to the question as to his acquaintancó with this man Adams had said “I don’t know him; I never saw him until October 17th,” that of course precluded the necessity of making any further inquiry as to his acquaintanceship. If that was true, it was certainly material. As said in the 39 OhioSt., 134, it is sufficient if this testimony has a legitimate bearing on the issue — if it tends, within the rules of law,to influence the court or jury in deciding the issue,it is material. In that case it was alleged that a person was presumed to be dead, not having been seen for seven jears, and upon the.trial the witness who was charged with perjury testified that he had met him, that he had talked with him; that they met three or four times, and that they sat down and discussed matters,and that he knew the person alleged to be absent well, and they had ..frequent conversations during a period of some three or four days. The matter charged in the indictment was that he had said that he had met him three or four times, and the allegation was in denying that, that he had not met him several times, and did not haVe any mutual recognition, well knowing that the statements he made were false. It was alleged that they were not material. The question was whether the man was alive or not, not whether he met him three or four times, or where he met him. But the court said—

“The material inquiry in the Meigs county case,as shown by the evidence on the trial, was whether Martin was alive— whether he had been seen or heard fróm^during the preceding seven years. Stewart’s testimony that he had seen him, without fixing time, place, or circumstances, might have been wholly insufficient. To corroborate and strengthen that statement he said he saw him, not once, in passing, a long time before, at a distance (that would leave room for a conclusion of mistaken identity), but several times, on two or three different days, at Deer Lodge, in September, 1880, that they had spoken together, and mutually recognized each other. The legitimate effect of each one of these statements was to strengthen his testimony as to the main fact, to make it impossible that he could be mistaken. Each one, was in that sense, and within the rule stated, material to the issue being tried, and being so material they were divisible, and perjury may be predicated on each."

We think that is clearly material. In the course of the trial it was sought to show by Judge Morris, having shown that he was the judge before whom the proceeding was had that the statement of Barnes on the trial of the divorce case did not affect his mind in rendering the decision which he did render, and that his judicial opinion and his judgment had been made up from other evidence in the case. That was objected to, and the court sustained the objection. We hardly see how that could have been competent. The only question to be determined — and that is to be determined partly by the court and partly by the jury. — in this case was, whether the evidence in question might have affected the decision; and if it was material evidence, it follows as a matter of law that it might affect the decision, because no evidence is supposed to be admitted except it is material, and it is admitted only because it will affect the decision of the case. It only becomes material because it might affect the decision. That makes it material. So it was competent to inquire of Mr. Barnes if he had known Adams or Wight before; and if we should assume that the proof offered by the State in this case is correct, that Mr. Barnes did know Wight before the time Barnes testified in the divorce case as his first acquaintance, and if Barnes had testified in that case as to all of his acquaintance with Mr. Wight, and had informed the court that he knew his real and true name was not Adams; that he knew it was Wight, and that he had taken him into his family with the knowledge that he had given a false name, it is quite certain that that would have been exceedingly material, and would prob. ably have had some effect upon the opinion and decision of the court. But when Mr. Barnes said he didn’t know him, and had never seen him before and had never seen him afterwards to have any acquaintance with him, after he had discovered his relations with his wife, that shut off, as I say, inquiry. It may be true that the divorce which was in fact granted in that action was not granted upon the testimony of Mr. Barnes, but upon other testimony which the court thought, under the circumstances, more credible; but if the theory of the state in this case could have been fully and clearly presented to the court in the divorce case, it may be that the court would not have granted the divorce at all. But whether the court would or would not, still it remains true that the relations of this man Wight were material to the issue tried in the divorce case, and that whether there was any answer filed or not. It would not be competent for the defense to show that the court would have decided the case in the same way whether Barnes testified as he did, or not. The court could not very well say what he would have done in the divorce case if Barnes had told what the State claimed here was the truth, because the court decided the case upon the testimony it had. This is all I need to say about the testimony in the 'case. It is claimed, that the defense were unnecessarily restricted in offering testimony; that they should have been allowed greater latitute. We do not discover in that anything to the prejudice of the defendant.

It is claimed that the charge is erroneous, because the court, among other things, left the question of the materiality of these statements to the jury. A careful reading of the charge does not indicate that the court did quite that. The court said to the jury, after discussing several things which it was necessary for them to find—

“If jou are satisfied beyond a reasonable doubt that the statements alleged in the indictment, or any one or more of such statements, were so made by the defendant substantially as alleged, you will then consider and determine from the-evidence whether or not such statement or statements were upon a matter that was material in the trial of the divorce case. ”

The court then proceeds to state what had been said with reference to the issue in the divorce case, and says:

“ If, therefore, you find that upon the trial of the divorce case there was evidence that Myron Wight was the person described in the petition as George Adams, and that Wight, alias Adams, went to the rooms of Barnes in the Schmidt building to rent a room on the 17th day of October, 1896, then I say to you as a matter of law that the second, third, and fourth statements alleged to have been made by the defendant, if they were made, were each material statements, and were each upon a matter that was material to the issues in the divorce case.”

And then he discusses that further, illustrating to the jury how it could be material, and says:

“And if you find that there was such evidence, then, as I have said, the second, third, and fourth alleged statements were each material statements, and the first alleged statement was material only in case it was made in immediate connection with the further statement that he was not acquainted with Wight before October 17, 1896, or in case it was made in answer to an inquiry as to how long he had known or been acquainted with Wight before said time.”

“Tn determining whether or not the alleged testimony of the defendant on the trial of the divorce case was material, you are not to consider or determine whether such testimony did or did not affect the result of that case. The question in this connection is not whether the alleged testimony of the defendant was deemed wortLy or unworthy of consideration or belief, but the question is, was it pertinent to the issue, and upon a material matter?”

L. M. Murphy & J. K. Hamilton,tor Plaintiff in Error.

C. E. Summer, for Defendant in Error.

‘‘I have given you the law upon that subject by which you must be governed in this case. You must accept and apply the law as given to you by the court.”

It cannot be fairly said that the court left the question of the materiality of the statements to the jury. But if the court did, is the plaintiff in error prejudiced thereby ? If these statements as a matter of law are materiel, so that a reviewing court can so hold, and the court ought to have said unequivocally that, if proved, they were material statements, then the defendant in error is not prejudiced by not saying that to the jury, but giving the defendant another opportunity by allowing the jury to find whether they were or not. But the fair reasoning of the court is that the statements were material.

These comprise the principal questions that have been discussed. We have come to the conclusion, from a careful reading of the record and an investigation of the authorities cited on both sides of the case, that there is no substantial prejudicial error in this case. Therefore the judgment of the court of common pleas will be affirmed.


text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Nov. Term, 1897.)
    Before Cox, Smith and Swing, JJ.
    JONES v. PIPE COMPANY.

      Employer and employe — Injury through defective machinery — Employment of man to inspect machinery — Fellow servant — What necessary to be shovm to relieve employer of liability—
    Where, in an action by an employe against his employer for damages for injury received by such employe through defects in the machinery, it appears that the machinery furnished was defective in the particular claimed, and it was dangerous to use it in that condition, and the danger could, by reasonable care, have been discovered and guarded against, and that plaintiff was ignorant of the defect and it was not incumbent on him to examine ■ as to this, and as a result of this the plaintiff received the injury, the case should be submitted to the jury on the question of negligence and liability of the employer, unless something else appeared which, as matter of law, deprived the plaintiff of his right to recover. And where it appears that the defendant had in its employ a man whose duty it was to inspect the machinery' and have it in order, but there was no evidence that he was competent for that purpose, or that he was by his employers supposed to be such, or that he had ever examined this particular machino, then the injury thus happening would not be through the negligence of a fellow servant, and the employer would be liable, and the court would not be warranted in withdrawing the case from the jury, but the case should be submitted to the jury' for determination.
    Error to the Court of Common Pleas of Hamilton county.
   Smith, J.

The question in this case is, whether the trial court erred in withdrawing the evidence from the jury, and in directing a verdict for the defendant.

The petition alleged,in substance, that the defendant company was engaged in the manufacture of cast iron gas and water pipes, at its plant at Addyston, in this couny, in June, 1894; and that the plaintiff was then in the service of the •company, engaged in running and operating a crane which was equipped by the defendant with a rack or trolley chain. That the defendant had wrongfully and negligently, •equipped said crane which was then being operated by plaintiff, with an iron rack or trolley chain, which was defective, dangerous, unsafe, and liable to break, and wrongfully and negligently failed, neglected and refused, to furnish, provide and maintain about the said chain, wire covering, such as shoes, to protect the plaintiff from injury by the breaking of said chain while at his said work. Whereby and by means of the said'negligence[]of the defendant, while the plaintiff was engaged as aforesaid, in operating said crane, in June, 1893, the said rack or trolley chain, suddenly and without any notice or warning to the plaintiff, broke, and struck the plaintiff across the face, and severely injured him, causing him to lose the sight of one of his eyes. That he had no knowledge or means of knowledge, that the said rack or trolley chain was defective, dangerous, unsafe, and liable to break, and that he was wholly free from fault. He alleges that thereby he has suffered damages to the amount of $10,000, for which he asks a judgment.

The answer admits the corporate character of defendant, and that he was doing business as alleged, and that plaintiff at the time stated, was in its service, and denies all the other allegations of the petition.

At the trial of the case, the evidence offered by the plaintiff, certainly tended to show this state of fact — that in May, 1893, instead of June of that year,the plaintiff was in the service of the defendant company, and at the’time of the injury, was in the same business in which he had been engaged by the company for a considerable period, in managing a crane which was used for hoisting or lowering the manufactured iron pipes. He was standing, as was usual, upon a platform, four or five feet from the ground. The chain which ran over the crane, supporting the load, was composed of links about half an inch in diameter. As he reached to stop the traveler, one of the links in this chain broke, and one end of the chain flew back and struck the plaintiff about the head and back, severely injuring one of his eyes. There was no evidence tending to show that the plaintiff was in any way negligent or careless in the performance of the duty imposed upon him, or that he acted in any way different from his usual way of managing the machinery, or in any respect was at fault. The evidence further tends to show that the defendant company had in its service, a man who did sometimes inspect the chains, but there is no evidence tending to show that he had ever examined or inspected this particular chain which had been in use for about eight months. It was his duty, as was testified to, “to look after the chains, oiling and inspecting them, and the like of that.” It was no part of the duty of the plaintiff to inspect this chain or machinery, and he had no knowledge of any- defect in it.

Now, the foregoing is what the oral evidence tended to prove on the material question in the case, and the only additional evidence offered in regard thereto, was a link of the chain which broke, as testified to by the plaintiff, and which he says he took from the end of the part of the chain which struck him, a few minutes after he was injured, and which link was offered in evidence, and is attached to the bill of exceptions, certified to contain all of the evidence given in the case.

This link is about 3 inches in length, by, say, 2-| inches in width, from out to out, and as has been said, is about -§ an inch in diameter. It is broken at one of the ends. At the other end, the inside of the link is somewhat worn; but at the broken end, it was evidently very greatly worn, and it is clear, from an inspection of it, that prior to the breaking, but a very small part of the original thickness remained — probably not one-fourth of it- — -and the conclusion is irresistible from the appearance of the link, that the wearing away of the iron had been gradual, had for some time been worn three-fourths of the thickness, of the link, and it would seem that if a person having knowledge of such matters, had inspected the chain with any care, that he should have seen that it was greatly worn, and was unsafe and dangerous for the use and strain that would be upon it.

The question then is, was the trial court justified in holding, as a matter of law, that the plaintiff was not entitled to recover, or whether it was not his duty to submit the case to the jury, under appropriate instructions, to determine whether, on the case made, the plaintiffs had a right to recover against the defendant.

The law of his state as to the liability of an employer to his employe, for injuries received by the latter while in the service of the former, from defective machinery furnished by the master, has been passed upon by our supreme court in several cases. In the case of Railroad Co. v. Webb, Admx., 12 Ohio St., 475, the syllabus states the law thus:

“In an action to recover of a railroad company for injuries received by a brakeman while in the service of the company, by reason of the breaking of the chain, and giving way of the brake while working it, owing to a defect therein, whereby he was thrown from the train and injured,

Held: 1. That it was the duty of the company to use all reasonable and ordinary care in providing safe and well equipped brakes for the brakeman,and that if the company in neglect of such duty has procured a defective and improper brake, and placed the brakeman to work the same without an opportunity to know such defect, and he was thereby injured, a right of action would thereupon arise against the company

2. That if the existence of such defect at the time of the accident was owing to the neglect of other operatives of the road supposed to be competent whose duty it was to have inspected said brake, but who neglected so to do, and negligently suffered the same to continue in use when not roadworthy, unknown to the company,it is not liable therefor,inasmuch as said delinquent inspector is to be regarded as a fellow servant of the brakeman in a common service.”

In deciding the case Judge Sutliff,in speaking of the doctrine as to the liability of the company for injury produced by defective machinery, says:

“In the case of McGatrick v. Wason, 4 Ohio St.,566, this court held it to be a general rule, that an employer who provides the machinery and oversees and controls its operation,-must see that it is suitable,‘and that if an injury to the workman happen by reason of the defect, unknown to the latter, and which the employer by the use of ordinary care could have cured,such employer is liable for the injury. And in the case of R. R. v. Keary, 3 Ohio St., 202, it is said in such a case, ‘the skill and care must be reasonable, and it is not reasonable when it does not furnish at' least ordinary security against injury to others. If he, (the.employer), is found wanting in this, and .injury ensues, he has failed to perform his duty to his fellow men, and the right to receive and-the duty to make reparation immedi-' ately arise”

—and there are other decisions to the same effect.

If, then, this machinery furnished to the plaintiff, was defective in the particular mentioned, and it was dangerous to use it in that condition, and the danger could, by the exercise of reasonable care,have been discovered, and guarded against, and the plaintiff was ignorant of the defect, and it was not incumbent upon him to examine as to this, and as a result of this the plaintiff received the injury as claimed, and the evidence, in our judgment, tended to show all of these facts, the case should have been submitted to the jury for its determination, unless there was something else in the case which, as a matter of law, deprived the plaintiff of a right to recover.

So far as we can see, (and this point was not referred to in the argument of the case), the only possible claim for this would be, that it came out in the evidence offered for the plaintiff, that the defendant company had in its employ, a man whose duty it was to inspect the machinery and have it in order, and who at some time had done things of that kind; but there was no evidence that he was a competent man for that purpose, or, that he was supposed by his employer to be such, or that he had ever examined this machinery or chain. If these things had all appeared, and the injury to plaintiff had resulted from this neglect of duty on tjdepart of the inspector, without neglect of duty on the part of the company, we suppose that the injury thus happening from the negligence of a fellow servant with plaintiff, the defendant company would not be liable. But these facts do not appear in the evidence, and not so appearing, we think the trial judge was not warranted in withdrawing the evidence from the jury and in directing a verdict for the defendant, and for this reason, the judgment will be reversed, and a new trial awarded.

Michie & Clore, Attorneys for Plaintiff in Error.

Paxton, Warrington & Boutet, Attorneys for Defendant in Error.


author: King, J.

text:
    (Sixth Circuit — Wood Co., O., Circuit Court
    October Term, 1897.)
    Before King, Haynes, and Parker, JJ.
    THE VILLAGE OF BRADNER, WOOD COUNTY, OHIO, v. GEORGE GRUNDETISCH.

      Bill of exceptions in mayors’ courts—
    1. There is no statute conferring authority upon the Mayor of a municipal corporation to allow a period of ten days from and after the overruling of a motion for a new trial, as time in which to prepare, have allowed and file a bill of exceptions, setting forth the evidence and the rulings of the mayor thereon.

      Same — Allowance of time to prepare—

    2. The statute relating to bills of exceptions in civil cases before justices of the peace is not applicable to criminal cases in mayors’ courts.
    Error to the Court of Common Pleas of Wood county.
   King, J.

The defendant in error was charged before the mayor of the village of Bradner, Ohio, with violating a village ordinance in respect to creating a disturbance; a jury empanneled, tried, convicted and sentenced, in pursuance of the terms of the ordinance. He prosecuted error in the court of common pleas, and the court of common pleas reversed the judgment of the mayor, on grounds that do not appear in the entry, and the -village prosecuted this proceeding in error to reverse the judgment of the court of common pleas reversing the judgment of the mayor.

The proceedings before the mayor, except those that occurred upon the trial, appear to have been in regular form. We do not find any error in those proceedings. Whatever error there may be, is to be found in the proceedings at the trial which appear by a bill of exceptions. In the court of common pleas a motion was made to strike that from the files, which was overruled, and the village excepted. The precise error complained of, does not appear in the journal entry, but we understand it was the refusal of the mayor to give certain charges that were requested on behalf of the defendant. As no error appears in the record excepting in the bill of exceptions, we are required to examine whether the bill of exceptions should be looked into. The record shows that at the time of the sentence, or very soon thereafter^ motion was made for a new trial, and overruled,and the mayor allowed the defendant ten days within which to prepare and file a bill of exceptions, and he did prepare and file a bill of exceptions which was allowed and signed by the mayor eight days after the judgment was entered, and the'question is, whether the mayor had authority to allow that time and sign a bill of exceptions eight days after trial. It is said that he had, because the statute relating to the trial of civil cases before a justice of the peace, allows justices of the peace upon the overruling of a motion for a new trial, or in cases where a motion is not necessary, to allow that period after the trial,and to sign such bill of exceptions presented within such time; but there is no statute that we can discover which makes that provision applicable to criminal cases before a mayor. A mayor of an incorporated village has, under the statute found in the municipal code, certain civil jurisdiction within the village over which he is mayor which is similar to that of a justice of the peace within a township, and the statute giving him that authority, provides that he shall have such criminal jurisdiction as is thereafter named in the statute.

Criminal cases before a court of common pleas are tried by indictment.

Section 7304, provides that,

“If a defendant feels himself aggrieved by any decision of the court, he may present his bill of exceptions thereto, which the court shall sign, and the same shall be made a part of the record, and have the same force and effect as in civil cases; if exceptions be taken to the decision of the court overruling a motion for a new trial because the verdict is not sustained by sufficient evidence, or is contrary to law, the bill of exceptions must contain all the evidence; and the taking of all bills of exceptions shall be governed by the rules established in civil cases.”

There is also another statute applicable likewise in a probate court, and it gives the defendant, or party desiring a bill of exceptions, the same length of time and ' the right to take exceptions under the same rules as are laid down under the statute relating to civil practice, which is a period of fifty days within which a bill of exceptions may be allowed and filed and made a part of the record.

Obviously that part of the statute has no application to prosecutions before a mayor; so that the provisions of sec. 7304, are not applicable, because if they were, that would extend the time to fifty days. ' Now, as I have said, there is no statute making the provisions of the civil practice before a justice of the peace applicable to criminal prosecutions before a mayor. Under the statute relating to the criminal jurisdiction of the mayor, found in sec. 1826,

■ “He may summon a jury and try the accused, in an prosecution for the violation of an ordinance, where imprisonment is a part of the prescribed punishment,' and the accused does not waive a jury; and in such case, judgment shall be rendered in accordance with the verdict unless a new trial for sufficient cause is granted.”

And in section 1823, it is provided that ‘‘he shall have final jurisdiction to hear and determine any prosecution for the violation of an ordinance of the corporation unless imprisonment is prescribed as part of the punishment.”

In this case a jury was empaneled, and he was tried.

Section 1752 provides, that:

‘‘Appeals may be taken from the decision of the mayor in civil cases, in the same manner as from justices of the peace. * * * A conviction under an ordinance of any municipal corporation may be reviewed by petition in error in the same manner and to the same extent as was heretofore permitted on writs of error and certiorari, and the judgment of affirmance or reversal may be reviewed in the same manner; and for this purpose a bill of exceptions may be taken,or a statement of facts embodied in the record on the application of any party; but no such petition shall be filed except by leave of the court or a judge thereof, and such court or judge has power to suspend the sentence as in criminal cases.”

So that, while a bill of exceptions may be taken, or a statement of facts embodied in the record upon application of a party aggrieved, the proceedings in error are the same as those heretofore provided on writs of error, and in case. of the Village of Bellefountaine v. Vassaux,55 Ohio St. Rep., 323, as first published in 36 W. L. B.,' the court could not review the weight of the testimony before the mayor, holding that it was not allowed and could not be done in writs of error or writs of certiorari. Now, in proceedings for taking exceptions to the decision of the court in these cases,no statute authorizes a bill of exceptions to be taken after trial, because there was no time allowed for writing out exceptions. They must be taken at' the time of the decision of the court, and reduced to writing and signed by the trial judge; that was the statute, and that was the practice, and clearly, there is no provision of the statute giving a mayor authority to extend the time for preparing a bill of exceptions in the prosecution for a violation of an ordinance Defendant may except to his rulings upon evidence, and may except to the charge to the jury or the refusal to give charges requested, and those exceptions reduced to writing can be reviewed in a court of error; but a bill of exceptions cannot be allowed and made a part of the record if it was taken at a timé after the trial. Several days were granted upon the application of the defendant below for taking this bill of exceptions, so we are satisfied that the court of common pleas erred in not striking the bill of exceptions from the files, and as the other proceedings are regular, the court erred in reversing the mayor.

Baldwin & Harrington, for Plaintiff.

Brown & Guernsey, for Defendant.

The judgment of the court of common pleas reversing the judgment of the mayor, is reversed, and the judgment of the mayor affirmed.


author: Rohn, J.

text:
    (Third Circuit — Defiance Co., O., Circuit Court,
    October 1896.)
    Before Day, Price & Bohn, JJ.
    ISABEL ENDLEY, v. ERASMUS T. ALDRICH, JOHN P. CAMERON AND THE BOARD OF COMMISSIONERS OF DEFIANCE COUNTY, OHIO.

      Final order—
    Under section 4452, Revised Statutes, as amended April 19, 1894,(91 Ohio Laws, page 160), the finding of the county commissioners determining the necessity of a ditch improvement, is such a final order and determination of the rights of the parties affected thereby, from which error will lie.

      Petition in error—

    In such case, a petition in error must be filed within six months from the date of such ■ finding or determination of the county commissioners, in order for the reviewing court to obtain jurisdiction of the subject matter of the proceeding of the county commissioners; otherwise, the petition in error should, on motion, be dismissed.
    Error to the Court of Common Pleas of Defiance county.
   Rohn, J.

This is a proceeding in error seeking to reverse the court below in sustaining the petition in error of the defendants, Messrs. Aldrich and Cameron, to the proceedings and orders of the Board of County Commissioners of Defiance county.

The record discloses, that on the 20th day of April, 1895, the plaintiff,Isabel Endley,riled her petition with the county auditor of Defiance county, asking for the construction of a certain ditch, and at the same time filed a bond in the sum of $100.00, conditioned according to the statute in such cases.

Accordingly, on the 22nd day of April, following, notice was duly served on the various lot and land owners to be affected by the proposed ditch; and on the 16th day of May, a hearing was had before the commissioners upon the petition laid before them, whereupon the following finding and order was made, viz:

“A copy of a petition for the improvement of a county ditch having been delivered to us by the county auditor, and it appearing to us that the proper bond has been filed with the auditor and by him approved, conditioned for the payment of all costs if the prayer of the petition be not allowed or be dismissed for any cause, we proceeded to fix the line of the improvement and determine whether the said improvement is necessary, or will be conducive to the public health, convenience and welfare, and we find that said improvement is necessary, and will be conducive to the public health, convenience and welfare, and we do hereby order the auditor to enter upon said journal an order directing Frederick Stever, a county surveyor, to go upon the line and file his report, and all other proceedings are hereby adjourned until we are notified by the auditor of tbe day set by him for the hearing of the surveyor’s report.”

Afterwards, on the 6th day of August, the surveyor’s report was heard, and such further orders were made from time to time thereafter, as was necessary for the construction of the improvement determined upon on the 16th day of May, prior thereto.

Afterwards, on the 28th day of December, 1895, the defendants, Aldrich & Cameron, filed their petition in error in the court below, seeking a reversal of the findings and orders of the county commissioners, on the ground, among others, that the Board of County Commissioners had no jurisdiction, for the reason that no bond, as required by law, had ever been filed, making the plaintiff and Board of Commissioners parties defendant in such proceeding.

To this petition in error on the part of Messrs. Aldrich & Camera, in the court below, the defendant in error, Isabel Eadley, filed her motion to dismiss the petition in error, on the grounds:

1st. —Because the court below had no jurisdiction.

2nd. — That more than six months had elapsed from the making of the final order complained of.

3rd. — That no order prejudicial to plaintiff in error had been made.

This motion to dismiss was overruled; and the court below, on a tearing, reversed the findings and orders of the county commissioners, on the ground that they had no jurisdiction,and rendered judgment for costs against the defendant in error.

Now, the plaintiff in error in this court, Isabel Endley, asks to have the judgment of the court below reversed,claiming, first, that the court erred in overruling her motion to dismiss the petition in error in the court below; and second, erred in sustaining the petition in error and rendering judgment of reversal, etc.

The first question necessary to be considered is: Did the court err in overruling the motion of Isabel Endley, to dismiss the petition in error below, on the grounds stated in her motion; if it did, the consideration of this one question will determine the whole controversy, and it will be unnecessary to consider any further questions presented by the record, but the case will necessarily have to be reversed, on account of error in overruling this motion to dismiss the petition in error below.

The question is whether the court below had jurisdiction — did more than six months elapse before the plaintiffs in error below, filed their petition to reverse the final orders complained of? If so, the court below acquired no jurisdiction of the subject matter of the action, and it was error on its part in refusing the motion to dismiss. This can only be determined by the record, and the statute.

Sec. 4452, Rev. Stat., as amended April 19, 1894, (91, O. L. 160), provides that the commissioners shall meet at the place of the beginning of the ditch as described in the petition on the day so fixed, and hear any and all proof offered by any of the parties affected by the improvement, and other persons competent to testify, and determine the necessity thereof, and in case the commissioners find in favor of the improvement, they shall fix the day for hearing of applications, etc.

It will be seen by this section of the statute, as amended, that the commissioners shall have proof offered by any of the parties, or other persons'competent to testify, and then determine the necessity of what? — the improvement. This was done, as is shown by the proceedings of the commissioners, on the 16th day of May. This finding was such a final order, as, under sec. 4463, Rev. Stat., could have been appealed to the probate court by any person aggrieved thereby. It will be observed, that an appeal can only be taken from a final order, such as is specially mentioned in this proceeding. If this is a final order recognized by the statute on appeal, can it be said that the same is not also a final order, from which error must be prosecuted within six months, in order to affect the proceeding or obtain jurisdiction? We are of the opinion that it is. This is a special proceeding provided for by the statute, and even though an appeal would not lie, we have no doubt that it is such a final order and determination affecting the rights of parties from which error would lie. This being the case,it follows, that the petition in error was not filed in the court below within the time prescribed by the statute, and that by reason thereof, the court below had no jurisdiction of the case, and it was error to refuse to dismiss the petition in error below.

L. B. Beaslee, for Plaintiff.

Harris & Cameron, for Defendants.

For these reasons the judgment of the court below will be reversed, with costs, and proceeding to render the judgment which the court below should have rendered, the motion to dismiss the petition in error below, will be sustained, and the petition in error dismissed. Cause remanded for execution to court of common pleas.


author: Adams, J.

text:
    (Fifth Circuit — Delaware Co., O., Circuit Court
    Dec. Term, 1897.)
    Before Pomerene, Adams and Douglass, <J.T.
    STATE EX REL THOMAS VINING v. COMISSIONERS OF DELAWARE COUNTY.
    1. A party may appeal from a final judgment rendered by the court of common pleas in a mandamus proceeding.
    2. County commissioners and county treasurers are not exempt from giving bonds for appeal by sec. 5228.
   Adams, J.

In the case of the State of Ohio ex rel. Thomas-Vining v. The Commissioners of Delaware county, and in some twenty-five other cases submitted with it, there are motions to dismiss the appeal. These are all proceedings in mandamus.

In cases Nos. 236,237,238,289,240, and in 263 and 264, these motions are filed on two grounds, 1st. That the action is not an appealable one; and 2nd. That no bond was given for an appeal. In the remaining cases, being numbers 245 to 262 inclusive, the motion contains the first ground only, that is, that the case or action is not appealable. And as that first ground is common to all these cases, it will be disposed of first.

We may say here, that it seems to this court, that it is more important that this question, which is a question of practice only, and not one of principle, should be finally settled; more important, that it should be finally settled than that it should be settled in either way, because, if it is once settled either way, parties can preserve their rights; if not appealable, they can preserve their rights by proceedings in error,

The argument made here, that such proceedings in mandamus are not appealable, involves the construction of the section of the statute, relating to mandamus, and sec. 5226, of the Revised Statutes.

Sec. 5226 provides, that

“in addition to the cases and matters specially provided for, an appeal may be taken to the circuit court by a party or other person directly affected, from a judgment or final order in a civil action.’’

The claim is made here, and correctly, that in the chapter relating to mandamus, there is no provision for an appeal; and the further argument is made, that the proceeding in mandamus is not a civil action, within the meaning of sec. 5226, and that, therefore, the case is not appealable.

We are cited to the case of 32 Ohio St., Chinn v. Trustees, page 236, where the Supreme Court hold, that the civil action of the code ib a substitute for all such judicial proceedings as were previously known, either as actions at law or suits in equity, and does not embrace proceedings in mandamus. There is, in this state, no statutory limitation as to the time within which a writ of mandamus may be obtained. And the holding there is, that the statute of limitations does not apply to a proceeding in mandamus, because the proceeding in mandamus is not a civil action.

That case, and the decision announced,- — perhaps last week, by Judge Summers, speaking for the Circuit Court of the second circuit, in Law Bulletin, December 13, 1897, where that court holds directly, that mandamus is not a civil ation and is not appealable, are the authorities relied upon in support of this motion.

On the other hand, we have in 42 Ohio St., page 215, a holding by the Supreme Court to this effect, and I read the first paragraph of the syllabus,

“In mandamus in the court of common pleas to compel the council of an incorporated village to order an election on the question of a surrender of its municipal powers, under the -provisions - of the Rev. Stats., secs. 1633 to 1647, the issue was whether the requisite number of qualified petitioners had petitioned the council therefor. Held: That this was an issue not of right triable by a jury, and either party might appeal from the judgment of the common pleas thereon. ”

It is stated in argument, and I think it is apparent from an examination of the opinion in that case, that the only question discussed in the opinion, is, whether or not the issue was of right triable by jury. But the syllabus of the case is the rule of law that is concurred in by all the judges sitting in the case. And they do make the direct holding that an appeal lies in a mandamus proceeding, from the common pleas court to the then district court, as it would bow be to the circuit court.

The motion for leave to file a petition in error to the district court in that case was overruled.

Now, if mandamus cases are not appealable, the district court and the circuit court have no jurisdiction of the subject matter of the mandamus proceedings on appeal. So that, if the rule is as-contended for here, in support of this motion, the judgment of the district court in that case, was a nullity for want of jurisdiction, and the same might be said of the judgment of the supreme court denying the motion for leave to file petition in error.

Again, we are shown the record of a case disposed of by this circuit court, in Licking county, at the March term, 1892, which was an action commenced in the common pleas court, to compel the commissioners of Licking county, by a peremptory writ of mandamus to rebuild and keep in repair a bridge. After a trial in the common pleas court, the writ was made peremptory. The commissioners appealed to the circuit court, and a motion was there made to dismiss the appeal, on the ground that the action was not appealable. The circuit court overruled that motion, and on a final hearing, — I believe it was on a demurrer to the petition — 4he court decided in favor of the commissioners, and refused the .writ of mandamus. Error was prosecuted to the supreme court, and one of the assignments of error in the petition in error, was the overruling of the motion to dismiss the appeal. That case is found in the list of cases not reported in full, in 54Ohio St., 652, and the judgment was affirmed on the authority of State ex rel. v. Commissioners, 49 Ohio St., 301. Now, it is likewise apparent in this case —in the Licking county case — that if appeal does not lie in mandamus proceedings, that the judgment of the circuit court was a nullity for want of jurisdiction over the subject matter of the suit. And carrying that out logically, although the circuit court and supreme court have held that the county commissioners should not be compelled by mandamus, to rebuild or repair the bridge; there is still the judgment of the court of common pleas in full force, unreversed and unmodified, compelling them todo that very act.

The case in the 49 Ohio St., 801, is a case that went up from Hamilton county. The statement of facts in that case, shows that it was a mandamus proceeding; that the case was appealed from the common pleas court to the circuit court. See also, 51 Ohio St.,83-86, and 54 Ohio St., 383-386. This case, 54 Ohio St., 383, was a mandamus case. The common pleas of Franklin county found for the respondents. On appeal, the circuit court found for the relator. On error, the supreme court reversed the circuit court, and remanded the case to circuit court for a new trial, or such other disposition as the facts and law of the case may warrant. It is true, that' we have no discussion either in the Licking county case, or in this 49 Ohio St. case, as to the reasons given by the supreme court for their judgment, In this case decided by the second circuit, with Judges Williams, Stewart and Shauck, on the bench, 1 0. 0. page 127, Judge Shauck after very ably and at length arguing to the effect that the mandamus proceeding is not appealable, feels compelled to follow the decision to which I have referred, 42 Ohio St., 215; and although that circuit court followed the decision of the supreme court in 42 Ohio St., as it were under protest, yet their judgment, which would be a nullity of the case was not appealable, was affirmed by the supreme court, as shown by 23 Law Bulletin, 235.

And then again, we have in 48 Ohio St., case of State ex rel. v. Crites, Auditor, on page 175, the so-called dictum, that “in view of the express provisions of the statute, it is difficult to see wherein a proceeding in mandamus differs in any material respect from a civil'action, or even in any respects, except in name.”

While we entertain the very highest opinion of the learning and ability of the judges who have recently decided in the second circuit, that proceedings in mandamus are not appealable, and while, doubtless, if it were an open question on the reasonable construction of these statutes, we would feel inclined to follow that decision, yet, this court as now constituted, has held, in line with this case in 42 Ohio St., page 215. This court, in 1892, in the Licking county case, made the express holding that proceedings in mandamus are appealable. The supreme court, in the six cases that I have referred to, have made in effect the direct_ holding that an appeal does lie in mandamus. Whether they have given the best reasons for that holding or not, is another question, but they have made the holding in these six cases, that an appeal will lie in mandamus. And we have no doubt that a great many other cases could be found, like this Licking county case, that have been decided by the supreme court without report, where appeals in mandamus have been upheld.

That being the state of the decisions in Ohio, on the subject of whether an appeal will lie in mandamus or not,' we are content to follow our former holdings, to follow the holdings of the supreme court, until the supreme court sees fit to overrule its former holdings and reverse this court.

There is another question made; that is, admitting that some proceedings in mandamus are appealable, others are not. And the point is made in these two cases, 263 and 264, where it was sought by mandamus to compel the county treasurer to pay certain warrants. An argument is made, that the writ is simply to obtain the payment of money, and that, therefore, it is an action for money only, and that it would follow from that, that there would be a trial by jury, and, therefore, the action is not appealable. But even in that case, we think and hold, that there is a wide distinction between a peremptory writ ordering ,an officer to pay money, and a judgment for money only. The effect is, and might be the same, and the party seeks to obtain the payment of money; but the particular relief that is sought in the mandamus case, is different from the money judgment. The enforcement of the order, would be through different means and different processes.

James B. Lytle, MoElroy & Carpenter, for the motions.

Geo. Coyner, Pros. Att’y., Jones & Jones, contra.

There is the further question made in some of these cases where the bond has not been given, and that involves the construction of sec. 5228. Sec. 5228, provides that, “a party in any trust capacity, who has given bond in this state with sureties according to law, shall not be required to give bond and security to perfect an appeal.”

Prior to the revision of 1880, and so far as we have been able to trace the statute from 50 O. L., p. 93, down to the revision of 1880, (See Swan & Critchfield, p. 1167, sec.6), executors, administrators and guardians, were the only trustees who were exempt from the necessity of giving bond.

On this question I speak for a majority of the court only. A majority of the court is of the opinion, and so holds, that sec. 5228, as it now reads, “A party in any trust capacity, ” must be construed in the light of the provision as it stood before the revision. Before the revision it stood, executors, administrators and guardians. That the enlargement by the phrase; “parties in any trust capacity,” would only include trustees of the same class as executors, administrators and guardians, and is not broad enough to include public officers, such as county commissioners and county treasurers.

It therefore follows, that the appeals will be dismissed in cases Nos. 236,237,238,239,240 and 263 and 264, because no appeal bond has been given. In cases from 245 to 262 inclusive, where the bond has been given, the motions to dismiss the appeal are overruled.