text:
    SHERIFF’S RETURN OF SERVICE OF SUMMONS NOT CONCLUSIVE.
    [Circuit Court oí Cuyahoga County.]
    Charles H. Parker v. Van Dorn Iron Works.
    Decided, February 10, 1902.

      Service of Summons — What Constitutes a Proper Service Upon a Corporation — Return of Sheriff as to Service not Conclusive — Evidence Justifying the Setting Aside of a Judgment — Obtained on Faith of a Sheriff’s Return.

    1. A return by a sheriff of summons in an action against a corporation which sets forth that on a day named “I served this writ on the within company by delivering a true and certified copy thereof to the treasurer of the company (naming him), the president or chief officers not being found in my county” is in exact conformity with the provisions of Section 5044 relating to service on corporations.
    2. But where a judgment based on the faith of such a return is directly attacked for want of service, it is proper upon motion to receive evidence as to the fact whether service was had as shown by the return; and where there is produced an affidavit by the treasurer of the corporation upon whom it is claimed the service was made, in which he states that he distinctly remembers that no summons were served on him in the ease in question, a court is justified in vacating the judgment.
    Marvin, J.; Caldwell, J., and Hale, J., concur.
    Heard on error.
   The plaintiff here was the plaintiff below. He filed his petition in the court of common pleas against the defendant, which is Á corporation. His cause of action set out in the petition was for a personal injury which he claimed to have received while in the employ of the corporation and by reason of its negligence. Summons was. issued out of, that court upon such petition on November 13, 1899. The summons was returned, endorsed by the sheriff, in the following words:

“On the 14th day of November, 1899, I served this writ on the within named, the Van Dorn Iron. Works Company, by delivering a true and certified copy thereof to L. Golden, treasurer of said company; the president or other chief officers not found in my county. ’ ’

No motion, demurrer or answer was filed by the defendant to the petition. The case remained in court until the September Term thereof, 1901, when a jury was impanneled. Evidence on the part of the plaintiff was introduced, and a verdict rendered for the plaintiff in the sum of five thousand dollars, and judgment was entered upon this verdict. Later in the same term a motion was filed by the defendant to vacate this judgment. Upon hearing, this motion was sustained, and a new trial of the case ordered.

The present proceeding is brought to set aside the order vacating the judgment; the grounds set out in the motion to vacate are that the defendant had no knowledge, until after the trial of the cause, that such action had been commenced, and that there was never any service 'of summons made upon the defendant, and that no officer, agent or attorney of the defendant ever had notice or knowledge that it was claimed that any summons had been served on the defendant.

On the part of the plaintiff here, it is urged that the return of the sheriff upon the summons is conclusive of the fact that it was served upon the treasurer of the company, and that neither the president nor other chief officer of the company was in the county. This return shows a service in exact conformity with the provisions of Section 5044, Revised Statutes, which provides:

“A summons against a corporation may be served upon the president, mayor, chairman or president of the board of directors or trustees, or other chief officers; or, if its chief officer be not found in the county, upon its cashier, treasurer, secretary, clerk, or managing agent.” * * *

That this return, however, is not conclusive, seems to be settled by the holding of the Supreme Court in Kingsborough v. Tousley, 56 Ohio St., 450. The first clause of the syllabus reads:

“In an action on a personal judgment, whether rendered by a court of this state or elsewhere, it is competent to plead and prove in defense, though it be in contradiction of the record, that the defendant was not served with process, nor jurisdiction of his person otherwise obtained by the court rendering the judgment. ’ ’

This, was a suit brought in the court of common pleas by Tousley on a judgment recovered by him against Kingsborough before a justice of the peace of Cuyahoga county. An answer was filed by Kingsborough averring that when the action before the justice of the peace, was commenced, and during its pendency, his domicile and residence was in the state of Illinois, and had been for a long time before that, and so continued to be for a long period thereafter, during which time he was not within the state of Ohio, and that no summons was served on him, nor other notice given him, of the commencement or pendency of the suit.

Issue was joined upon this answer, and evidence was received in support of the allegations of the answer; but at the conclusion of this evidence, the court sustained an objection thereto, and held, and so decided, that these allegations were not sufficient to constitute a defense to the matters and things set forth in the petition.

On page 456, Judge Williams, in the opinion, uses this language:

“For while there is some conflict of the decisions as to whether, where there is a presumption of service and jurisdiction or where these appear on the face of the record, it can be shown in a collateral proceeding that in fact no service was had, the authorities are substantially uniform to the effect that when the judgment is directly attacked for want of jurisdiction, such want of service and jurisdiction may be shown, though it be in contradiction of the record.

W. H. Polhamus, for plaintiff.

F. C. Phillips, for defendant.

“But here again the authorities differ as to what constitutes an attack of that nature. It is conceded that it includes proceeding^ in error, motions to' vacate or modify the judgment, and that in some cases it may be made by original action, as was formerly done by,bill in chancery to correct or set aside the judgment."

There would seem to be no doubt from this that the return of • the sheriff in the present case-was not conclusive. It comes within the class which Judge Williams says it is conceded that evidence may be received to contradict the return, for this was a motion to vacate the judgment. It was not error, then, for the court of common pleas to receive evidence that the return of the sheriff was not true.

But it is said that the evidence did not justify the court in holding that the return of the sheriff was incorrect. We have before us a bill of exceptions containing all the evidence upon which the court acted. This evidence was all embodied in affidavits; among them is the affidavit of L. Golden, the man upon whom the return shows the service was made; in this affidavit he, among other things, says that he distinctly remembers that no summons in this action was ever served on him personally. He gives some reasons why he is sure that the summons was not served upon him, but these do not negative his positive assertion already mentioned.

The affidavit of the president of the company is filed to the effect that he had no knowledge of the pendency of the action, and that it would have been his duty to have looked to this litigation if it had come to his notice.

Evidence was introduced on the part of the plaintiff showing that the defendant had been notified by the plaintiff’s attorney that suit will be brought, but surely this would not take the place of the service of a summons.

Without saying whether the court would have been justified in vacating the judgment without the affidavit of Golden, we are clearly of the opinion that no error was committed in the making of such order to vacate, and the judgment is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    SEARCH OF JUNK SHOPS.
    [Circuit Court of Lucas County.]
    Jacob Neifeld v. State of Ohio.
    Decided, October 26, 1901.

      Criminal Law — Statute Relating to Defects in Indictments Applies to Police Court Affidavits — Failure to Negative the Requirement of the Statute — Answers not Responsive but Competent as Testimony —Prosecution of Proprietor of Junk Shop — For Failure to Retain Property in his Possession for Thirty Days — Officer Searches the Place Without Authority — Conflicting Testimony and Reasonable Doubt.

    1. The provision of Section 7215, that “want of averment * * * or other imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits,7 applies to affidavits and informations as well as to indictments.
    2. A charge that the defendant failed and neglected to do is equivalent to charging that he did not do the thing required by the statute.
    3. Where an answer by a witness is not responsive, but is proper testimony in the case, it is discretionary with the court whether or not the answer shall stand, and error, wil not lie to the overruling of a motion to strike out the answer.

      4. A direct conflict in the evidence is not sufficient to warrant a reviewing court in holding that the court below erred in finding beyond a reasonable doubt that the defendant was guilty of the offense charged.
    5. It is competent to show by oral testimony in the prosecution of the proprietor of a junk shop, under Section 4413, for failing to retain in his possession for thirty days certain old metal purchased hy him, that he made a report on the day of the alleged purchase, where the report was in court, and was handed to the witness, and was afterward attached to the bill of exceptions.
    6. In the absence of action by a police board authorizing the inspection of junk shops, a police officer who has been directed simply to look after such places, is without authority to enter a junk shop to search for stolen property without a search warrant, and where this is attempted the proprietor of the place does not become liable to prosecution if he resist the officer.
    Hull, J.; Haynes, J., and Parker, J.; concur.
    Heard on error.
   The plaintiff in error is the same person in both these cases (above entitled and same v. Toledo), and they will be discussed, so far as possible, together, although they must be considered to some extent separately, first taking up the case of Neifeld against the state of Ohio.

Neifeld was prosecuted in the police court of the city of Toledo for the violation of Section 4413, Revised Statutes. A jury being waived, he was tried to the court and found guilty, and sentenced to pay a fine, and it is to reverse this judgment that this proceeding is prosecuted. He was charged with violating the provisions of Section 4413, Revised Statutes, requiring a junk shop keeper to retain in his possession property for a period of thirty days after it has been purchased. The statute provides as follows:

“Any person who purchases, sells, exchanges, or receives second-hand furniture, second-hand articles of any kind, scrap iron, old metal, canvas, junk or lead pipe, except plow irons and old stoves and furniture, shall put up in a conspicuous place, in or upon his shop, store, wagon, boat, or other place of business, a sign, having his name and occupation legibly inscribed thereon, and shall keep a separate book open to inspection by any member of any police force, city marshal or constable, or any other person, in which shall be written, in the English language, at the time of every purchase or exchange of any of the articles above mentioned, a description thereof, the name, description, and residence of the person from whom purchased and received, and the day and hour when such purchase or exchange was made; each entry shall be numbered consecutively, commencing with number one, and any and all of such articles so purchased or exchanged shall be retained by the purchaser thereof for at least thirty days before disposing of the same, and kept in an accessible place in the building where such articles are purchased or received, and a tag attached to such article in some visible and convenient place, with the number written thereon corresponding to the entry, number on the book. And any such purchaser shall prepare and deliver every day to the mayor of the city in which such business is carried on, before the hours of 12 o’clock M., a legible and correct copy, written in English, from such book, a description of all such purchases, purchased or received during the preceding day, together with the hour at which the purchase or purchases were made, together with a description of the person or persons from whom the same was purchased.”

The plaintiff in error was arrested upon an affidavit purporting to charge him with a violation of one of the provisions of this statute, and an information was thereafter filed in police court, and he was tried upon that information, and found guilty, and sentenced as stated.

There are various errors complained of by the plaintiff in error. First, it is claimed that the affidavit and the information based upon the affidavit are defective, in that they do not charge an offense under this statute. The claim of counsel for plaintiff in error is that the affidavit and the information do not charge with sufficient definiteness that he did not retain the old metal. The language of the affidavit is this:

“And said Jacob Neifeld did unlawfully fail and neglect to retain said lot of old metal, to-wit, said eighty-two pounds copper wire, thirty days before disposing of the same.”

And the language of the information is the same.

The statute provides, “And any and all of such articles so purchased or exchanged, shall be retained by the purchaser thereof for at least thirty days before disposing of the same.”

It is argued that the affidavit and information should negative the provision of the statute; that the charge should be plainly and distinctly made that he did not retain the articles in question; that that exactly, or in substance, should be the language of the affidavit; and that the language used is not equivalent to charging the plaintiff in error with a violation of the provision of the statute, in that it charges only that he failed and neglected to retain. It is urged that he might have failed to do anything in the way of retaining this property, or might have neglected to retain it, or to do anything to retain it, and still that it might have been retained, and that therefore the affidavit and information do not charge a violation of this section.

We are of the opinion that this language does substantially charge the offense named in this statute; that to charge him with failing to retain the old metal is in substance charging that he did not retain it. It was his duty under the statute to retain the metal for thirty days after its purchase. The affidavit and information charged that he failed to do this. It seems to us that to charge him with failing to retain the metal as provided by statute, is substantially charging that he did not retain it. It certainly was sufficient to notify the defendant below and his counsel of the offense with which he was charged. We can not see that the defendant could have been prejudiced by reason of the language not being more definite in advising him of the charge that was made against him. Section 7215, Revised Statutes, relating to indictments, applies as well to affidavits and informations. The title of Section 7215 is; “Wfrat defects in an indictment are not fatal.” Then, after reciting various things that are not fatal, the statute provides:

“Nor for want of averment of any matter not necessary to be proved; nor for any other defect or imperfection which does not tend to the prejudice of the substantial rights of the defendant upon the merits.”

This statute was considered by the Supreme Court in Burke v. State, 34 Ohio St., 79, where there was a conviction for burglary. The Supreme Court say in the syllabus:

“Where the charge is burglary by breaking into the ear of a railroad company, designated by its corporate name, but the indictment contains no averment that the company was incorporated, the accused can not avail himself of the defect, if defect it be, in view of the code of criminal procedure.”

And in the opinion, which was delivered by Judge Okey, on page 81, it is said:

“A great advance has been made in the laws relating'to crimes, punishments, and criminal procedure. The fact is unquestioned that there was a time when felonies, which at common law were few in number, embraced by parliamentary enactments more than two hundred offenses, when acts were punishable with death, which, if committed in this state, at this day, would not be punishable at all; when one charged with felony was not permitted to have a copy of or even examine the indictment, to call witnesses in his defense, or to have the assistance of counsel; when no instance could be found in which a jury, in a criminal ease, had failed to render a verdict on the same day it was impanneled; when jurors were fined for refusing to return a verdict of guilty; when the ordinary course was to sentence as soon as a verdict of guilty was rendered, and cause the accused to be executed on the following morning, it is not strange that in such a state of the criminal law, humane judges, in favorem vitae, would determine cases upon technicalities which at this day would be regarded as frivolous. But all this is changed. Now the tendency is, on the one hand, to disregard that which is merely formal and technical; on the other, to preserve, in every stage of the case, all matters of substance, and afford the accused a trial as full, fair, and impartial as can reasonably be desired', with the presumption of innocense effectual for his protection, until his guilt is proved beyond reasonable doubt. ’ ’

No objection was made to this affidavit or information until the trial was commenced, and then the objection was made that no evidence could be introduced under the affidavit. We think the affidavit did in fact charge a violation of the statute, and in any event that if there was any defect in the affidavit, it did not prejudice the substantial rights of the defendant below.

It is claimed that various errors were committed by the court in the admission of evidence .upon the trial of the case. As apppears on page 2 of the bill of exceptions, the prosecuting witness was asked:

“What, if any, report did he, the defendant, Neifeld, make on or about the 8th day of December, 1900, of metal claimed to be purchased by him 1 ’

This was objected to, and overruled, and he answered: “He made a report.”

And then follows the question, “Is this the, report?” And he answers, “Yes.”

We see no objection to this testimony, in view of the fact that the report was there, and was handed to the witness, and was afterwards admitted in evidence, and is attached to the bill of exceptions. It seems from the record that after he made this report, Daley, who was an officer of some kind, went over to Neifeld’s place of business with the report, for the purpose of making an examination of some items contained in the report, and he is asked, on page 4, a question, the answer to which is objected to. The question is this:

“State what, if any further examination you made at that time, of the items.” He answered: “I went over to get a better description of the wire, and Neifeld told me he had disposed of it.”

Counsel moved to strike out this answer, for the reason that it was not responsive to the. question, but the court overruled that motion, and error is claimed upon that answer’. It is true that the answer is not responsive to the question. He was asked what further examination he made at the time. He answers by saying he went over to get a better description of the wire. That far the answer is substantially responsive to the question. And then he adds, “And Neifeld told me he had disposed of it.” The inference from the answer is that he went over to examine the wire, and did not find it there, and accordingly made no examination, and the witness says that Neifeld told him that he had disposed of it. While the answer is not responsive to the question, it still was proper testimony in the case, and was an admission, of the defendant, that he had disposed of the wire, and was a proper thing to interrogate the witness upon. The witness was cross-examined, and here was an opportunity to cross-examine him fully upon this answer. We think it was a matter discretionary with the court whether this answer should stand or not, not being wholly responsive to the question, and that there was no error in the court overruling the motion to strike out the answer.

It is urged further that the conviction of Neifeld was contrary to the evidence and not sustained by sufficient evidence.

It appears that on December 8, 1900, he filed a report as required by law, that contained in it an item as follows: “82 copper;” and under the head of “description and residence of person selling,” “H. W. Cliferton, 819 Colburn St.” After this report was filed, Mr. Daley, who said he was a police detective, went over to Neifeld’s place of business, and whether Neifeld is guilty or not depends largely upon the testimony of Daley and Neifeld as to what occurred upon the occasion of Daley’s visits on December 10th and 13th. Mr. Daley testifies that when he went over to Neifeld's place of business after the filing of this report, he found this wire there — saw it there, and talked with Neifeld about it; and that he came back three days later and inquired about it, and Neifeld told him he had sold it or disposed of it. Neifeld denies this, and claims that there was no wire there; that he had no such conversation with Daley; that he did not buy any copper wire at that time; that the copper referred to in his report was not copper wire, but was other material. Neifeld was not arrested for this offense until about a month later.

The question of fact involved here was submitted to the court. It is true there is a direct conflict in the evidence, Daley testifying what he claims about it on the one hand, and is contradicted by Neifeld upon the other. That is not sufficient to warrant a reviewing court in finding that the court below erred in finding beyond a reasonable doubt that Neifeld was guilty of the offense charged. If that were true, a great many criminal cases would have to be reversed on the ground that the judgment was not sustained by sufficient evidence. The court before whom the case is tried has an opportunity to see the witnesses, and observe their conduct on the witness stand, their candor or want of candor, and has a much better opportunity of reaching a just conclusion, and determining where the truth really lies, than a court that knows nothing about the case except what appears in the written record. This rule has been recognized in Breese v. State, 12 Ohio St., 146, where the court say:

“A judgment will not be reversed because the verdict is contrary to the evidence, unless it is manifestly so, and the reviewing court will always hesitate to do so where the doubts of its propriety arise out of a conflict in oral testimony.”

This man was convicted of burglary. The court say, in a paragraph on page 156:

“The jury who try a cause and the court before which it is tried, have much better opportunities to determine the credibility and effect of the testimony, and we ongbt, therefore, to hesitate before disturbing a verdict rendered by a jury and confirmed by a court, possessing such advantages, merely because there is an apparent conflict in the testimony. The conflict or its effect might all disappear, if the witnesses were examined before us and we could see and hear them face to face, as they were seen and heard by the court and jury whose verdict and judgment are passing in review before us.”

Upon an examination of the whole record we feel that we would not be warranted in disturbing the judgment upon the ground that it is not sustained by sufficient evidence. The judgment in this case is affirmed.

We will now consider the case of the same plaintiff in error against the city of Toledo.

On December 31, Daley again' went to Neifeld’s place of business, as he claims, to inspect his establishment and some property which he had, Daley being then and there in search of some property that was alleged to have been stolen. Neifeld was charged in this case with resisting Daley, who, it was alleged, was an officer duly authorized in the premises. He was tried before the police court without a jury, and found guilty, and sentenced to imprisonment in the workhouse, and it is to reverse this judgment that this second proceeding in error is filed. Neifeld was prosecuted in this case under an ordinance of the city of Toledo, which is as follows:

“Any person who shall, within the limits of this city, abuse, resist, or hinder any policeman, watchman or any other city officer in the execution of the duties of his office, shall be deemed guilty of an offense, and on conviction thereof shall be fined in any sum not less than five nor more than fifty dollars, and imprisoned at hard labor not exceeding thirty days. And in ease of the refusal or neglect of any person to pay such fine and costs, the court shall order such person to be imprisoned at hard labor until the same are fully paid. ”

Daley was acting, or claimed to be acting, under certain statutes of the state of Ohio which authorize the inspection of junk shops, and which contain other provisions in regard to junk shops, second-hand dealers, etc. The sections referred to are Sections 1917, 1918 and 1919, Revised Statutes. Section 1917 provides that:

“The mayor and the superintendent of police, and the lieutenants of police within their district, shall possess powers of general supervision and inspection over all pawnbrokers, junk shop keepers, cartmen, haekmen, dealers in second-hand merchandise, intelligence office keepers, and auctioneers within such city; and in the exeriése, and in the furtherance of such provisions, may, from time to time, detail members of the poLiee force to fulfill such special duties in the aforesaid premises, as may be ordained by the board.”

Section 1918 provides:

“The superintendent and the lieutenants within their districts may, by authority in writing, empower any member of the police force, whenever such member is in search of property feloniously obtained, or in search of suspected offenders, to examine the books of any pawnbroker, or his business premises, or the business of anj> junk shop keeper or dealer in second-hand merchandise, or intelligence office keeper; and such member of the force, when thereunto authorized in writing as aforesaid, and having in his possession a pawnbroker’s receipt or ticket,' shall be allowed to examine the property purporting to be/ pawned, pledged or deposited on such receipt or ticket, in the possession of whomsoever such property may be; but no such property shall be taken from the possessor thereof without due process or authority of law.”

The affidavit in this case shows that the prosecution was commenced under Section 1917, Revised Statutes, as it alleges that—

“F. G. Daley, a police officer of said city, while said officer was in the execution of the official duties of his office, to-wit, attempting to inspect old metal in possession of. said Neifeld, he, the said Neifeld, being then and there a dealer in junk and old metal, the said police officer being duly authorized and qualified according to law to make such inspection, all of which said defendant, at the time he so resisted, hindered and abused the said police officer, well knew.”

Section 1917, Revised Statutes, as has been observed from the reading, provides for the inspection of junk shop dealers.

There are various errors complained of in this ease. First, it is claimed that the record in the case does not show that Daley was a police officer. We think, on an examination of the whole record, although he testifies he was a police detective, that it does show that he was a police officer, and that the evidence in that behalf is sufficient to establish that necessary element in the offense. He testifies also that he was regularly detailed to do this work, and on page 6 of the record he testifies that the defendant knew he was an officer, and in other places in the record he speaks of himself as an officer.

But it is alleged that, although he was an officer, that he was proceeding in this matter without that authority which was required. Daley’s testimony shows that he went to Neifeld’s place on December 31, and as he reached there, he saw Neifeld coming with a horse and buggy. He took out a basket of lead pipe and took it into his shop. Daley says he followed him into the shop, and when he laid the basket down he said: “Mr. Neifeld, I want to look at this lead pipe-, I am looking for something that answers the description of what you have here, ’ ’ and Daley testifies: “And he grabs hold of the basket and says, ‘you can’t look at anything here without a search warrant;’ and he went to the rear of the shop and tried to scatter it in around some barrels he had there, and I said, ‘Neifeld, the law requires you to hold this for thirty days,’ and he grabbed the basket and said, ‘Damn you and the law. Go out of here; you have no right in here at all without a search warrant; ’ and attempted to put me out of the building, and I arrested him.’’ He then testifies that it occurred in this county, and that Neifeld grabbed hold of his coat and pulled off a couple of buttons. That is substantially all there is of Daley’s testimony in chief. There was no evidence that Daley had a search warrant, or that he had any written authority, or that he had any authority in the premises except it be as he testified, that he was detailed to do this kind of work.

There can be no question that before one man can enter another man’s premises and interfere with either his person or property, unless he has committed an offense in the presence of an officer, the person so interfering must have some authority of law. The statutes provide that under a search warrant which has been properly issued, premises may be searched, and Section 1917, Revised Statutes, provides for the inspection of junk shop keepers and their premises, and it provides that—

“The mayor and the superintendent of police, and the lieutenants of police within their districts, shall possess powers of general supervision and inspection over all pawnbrokers, junk shop keepers, cartmen, haekmen, dealers in second-hand merchandise, intelligence office keepers, and auctioneers within such city.”

So that by those provisions of this section the officers named have general powers of supervision and inspection over such persons; and in the latter part of the statute it is provided that these officers “in the exercise, and in the furtherance of such provisions, may, from time to time, detail members of the police force to fulfill such special duties, in the aforesaid premises,, as may be ordained by the board.” There is no evidence in this record that the police board had ever taken any action under this statute, or had ever ordained any duty to be performed in carrying out the provisions of this section. There is no evidence in the record that Daley had any authority whatever for what he did, except as he says he had been detailed to inspect and to look after these places.

We are of the opinion that it was necessary for the city to show the authority which Daley had, if he had any; under this statute; that it was necessary for the city to show that the police board had ordained certain duties to be performed, and that he had acted within the limits of the duties that had been prescribed by the police board. The power to enter a place of business at any time, and inspect it, or take possession of property, is rather a wide power, and might be abused; and the statute evidently was intended to throw around it restrictions and limitations, and to only authorize the officer to exercise such power and perform such duties as had been prescribed by the police board.

It is not necessary to cite authorities to show that an officer has no power except in certain cases to arrest without a warrant, or interfere with the personal property of another. It has been held a great many times.* It has been held by the Supreme Court that one could not be properly convicted of resisting a supervisor of roads, where the statute under which the supervisor was acting was unconstitutional (Hendershot v. State, 44 Ohio St., 208). Although the officer in that ease, as the statute read and stood upon the statute books, had authority, he in fact had none, because the statute was unconstitutional.

Seney & Johnson, for plaintiff in error.

M. R. Brailey and C. E. Sumner, for defendants in error.

If it should be claimed that he was acting under Section 1918, Revised Statutes, which refers to the examination of boobs, we find upon an examination of it that that section requires authority in writing. It provides that—

“The superintendent and the lieutenants within their districts may, by authority in writing, empower any member of the police force, whenever such member is in search of property feloniously obtained, or in search of suspected offenders, to examine the books,” etc.

We are hot advised under which statute the city was proceeding, as no brief was filed by counsel for defendant in error. We have considered both of the sections, and the evidence shows in this case that Daley was in search of property claimed to-have been stolen. If it should be claimed that he was acting under Section 1918, Revised Statutes, then it is clear that he was acting without authority, because he had been given no authority in writing as required by this section.

Daley having no authority to enter Neifeld’s place of business and'take possession of his property, Neifeld had the right under the law to resist him, as he would any other person under the same circumstances. The fact that he knew Daley was an officer, if he had such knowledge, did not affect his rights. He was arrested there and then by the officer for the offense of resisting an officer. We are of the opinion that the city failed in the respects mentioned to make a case against Neifeld, and therefore the judgment should be reversed, for the reason that it is not sustained by any evidence upon these material elements in the case. We find no other errors in the record. The judgment will be reversed for the reasons stated, and the case remanded for a new trial.


text:
    WITHDRAWAL OF CONSENTS VALID.
    [Circuit Court of Cuyahoga County.]
    City of Cleveland v. Cleveland City Railway Co. et al.
    Decided, March 20, 1902.

      Street Railways — Consents by Abutting Owners to Building of — No Jurisdiction over Action of a Property Owner in that Behalf— Withdrawal of Consent for a Consideration, Valid — Injunction on Grounds of Morality.

    1. An abutting lot-owner may give or withhold or withdraw consent to the building of a street railway in front of his property, and whether he does the one or the other he incurs no liability, legal or equitable, to the city or its citizens on the one hand, or to an individual or ^corporation proposing, on the other hand, to construct and operate the railway under a contract with the city; and his action or motives in that regard do not give jurisdiction over him to- any court.
    2. The proprietor of a street railway is not an agency of the state performing governmental functions which a threatened withdrawal of the consent of an abutting property owner would wrongfully obstruct.
    3. It is not for courts to pass upon or attempt to regulate the morality of an action, unless a point is reached where some legal or equitable right is involved; and a withdrawal of consent by an abutting property owner to the building of a street railway, induced by a money consideration paid by a competing company, does not present such a case.
    Hale, J.; Caldwell, J., and Marvin, J., concur.
   These cases come into this court by appeal, and are submitted upon a general demurrer to the petition.

The same relief is asked in each petition, and substantially the same averments are contained in each. From these averments it appears that the city, by ordinance, designated a route through certain streets of the city for a street railroad route, and, by ordinance, prescribed the conditions upon and the manner in which the proposed railroad should be constructed and operated. This being done, the clerk advertised for proposals' to construct the proposed road, and in response to such notice the plaintiff in one of the eases, Hoefgen, submitted a proposal to construct and operate the road in accordance with the terms and conditions prescribed in the ordinance, and to carry passengers at a three-cent fare on the proposed road. He submitted also with his bid a deposit of $50,000 at the time of the proposal, to insure the faithful performance on his part of the terms of the proposals made.

His was a bid proposing to carry passengers for the lowest rate of fare; indeed, I suppose it was the only proposal submitted, although that does not appear from the petition.

It is then alleged that the defendants, the railway companies, confederated and conspired with the other defendant, they being in a monopoly of the street railroad business of the city, to defeat the city and this proposed contractor in the prosecution of this enterprise by inducing certain land owners along the < route of the proposed railroad to withdraw consents already given to its construction, and wrongfully inducing other landowners to withhold consents by the use of corrupt and unlawful means, including the payment of money to accomplish such purpose. It is alleged that unless restrained by the order of the court, these corporations will pay to certain lot owners money for the consideration of the withdrawal and withholding consents already obtained. The court is asked to enjoin the doing of these threatened acts.

The question is: Do the petitions, or either of them, make a case for the relief asked? If the acts, which is alleged are , threatened, will infringe or invade any of the rights of the plaintiff in either case, legal or equitable, then the demurrers to these petitions should be overruled; but, if no such effect follows from the doing of the acts that are alleged to be threatened, then the demurrer should be sustained.

Proceedings are had for the establishment of this railroad, under Sections 2501 and 2502, Revised Statutes. The provisions relating to the consent of lot owners are found in Section 2502, Revised Statutes, and provides in substance, that no contract by the city can be made for such improvements unless the contractor “shall have previously obtained the written consent of a majority of the property holders upon each street, or part thereof, on the line of the proposed street railroad, represented by the feet front.”

It will be observed that the Legislature has not conferred the unlimited power upon the municipalities to permit streets to be used for railroad purposes, but only such streets as a majority of the property owners consent to such use. Without such consent the city is not clothed with power to authorize the construction or operation of a street railroad on the streets designated in this proposed route.

It will be conceded that neither the city nor Hoefgen has any cause of action against the lot owners for either withholding or withdrawing consent. The lot owner may give or withdraw his consent at will. It is, however, a voluntary matter with -him. Whether he does the one or the other, he incurs no liability, legal or equitable, to the city, its citizens or an individual, or corporation proposing, under contract with, the city, to construct and operate a railroad in the street on which he resides. The lot owner, by remaining passive, is wholly outside of the controversy- — no party to the transaction, and in no sense responsible for the success or failure of the enterprise. Moreover, his reasons or motives for giving or withholding consent are wholly immaterial. The fact that one is a lot owner upon one of the streets upon which it is proposed to construct this railroad does not confer upon any tribunal jurisdiction to inquire into his motives for giving or withholding his consent, or in any way to question his right to thus act.

It is said, however, that a third party who induces this lot owner, by persuasion or by the payment of money, to withhold his consent which neither the city nor the contractor has any legal or equitable right to claim, violates the legal or at least the equitable rights of the city and the contractor; that in some way there is created in favor of the city and contractor a cause of action, legal or equitable, for inducing the lot owner to withdraw his consent for which no cause of action, legal-or equitable, is created against him. This would seem to be most extraordinary if true. We are cited to no case, and have found none, sustaining or tending tq sustain such a proposition.

Our attention is called to an unreported decision of the circuit court in Butler county, Ohio, wherein it is held that the consent of a lot owner purchased by the proposed bidder can not be counted. This may be correct. The bidder seeking a contract with the city in his own interest, can not purchase consent of a lot owner. -The transaction is one directly connected with the proposed contract, and involves the acts of one of the parties thereto, and the courts hold that he can not take advantage-of his own wrong. The rights of a lot owner are not discussed in that case at all. There is no analogy between that case and the one we are considering. Dealings between lot owners and third parties upon a subject-matter which he alone controls and over which the city has no authority whatever, is, in our judgment, wholly without the jurisdiction of courts, to control at the instance of the city or the proposed contractor. We are of the opinion that by the averments of the petition no invasion or impairment of the legal or equitable rights of the city or the contractor is shown.

One other phase of the case may be reverted to but not discussed. We do not think that these petitions can be sustained on the theory that the proprietor of a street railroad is an agency of the state performing a governmental function which the threatened transaction will wrongfully obstruct, in a way to give the court jurisdiction to enjoin.

A street railroad is not strictly a street improvement. It provides a means of transit for public benefit and convenience, no doubt, but is, nevertheless, a private enterprise of an indi■vidual or corporation, subject to such regulations and restrictions as' are provided by statute and that the municipality is authorized to impose. The individual or corporation exercises complete dominion over the property invested in such enterprise.

The city, charged with the control of the streets, may or may not, with the consent of the majority of the property owners thereon, permit the use of the street for such purpose, but the city is not. authorized in its governmental capacity to become the owner of a street railroad and to prosecute the business incident to such ownership, nor can it confer, in our judgment, governmental function upon the proprietor of such street railroads to prosecute such enterprise.

Beacon, Baker & Payer, for plaintiff.

Squire, Sanders & Dempsey and A. F. Ingersoll, for defendants.

The morality of the act sought to be prevented by injunction is not for courts to pass upon or attempt to regulate unless a point is reached where some legal or equitable right is invaded. Independent of any impairment of such rights, the remedy must be sought with the Legislature and not with the courts.

We are of opinion that these petitions, neither of them, state a cause of action upon which the relief asked can be granted, and the demurrer to each is sustained and the petitions dismissed.


text:
    RIGHT OF ONE ACCUSED TO AN INQUIRY AS TO HIS SANITY.
    [Circuit Court of Hamilton County.]
    Rosselot v. State.

    Decided, March 21, 1902.

      'Criminal Law — Defense of Insanity• — Section 7240 Mandatory — Denial of Bight thereunder is Beversihle Error.

    1. The provisions of Section 7240, relating to the submission of the question of the sanity of an accused person to a special jury, are mandatory.
    2. Where one accused of homicide sets up the defense of insanity, he is entitled to a trial on that issue before a jury impanneled for that purpose only, and if found insane his trial on the truth of the indictment shall not proceed.
    Swing, J.; Giffen, J.. and Jelke, J., concur.
    Heard on error.

       Affirmed by the Supreme Court (69 O. S., 91).

   The plaintiff was tried and convicted in the court of common pleas of the crime of murder in the second degree.

After the jury had been sworn, and during the progress of the trial, the aforesaid Rosselot’s counsel suggested to the court that Rosselot was insane, and produced to the court the certificate of one John T. Booth, who represented himself as a reputable physician practicing medicine in the city of Cincinnati. Said Dr. Booth represented to the court that he had examined the said Rosselot and found him to be an insane man, and wholly unable to give any assistance to his counsel or give evidence as a witness; and defendant requested the court to have a jury impanneled under the provisions of Section 7240, Revised Statutes, to try the question as to the sanity of the defendant. This the court refused to do, and defendant excepted.

The court gave as its reasons for not granting the request the following:

“But I am of the opinion that this is not the proper time to take advantages of the proceedings provided for in that section to test the defendant’s sanity, and the court wishes it to be made a part of the record that when the defendant was brought into the court for trial yesterday morning, December 16, that no objection was made by Mr. Cogan, the only counsel for the defendant then present, upon the ground that the defendant was mentally incapable of going to trial. Mr. Cogan entered a protest to proceeding with the trial and desired that his exception be saved to the ruling of the court that he must proceed with the trial. The court made inquiry of various persons after the defendant was brought into court to ascertain if he was in mental condition to proceed with the trial, and was satisfied at the time that he was, and thereupon ordered the trial to proceed. It is the opinion of the court at this trial therefore that the defendant is able to proceed with the trial, and the trial.must go on.”

It should be noted that Mr. Shay, the leading counsel of defendant, was not present at the beginning of the trial, but made said suggestions soon after he entered on the trial of the case.

Section 7240, Revised Statutes, provides:

“When the attorney of a person indicted for an offense suggests to the court in which the indictment is pending, at any time before sentence, that such person is not then sane, and a certificate of a respectable physician to the same effect is presented to the court, the court shall order a jury to t^e impanneled to try whether or not the accused is sane at the time of such impanneling. ”

Shay & Cogan, for plaintiff in error.

Louis B. Sawyer and Arthur C. Minning, for defendant in error.

This provision of the statute is mandatory, and the court must comply •'with the same provided the party indicted has brought himself within its provisions. Undoubtedly the court in the first instance is vested with the power to determine whether or not the attorney of one indicted for an offense suggests to the court the insanity of the accused and whether or not a certificate of a respectable physician is presented suggesting said insanity of the accused; but these provisions of the statute having been complied with, nothing remains for the court to do but to proceed in accordance with the requirements of ’the statute to impannel a jury and try the question of the sanity of the defendant.

In this cause the court refused to comply with the statute, but took upon itself to determine whether the defendant was sufficiently sane to proceed with his trial. The trial proceeded, and the defendant was convicted of the crime charged in the indictment, and sentenced, as required by law. The result is that the defendant was denied the right to have his sanity tried by a jury, under the provision of this section, when he had complied with its provisions, there being no suggestion in the record that the attorneys of the defendant did not suggest the insanity of the defendant, or that the defendant did not also present a certificate of a respectable physician to the same effect.

The defendant had the right to be tried by a jury as to his sanity at the time of the impanneling of the jury. If insane, the trial should not have proceeded, for it is the intent of the law that a man shall not be tried on an indictment at a time when he is insane. And whether he is insane or not, he is to be tried by a jury impanneled for that purpose alone, and not by the judge or jury which is impanneled to try the issue as to the truth of the indictment.

In refusing to submit this question to a jury, we think the court erred, and for this error the judgment should be reversed, and cause remanded for further proceedings.


text:
    ACTIONS AGAINST THE ESTATE OF AN INSOLVENT.
    [Circuit Court of Cuyahoga County.]
    C. W. Cornell et al v. August Sulter et al.
    Decided, December 16, 1901.

      Insolvency — General Assignment — Fraudulent Transfer — Suit to Set Aside Should he Prosecuted hy the Assignee — Creditors can not Sue after Assignment — Jurisdiction of Common Pleas — Exclusive Jurisdiction of Courts of Insolvency.

    1. A general assignment for the benefit of creditors transfers to the assignee all the rights of the assignor and his creditors in the property covered hy the assignment, which includes the interest of the assignor in property held in pledge.
    2. The assignee is the proper party to prosecute an action to set aside a fraudulent transfer of property by the assignor, or to determine the rights of persons claiming liens on any of the assigned property, whether held by pledge or otherwise.
    3. A general creditor can not, after a general assignment, maintain an action under Section 6344 to have a conveyance or transfer of property, fraudulent as to creditors, declared to be an assignment for the benefit of creditors; but where the assignee refuses to prosecute an action for the recovery of such property, a creditor may proceed in an action in equity as a cestui que trust for the protection of himself and others.
    4. Courts of insolvency have exclusive jurisdiction in all matters of assignments for the benefit of creditors, in which an adequate remedy can be granted in such courts; and where an assignee has attempted to reach property fraudulently transferred and to marshal liens, the common pleas court is without jurisdiction to set aside a conveyance alleged to have been fraudulent, or to attack the validity of the order made by the court of insolvency. The jurisdiction of the court of common pleas in that behalf is not broadened by making the assignee a party to the suit.
    Hale, J.; Caldwell, J., and Marvin, J., concur.
    Heard on appeal.
   This case was submitted on a motion for a judgment on the pleadings. The foundation of such, motion rests on the claim that the court of common pleas had no - jurisdiction of the action.

We will not attempt to analyze the pleadings filed in the case, which are very voluminous. A very exhaustive review of the pleadings has been made by counsel upon either side. The following facts, however, appear from the pleadings, ■ and necessary inferences to be drawn therefrom.

On June 18, 1898, August Suiter made a general assignment to--Lacy of all his property of every hind and nature. The deed of assignment was on the same day filed in the court of insolvency.

At the time of this assignment a large amount of property owned by Suiter was in the possession of Benton & Co., upon which they claimed a lien 'for certain advancements made to Suiter prior to the assignment, for the security for the payment of which such property was held in pledge by them. Certain other property of the assignor was in the possession of the Sheriff Street Market & Storage Company for which warehouse receipts had been issued by that company. The receipts so issued to Suiter had been by him transferred to the German-American Savings Bank Company as claimed by the bank as security for certain loans made by it to Suiter. George A. and Richard B. Suiter, sons of August Suiter, the assignor, each claimed a lien upon said property by virtue of mortgages issued to them by their father.

We think it plain that all the right, title and interest of the assignor by his assignment passed to and vested in his assignee as well as to this as his other property.

On June 20, 1898, an inventory and apraisement of the property so assigned was made and filed in the insolveiicy court.

On July 9, 1898, the assignee, Lacy, filed his petition in the court of insolvency, attacking all the liens upon the property held by Benton & Co. and by the Sheriff Street Market & Storage Company, and asking for an order for the sale and marshaling of the liens on the said property. Proceedings prosecuted in said court in that action resulted in a decree marshaling the liens on the said property and ordering the same sold and the proceeds distributed in accordance with the findings of that court.

On June 23, 1898, five days after the assignment by Suiter, this action was commenced by Cornell and others, unsecured creditors of Suiter. The petition states, amóng other things:

“This suit is brought by plaintiffs pursuant to the provisions of Section 6344, Revised Statutes, for the benefit not only of themselves, but of all such creditors of said August Suiter as may comply with the provisions of said Section 6344.”

The object of this action was to have declared void the mortgage liens of George A. and Richard B.- Suiter, and also the liens of Benton & Co. and the German-Ameriean Savings Bank Co.

By some of the defendants in this action at least, the juris-, diction of the court of common pleas is denied and the facts upon which that denial is based specified. For some reason, not appearing upon the record, the plaintiffs who brought the action have ceased to prosecute the same, but other general creditors having been made parties to the action are continuing the prosecution. These creditors now prosecuting the action were parties to the action brought in the court 'of insolvency by the assignee, in which it was sought, as already stated, to settle the rights of all the parties to the property involved in this action.

Since the proceedings in the court of insolvency, the as-, signee, Lacy, has been superseded by Fogle, trustee. In their answers, cross-petition and replies these creditors and Fogle, trustee, attack most vigorously the proceedings in the court of insolvency, and assert that the judgment of that court was brought about, and the assent of the court to the judgment there entered, by the grossest fraud and conspiracy by the assignee, Lacy, and the pretended lien-holders to that property who conspired to cheat and defraud the unsecured creditors of said assignor, Suiter.

Had the court of common pleas jurisdiction of this action, and have we any upon appeal?

We hold that the jurisdiction of the court of insolvency in matters of assignment is exclusive in all respects in which it is adequate to grant the proper relief. Certainly all the proceedings had in that court were strictly within its jurisdiction.

Counsel for Fogle, trustee of the unsecured creditors, answered this question as if there had been no adjudication or attempted adjudication in the court of insolvency.

If there had been no assignment, then a general creditor might commence an action under favor of Section 6345, Revised Statutes, to obtain the relief here sought. If after a general assignment the assignee refused, on request, to bring action to set aside a fraudulent conveyance and to have declared fraudulent and void, mortgages given without consideration, it is not asserted that an unsecured creditor might not bring such action, and that the court of common pleas in such case would not have jurisdiction.

It is conceded in this case that an assignment had been made by Suiter, that the assignee had prosecuted his action in the court of insolvency to determine whether this property had been fraudulently conveyed by Suiter before the assignment and to determine whether any of said liens were fraudulent and void; in which action he sought to marshal the liens and procure a sale of said property.

No request of, or refusal by, the assignee had been made to prosecute this action.

Under the allegations of the petition, clearly the court of common pleas had no jurisdiction of this action.

An assignment having been made covering, as we hold, all the rights of the assignor in this property, it was the duty of the assignee who, by virtue of this assignment, became possessed of all the rights of the assignor and also all the rights of the creditors in the property embraced in the assignment, to enforce all such rights. Nor is the jurisdiction of the court of common pleas enlarged by the answers of the unsecured creditors in attacking the proceedings in the insolvency court as brought about, and the assent of the court obtained to the decree and judgment rendered by fraud on the part of such assignee and the secured creditors. Nor is it material whether or not the judgment of the court of insolvency has been vacated. The action brought in that court has been either finally disposed of or is still pending, and, in either case, the exclusive jurisdiction was in that court. The attack made upon the proceedings of that court as fraudulent can not avail in this action. Parties must either abide by the judgment therein rendered, or seek a review by direct proceedings in error.

From the conceded facts appearing- by a careful analysis of the pleadings, we deduce the following propositions which we deem applicable to the case:

First. A general assignment for the benefit of creditors transfers to the assignee all the rights of the assignor and his creditors in the property included in the assignment. This includes all the rights of the assignor in property held by a pledgee as security for a debt.

Second. The assignee is the proper party to prosecute an action to set aside a fraudulent transfer of property or to determine the rights of persons claiming liens on any of the assigned property by pledge or otherwise.

.Third. No action can be maintained under Section 6344 of the Revised Statutes of Ohio, by a general creditor after a genral assignment to have a conveyance or transfer of property fraudulent as to creditors, declared an assignment for the benefit of creditors.

Fourth. The creditor may, on refusal of the assignee to prosecute such action, prosecute an action in equity as a cestui que trust for the protection of himself and others, but this he can only do when the assignee on request refuses to act.

Fifth. It clearly appears that the assignee not only did not refuse to act, but did himself prosecute an action in the court of insolvency having jurisdiction of the subject-matter of the parties to accomplish every object sought to be attained in this ' action.

Sixth. The fact that the assignee was made a party to this action in any way, neither operates to change the rights of the parties, or extends the right of the creditor to maintain this action.

Seventh. The court of insolvency is clothed with exclusive jurisdiction in all matters of assignment under our statutes, in which an adequate remedy can be given by that court, and the prosecution of the action in that court by the assignee as attempted by the trustee, Fogle, and the unsecured creditors, takes from them any right they might otherwise have to maintain this action.

J. O. Winship, for prosecuting creditors and trustee.

W. W. Reynolds, Brewer, Cook & McGowan and John C. Heald, for W. J. Benton & Co.

The motion for judgment upon the pleadings is sustained.


author: Burrows, J.,

text:
    PETITIONS IN ERROR. IN COMMON PLEAS.
    [Circuit Court of Mahoning County.]
    William Brobst v. Village of Canfield.
    Decided, March Term, 1903.

      Petitions in Error — Refusal of Leave to File in Common Pleas — For Violation of an Ordinance — Reviewadle in the Circuit Court.

    The granting of leave to file a petition in error 'in common pleas for the review of a judgment of conviction under a municipal ordinance is a matter of discretion, and where leave to file is refused the action of the court in so doing is reviewable in the circuit court and where the errors complained of are substantial, the refusal of leave to file will he reversed with directions to permit the filing.
    Cook, J.; Laubie, J., concurs; Burrows, J., dissents.
    Heard on error.
   Plaintiff in error, William Brobst, was convicted in the municipal court for the violation of an ordinance of the village of Canfield, Mahoning county. He made application to the court of common pleas for leave to file a petition in error under Section 1752, Revised Statutes, which was refused, the court placing upon the journal such refusal, to which exception was taken by plaintiff in error, and he now prosecutes error in this court to reverse’the order of the common pleas court in refusing leave to file the petition in error.

The contention of defendant in error primarily is that this court has no jurisdiction to review the action of the common pleas court in refusing leave to file the petition in error.

Has this court such jurisdiction? A majority of the court thinks it has. Section 7356, Revised Statutes, provides:

“In any criminal case including a conviction for a violation of an ordinance of a municipal corporation, the judgment or final order of a court or officer inferior to the common pleas court may be reviewed in the common pleas court.”

The court of common pleas therefore had jurisdiction to review the conviction under the ordinance.

Section 6709, Revised Statutes, provides: »

“A judgment rendered or final order made by any court of common pleas or a judge thereof, may be reversed, vacated or modified by the circuit court of the county wherein such court of common pleas is located, for errors appearing upon the record.”

Section 6707, Revised Statutes, provides:

“An order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment, and an order affecting a substantial right made in a special proceeding or upon a summary application in an action after judgment, is a final order which may be vacated, modified or reversed, as provided in this title.”

It is claimed on behalf of defendant in error that there was no action in error pending before the common pleas court because no petition in error had been filed. True, but was it not a special proceeding? Application had been made to the court for leave to file a petition in error; it was done by motion properly filed, of which due notice had been given to the village; the court passed upon the motion, overruling the same, refusing the leave, and making the proper entry on the journal of such refusal.

The case of Missionary Society v. Ely, 56 Ohio St., 405, was a proceeding in the probate court for the probate of a will. Probate of the will was refused in the probate court; it was appealed to the common pleas court and again probate of the will was refused. A petition in error was filed in the circuit court, and that court dismissed the petition, assigning as the reason for such dismissal that it had no jurisdiction to review the action of the- common pleas court. The Supreme Court held:

“1. An application to the probate court to admit an alleged will to probate is a special proceeding within the meaning of that clause of Section 6707, Revised Statutes, which provides that an order affecting a substantial right made in a special proceeding is a final order which may be vacated, modified or reversed, as provided in Title IY of the Revised Statutes.
“2. The order of the common pleas refusing to admit to probate is a final order affecting a substantial right, from which error may be prosecuted to the circuit court, and that court has, by virtue of Section 6709, Revised Statutes, jurisdiction to reverse, vacate or modify such order for error appearing on the record.”

In the opinion Spear, J., says, p. 407:

“The contention being whether or not the circuit court had jurisdiction to review the order of the common pleas, the first inquiry naturally is as to the character of that court, and the character of its order refusing to admit the alleged will to probate. Was it a special proceeding, and was the order a final order?
“As to the first inquiry, it seems to us there can be but little difficulty. Our code does not, as does the code of New York, specify that every remedy which is not an action is a special proceeding, nor does our statutes give any definition of an action or a special proceeding. But we suppose that any ordinary proceedings in a court of justice, by which a party prosecutes' another for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense, involving the process and pleadings, and ending in a judgment, is an action,, while every proceeding other than an action, where a remedy is sought by an original application to a court for a judgment or an order, is a special proceeding. As given by Bouvier, a remedy is ‘the means employed to enforce a right, or redress an injury.’ Section 5921, Revised Statutes, and cognate sections, give a right to any person to whom any estate has been devised or bequeathed by any last will or to any person interested therein to propound such will for probate, and the proper proof being made that the will was duly attested and executed, and that the testator, at the time of executing the same, was of sound mind and memory, of full age, and not under any restraint, the right exists in the proponent that the court shall admit the will to probate. In no other way can he enforce his right to have the benefit of the provisions of the will. The court, by the mandatory requirement of the statute, is called upon to determine as to the existence of the right, and it being ascertained that the paper presented is the last will of the deceased, its admission to probate follows as a legal necessity. The law having conferred the right, and authorized an application to a court of justice to enforce it, the proceeding upon such application is of a judicial nature, and, not being an action within the sense of the code, it follows that it belongs to that class known as special proceedings. ’ ’

It may be claimed that the order of the common pleas court was not final; that application could be made again to the court. If it could, which is more than doubtful, it would have to be made to the same court and upon the same record, and its action under those circumstances would seem to be final; and, furthermore, Section 1752, Revised Statutes, provides that in case of affirmation or reversal by the common pleas, the judgment may be reviewed in the circuit court. That it affected a substantial right there can be no doubt, as it absolutely determined the right of plaintiff to have the action of the municipal court reviewed.

Finally, it is claimed that Section 1751, Revised Statutes, in effect declares that the refusal of the common pleas court to grant the leave to file a petition in error is final; that in terms it determines that it is not reviewable, and upon this last question only is there any disagreement among the members of the court. The section, so far as important to this inquiry, provides :

“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 on leave of the court or a judge thereof, and such court or judge has power to suspend the sentence, as in criminal eases. ’ ’

It will be observed, as we have heretofore stated, the section provides that the judgment of the common pleas court of affirmation or reversal may be reviewed as in other eases, showing that the intent of the Legislature was that the same proceedings should be had as in ordinary criminal cases. Under such circumstances we do not think it possible that it was the intention that, in the first instance, the common pleas court could finally close the door to any investigation of the errors that might appear upon the record, however plain and flagrant. If such was the intention, it certainly would have been expressed in plain and unequivocal terms and not left to inference. Violation of ordinances of municipal corporations are often attended with severe penalties, both by fine and imprisonment, and where our statutes so generally provide for review by proceedings in error, both in civil and criminal cases, the presumption should be very strong that the intention of the act was to prevent review before we could give it such construction.

We do not say that the common pleas court may not be justified in refusing leave to file a petition in error; what we hold is that it is a matter of discretion, a legal discretion, and a final order in a special proceeding which is reviewable, and if the circumstances in each particular case show that the petition should have been filed and the ease fully heard upon the errors complained of, this court will reverse for error in refusing the leave.

Counsel for the village calls attention to the ease of Rothwell v. Winterstein, 42 Ohio St., 249. We do not think that ease applicable to this case. That was a case in forcible detainer. In such case the judgment is not final, the statute expressly providing that the judgment should not be a bar- to any after-action brought by either party, and, as we understand the case, that was the reason for the holding that the refusal of the common pleas court to allow a petition in error to be filed was not reviewable.

We have looked into the errors assigned in the motion for leave to file the petition in error, also as found in the record, and we find them not to be trivial, but substantial and such as should be fully and carefully considered, and, without expressing any opinion upon them, it is ordered that the order of the common pleas court, in refusing leave to file a petition in error, be reversed, and the common pleas court directed to permit the filing of the petition in error.

E. N. Brown, for plaintiff in error.

G. A. Manchester, for defendant in error.

Burrows, J.,

dissents.

I place my dissent in this case upon the provisions of Section 1752, Revised Statutes, that “A conviction under an ordinance of any municipal corporation may be reviewed by petition in error; * * * but no such petition shall be filed except on leave of the court or a judge thereof.”

It is not suggested that the court here mentioned is other than the court of common pleas. Neither is it suggested that the language or meaning of this section is uncertain.

In unequivocal terms it requires the leave of the court of common pleas or a judge thereof, as a condition precedent to the review of a conviction under an ordinance. Since this right to review does not exist except when given by statute, it follows that the refusal of the court of common pleas to allow the petition in error to be filed precludes any further proceedings upon such petition. But it is claimed that this court may review and reverse the order of the court of common pleas refusing such leave, by virtue of the power given the circuit court in Section 7356, Revised Statutes, to review the judgments and final orders of the court of common pleas.

Conceding that the refusal of leave is a final order, still the circuit court has jurisdiction by Section 7360, Revised Statutes, only to affirm or reverse judgments; and can reverse those only that are in their nature and character reversible. An affirmance or reversal in this case would alike leave the plaintiff in error out of court.

To give relief to the plaintiff in error this court must go farther and allow the petition in error to be filed in the court of common pleas. And this, in effect, would amend Section 1752, Revised Statutes, so that a petition in error could, in such eases, be filed in the court of common plea's on leave of that court or a judge thereof; or, when refused by them, on leave of the circuit court.

If this position is correct, then by Section 7306o-, Revised Statutes, this judgment, if reversed by the circuit court, may be reviewed in the Supreme Court. The manifest purpose of the exception in Section 1752, Revised Statutes, is to shut the door of the common pleas against all petitions in error from convictions for ■ municipal offenses which that court or a judge thereof considers lacking in legal merit. This evident purpose of the Legislature is thwarted by the decision made in this case. The grant of power to allow or refuse applications in these cases must, in the nature of the case, be discretionary and exclusive. Any other constructicm, instead of putting an end to cases whose merit is thus condemned, would give to such offenders an enlarged opportunity for litigation and delay.


text:
    INJURY TO BRAKEMAN THROWN FROM MOVING TRAIN.
    [Circuit Court of Lucas County.]
    Lake Shore & Michigan Southern Ry. Co. v. Fred. Vogelson.
    Decided, January 14, 1902.

      Negligence — Railways—Bralceman Falls from Caboose — Evidence as to Contributory Negligence — Failure to Disclose at the Time of 'the Accident One of the Alleged Causes — Custom as to Signaling— Compromise Verdict — Settlement.
    1. Where an employe who has been injured in an accident fails to mention one of the alleged causes at the time his statement is taken following the accident, doubt is cast upon his testimony as to such alleged cause, when made long after in court in support of a claim for damages.
    2. In the absence of evidence of a custom of giving a signal before cutting off an engine used as a pusher in helping a freight train over a grade, the failure to give such a signal on the occasion of the accident is not negligence, if -the engine was cut off in the usual manner.

      3. A finding by a jury against a claim of settlement is against tbe weight of the evidence, where the claim of settlement is supported by the fact that after coming out of a hospital where he was treated at the expense of the company, the plaintiff accepted a sum of money and signed a receipt in full of all claims growing out of the accident, and remained in the employ of the company for two years without complaint, and the only evidence against the claim of settlement is that given by the plaintiff four years after the accident.
    Hull, J.; Haynes, J., and Parker, J., concur.
    Heard on error.
   The defendant in error in this action was the plaintiff below, and brought his action against the Lake Shore & Michigan Southern Railway Company to recover for personal injuries which he claimed he sustained on account of negligence of the railway company. The case was tried to a court and jury, and at the conclusion of the plaintiff’s testimony the defendant moved the court to instruct the jury to return a verdict for the defendant. This motion was overruled and the case proceeded and a verdict was finally returned by the jury in favor of the plaintiff for the sum of $500. Motion for a new trial was made by the defendant, which was overruled and a judgment entered in favor of the plaintiff for the amount of the verdict, and it is to reverse this judgment that a petition in error was filed in this court.

There were two general defenses by the railway company:

First. That it was not guilty of negligence.

Second. That whatever claim the plaintiff had against the company was settled, and that for a valuable consideration he released the company from all liability.

Evidence was offered to sustain both these defenses.

The plaintiff in error claims that the court erred in refusing to take the ease from the jury at the conclusion of plaintiff’s testimony, and next, in overruling the motion for a new trial, on the ground that the verdict was not sustained by sufficient evidence and was therefore contrary to law.

Although some other questions are made in the record, these are the only questions that are passed here, and the only ones of sufficient importance to consider in the discussion of the case.

The accident occurred in the western part of the city of Toledo, near Air Line Junction and near the overhead bridge of the Michigan Central Railway Company. Yogelson was a brakeman on a freight run between Toledo, Ohio, and Elkhart, Indiana, and on the day of his injury, May, 17, 1897, he was starting with his train for Elkhart. In order to help the train start and push it over the grade, it was pushed by a pony engine to a place near the overhead bridge mentioned.

The pony engine is called a “pusher,” and when in the judg-, ment of the conductor of the pony engine it was not necessary to go further, the custom was 'to cut off the engine or “pusher” and the train then proceeded on its way without further assistance.

On this occasion, when the pony engine was cut off from the train, Yogelson was on top of the caboose, which was immediately in front of the pusher, and he fell off, his claim being that the locomotive was cut off without warning, and so suddenly that the slack of the trian was thereby suddenly released and he was thrown, or jerked off the top of the caboose by the jar or jerk that was occasioned by the cutting off of the pusher; and that is one of the acts of negligence complained of, to-wit, that the locomotive was cut off so suddenly as to constitute negligence, thereby jerking him off the top of the caboose; and it is further claimed, that no signal, by whistling or otherwise, was given him of the intention of the engineer to cut off the locomotive, and that was also negligence.

Yogelson testifies that as he stood on the roof or deck of the caboose, he could see that the locomotive was cut off, or about to be cut off, and he heard the noise of the train as the slack was let out, and knew that there would be a jar or jolt; that to guard himself, he took hold of the iron hand-hold or “grab-iron, ’ ’ which is a round iron, three or four feet long, immediately over the door of the cupola of the caboose; that he took hold of this to protect himself, and he claims that when the jar came, the hand-hold was pulled out at both ends, came off the framework of the caboose, and that he then fell off and was injured in his knee and his back. He jumped up as soon as he struck the ground and climbed up on the caboose and went on his way to Elkhart, not thinking at that time that he was very seriously injured, his injury not causing him a great deal of pain, although he limped some therefrom.

The railway company denies that the “pusher” was cut off with any more suddenness than usual, or that it was done in a negligent manner, and denies that this hand-hold or grab-iron was out of repair, or improperly fastened to the caboose, and denies that it pulled out as Vogelson claimed that it did. And the railway company claims that the manifest weight of the evidence is in favor of its contention, and that, therefore, the court erred on this branch of the case in not granting a new trial; and the company claims further, as has been stated, that Vogelson afterwards settled with the company and released it from all claims.

Vogelson in his testimony stated his claim as to the facts substantially as I have given them. When he reached Elkhart, he met there George Beck, who was a claim agent of the company, and Beck told him that he wanted a statement nf the accident, and Vogelson, in the presence of his brother, E. E. Vogelson, who was at that time living at Elkhart, gave Beck a statement of the accident, which was reduced to writing by Beck and signed by Vogelson.

In,this statement, which is attached to the bill of exceptions, he gives his version of the accident and says that when they were near the Michigan Central overhead bridge “the pony engine was uncoupled from the rear end of caboose and the slack went back and I was thrown off the caboose on to the ground. I don’t know which pony it was. I consider that I was thrown off caboose on account of the engineer or pony engine shutting off too quick and without warning. It is the custom for the ponys to go as far as depot at Air Line Junction. I was in a position on caboose where I could see that the engineer shut off suddenly, and I made an effort to save myself but could not do so. I lit on my feet, and my back struck a rail, bruising back. Continued with my run on to Elkhart and expect to continue with work without laying off. No physician required.”

He states his residence and the fact that he is married and has children and has been in the service of the company three years. That is signed by him and signed by his brother, E. E. Vogelson, as a witness. This statement was written on a printed blank, and the printed part of the paper recites that “said injuries were not due to any negligence or carelessness on the part of any boss, foreman, engineer, conductor or yardmaster in the employ of said company,” etc.

Another paper, bearing the same date, was also offered in evidence, signed by Vogelson. This paper purports to release the company from all liability. It is a printed blank. It says in substance, that in consideration off the payment of one' dollar and his re-employment by the company, the company is released from all claims arising out of injuries set forth therein. There is at the end of the paper a receipt for one dollar, signed by Vogelson. Vogelson claims that he knew nothing of this second paper, that is, the white paper, but admits signing the yellow paper, being the one first above referred to. Beck testifies to Vogelson’s having signed both papers. It was the duty of Vogelson,- when this accident occurred, to state the facts to his conductor, in order that he might report them; and, on their way to Elkhart, he met the conductor on the train and told him what had occurred, that he had been thrown off the train.

According to the testimony of the conductor, he said nothing to him about the hand-hold having been out of repair, he made no mention of that, but did tell either the conductor or the brakeman that he took hold of the hand-hold with his crippled hand — it seems that he had one finger off of one hand — and that if he had taken hold with his “good hand ” he could have held on.

This Vogelson denies. He also talked with the other brakeman, Mr. Felton, on the way to Elkhart, and told him about his being jerked off from the top of the caboose, but said nothing to him about the hand-hold being out of repair or pulling off.

Vogelson claims that the screws that fastened the hand-hold at each end of the iron pulled out; that when he got back on the top of the caboose he drove them in again with a couplinglínlr and left them in that condition. No other witness testifies to this hand-hold being out of repair. The two car inspectors at Toledo, Mr. Phillips and Mr. Kundz, inspected the caboose just before it left Toledo, and they testified that the hand-hold was in good repair. No one is called from the yards at Elkhart to testify that the hand-hold was out of repair. Both the conductor and the other brakeman upon the freight train testify that they used this hand-hold frequently upon this trip and that it was not out of repair.

The hand-hold was immediately over the small door of the cupola of the caboose and was used by the men in getting in and out of the cupola and was necessarily used frequently both by the conductor and the brakemen, in making the trip.

About midway between Toledo and Elkhart, Vogelson exchanged places with the other brakeman, Felton, the latter taking the rear end and Vogelson went to the front, so that Felton was on the caboose the rest of the trip, and he testifies that he saw nothing out of order with the hand-hold.

It would seem impossible for this hand-hold to have been pulled out and the screws pulled out of the wood and then driven back in again by Vogelson in such a way that it would not have been discovered.

Vogelson’s claim that this hand-hold pulled out on this occasion rests entirely upon his own uncorroborated testimony. Besides that, as appears from the written statement which he made at Elkhart to Mr. Beck, he said nothing to him at that time, the next day after the accident, about the hand-hold pulling out. Vogelson claims that Beck did not read this statement to him; he admits that he signed it, but says that Beck did not read it to him; he says that he made a statement to Beck telling him the facts about the accident, and Beck took it down in writing, and then he, Vogelson, signed it, but Vogelson does not claim in his testimony that he said anything to Beck about the hand-hold being out of repair.

There is no claim made that the statement of the facts of the accident, as set down by Beck in this paper, was not as given to him by Vogelson on the next day after the accident occurred; nor does E. E. Vogelson, tile brother, who was present, make any claim of that kind in his testimony.

This caboose, according to the undisputed testimony, was comparatively a new car. The hand-hold was fastened at either end with long screws, nearly three inches in length, which were set into a piece of oak some two inches thick, or thereabouts, going entirely through that and a small distance into the pine of the car, and this oak piece was securely fastened to the side of the car. If the hand-hold had pulled out, as Vogelson claims, it seems almost impossible that he would not have stated this to Mr. Beck, in Elkhart, the next morning after the accident. To have had a hand-hold so insecurely fastened to the side of the car as to pull out in this way, would have been a very serious defect in a car and probably would have been negligence on the part of the company if the defect had existed for any length of time, and when he was called upon to make his statement to the claim agent, being a railroad man of some experience and having had two accidents before this in which he had signed papers, he knew the purpose of asking for this statement; he knew that it was to be sent to the offices of the company to be kept there on file as his version of the accident; he knew the importance of stating all of the facts that would be favorable to him if he contemplated making any claim against the company for damages; but, notwithstanding all this, and notwithstanding, further, that it was his duty as an employe of the railroad company to state all of these facts, he says nothing whatever at this time in regard to the hand-hold being out of repair.

It seems to us that the manifest and clear weight of the evidence is against him upon that proposition. He is contradicted by the conductor and by the brakeman, upon this very train; he is contradicted by his own statements made upon the trip upon which he was injured and by his failure to make this statement to Mr. Beck, upon the day after the accident. And the fact that a man does not speak when he would naturally be expected to speak, or when it is his duty to speak, as in making a statement of this kind, tends to impeach his testimony when he afterwards testifies to facts that were not stated under these circumstances.

The court of common pleas instructed the jury that so far as any claim for want of a signal was concerned before the engine was cut off no evidence of negligence had been offered against the company, for it had not been shown that it was the custom to give a signal before the pony engine was cut off. This ruling we think was correct.

It was claimed that the engineer of the “pusher” was negligent in cutting off as suddenly as he did, Vogelson claiming that he was thereby jerked off of the top of the caboose. He made this claim immediately after the accident and he made it in the statement which he signed before Beck. A large number of witnesses, perhaps nearly all of the witnesses, except Vogelson himself, testify that the locomotive was cut off in the usual way. It is true that sometimes this occasions more of a jar than at other times; it is impossible for an engineer to cut an engine off in exactly the same way every time. It was known that it would cause some jar or jerk to the train and the men expected it and Vogelson knew that this was coming.

Without reviewing the testimony upon that point, it appears to us to be doubtful,, at least, whether he ought to recover upon that ground, the weight of the testimony perhaps appearing to be against him upon that proposition; but still he testifies himself positively that there was a very severe jerk at the time the locomotive was cut off, much harder than usual, and that he was unable to stand on top of the roof, and if it was cut off with such a jerk as he testifies to, it would doubtless constitute negligence on the part of the company, and the court properly overruled the motion of the railroad company to direct a verdict for the defendant.

Coming to the other defense: It is claimed that whatever claim Vogelson had against the company was settled and released. On the day following the accident he signed the paper to which I have referred, a printed blank, agreeing upon the face of it to release all claims in consideration of his re-employment and the payment of one dollar. He testified, however, that he had no knowledge of signing such a paper, that he only signed one paper, and he is corroborated by the testimony of his brother; and perhaps the weight of the testimony is in favor of Yogelson as to this claim.

Vogelson continued with his work after May 17, but his knee grew worse and its condition became very serious, and on October 11, following, he went to the hospital, under the care of the railway company and at their expense, and had an operation performed upon his knee, which had gotten into a very bad condition. He had two or three operations performed upon the knee, water having collected at the knee-joint. After being at the hospital two or three weeks, he went back to his home at Toledo and was around and about and occasionally called at the office of Mr. Brown, the claim agent of the company in the city, and Brown promised to do what he could for him; and finally Brown received a letter from the company saying that they offered to settle with Yogelson for $40. Brown testifies that he told Yogelson this; and that a day or two' after that, he received the money from the company and went to Yogelson’s house and met him there, and that Yogelson agreed to the settlement and agreed to accept forty dollars; that he paid it to him and Yogelson then signed a receipt, and, a full and complete release of all claims against the railroad company.

The release recites that:

“For the consideration of forty dollars received to my full satisfaction of the Lake Shore & Michigan Southern Railway Company, I hereby release and discharge the said company from all claims and demands against it, and especially from all liability to me for personal injuries of whatever kind, nature or description, received by me at Air Line Junction, Ohio, on May 18, 1897, by being thrown from top of caboose to the ground, injuring my back and right knee; and for said consideration said company is hereby released and discharged from any and all claims and demands in any manner arising from or growing out of said accident; also from part loss of time and wages while I was unable to work on account of said accident. Received payment October 27, 1897.
“Fred Vogelson.”

This was witnessed by Ross Buckmaster and Geo. B. Brown, agent of the company. Mr. Vogelson claims that at the time he signed that paper he was not in a condition mentally to understand what he was doing. He admits that Mr. Brown came to the house and he remembers receiving $40. Further than that, he says his recollection is not distinct and he supposed that whatever he did sign was simply a receipt for the $40 paid him by the railway company; that he expected more and that he had no intention to sign a release in full.

No witness other than himself testifies that Vogelson was at this time insane or in such a mental condition that he was unable to understand what he was doing, in the ordinary affairs of life. Dr. Bowman, who was his physician at that time, testifies that his understanding was not very acute at that time; that he had suffered a great deal from his injuries and that physical suffering always affects the mind; that he was in need of money, and that, in his judgment, he would have been willing to sign almost any paper in order to get money to help him, but he does not testify that Vogelson was mentally unsouhrl or incapable of understanding such a paper.

Mr. Brown testifies, as to all the facts and circumstances surrounding the transaction, that he was entirely friendly with Vogelson; that Vogelson met him at the door, resting upon one crutch; that he talked the matter over with him and paid him the money; that he called young Buckmaster, his brother-in-law, to witness the paper, and that the paper was read over to Vogelson.

Vogelson went back to his work on the following February and he.continued to work for the company during that year, off and on, his limb troubling him at times. And during the year 1899 he continued to work for the company, sometimes on one job and sometimes on another. He made no complaint during all that time that any advantage had been taken of him in the signing of this receipt, but he stated, according to the testimony of Mr. Bennet, the conductor of the freight train, that he had settled with the company; and made the same statement to Mr. Felton, the other brakeman, and substantially the same to Mr. Whiting, who was a clerk for the company.

These men, especially the conductor and brakeman, 'were friendly to Mr. Vogelson, and Bennet and Felton were fellow trainmen with him. It does not appear that they were seeking to take any advantage of him. They say that he voluntarily told them what had occurred; that he had settled with the company.

We are of the opinion that the evidence in this case shows that Mr. Yogelson did, on October 27, 1897, voluntarily settle his claim, whatever he had, against the railway company. We are unable to believe that he at that time was in such a condition that he did not understand what he was doing. He had been working for the company up to about October 11, when he became worse and went to the hospital. He seemed to comprehend what occurred at the hospital and the operations that were performed. He was apparently able to leave the hospital when he was discharged from it, at least, he came home again and was up and about the house. He called at the office of Mr. Brown, in Toledo, and talked with him about his case occasionally, and no witness, except Yogelson himself, testifies to anything which would indicate mental unsoundness on his part or inability to understand fully what occurred at the time this paper was signed. We think that the evidence that he settled at that time and that he fully understood that he was settling, is full and convincing.

He remained with the company after that time for a period of over two years, without any complaint. In considering this branch of the case we must also consider the fact that the claim that he had against the company, and which he must have known, was at best, a very doubtful claim. We are of the opinion that his claim that the hand-hold was pulled out, was not sustained by the evidence; that his statement as to that is not true, and that his claim that the locomotive was cut off in such a manner as constituted negligence, is very doubtful. Now,' having a claim of this kind, he was doubtless willing to make such a settlement as he could with the railway company.

His request, after his knee became worse, was, not that the railway company should pay him any substantial sum for damages, but that they give him some employment easier and lighter than he had before, or that they permit him to go to the hospital at their expense in order that he might have an operation performed. These two requests were granted. His request after the operation had been performed was that he might have employment in his injured condition, and he was given jobs that he could do. During all that year of 1898 and 1899 he was working from time to time for the company in different capacities and without any complaint that advantage, had been taken of him, until about the last of December, 1899, when he quit the employment of the company, and on January 2, 1901, a little less than four years after his injury, he began this action.

E. D. Potter, for plaintiff in error.

Harvey Scribner and W. A. Owen, for defendant in error.

ITis injury turned out to be quite serious; his knee was so hurt that it has never fully recovered; he is still lame and the injury probably is permanent. The amount of the verdict was small, $500, and indicates a compromise on the part of the jury. Had he been entitled to recover against the company, by reason of negligence, for the injuries which the evidence shows he sustained, and the condition he is now in, he would have been entitled to a much larger sum than $500.

I only speak of this to show that the jury that heard the case, some of them at least, must have been very doubtful of the plaintiff’s claim. We can only decide this case according to the evidence and according to law, and while we may sympathize with Mr. Yogelson in his condition, the only question here is, whether his injuries are due to the negligence of the company, and whether he has settled and released any claim that he may have had against the company; and after a very careful examination of the record, we have reached the conclusion that the verdict is not sustained by sufficient evidence; that the finding of the jury that he did not settle with the company and release it is manifestly against the weight of the evidence, and that the court for this reason erred in overruling the motion for a new trial. We find no other error in the record.

For these reasons the judgment of the court of common pleas will be reversed and the case remanded.