author: Marvin, J.

text:
    (Eigth Circuit — Cuyahoga Co., O., Circuit Court
    Jan. Term, 1899.)
    Before Caldwell, Hale and Marvin, JJ.
    SARAH J. COZAD v. R. S. HUBBARD, Treasurer of Cuyahoga County, Ohio, and A. E. ATKINS, Auditor of Cuyahoga County, Ohio.

      Taxation — Illegal increase of valuation by Auditor — Payment of half year’s taxes as illegally increased — Injunction from collecting second half—
    Where the county auditor, without legal authority, has increased the valuation of a party’s property on the duplicate, and such party pays the half of the taxes for the year so placed on the duplicate without protest, the half of the annual taxes as increased being more than the entire annual taxes on such property as legally valued, and he then ,brings an action to enjoin the collection of the second half of the taxes for the year on the ground that his payment on account of the first half of his taxes as. illegally increased by the auditor amounted to more than the amount of the taxes on his property as legally assessed for the. whole year, such injunction will be granted, although his first payment was intended by him and accepted as the half only of his taxes for the year, he being then unaware of the illegality ■ of such increase by the auditor.

      Justice to be done in every casein every case where the court could do justice without violating some provision of the law, it is its duty to do it.
    Appeal from the Court of Common Pleas of Cuyahoga county.
   Marvin, J.

The plaintiff owns real estate in this county, and that having been appraised by the proper authorities for value, the valuation was increased by the auditor of the county under an authority which he supposed he had, but which, as a matter of fact, he had not in law; so that, when he increased the valuation of the plaintiff’s property for taxation, he placed it at a figure beyond that which, under the law, it should have been placed under. That is to say, it having been assessed legally, the assessment made by the auditor was illegal; the auditor placed it too high, not because his rate was too high, but because the valuation he placed upon it was too high — and that was the situation in 1897.

The amount of tax which the plaintiff owed upon a lawful assessment of her property, was four hundred and seven dollars and nineteen cents and three mills.

She says in the petition that about the 20th of December, 1897, she paid what she supposed and what the treasurer supposed, and the auditor too, for he had sent his dm plicate to the treasurer, and each of the officers, as well as this plaintiff supposed that there was due as the one-half of the taxes for 1897 upon this property, $430.0357, and she paid that amount.

The auditor had carried out upon that tax duplicate which he had delivered to the treasurer, the assessment with this higher valuation, and the petition alleges that unless restrained, her property will be returned delinquent and will be advertised for sale, and sold unless she pays this tax.

There is a general demurrer to his petition.

She seeks to enjoin the collection of this tax for the last half of 1897.

It is not averred by the petition, that any effort will be required to make her pay more than the half which will be due for the last half of 1897, upon the property assessed.

The true amount, as has already been said, for the entire year, would be $407,193,

Now it is only the half remaining unpaid or claimed to be remaining unpaid, that it is sought to enforce by the treasurer. But the plaintiff says

“I have already paid for taxes upon this property, for 1897, twenty-three dollars more than the entire legal tax upon the property; and the treasurer ought not to be permitted to force me to pay anything more.”

If a tax had been paid upon this property in 1896, which was sufficient to pay both the tax for 1896 and the tax for 1897, upon a lawful valuation, it is, doubtless, true that the plaintiff would not be entitled to enjoin the collection of the tax for 1897 because she had already paid in 1896 enough for the two years, for she had paid for the last three years a good deal more than enough to pay for 1897, 1898 and 1899. But it is said,notwithstanding that is true, that this is a single assessment; the assessment for a year is one assessment; it is one thing, and it is only by a favor of the statute, section 1091, that permits one to delay the payment of one-half of his tax from December of the year for which his taxes'are being paid, to the next year. This statute reads:

“Each person charged with taxes on a tax duplicate, in the hands of the county treasurer, may pay the full amount of such taxes on or before the 20th day of December, or one-half thereof on or before the 20th day of December, and the remaining half thereof on or before the 20th day of June next ensuing; but all road taxes so charged, shall be paid prior to the 20th day of December.”

This statute was enacted about 1853 — 'possibly later than that — 'Which permitted the taxpayer to withhold from payment the one-half of his tax until the June following.

The next section of the statutes, section 1092 provides:

“When taxes, charged against the property of any person, are paid by installments, as aforesaid, each of such payments, exclusive of road taxes, shall be apportioned among the several funds for which taxes have been assessed, in the proper proportions. ’ ’

When payment is made in December — 'made voluntarily as it was here — It had to be apportioned to the several funds to which, by law, it must go; and it is urged ►that that would be a reason why one should not be permitted, notwithstanding the fact that he has paid such a sum of money as represents all the lawful taxes for the year,having paid it as a half-tax and without protest, having voluntarily paid it, and under the honest belief of taxpayer and collector that he ought to have paid that amount, to withhold the payment of the lawful tax for the last half of the year. So far it seems difficult to understand what is the difference if you reduce the amount to be collected at the June payment, from that which appears upon the duplicate furnished to the treasurer than if you take it entirely off, and the bookkeeping is just as difficult,

It is not very clear what should be done in this case.

The case cited to us, The City of Cincinnati v. James et al., 55 Ohio St., 180, is upon special assessments; but the reasoning seems to fairly apply to this case.

The case in 55 Ohio St., just named, contains this language in the first clause of the syllabus:

“When an assessment for a street improvement, whether payable in installments or not, is larger than' allowed by law, and sufficient has been paid, though voluntarily, to equal or exceed the amount which could be lawfully assessed, the collections of the remainder of such assessment may be enjoined. ’’

I will also read the second clause of the syllabus:

“In such case the action is not to recover payment already made, but to prevent the collection of unpaid illegal installment,’’

Here in the case before us, it is not attempted, as has already .been said, to prevent the payment of such part as would have been legal if the tax had not been paid, I will not take time to read it. Counsel are familiar with it and discussed that and suggested some reasons why it ought not to be applied here.

I remember to have heard a lawyer of learning and high standing in the profession, announce as a maxim which I have not seen jin any book, but which seems to me to be a good one^that in every case where the court could do justice without violating some provision of the law, it is its duty to do it.

It seems that it would be clearly unjust, after this woman has paid all the tax that is due. to require her to pay anything more. And believing that we may do justice without violating any provision of law, we have concluded to overrule this demurrer, and judgment will be so entered.

Lawrence & Estep, for Plaintiff.

Kaiser & Taft, for Defendants.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    (First Circuit — Butler County O., Circuit Court
    April Term, 1899.)
    Before Smith and Swing, JJ.
    THE C. H., D. R. R. CO. v. MURPHY, ADM’X.

      Injury by Railroad — Failure to blow whistle and ring bell— Liability when proximate cause of injury—
    (1) . In an action brought against a railroad company to recover damages for the careless and negligent killing of plaintiff’s intestate by a train of the defendant, a charge by the court to the jury, that if it found that the defendant company “did not run its train within the five mile per hour limit, as the ordinance requires, or if you find that it failed to give the signals which the state law£requires, namely, to blow its whistle and ring its bell, and continue to ring its bell until the crossing was passed, then the court charges you that these acts, or either of them,would be such negligence as would entitle plaintiff to recover, providing the deceased himself was not guilty of con • tributing to his injury in the manner which I have stated’’, was erroneous and prejudicial to the defendant company. It entirely omits the qualification, that the failure to obey the requirements of the ordinance or the statute, should have been the proximate cause of the injury to plaintiff’s intestate.

      Same — Party injured while on trade — Error of judgment to act properly in exigency—
    (2) . The court also erred in refusing to charge the jury, that if the plaintiff’s intestate was wrongfully upon the track of the defendant, without being invited there by the defendant, and being called upon in a sudden exigency to act, made a mistake as to the best course, through an error of judgment, that he should pursue, that he is not thereby relieved from his original negligence, if it apparently contributed to cause the injury.

      Same — Duty of trainmen to chede speed to avoid injury to party thereon—
    (3) . The charge of the court to t'he jury as to the duty of those in charge of the train to check the speed thereof on discovering the.plaintifi’s intestate on the track, was erroneous and prejudicial, as it left out of view all questions as to the distance the train was from him when he was seen upon the track, and the presumption which would arise, unless something to the contrary appeared, that the person so on the track was able to hear and see, and would leave it in time to escape the danger.
    Error to the Court of Common Pleas of Butler county.
   Smith, J.

This case comes to us a second time, the judgment having at a former term been reversed for error occurring at the trial, and a new trial having been had and there being again a judgment for the plaintiff below against the Railroad Co., it now seeks to reverse the last judgment on the ground that the verdict was against the evidence, and that the court erred in its rulings as to the admission and rejection of evidence and in the charges given to the jury, and in refusing to charge as requested by the counsel for the Railroad Co.

We may say at the beginning that quite a number of •questions passed upon in the decision of the former case, which is reported in 17 C. C., 223, have been presented again in one form or another, and as we are satisfied with the holdings there made, they will not be further referred to,except in so far as may be necessary to determine whether the rulings of the trial court at the last trial are in substantial accord with the principles announced in our former decision. .There are also quite a number of errors assigned specifically in the petition in error, which we will be unable to discuss in any reasonable time, and a discussion of which does not seem necessary or important. If therefore nothing is said in regard to these special assignments of error they may be considered by counsel as not having been sustained.

We speak in the first place of the charge of the cpurt to the jury on the subject of the failure of the company to •comply with the law,and the ordinance of the city, to sound the whistle and ring the bell, and to reduce the speed to five miles an hour within the city.

On page 7 of the charge it is said:

“If you find as the court has charged you, that the defendant ran its train according to the ordinance of the city, and if you find that it blew the whistle, and continuously rang the bell as the court has stated to you, then it would be your duty to find a verdict in its favor.
“ If on the other hand you find that it did not run its train within the five mile per hour limit, as the ordinance requires, or if you find that it failed to give the signals which the state law requires, namely, to blow its whistle and ring its bell and continue to ring its bell until the crossing was passed, then the court charges you that these acts, or either of them,would be such negligence as would entitle plaintiff to recover, providing the deceased himself was not guilty of contributing to his injury in the manner which I have stated.”

It is manifest, we think, that the court did not correctly state the law in the first paragraph which we have quoted. It may well be, and the probability is, that the defendant was not entitled to a verdict, even if the evidence showed that the train was not run faster than five miles an'hour, and that the whistle was sounded and the bell rung as the statute provides. The company might still have done all this and yet be liable if it carelessly and negligently ran over the plaintiff’s intestate. But as this error was in favor of the company, it can not complain of it. But how is it as to the other part of the sentence quoted ? It seems to us tobe equally faulty. The jury is told thereby in effect, that if the company ran its train faster than five miles an hour, or failed to give the signals which the state law requires, that these acts or either of them would be such negligence as would entitle plaintiff to recover, unless plaintiff’s intestate contributed to the injury. Certainly this would be so, if' these acts or either of them were the proximate cause of the injury to the deceased, but without this they make no-ground for a recovery by the plaintiff, and this qualification of the rule is nowhere stated by the court, and we can. not see that this error of the court is elsewhere cured.

After the general charge to the jury, the counsel for the Railroad Co. asked the court to give some special charges to the jury. Among them were Nos. 4 and 10. Ho. 4 was as follows:

“That if said Martin Murphy, at the time he was so injured, was wrongfully upon the said ráilroad track of the defendant, without being invited there by the defendant, and being called upon in a sudden exigency to act, made a mistake as to the best course, through an error of judgment, that he should pursue, that he is not thereby relieved from his original negligence, if it apparently contributed to. cause the injury. ”

The court refused to give this charge, and proper exception was noted.

We think the instruction thus asked for was substantially correct and should have been given. It may be that the words “wrongfully upon the said railroad track” were not the most appropriate that could have been used, for in one sense the mere presence of the plaintiff’s intestate upon the-railroad track was not wrongful, as under certain circumstances he might lawfully be there, it being a part of one-of the public streets of the city. We suppose it was used in the sense of negligently or carelessly, and if he was so-there in presence of impending danger, he was there wrongfully. And the statement requested to be given to the jury,, that if he was so there, and being called upon in a sudden-exigency to act, made a mistake as to the best course he should pursue, through an error of judgment, that he is not thereby relieved from his original negligence, if it contributed to his injury, was right. Why should his subsequent, mistake relieve him from his original negligence?

Instruction No. 10 as asked for was as follows:

“That ordinarily the engineer in charge of the railroad' train had a right to presume after seeing Martin Murphy upon the track, and after giving the warning signals with the whistle, that he would get off the track and avoid the danger, and that it was not the duty of the railway company to stop its train unless it was apparent that said Martin Murphy did not intend to obey the signal warnings and keep off the track”.

This the court refused to give, for the alleged reason that it had been given in substance in the general charge.

As to this charge, two questions might arise — first, whether the charge in the form asked was correct, and if so, was it substantially given as alleged. If both questions are answered in the affirmative, the company has no reason to complain, and such is the case also, if the charge asked was incorrect. We are of the opinion, that to say the least of the charge asked, it was not happily worded. The word ‘‘ordinarily” seems out of place in the sentence, for it seems from what follows that the court was not called on to state the law generally — what it would ordinarily be, but to state as a matter of law what were the rights.of the engineer in this particular case; for the judge was asked to say that the ■engineer in ihis case, after seeing Murphy on the track and after giving warning signals with the whistle, had a right to presume that he would get off the trackj'and avoid the ■danger, and that in this instance, ‘‘it was not the duty of the company to stop the train unless it was apparent that Murphy did not intend to obey the signal ^warning and 'keep off the track”.

” We think these were questions for the jury under appropriate instructions from the court, and that fjthe court did not err in refusing to give the charge. It left entirely out of view all question as to how far away the train was from Murphy when the. engineer saw him on the track or sound-ed the danger signals, or what the conduct of Murphy was thereafter, In the former decision of this case before referred to, and in the fourth clause of the syllabus, we stated what we thought the law was in cases of this kind,- and the next question on this branch of the case is whether the trial judge in his charge to the jury correctly stated the law thereon, for it is urged by counsel for the plaintiff in error that he did not,

The charge of the court, as given to the jury and excepted to by the defendant below, was as follows:

“The court say to you as a matter of law, that although Martin Murphy had been guilty of negligence, although he got on this track in the most careless manner, if the train men in the exercise of ordinary care had time and opportunity to see him, and if they did see him, or if they had the opportunity of seeing him, and they had the opportunity to check the train and save the life of the person in danger, then it was their duty to do so, although he may have been guilty of negligence in- getting on the railroad track, and it becomes therefore the approximate cause of the injury, their failure to check the train, if the evidence shows you they could have done so. And if they were running the train within the proper and legal rate of speed, ■and that being the approximate cause of the injury', it throws the liability or responsibility upon the defendant, and it is your duty to find a verdict in favor of the plaintiff.”

Standing alone we think that this charge as given was ■erroneous and prejudicial. It is open to the same objections pointed out in the decision referred to- — bo the charge given by the court at the former trial of the case- — in that it makes it the absolute duty of those in charge of the train to check it and save the life of the person, no matter at what distance ahead of the train he may have been when he was first seen on the track, and without any reference to the presumption which we held would arise, and on which the engineer might reasonably act, unless the contrary appeared, that the person on the track was able to hear and ■see,' and that he would leave the track in time to escape the danger. It is true that the court added to the charge as-given this statement:

Millikin, Shotts & Millikin, Attorneys for Plaintiff in Error.

Morey, Andrews & Morey, contra.

“A railroad engineer having charge of a train of cars- and engine, is not expected to stop his train whenever he sees a person upon the railroad track, and a railroad company is only required to exercise ordinary care and prudence as we see those things exemplified in our daily experience.”'

But this we regard as a very inadequate and indefinite statement, and it did not at all give the jury to understand-what the true rule was in such cases.

For the reasons stated the judgment in this case will be-reversed and a new trial awarded,


author: Caldwell, J.

text:
    (Eighth Circuit — Cuyahoga Co., O., Circuit Court
    Jan. Term, 1899.)
    Before Caldwell, Hale and Marvin, JJ.
    THE STATE OF OHIO on relation of ERASMUS D. SAWYER, v. WILLIAM O. POLLNER.

      Resignation of officer — Sow manifested—
    (1) . A mere intention to resign is of no effect whatever until it is. manifested in some way, and the way required to accomplish it is to convey the resignation to the person who is by law entitled to fill the office.

      Same — Resignation addressed to mayor elect not yet in office—
    (2) . Where a public officer addresses his written resignation to the-mayor elect, but not to the mayor of the city still in office, the latter, who by mere rumor or newspaper notices has become acquainted with that action on the part of such officer, has no authority to appoint a successor to fill such office.

      Term of office — When commences when statute fails to specify time--

    (3) . Where there is no time fixed by statute when an officer shall-: take his office and enter upon his duties, then his .term commences immediately if he sees fit to enter upon the duties of it,, and, if he does not, it is a mere waiver upon his part. The requirement of the oath, or of the bond, or any other thing that the statute may require, although the statute may be explicit, is merely directory language, and is not mandatory, and not a condition precedent to his entering the office.
    Quo Warranto.
   Caldwell, J.

This is a case in quo warranto, of the State of Ohio on ■relation of Erasmus D. Sawyer against William C. Pollner.

I will read part of the agreed facts, that will sufficiently • state the nature of the case. And I will read only so much ■ as I care to consider in what T say:

“Fourth. At the annual election held on the first Monday, to-wit, the third day of April, 1899, John H. Farley was elected mayor of the city of Cleveland by a popular election.
“Fifth. On the tenth day of April, 1899, being the second Monday of April, John H. Farley took the oath of office as mayor of the city of Cleveland at 10 A. M., and at •the same time prepared and filed with H. H. Burgess of said city, his good and sufficient bond as such mayor, and ■while said Farley was assuming to act as such mayor, immediately thereupon Charles P. Salen delivered to said “John H. Farley, Mayor”, his written resignation as a ■member of the Board of Elections of the city of Cleveland, and the fact that it was done so, was published in the afternoon papers printed in said city and circulated throughout ■ said city.
“Sixth. At the time of delivering said written resignation to said Farley the said Charles P. Salen ijstended that it should be accepted by the said John H. Farley as mayor •and by no other person or officer, and was intended to take effect only upon its acceptance by said Farley as such may- or, but such intention was not expressed in said written resignation except that it was addressed: “John H. Farley, Mayor.”
“Seventh. On the 10th day of April, 1899, said Charles P. Salen prepared and signed a bond as director of accounts of the city of Cleveland, and procured the signatures of three sureties thereto on said bond,and on the same day he ■took the oath of office as director of accounts of said city before H. W. Canfield, a Notary Public, and prior to six •o’clock P. M. of said day.; which oath of office was printed upon the back of said bond and was signed and sworn to by said Salen as aforesaid, but said bond with the oath written and signed on the back thereof was not approved by said Farley until after the city council of said city had met at 7:30 o’clock P. M. of said 10th day of April, 1899,
“Eighth. The fact that said Salen had delivered his resignation to the said Farley as aforesaid, was communicated to Mr. McKisson, who still claimed to be the mayor, shortly after noon of the 10th day of April, 1899, by various persons and through various sources, among others the newspapers of the city of Cleveland. At 6 o’clock P. M. on said day, Mr, McKisson, assuming to act as mayor, undertook to appoint E. D. Sawyer, the relator herein, as a member of the said Board of Elections for the unexpired term of Mr. Salen. Said appointment, was undertaken, was made in writing and delivered to said Sawyer at six o’clock P. M. of said day, and said Sawyer immediately thereupon took the oath required of persona duly appointed to said office of member of the Board of Elections of said city.
“Ninth. Mr. Sawyer, the relator herein, has ever since said time, attempted to assume the duties of said office by presenting himself from time to time at the office of the Board of Elections and demanding recognition and the right to act and participate as a member of said board.
“Tenth. Immediately after taking the oath of office anc] filing his bond at 10 o’clock as aforesaid, John H. Farley proceeded to the mayor’s office and announced that he was mayor of the city of Cleveland, and continued thereafter during that day to remain in and about said office and immediately entered upon the duties of the said office of may- or, Mr. McKisson denied Mr. Farley’s right to assume the duties of said office and continued to remain in and about said office and claimed still to be mayor of said city, and, during the afternoon of said day, performed various acts as such mayor, among others the approval of the bond of Thomas M. Kennedy as Prosecuting-Attorney of the police court.
“Eleventh. The council of the city of Cleveland, pursuant to its rules, met at 7:30 o’clock P. M. on the night of April 10th, 1899, and immediately thereafter on said night the city council approved the bond of the said John H. Farley, which is the same bond hereinbefore referred to,. which was filed with the city clerk at 10 o’clock A. M. Immediately thereafter the council approved the appointment and bond of Charles P. Salen as director of accounts. of said city.
“Twelth, On the 19th day of Maj, 1899, mayor Farley appointed William C. Pollner, respondent herein, as a member of the Board of Elections to fill the vacancy caused by the resignation of the said Charles P. Salen for the unexpired portion of his said term, and immediately thereafter the said Pollner took the oath of office and proceeded to act-as a member of the Board of Elections of said city, and has ever since acted as a member thereof.
‘ ‘ Thirteenth. Immediately upon the approval of his bond by the council of the city of Cleveland on the night of April 10th as aforesaid, Charles P. Salen entered upon his - duties as director of accounts of the city of Cleveland, and he has ever since continued and now continues to hold said office.
“Fourteenth. That said Charles P. Salen never withdrew or attempted to withdraw his resignation delivered in - the manner and for the purpose aforesaid.
“Fifteenth. Prior to 10 o’clock A. M. on the 10th day of April, 1899, mayor McKisson was serving his second term as mayor of the city of Cleveland, having been elected thereto at the annual election held on the 8th day of April, 1897, for the term of two years as provided by law.
“Sixteenth. Mayor Farley did not file any expense-statement or account of any kind, character or description, with the clerk of the courts of Cuyahoga county, Ohio, under section á of the Act of the General Assemblv, passed - April 8, 1896.”

And there are admissions here that Mr. Farley had not filed with the county clerk a copy of his expense account at the time on the 10th of April; he had filed one with the • Board of Elections,and he supposed that the Board of Elections filed a duplicate with the clerk,and it was not his duty to do it. And the clerk of the Board of Elections filed' said statement on the 18th day of April, 1899.

Then there is an agreement here that at the time Sawyer-was appointed by mayor McKisson to serve on the Board of Elections, that he was then serving as one of the two persons appointed to act with the Prosecuting-Attorney of the county in reviewing the commissioners’ annual report.

The relator claims in this action, it being an action brought in quo warranto, to oust from office Mr. Pollner,and induct the relator into the office that Mr. Pollner is now • occupying. And the contention is: First, that there was -a vacancy at the time that Mr. Sawyer was appointed, in the office of the Board of Elections.

The second matter of contention is, that on the 10th day • of April, 1899, at 6 o’clock, Mr. McKisson was the mayor ■ of the city of Cleveland, and John H. Farley was not the mayor.

I think I will go no further in either stating the contentions of the parties, or in considering any questions that .have been argued.

This resignation of Mr. Salen was made out to “John H. Farley, Mayor’’, and handed to him on the 10th day of April, 1899, but there was nothing done with it by Mr. Farley one way or the other until after the council had met in the evening of that day.

An intention on the part of Mr. Salen to resign that office is of no consideration whatever; it would accomplish nothing whatever — the mere intention. That intention ■must be manifested in some way, and the usual way and the way required in order to accomplish it, is to convey his ■resignation to the person who is by law entitled to fill the ■ office. If that is conveyed to a stranger, it amounts to -nothing more than a secret intention. If Mr. Farley was not mayor of the city of Cleveland at the time that Mr. - Salen’s resignation was handed to him, then it was no more ■than handing it to a stranger who had no connection with this affair whatever. It was a matter that could not relate rforward or backward. So that, we hold, in regard to this resignation of Salen, if Farley was not mayor at the time that those papers was handed to him, it had no effect in law whatever, and there was no resignation.

Lacking entirely the elements of an officer resigning, he must do something beyond his resignation, and that something is to convey the intelligence of his resignation to the officer who has the power to fill the vacancy.

Now, if there was no vacancy, if this was conveyed to Farley, and Farley was not mayor of the city of Cleveland, the appointment of anyone to fill a place, not vacant, is void in law.

So if there was no resignation,- there could be no legal appointment. It necessarily follows from this, that either Farley was mayor at that time, or there was no resignation of Salen. It follows also, if Farley'was not mayor, there was no vacancy, and there could be no appointment. The question hinges somewhat upon who was mayor at that time. For myself, I doubt very much if this court has the authority to determine that question. But still, we will, as the facts have gone.

I know of no way in which an officer can be attacked as to his authority to act, whether it be on one particular occasion, whether it be for a day, whether it be for a year, whether it be for a term- — -no difference how long a time, I know of no authority to question his right to act as mayor or in such a way as to affect him, at least, without bringing an action in quo warranto directly, wherein he is made a party, wherein he is made responsible.

This proceeding of quo warranto may be brought to try the title to the office — often is. It is often brought to obtain possession of an office and to. remove an incumbent and to test the validity of a statute under which the incumbent’s office was created, and it is a question to test the right of an officer to do certain acts. It has been used in all these offices in various ways by the courts of .this country — but I drop that matter.

I proceed upon an agreed statement of facts to determine who was mayor upon the 10th day of April, 1899.

There is no time fixed by statute, when the mayor takes his seat. He is elected. The statute prescribes that he shall take an official oath, and that he shall file a good and sufficient bond which shall be approved by the city council.

The contention of the relator is, in this case, that, until he is elected, has taken the oath of office, has filed a bond and that bond been accepted by the city council, that he is not mayor, and can not act as mayor legally.

On the other hand, the respondent claims that the law is if there is no time fixed by statute when the officer shall take his office, shall enter upon his duties, then his term commences immediately if he sees fit to enter upon the duties of it and, if he does not, it is a mere waiver upon his part. . And secondly, that the requiring of the oath, that the requiring of the bond or any other thing that the statute may require, although the statute may be explicit, is .merely directory language,and is not mandatory, and I believe the courts in this country now quite unanimously and, I do not know but entirely, say so at this time, that language of that kind is merely directory, and is not mandatory 'language.

But Mr. Farley had taken the oath and had filed a good ¡and sufficient bond with the city clerk at the time that he .undertook to act as mayor on the 10th of April, 1899, when ■he assumed the duties of his office, when the user commenced on the 10th of April, 1899. It is clear to our minds that if the council had refused to accept that bond, .and refused to acknowledge it, or by any misfortune had been unable to act upon that bond, it would have deprived 'Mr. Farley of being mayor.

McKisson & Boyd, for Plaintiff.

Kaiser & Taft, for Defendant.

The authority seems to be almost unanimous that in a statute like this, and where the same things are required to be done by the mayor — the law seems to be quite unanimous that he may merely enter upon the office by declaring himself the officer, and gc to work and perform the duties, and that the user with the election makes him the officer, and that both of them are required, and the bond also, yet they are not conditions precedent to his entering upon his office. This has been found to be almost a necessity in order that people may carry out their will, because there are so many things that may intervene not to allow an officer to take the oath or file his bond. It becomes almost necessary that the will of the people may not become prostrated, and the courts have recognized that, and from that necessity has grown up the universal ruling that the occupier of the office, that the user of the office has determined whether the party is the officer that he pretends to be.

Without going any further in the discussion of the questions that have been raised before us, which are entirely needless, we determine this case by rendering judgment for the defendant and dismissing plaintiff’s petition.


author: Adams, J.

text:
    (First Circuit — Hamilton Co.. O., Circuit Court
    Jan. Term, 1899.)
    Before Adams, Douglass and Vorhees, JJ. (Of the Fifth sitting of the First Circuit.)
    WARRINGTON AND GIBSON v. THE UPHAM MANUFACTURING COMPANY.

      Judgment — Correction of entry erroneously statina its date — Sec. 5354, E. S.—

    (1). Where it is claimed that the entry of a judgment as of a certain date is erroneous and a motion is made to correct such entry so as to show the true date at which such judgment was rendered, the overruling of such motion is a final order made in a special proceeding and affecting the substantial rights of the parties, and may be reviewed, and if erroneous, reversed on error.

      Same^Written notice to adverse party required-—

    (2;. The date of a judgment is a material part of it, and where it is claimed that the entry of such judgment gives an erroneous date of its rendition, and a correction of such entry is asked, the proceeding provided by see. 5354, R. S., must be followed, and notice in writing to the adverse party as required by see. 5354, R. S., is necessary.
   Adams, J.

We are asked to reverse an order and judgment made April 11, 1898, directing an amended judgment purporting to have been made June 29, 1895, so as to make it appear that it was made and entered July 22, 1895, and that the order allowing the bill of exceptions was made and entered September 9, 1895, instead of June 29, 1895, as it originally appears.

The judgment in the court below, that is the main judgment, was in favor of the plaintiffs, Warrington and Gibson, and against the Upham Manufacturing Company.

The Upham Manufacturing Company has prosecuted error through the circuit court to the suppreme court of the state of Ohio. As we understand it, the proceeding is still pending. The original judgment was rendered some time in 1895; as the entry originally stood on June 29, 1895. The motion for a new trial was overruled and judgment entered,and the bill of exceptions allowed and the entry allowing it entered on the same day. Nearly three years thereafter the Upham Manufacturing Company filed its motion in the court of common pleas to correct that entry so as to show the true dates to have been July 22 for the overruling of the motion, and September 9 for the entry allowing the bill of exceptions. Such an order is a final order made in a special proceeding and affecting the substantial rights of the parties, and may be reviewed and, if erroneous, reversed on error.

We think that the date of a judgment is a material part of it. It affects the judgment very materially when it comes to the question of having it reviewed on error, It may affect it as to the supersedeas bond; it would affect it slightly as to the computation of interest. It is a material part of the judgment.

The plaintiffs in error in this proceeding claim that this proceeding before the common pleas to correct the date of his entry was without notice to them, without their knowledge, and while affidavits were filed in support of that motion, there is no bill of exceptions, and those affidavits are not before the court.

This proceeding is governed by section 5354, Revised Statutes, which provides when and how the common pleas or circuit court may vacate or modify its judgment or order after the term, and provides for ' correction of the mistake, negligence or omission of the clerk, or irregularity in obtaining a judgment or order.

This is clearly for a mistake. This is the ground on which the manufacturing company proceeds.

Section 5357 provides that the proceedings to correct mistakes or omissions of the clerk or irregularity in obtaining the order or judgment shall be by motion upon reasonable notice to the party or attorney in the action. It is claimed here that no notice was given, On the other hand it is contended that while no written notice was given, actual notice was given by word of mouth.

Section 5123 of the Revised Statutes provides that when notice of a motion is required it must be in writing. So that this disposes of that question unless there is something in the record to show that the party received notice, or entered an appearance.

But the journal entry in this case is silent on that subject. It is silent on the subject of notice, and there is nothing in that entry to show that the party waived the notice by appearance or otherwise.

W. W. Prather, or Plaintiffs in Error.

H. P. Lloyd, for Defendant in Error.

Counsel have cited us to the case in 12 Ohio St., 136, which, we think, is decisive of the question.

“Where a final judgment in a case has been rendered by the court of common pleas, it is error for the same court to vacate such judgment át a subsequent term on the motion of one of the parties without notice to the other party or his attorney. Where the record is wholly silent in regard to such notice and no waiver is shown by appearance, no presumption of notice can be admitted to prevent the direct impeachment of the order vacating the prior judgment.”

It may be said here that this did not vacate the prior judgment, that it simply changed the date; but if the court has power on a mere application of a party without notice to the other party to correct a date, the court, by the same exercise of power may correct the amount or may wholly set aside the judgment at any time within three years after judgment is rendered.

On this authority and the sections of the statute to which I have referred, we are of opinion that the action of the court of common pleas in amending .and correcting this judgment so as to show that they were entered at different dates from that of the original entry, without notice to the other party, was unauthorized and is therefore reversed.


text:
    (Eighth Circuit — Cuyahoga Co., Circuit Court
    Jan. Term, 1899.)
    Before Caldwell, Hale and Marvin, JJ.
    THE CLEVELAND RETAIL GROCERS’ ASSOCIATION v. SARAH A. EXTON. W. E. GODFREY v. SARAH A. EXTON. [Two Cases.]

      Error proceedings — Petition in Error, but not bill of exceptions, filed within statutory' time — Effect—
    (1) . Where the petition in error alleges certain matters 'of error,, all of which are founded upon the bill of exceptions, which bill was not filed within the statutory time for instituting proceedings in error, it is proper to strike off the bill of exceptions, but not proper to dismiss the petition in error, especially if there are other grounds than those that are founded in the bill of exceptions.

      Amendment of transcript filed in error proceedings after statutory time only admissible as to mere clerical errors—
    (2) . If an amendment asked to be made of the transcript filed in error proceedings pertains to any matter that is material to the plaintiff in error or to the defendant in error, either to the making of the case or to defending against it, that is set up in the petition in error, no amendment is admissible; but, if it pertains to some mere clerical error by the clerk, that in no way affects the status of the case as to the merits of the plaintiff’s or of the defendant’s cause, then the court may order the clerk to correct any mistake he has made in the transcript.
    Error to the Court of Common Pleas of Cuyahoga county.
   Caldwell, J.

There are three motions that we have before us. The motion in the case of the Cleveland Retail Grocers' Association against Sarah A. Exton is to strike the bill of exceptions from the files. In the case of Wm. E. Gbdfrey against the same party, there is the same motion; and in the case of the Cleveland Retail Grocers’ Association against Godfrey, there is a motion by the plaintiff in error for an order to the clerk to amend the journal entries.

This case was tried in the court below, and judgment given, and, after that, a motion was filed for a new trial, which motion was pending for some time, and the motion was finally passed on by the court, and a petition in error was filed in this court and journal entries which showed the judgment, but did not show the overruling or any action of the court on the motion for a new trial. The case then stood in this court on a petition in error, and time passed on until six months had elapsed, when the plaintiff came in and asked for an order to the clerk to amend the journal entries by placing in the journal entries the overruling of the motion for a new trial and, if this goes into the journal entries, then the jdurnal entries will show that the case is yet within the statutory limits when the action in error may be commenced and the journal entries filed; but, if this motion is not allowed, then the bill of exceptions should properly be stricken off. In this case, it was not filed in time, as shown by the journal entries we have. That raises the question that has been discussed, and the only one here to pass upon — whether the journal entries in a case can or cannot be’ amended after the time limited by statute for commencing proceedings in error has elapsed.

The supreme court has passed upon this matter in two different cases, to which our attention has been called:

First. In the case of Townsend v. Harrison, 58 Ohio St., 398:

“Where all the assignments of error, in a petition in error, are founded upon a bill of exceptions taken in a lower court, but not filed in a higher court within six months after the rendition of the judgment in the court below, the judgment should be affirmed, but such state of the record is no ground for dismissing the petition in error.”

That simply decides this question, that where the petition in error says certain matters of error, all of which are founded upon the bill of exceptions, which bill was not filed within the six months with the court, it is proper to strike off the bill of exceptions, but not proper to dismiss the pe^ tition in error, especially if there are other grounds than those that are founded in the bill of exceptions.

I will not pay much attention to that case, because we have another here where the discussion is more directly in point.

In the 41st Law Bulletin, page 9, The Second National Bank of Bucyrus v. Moderwell et al., the case was decided by the supreme court on proceedings in error. The syllabus in that case is as follows:

“1. Sections 6716 and 6723, Revised Statutes, when construed together, require that a plaintiff in error file in this court, within six months from the rendition of the judgment complained of ‘either a transcript of the final record, or a transcript of the docket and journal entries, with such original papers or transcripts thereof as are necessary to exhibit the error complained of.’ If a paper writing filed in this court as such transcript, etc,, is not sufficient to exhibit the error complained of, no amendment thereof or addition thereto can be made after the expiration of such period of six months,
“2. ■ Where, however, such transcript, etc,, is sufficient to exhibit the error complained of, but the certificate of the clerk of the circuit court or court of common pleas authenticating such transcript is materially defective, such certificate is amendable by virtue of section 5114,Revised Statutes, and the amendment may be made after the expiration of such period of six months.”

The sections of the Revised Statutes, referred to here, as laying that ground for jurisdiction, are 6716 and 6723. Section 6716 reads:

‘‘The plaintiff in error shall file with his petition either a transcript of the final record, or a transcript of the docket or journal entries, with such original papers or transcripts thereof as. are necessary to exhibit the error complained of; and, if original papers and pleadings are filed, and the final record has not been made, the reviewing court may permit the temporary withdrawal of the originals for a reasonable time, to allow the recording thereof, or direct copies thereof to be made and filed, and the originals to be returned to the inferior tribunal.”

Section 6723, Revised Statutes, is as to the limitation:

“No proceedings to reverse, affect or modify a judgment or final order shall be commenced, unless within six months-after the rendition of the judgment or the making of the final order complained of; or in case,the person entitled to-such proceedings is an infant, .a person of unsound mind- or imprisoned, within six months as aforesaid, exclusive oí the time of such disability.”

Of course, the time of limitation is now changed, and it is these two sections that the supreme court in the syllabus say, when they are construed together, require of the plaintiff in error — I believe the time now is four months from the rendition of the judgment — either the transcript in full, or a transcript of such original papers.

Bradbury, J., in discussing this matter, says:

“The right to institute and carry on proceedings in error is strictly statutory. If, therefore, the plaintiff in error has not complied with the conditions prescribed by the statute as necessary to entitle it to a review of the judgment of which it complains, it has no right to have that judgment, reviewed. One of these requirements, as we have seen, is, that the petition in error and a transcript of the proceedings-must be filed within six months from the rendition of the-judgment sought to be reversed, It follows, therefore, as-a matter of course, that if an authenticated transcript is necessary, and is not filed within the six months, the peti•ton and transcript should be stricken from the filep. If such transcript is necessary,- and must be filed within the time prescribed,then,as it is now too late to begin proceedings anew, the plaintiff in error has lost its right to a rsview of the judgment of the circuit court.”

Then Judg'e Bradbury continues:

“It is at least a debatable question whether an authentication of the transcript by the clerk of the court where the judgment is found is necessary in a proceeding in error. Ih the case of appeals, section 5255, Revised Statutes, requires the clerk, in direct terms, to ‘make an authenticated transcript,’ etc, But section 6716, which prescribes the kind of transcript to be filed with the petition in error, is silent as to an authentication by the clerk. The statute simply requires ‘a transcript’ to be filed.”

That pertains to the particular facts of this case. Now, it is clear, that one of two things must be done by the petition in error; that is, by the plaintiff in error in his petition when he files it. Under section 6716:

“First, he may file a transcript of the final record. That, of course, includes all the pleadings, papers and proceedngs taken in the cause, from its commencement to its conclusion; or, second, he may file a transcript of the docket or journal entries, and either the original papers themselves or copies thereof. In the case before us the plaintiff in error adopted the latter method. The paper in question shows on its face that it purports to give a copy of the pleadings and a copy of the journal entries.”

Now, on the question of amendability to which we are now brought, section 5114, Revised Statutes, says:

“The court may, before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process, or proceeding, by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case, or, when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved; and when an action or proceeding fails to conform to the provisions of this title,the court may permit the same to be made conformable thereto, by amendment.
“The power of amendment thus authorized is very broad. Where there is nothing on which an amendment may rest, of course, none can be made. Here, however, the certificate made by the clerk fails to state that the journal entries of the court of common pleas and circuit court have been correctly transcribed into the paper in question. If, as a matter of fact, that paper contains a correct transcript , of such entries, the certificate of the clerk does not state all that it should state. Surely, here we have something on which an amendment may rest. We have before us the very instrument — the certificate of authentication — sought to be amended.”

This case, as we understand it, holds this: That if the amendment pertains to any matter that is material to the plaintiff in error or to the defendant in error, either to the making of the case or to defending against it, that is set up in the petition in error, that no amendment can be made; but, if it pertains to some mere clerical error by the clerk, that in no way affects the status of the case as to the merits of the plaintiff’s cause or the merits of the defendant’s cause, then the court may order the clerk to correct any mistako he has made,

In the case that I have referred to, in 41 Law Bulletin, the amendment there, pertained entirely to the clerk’s certificate. The clerk had not certified that the journal entries that he had made out and which had been filed in the circuit court or in the supreme court, which ever it was— were a correct transcript of the journal entries in the case— and the court permitted that amendment.

In the case we have before us, the amendment is to bring into the case now by the transcript of journal entries a part of the record that would give this court jurisdiction and, without its being in there, this court would have no jurisdiction. That is a fact that is not disputed in the case, and that we think is the effect of it.

That being true, it seems to us that it is material; it is material matter; it affects both the plaintiff in error and the defendant in error. It affects the plaintiff in error in that he gains jurisdiction in the court; without it he would not. It affects the defendant in error in substantially the reverse way, or in the same way. It is, therefore, a material thing, and the decisions — Loth of them that I referred to, settle the doctrine clearly that no such amendment can be made to the transcript to bring in any new matter, or anything material in the case to be tried in the court, unless it is done within the time limited by statute.

Smith & Blake, and W. W. Boynton, for Plaintiff in Error.

Wm. Howell, and Johnson & Hackney, for Defendant in Error.

We cannot read the case here without believing that we are compelled by the law, as laid down by the supreme court, to overrule the motion to amend the journal entries, and to grant the other two motions.

      59 Ohio St., 221.


text:
    (Eighth Circuit — Cuyahoga Co., O., Circuit Court
    Jan. Term, 1899.)
    Before Caldwell, Hale and Marvin, JJ.
    THE CLEVELAND RETAIL GROCERS’ ASSOCIATION v. SARAH A. EXTON, et al. W. E. GODFREY et al. v. SARAH A. EXTON et al. [Two Cases.]

      Libel — Innuendo—Reasonably susceptible meaning—

    (1) . If the words of the"publication áre reasonably susceptible of the meaning ascribed to them by'the innuendo in a petition for libel for slander, then the innuendo will be taken as expressing the meaning as ascribed until disproved.

      {Same — Words which will amount to ■libel—
    (2)_. The Retail Grocers’ Association, a'corporation organized for the _purpose of collecting bad debts for retail grocers, published a book, entitled its “Delinquent Book, issued by the Cleveland Retail Grocers’ Association.” On the first page of the book is this: “It” (meaning the book) “is compiled from the reports of delinquent customers furnished by members of the association, and contains the names of people who in the past have ""failedTo pay their grocery bills and are unworthy of credit.” On the same page is this:- “Throughout the list the figures in the first column are for convenience of secretary in tracing to]the proper creditor. The address, occupation and amount owed appear, as furnished the compilers. ” Andón the elev. enth page of this book, the following appears........“546e :.......Exton........Outhwaite street, housekeeper, ....87.17.”
    Held : A petiMon for damages for libel, alleging these facts with ""T proper innuendoes, states facts sufficient to entitle the plaintiff to a recovery, although no special damage is averred.
    ErroN to^ ibe ’ Court of Common Pleas of Cuyahoga county,
   Marvin, J.

The Cleveland Retail Grocers’ Association against Sarah A. Exton et al. is a proceeding in error seeking to reverse the judgment obtained by Sarah A. Exton against The Cleveland Retail Grocers’ Association in the court of common pleas.

Certain questions in this case have already been disposed of, and there remains only one question, and that is the question, whether under the petition in this case any evidence should have been admitted — whether there is a petition here which, if true, entitled the plaintiff below to a recovery.

The petition alleges that Sarah A. Exton, the defendant in error, is a house-keeper in this city, residing on Outhwaite avenue; that she keeps a lodging and boarding house. That the plaintiff in error is a corporation, and that, for the purpose of injuring her in her reputation, it made a publication about her; that that publication was contained in a book, about two thousand copies of which were printed and circulated among the members of the association and others. That the Retail Grocers’ Association is organis-ed for the purpose of and is engaged in the business of collecting bad debts for retail grocers. That it publishes a book or pamphlet which it calls its “Delinquent Book. ” That on the c.ver of that book issued by the said Retail Grocers’ Association, these words are printed, “Delinquent Book”, issued by the Cleveland Retail Grocers’' Association,”

On the first page of the book is this: ' ‘"It” (meaning the book) “is compiled from the reports of delinquent customers furnished by members of the association and contains the names of people who in the past have failed to pay their grocery bills and are unworthy of credit.”

On the same page is this: “Throughout the list the figures in the 6rst column are for convenience of secretary in tracing to the proper creditor. The address, occupation •and amount owed appear, as furnished the compilers.”

And on the eleventh page of this book, the following ■appears:... . “546c......Exton ..'......Outhwaite street, housekeeper,....$7.17. ’ ’

Sarah A. Exton says that that publication injured her, and was maliciously made.

The petition alleges that this book is circulated in Cleveland and neighboring cities.

The innuendo as to the first part of the publication to ■which attention is called, the pleader has expressed in these words, and that is, the printed words:

“Delinquent Book issued by the Cleveland Retail Grocers’ Association,” — meaning that the pages following ■contained the names of persons whom said association had found to be dishonest and deceitful and unworthy of credit, and who had been guilty of fraudulently and dishonestly evading and refusing to pay their just debts.”

It is settled in this state, settled in an authority to which attention will be later called, that if the words of the publication are reasonably susceptible of the meaning ascribed to them in a petition for libel or slander, then the innuendo shall be taken as expressing the meaning so ascribed, until something else occurs.

The second printed matter in the book, complained of is, as has been already read:

“It” (Meaning the book) “is compiled from the reports of delinquent customers furnishd by members of the association, and contains the names of people who in the past have'failed to pay their grocery bills and are unworthy of credit.”

The innuendo as to this is alleged as meaning that the persons whose names were printed on the pages following were persons who had actually defrauded the members by whom their names had been furnished to the association, or had been guilty of some other act that disentitled them to the respect and confidence of the community wherein they resided,

And then follow the words which have been read, to show that the name of this defendant in error was so published in that book among that list of delinquents.

It is true that the name in full is not given, but only the word “Exton”, preceded by the “number 546c.” The residence is given as “Outhwaite street” “housekeeper” her occupation — she being a housekeeper. She says that she is a housekeeper, and that association meant her when they used the words which are last quoted.

It was urged here that the words did not necessarily mean the plaintiff below, this defendant in error,

We think the innuendo is one that may very well express the true meaning; the plaintiff living on that street and having that name, could well understand that she was meant, and anyone reading that book would well understand that she was the person intended.

Are these other words susceptible of the meaning attributed to them in the innuendo? “Delinquent Book issued by the Cleveland Retail Grocers’ Association”. May that fairly mean that the pages in that part of the book contained “the names of persons whom said association had found to be dishonest?”

It was a delinquent book. A “delinquent” is defined in Webster’s Dictionary to be one failing in duty, offending by neglect of duty. The second definition is: “one who fails to perform his duty; an offender or transgressor; one who commits a fault or crime.”

The words are fairly susceptible of the meaning attributed to them in this innuendo.

In any event, the book contained the words:

“It is compiled from the reports of delinquent customers furnished by members of the association, and contains the names of people who in the past have failed to pay their grocery bills and are unworthy of credit.”

We think a fair construction of this publication is as ascribed to it by this petition, and was that this publication was in substance that Sarah A. Exton, residing on Outhwaite street, was one who in the past had failed to pay her grocery bill and was unworthy of credit. And we think that such publication would naturálly tend to disgrace her in the eyes of those who read it.

Now, is that libelous?

In the case of the State v. Smiley, 37 Ohio St. page 30, this language is used, in the syllabus:

“Where the language complained of as libelous will bear the meaning ascribed to it by the inuendo, whether such was the meaning intended, is a question of fact for the jniy.”

Remembering that the question before us is, as to whether this petition set out or made any statements which entitled the plaintiff to have a jury pass upon the case, we think that as we have already said, the language is susceptible of the meaning ascribed to it by the innuendo, and that this entitled the plaintiff below to have the matter submitted to a jury. ,

In the opinion of Judge Boynton (37 Ohio St.), on page 33, we read:

“The general current of authority is to the same effect, holding that although the matter published might not, without averment and proof of special damage, be actionable if only spoken, yet if published, and it be of a character, which, if believed, would naturally tend to expose the person concerning whom the same was published, to public hatred, contempt or ridicule, or deprive him of the benefits of public confidence or social intercourse, such publication is a libel, and an action will lie therefor although no special damage is alleged.”

That is to say, if it will do any one of these things; if it will injure the party about whom the publication is made, in any one of these particulars; if it will expose him to ridic-ule and contempt, or deprive him of the benefits of public-confidence or social intercourse, such publication is a libel, and an action will lie therefor although no special damage is alleged.

Now, when it is published of one, in these exact words, that the one about whom the publication is made is one who-in the past has failed to pay his grocery bills and is unworthy of credit, it can hardly be said it does not deprive him of public confidence to say that he is unworthy of credit, unworthy of public confidence.

In the above opinion, there are quotations made from a very considerable number of authorities, and with approval.. Among others, this quotation is made: Cropp v. Tilney, 3 Salk., 226, Lord Holt:

“Scandalous matter is not necessary to make a libel. It is enough if the defendant induces an ill opinion to be had of the plaintiff, or to make him contemptible or ridiculous. ”
“In Shipley v. Todhunter, 7 C. & P., 680, Tindal, C. J. said that:
‘Any written communication which bears on the face of it any charge, or which tends to vilify another, is a libel.’

In Woodard v. Dowsing, 2 M. & R., 74, it was said that:

‘Any written publication which tends to disgrace, is actionable. ’ ’’

In Newell on Defamation, page 43, a ^number of American cases are cited in support of the same, and this language is used:

“Any written words are defamatory which impute to the plaintiff that he has been guilty of any crime, fraud, dishonesty, immorality, vice or dishonorable conduct, or has been accused or suspected of any such misconduct; or which suggests that the plaintiff is suffering from any infectious disorder, or .which have a tendency to injure him in his office, profession, calling or trade. And so, too,, are all words which hold the plaintiff up to contempt, hatred, scorn or ridicule, and which would, by thus engendering an evil opinion of him in the minds of right-thinking men, tend to deprive him of friendly intercourse and society.”

Smith & Blake, W. W. Boynton, for Plaintiff in Error.

Wm. Howell, Johnson & Hackney, for Defendant in Error.

Again,we find this language:

“Every thing written or printed which reflects on the character of another, and is published without lawful justification or excuse, is a libel, whatever the intention may have been.”

Prom these authorities, and other authorities, many cited in these, we are of the opinion .that the petition states facts sufficient to entitle the plaintiff to a recovery.

And that disposes of all the questions in the case.

The judgment is affirmed.


author: Norris, J.

text:
    (Third Circuit — Auglaize Co., O., Circuit Court
    Nov. Term, 1897.)
    Before Day, Price and Norris, JJ.
    THE C., H. & D. R. R. CO. v. JOHN BOYER.

      Railroad — Unnecessary assault on trespasser on train — Liability—■
    "Where the plaintiff is upon the defendant’s train with no criminal intention toward defendant’s servants or property, but in violation of law and as a trespasser, his presence there does not forfeit him the plain rights with which the law clothes him as a man and as a citizen. And while the servants of the defendant company may remove him from the train, and use the necessary force to do so, the law still shields him from violent, unnecessary and malicious assault at their hands in so removing him, and if injury result from this cause, he is entitled to recover.
    Error to the Court of Common Pleas of Auglaize county,
   Norris, J.

The defendant in error, as the plaintiff in the common pleas court of this county, commenced his action againBt the Cincinnati, Hamilton and Dayton Railway Company, and alleges in his amended petition, that on the 18th of June, 1895,, at Sidney, Ohio, he got upon a freight train of the defendant railway company for the purpose of riding there as a passenger, and that while said train was in motion, and running at so high a rate of speed as to render it dangerous for a person to get off, the conductor in charge refusing to accept fare from the plaintiff, commanded him to leave the train.

That at this time, the train still maintaining its rate of speed, was entering a cut, at which place it was extremely dangerous to jump off said moving train. Said conductor wantonly and willfully assaulted plaintiff, and without fault or negligence upon plaintiff’s part, caused him to fall off said train between the cars, by which wanton and unlawful act of said conductor, he was thrown under the wheels of the moving train; and his leg was broken in three places and mangled and crushed, his right foot was greatly injured, his left foot was mangled and partly cut off, and his head and back and shoulders were greatly bruised and hurt.

That by reason of these injuries, he has suffered and still suffers great mental anguish and physical pain. That he tías, and still is rendered unable to attend to his usual business. That he was confined to his bed for a period of six months. That to employ medical attendance he was put to the expense of $650, and for nursing the sum of $215, and that by reason of said injuries he is crippled for life. He says that he has by all this, sustained damages in the sum of $20,000, and asks for judgment.

The railway company answers this petition, and denies the complaints I have recited. It especially denies that „ the plaintiff was injured by reason of any unlawful act of the conductor. That if the plaintiff received any of the -injuries complained of, he received them wholly from his ■ own negligence.

■' As a second defense it is alleged that if plaintiff got upon said freight train as stated by him, it was without.the knowledge or consent of any of said company’s agents or officers authorized to give consent. That said train did not carry passengers; that plaintiff knew this, and that he got upon said train in violation of the laws of this state, and was thereon a trespasser, and if he received injuries, he received them wholly by reason of, and in consequence of his own unlawful and negligent act,

The reply denies every allegation of the second defense. The issues thus joined were, at the September Term, 1896, of the common pleas, submitted to a jury which returned a general verdict for the plaintiff, together with its answer and special findings upon interrogatories submitted,

The defendant thereupon interposed a motion predicated upon these special findings for a verdict in its favor notwithstanding the general verdict returned by the jury, which motion was not sustained by the court below.

The defendant then interposed its motion to set aside the general verdict and to set aside the finding of the jury upon the eighth interrogatory submitted to the jury, and for a new trial. This motion was also overruled by the common pleas, and judgment was entered upon the verdict.

To these and the various proceedings had in this action in the court below, the defendant below prosecutes error in this court.

The first ground of error urged by the plaintiff in error, is the overruling of its demurrer to the amended petition.

This petition,stripped of verbiage,places the defendant in error on the company’s freight train, not as a passenger, but as a trespasser. He was not on a passenger train, but on a freight train,upon which there is no pretence that passengers were carried. He was there without invitation,and without permission of any officer or agent of the company which might authorize his presence there. But while he was there without right, yet the petition discloses the fact that being there his intentions were not unlawful or crimr inal,either against the company’s property,or the company’s servants.

While his presence there was a trespass upon the rights of the company, his intentions and conduct as disclosed by the petition were not such as to forfeit for him the plain rights with which the law still clothed him as a man and as a citizen.

While the company had the authority to remove him from the train, he still was so far within the protection of the law that this might not be done in a manner that would put in jeopardy his life or health.

While the company might eject him. and use all necessary means to accomplish his removal, the law still shielded him from unlawful and wanton and unnecessary assault and injury. This the petition alleges was perpetrated upon him, and that from this cause alone, and without any act upon his part which directly contributed thereto in any degree, he received the injuries for which he seeks to recover. With this view of the petition, we think the demurrer was properly overruled.

The second error assigned, is that the verdict is against and contrary to the weight of the evidence and the law of the case.

In the trial of this case the controversy narrowed down to the issues covered by the answer of the jury to the eighth interrogatory found in the verdict returned. Did the conductor assault and drive Boyer from that train?

It is not claimed that Boyer attempted to maintain his position as a trespasser upon that train. It is not claimed that a wanton assault upon him was necessary in order to cause him to quit that car, so that if an assault was committed upon him, it was unnecessary and unlawful.

All agree that violent hands were laid upon him; the brakeman, Grannan, says it was for the purpose of taking from him his hat which was a good one, so that there can be no mistake that Boyer was menaced and' assaulted. And it was not in trying to hold his ground, but in seeking to •escape, that he fell under the wheels of that train. The single point then, which the jury was called upon to settle was, who was his assailant. As to this the evidence is conflicting. Riggle and Grannan, the two brakemen, swear that”theyjandj;he two Boyers were the only ones present on that car; the conductor swears that he was not present.

The defendant in error, and his brother William, both swear’that the conductor, Forsha, was present and was the assailant. They do not appear to be uncertain as to his identity, as to the conversation, or as to what occurred on that occasion.

And right here arises the first and only opportunity for corroboration by a witness who can be in no wise interested or influenced. Biggies and Grannan do not admit the angry and threatening conversation which is recited by Mrs. Leppley, but denies that it occurred. The Boyers give it and are born out by Mrs. Leppley. This, no doubt, had some weight with the jury, and properly so, In short, the jurors, with the witnesses before them, were at liberty to give credence as their judgment dictated. They chose to believe the defendant in error and his witnesses, and found that the conductor, Forsha, did drive Boyer from that car by a wanton and unnecessary assault upon him.

At this distance we cannot say that the finding of the jury is not right, and we see no error in the conclusion.

And the same as to the third error assigned, which goes to the answer to the eighth interrogatory, and also to the seventh assignment, which goes to the overruling of the motion for judgment notwithstanding the verdict.

The complaint that the verdict is excessive, we think not well grounded. Boyer’s injuries are,no doubt, permanent, considering his loss of time, the exDense of cure, his physical and mental suffering, the verdict is a very moderate one.

R. D. Marshall, for Plaintiff in Error.

C. A. Layton, for Defendant in Error.

The fifth error assigned, which complains of the ' refusal to give in charge to the jury, the second special request of the plaintiff in error, we think, not well taken. In substance the second request urged that in order to recover in any event, it must appear that the defendant in error was rightfully on that train.

The court very properly refused to consider this the law of the case. In no phase of this controversy could this be proper, If Boyer was on that train rightfully, then he was entitled to all the rights of a passenger.

It is not claimed that Boyer was a passenger, but it is conceded that he was a trespasser and only entitled to consideration as such. This being the case he, of course, could not be required to procure proof of a fact which by no possibility could be pertinent to the issue. To have given the request would have been error.

The charge of the court we find to fully and plainly cover all the issues in the case, and completely states the* law governing the controversy.

There being no error in the record, the judgment is-affirmed at costs of plaintiff in error, and case remanded for execution,


author: Swing, J.

text:
    (First Circuit — Hamilton Co. O., Circuit Court
    Jan. Term, 1899.)
    Before Smith, Swing and Giffen, JJ.
    ROBERT HOWE v. THE C., H. & D. R. R. and THE C., B. & Q. R. R.

      Common Carrier — Stoppage in transitu — Delivery of goods to wrong party — Liability of carrier—
    (1) . H. of Cincinnati consigned to G. at Omaha, Nebraska, by common carrier two barrels of whiskey, purchased on credit, and after the consignment and before delivery of the goods, learning G. was insolvent, H. stopped the goods in transitu and ordered them delivered to O., his agent in Omaha. The carrier had notice, and agreed to deliver the goods to said agent, bat notwithstanding said notice and agreement, delivered the goods to a person other than the consignee or agent as directed, and the goods were lost to H.
    Held: In an action against the carrier to recover the value of’ the goods, that it was not necessary for 11. to show that the consignee was insolvent at the time of the consignment, became insolvent after the consignment was made, or that he had received such information as acting in good faith, led him to believe the consignee was insolvent at the time of consignment, or had afterwards become insolvent.

      Same- -

    (2) . After stoppage in transitu the carrier acts at his peril in delivering the goods either to the consignor or consignee, and to protect itself from liability,may by action bring the goods into court and require the claimants to determine the right of possession.
   Swing, J.

This was an action by Howe against the C., H. & D. R. R. Co. and the C., B. & Q. R. R. Co. in the court of common pleas, the petition alleging that the defendants were common carriers between the city of Cincinnati, Ohio, and the city of Omaha, Nebraska. That as such the plaintiff delivered to said defendants at Cincinnati, Ohio, on the loth day of November, 1895, two barrels of whiskey of the value of 8166.40, to be transported to one J. Gee at Omaha, Nebraska, and that the defendants received said whiskey and agreéd to transport the same to the person at the place named for and in consideration of certain charges agreed upon.

That while said whiskey was in transit and was in the custody of said defendants,the plaintiff learned that said J. Gee, to whom it was consigned, was financially irresponsible, and said whiskey not having been paid for by said Gee, the plaintiff requested said defendants when said whiskey reached Omaha to deliver the same to one Edward O'Con-nor instead of said Gee, which said defendants agreed to do. That said whiskey arrived at Omaha, but it was not delivered to said Edward O'Connor, nor to any other person representing said plaintiff, but said defendants delivered said whiskey to one not authorized to receive the same, contrary to the instructions of the plaintiff and the agreement of the parties, whereby plaintiff was damaged in the sum of $166.40.

The evidence showed that Howe delivered to the C., H. & D. Railway Co. at Cincinnati two barrels of whiskey consigned to J. Gee, Omaha, Nebraska, That this whiskey was delivered by said Railway Company to the C., B. & Q. Railway Co., a connecting line from Chicago to Omaha. That said whiskey had been purchased by said Gee of said Howe on credit. That after said whiskey had come into the possession of said C., B. & Q. Railway Co., the plaintiff notified the C., H. & D. Railway Co. not to deliver said whiskey to said Gee, but to deliver it to Ed. O'Connor, Attorney, at Omaha. The notice was given to the C., B., & Q. Railway Co., and said latter company, acting under said instruction, did not deliver said whiskey to said Gee, nor did it deliver said whiskey to said O’Connor, but did ■deliver said wiskey to some transfer company at Omaha, by whom said whiskey was lost.

At the conclusion of the evidence of the plaintiff the ■court, on motion of the C., B. & Q. Railway Co., directed .a verdict for the defendant.

This action is brought in this court to set aside said judgment.

The general rule of law is, that upon the consignment of goods the title becomes vested in the consignee, subject only to the carrier’s lien for freight and the consignor’s right of stoppage in transitu upon the consignee’s insolvency. This rule is elementary and without exception. Growing out of this general rule of law are certain other rules, among them are these;

First.. The duty and liability of carriers after notice. In Hutchinson on Carriers, §421, it is said;

“The insolvency of the buyer is essential to the existénce of the right of the vendor to stop the goods. If, therefore, the former be solvent at the time of its attempted exercise, the carrier,if he knew the fact,will,be not only justified in refusing to give up the goods or pay attention to the notice, but it would be his duty to do so, He obeys the order or demand at his peril in any case. For while a rightful stoppage protects the carrier against the claims of the consignee, yet if it should turn out that the purchaser of the goods was solvent, the notice or demand would be entirely without authority. If therefore the carrier refuse to give up the goods to the consignee, who is solvent, upon his demand, the latter might maintain an action of trover against him at once. If on the other hand the carrier fail to withhold the goods upon a notice to do so, or to surrender their possession to the vendor upon his demand, or if after such notice or demand he should deliver them to the buyer and it should turn out that the latter was insolvent, the carrier will be liable to the vendor, at least to the extent of the buyer’s indebtedness for the goods.’’

Second, at section-422, of the same author, it is said,

“The law of stoppage in transitu therefore becomes of great importance to the common carrier, and when a notice is given or a demand is made upon him for the goods by a vendor who claims the right to avail himself of it in the particular case, it places him in very nearly the same situation as when a demand is made for the goods by one who .claims adversely to the bailor or his consignee. If it be doubtful whether the right exists to stop the goods,the carrier may, as in that case, instead of refusing to comply with-the notice or the demand, require that he shall be allowed a reasonable time to investigate the condition of the buyer, and if after inquiry he shall be unable to satisfy himself and does not choose to assume the responsibility of a delivery to either seller or buyer, or to act upon the demand of the vendor that the goods shall be withheld from the consignee, he may for his own security resort to legal proceedings to have the question determined as in the case of adverse claimants of property,”

On this latter subject it is said in 2 Rorer on Railways, p. 1339,

“After notice it becomes the duty of the carrier to hold the goods and not deliver them to the consignee. The law will then afford the parties, consignor and consignee, or the assigns of the latter, such opportunity of asserting and enforcing their rights to the property as will effectually guard the interests of the carrier from the responsibility of delivery to either when not entitled to receive the same. We do not conceive it to be the duty of the carrier to decide between them and actually deliver the goods to the alleged consignor,or that it is required by law. for as much as the carrier can seldom, if ever, know,and is not made the-judge to decide, whether or not the circumstances exist which re-invest the property in the consignor, or, indeed, whether the person claiming to be the consignor be in fact such or not; and especially on long lines of railway, is personal knowledge the more impracticable, After notice he occupies the position of a stake-holder between the parties.’'

But in this case the carrier did not proceed to act in accordance with either of the above provisions. It did not deliver the goods to either the consignor or the consignee,, or assume the position of a stake-holder and have the parties set up their claims to the goods and have their respective rights determined — in fact, there is nothing to show that Gee, the consignee, ever asserted any claim to.the goods. Neither is there anything to show whether Gee, the consignee, is insolvent or not.

It is urged by the Railway Company that Gee not having been shown to be insolvent,that the plaintiff can not recover; but it seems to us that the time to have raised this question that Gee was not insolvent, was when the plaintiff demanded of the company that the goods be not delivered to Gee. If the company had said to the plaintiff when the demand for stoppage in transitu was made, [that Gee was solvent, and had gone on and delivered the goods to Gee, the plaintiff would have had his remedy against Gee and against the Railway Company if he had failed to collect from Gee; he could have collected from the company if insolvency of Gee could have been shown. Or, if the Railway Company had refused to deliver the goods to either the consignor or consignee, and had called upon the parties to establish their rights to the goods, as it had a right to do, all parties would have been protected in their rights. But the company, acting upon the demand of the consignor, stopped the goods and did not deliver the same to the consignee. After stopping the goods and directing that they be not delivered to the consignee, the consignor could have no claim against the consignee for the goods, for while the goods were sold and delivered by the consignor to the consignee,as between the two, when the consignor stopped the goods in transitu, under a claim of ownership, this in'effect annulled the sale, and re-invested the property in the consignor, and thereby destroyed any right of action by the consignor against the consignee for the value of the goods

It may be that Gee would have a right of action against the company, but none has been asserted, and if the company had any reason to fear a claim by Gee, it was its duty to bring the goods into court and ask that the claimants interplead and establish their rights. But this the company did not do, but on the contrary, it recognized the right of the plaintiff to stop the goods from being delivered to Gee, and undertook to re-deliver the goods to the plaintiff, but failed to re-deliver the goods as directed, and delivered the goods to somebody other than either the consignee or consignor. Under this state of facts it seems clear to us that the company is liable to the plaintiff for the value of the goods, and that when the court directed a judgment for the defendants, it erred.

Milton Sater, for Plaintiff in Error.

A. B. Benedict, for Defendant in Error.

The facts not having been agreed to, this court can not render judgment for the plaintiff, but a judgment will be entered reversing the judgment for the reason that the same is against the law and the evidence, and remand the cause to the court of common pleas for further proceedings.


text:
    (Eighth Circuit — Cuyahoga Co., Circuit Court
    Jan. Term, 1899.)
    Before Caldwell, Marvin and Hall, JJ.
    MAGGIE ISHAM v. GEORGE H. MATCHETT.

      Restriction in deed as to manner of building—
    A restriction in a deed that there Bhall be “no building erected on the property herein conveyed costing less than $1,500”, applies not only to the first building erected on the land, but to any other building thereafter erected on the land. Hence, the erection and maintenance of one building costing $6,000 will not permit the owner to erect another building costing less than $1,500.

      Same—

    It is not necessary for the enforcement of such restriction that similar restrictions should be inserted in every deed of the allotment.

      Same — Who may enforce—
    Any adjoining- lot owner may enforce such restriction if he is a suosequsnt purchaser and it is for his benefit to enforce It.
    Appeal from the Court of Common Pleas of Cuyahoga county.
   Marvin, J.

This is a suit brought by the plaintiff to enjoin the defendant from erecting a barn on lot No. 23 of Newcomb’s-, allotment in this city.

There is an allotment of Newcomb’s made in 1892, extending from Quincy street on the south to Central avenue on the north. Newcomb had an allotment already made in 1890, possibly 1891, from Central avenue north to Cedar avenue; through the allotment made in 1892 as well as through the allotment made in 1890,extends Alanson street, from Quincy street to Cedar avenue.

The lots in the allotment made in 1892, ■ are numbered from No. 1 to No. 15, both inclusive'.

The lot on which defendants are erecting a barn is No. 23, and is at the north-east corner of Quincy and Alanson. streets, and fronts on Quincy street.

The plaintiff’s lot is No. 21. That fronts on Alanson street,and is immediately north of the lot of the defendant.

The defendant’s lot No. 23, has a frontage of forty-six feet, and extends along Alanson street one hundred and twenty feet. The defendant Matchett has already erected on this lot No. 23, a business building which comes up to. both Quincy and Alanson streets right at the corner. Now ■ he seeks to construct on what is the back end of his lot,, this barn, a building which will cost from $500 to $800 as¡ the agreed statement of facts shows.

The title to the plaintiff’s lot was derived directly from Newcomb, and the title of the defendant to his lot is from Newcomb, with intermediate conveyances.

There is a restriction in the deed to the plaintiff’s lot as. well as to the other lots fronting on the east side of Alanson Btreet, in these words:

“It is a special condition of this deed that there shall he-no buildings erected on the property herein conveyed, on less than eighteen-foot studding, and costing less than-$1,500.00. Further, there shall be no saloon or saloons-, for the sale of liquors placed upon the premises herein-conveyed, by the-said grantees, their heirs or assigns, and is made for the mutual interest of the parties hereto.”

That restriction is in the deed to the plaintiff together with another restriction,and that is, that no buildings shall be erected within less than twenty feet of Alanson street; -and that restriction is in the deeds of the other lots on the east side of Alanson street except the corner lots, that is, the lot at the corner of Central avenue and Alanson street. There is no such restriction as to that corner lot, and, evidently, with the idea that business buildings would be very likely to be erected on those corners. Evidently, one would not want a lot fronting on another street with a restriction against any buildings within twenty feet of Alanson street.

But, as has already been said, there is no such restriction as to lot No. 23; but there is a restriction in that deed that a building shall not be erected there for less than .$1,500.00.

It is claimed that these restrictions were put in only for •the benefit of the parties here allotting.

We are not prepared to say that any building shall not ■cost less than $1,500.00; that would prevent the erection of -out-buildings at a proper place on the lot. But it does :seem to us fair to construe these restrictions, without citing ■authorities, as made for' the benefit of the other grantees as ■well as for Newcomb’s, that there shall be nothing placed on this lot No. 23, that shall be either fronting on Alanson street or come so near Alanson street as to be a building on that street, at a cost of less than $1,500.00.

■ If a barn was erected there, we are doubtful if we could ■enjoin, if complying with the restrictions. But here is a barn being erected within seventeen feet front of the street —'three feet in front of the front line of the plaintiff’s house — 'she being restricted to within twenty feet — 'and there is an arrangement made for the deposit of the filth of the barn, at the front of it.

W. C. Rogers, for Plaintiff.

Gilbert & Hills, for Defendant.

However, without discussing it further, we will hold that she would have a right, under the restrictions, to prevent the erection of that building. And,^without further discussing it, an order will be entered enjoining the construe-’ tion of that building.

Mr. Hills. What about the building already erected, and with the roof on. This plaintiff has stood by and permitted us to go on that far.
Marvin, J.: That building must not stand; even if converted into a dwelling-house, it would be objectionable because only costing $500 or $600,instead ofj&l,500.