text:
    Hegner et al. v. Hegner, Admr. d. b. n.

      Wills — Income to wife during life — Income, debts and expenses paid, how— Year's allowance to widow — Section 10572, General Code — Compensation to executrix calculated, how — Section 10837, General Code.

    1. Where a will specifically gives the widow the income of all of testator’s estate during her life, she is entitled to the income from the time of the testator’s death, and debts of the testator and the expenses of administration must be paid from the corpus of the estate.
    2. In such case, where the will does not otherwise expressly direct, ■the widow is entitled to receive the year’s allowance provided by Section 10572, General Code. .
    3. In determining the compensation to be paid an executrix the statutory commissions, as provided in Section 10837, General Code, are to be calculated upon the entire estate.
    (Decided April 30, 1917.)
    Error : Court of Appeals for Hamilton county.

      Mr. Herman P. Goebel, for plaintiffs in error.

      Messrs. Bettinger, Schmitt & Kreis, for defendant in error.
   Jones, P. J.

This case originated in the probate court upon exceptions to the account filed' ’by the executrix in the settlement of the estate of Frank Messang, deceased. It was heard in the common pleas court on appeal, and this error proceeding was brought to review the judgment of the common pleas court disposing of said except tions.

Four questions are presented by the record:

1. Whether the widow was entitled to receive the income of testator’s estate from the date of his death, or whether part of that income, so far as was necessary, was to be used for the payment of testator’s debts.
2. Whether the widow was entitled under the circumstances of the case to receive her year’s allowance.
3. Whether the executrix was entitled to the statutory compensation charged in the account.
4. Whether the counsel fees paid to the attorney for the executrix were excessive.

Frank Messang’s will contained the following items:

“First: I desire that all my just debts and funeral expenses be paid by my hereinafter named executrix.
“Second: I give and bequeath to my beloved wife, Louise Messang, the income of all my estate, real and personal, for and during her natural life.
“Third: Subject to said life estate and the power of sale as- hereinafter- set forth, I give, devise and bequeath all my property, the real estate in fee simple and the personal property absolutely, to my nieces and nephews, to wit: Sallie Hegner Saemann, Lillie Hegner Sargent, Cora Llegner Sargent, Stella Hegner, Frank Hegner, Walter Hegner, William Hegnet and Lawrence Hegner, to be divided equally between them, or their heirs.
“Fourth: I hereby nominate my beloved wife, Louise Messang,, as Executrix of this my last will and testament to serve without bond; and I hereby give her full power and authority to sell without order of court or application thereto, any or all of my property, at public or private sale, and on such terms as to her shall seem best, and to invest and re-invest the proceeds thereof, and in case of the sale of my real estate, to execute and deliver to the purchaser or purchasers proper deeds in fee simple therefor, and the purchaser shall in no case be required to look to the application of the purchase money.”

The will. specifically gives to the widow the income of all of testator’s estate, real and personal, for and during her natural life. This bequest entitles her to 'the income from the time of testator’s death.

Plaintiffs in error contend that because under the statute in force at the time of testator’s death a settlement of the estate was not required until eighteen months from that date, the income of stocks and bonds should be accumulated by the executrix and used as a fund for the payment of debts, and the widow under the will was not entitled to receive any income until after the debts had first been satisfied.

■Such a construction would place upon the life-tenant the burden of the entire payment of the debts and costs of administration. This is contrary to the general rule, which is well stated in 40 Cyc., 1882, where numerous authorities in support are cited.

We think under the terms of the will the debts and expenses of administration should be paid out ■of the corpus of the estate, thus throwing the burden not only upon the remainderman but upon ■the life-tenant. The action of the probate court and the common pleas court in overruling this exception was correct; and in that respect the account and judgment are approved.

The will does not in any respect undertake to prevent the widow from receiving the year’s allowance provided by Section 10572, General Code. The allowance was duly fixed in accordance with the 'statute at $2,000. No exception has been taken to the amount as thus fixed, or to the. method in which it was determined, but it is contended that because provision was made for the widow by giving her the income of the entire estate it was unnecessary to add to that income for the purpose of her first year’s support.

The case of Collier v. Collier’s Exrs., 3 Ohio St., 369, is conclusive to the effect that, where, as in this case, the will does not otherwise expressly direct, the widow is entitled to such an allowance. The lower courts were therefore right in overruling the exceptions in that respect.

In fixing the compensation of the executrix, ■statutory commissions, as provided in Section 10837, General Code, were calculated upon the entire estate. It is objected to by plaintiffs in error, who contend that commission should be allowed only upon the amount of $5,901.67, being •the amount of cash received and disbursed, and that no commission should be allowed upon the stocks and bonds, on the ground that that portion of the estate has not been collected and accounted for by the executrix:.

All of the estate has ttndoubtedly been collected, and, so far as the terms of the will permit, it was entirely accounted for by the executrix. It is true that the account shows that the stocks and bonds-are retained by Louise Messang, executrix, the income of which is to go to her for life under item second of said will. This was a proper and complete settlement at that time. However, after the expiration of the life of Louise Messang it would become necessary — as appears from this record, has now been done — that an administrator de bonis non with the will annexed should be appointed for the purpose of distributing this property to the remaindermen entitled thereto under the terms of the will. To that extent, therefore, the estate of Frank Messang was not entirely settled by the filing of this final account.

As held by this court in Bates, Admr., v. Creed, Admr., 2 Ohio App., 59 (15 C. C., N. S., 433), at page 63:

“When, by reason of the death of the original executor or because of his resignation or removal, it becomes necessary to have an administrator de bonis non succeed him, or for any ’reason successive administrators are appointed to complete the administration of one estate, it is not intended that the costs of administration should thereby be increased, but the statutory commissions should be equitably apportioned, between or divided among the successive executors and administrators in proportion to the value of the services rendered by them, respectively, in such administration.”

The same question was before the court of appeals of the sixth district in Thurston v. Ludwig, 4 Ohio App., 486, 25 C. C., N. S., 298, where the same ruling was made. In the opinion of the court in that case Judge Richards enters into a full discussion of the question, and supports the ruling 'by citations from' other states.

Under this ruling the probate court made an allowance to Louise Messang for the statutory-commission of $1,000, leaving a- balance of such statutory 'compensation $426.48 undisposed of, to be used in meeting the expense of the subsequent administration of the estate by the administrator de bonis non. We think that this ruling of the probate court was proper, and to that extent the decision of the common pleas court in allowing the executrix the entire amount claimed in her final account was erroneous, and to that extent the judgment of the common pleas court should be modified.

The remaining question to be considered. is whether $1,200, the amount paid by the executrix to her attorney for legal services rendered in the settlement of this estate was or not excessive. It •is contended by plaintiffs in error that this amount was excessive and unreasonable, and more than such services were fairly worth.

We have -carefully considered the evidence contained in the record in this respect and find that, considering the services rendered and the fact that the estate inventories more than sixty-five thousand dollars, and that its settlement involved -considerable time and attention, the amount allowed must be deemed fair and reasonable and not in excess of the value of the services to such estate. In that respect therefore the judgment of both the lower courts is approved.

The judgment of the court of common pleas is therefore affirmed, except in respect to the matter of the statutory compensation of the executrix, as to which the judgment” of the probate -court is approved rather than that of the court of common pleas.

Judgment accordingly.

Gorman and Hamilton, JJ., concur.


source: Caselaw Access Project

author: Allread, J.

license: Public Domain

text:
    Rice v. Post et al.

      raise imprisonment — Damages• — Defenses — Sufficiency of process — Capias in contempt proceeding.

    A capias issued in a case of indirect contempt, in order to protect the arresting officer, should briefly state the substance of the offense charged or the criminal act relied upon.
    (Decided June 21, 1917.)
    Error : Court of Appeals for Montgomery county.

      Mr. J. W. Sharts and Mr. L. E. Speer, for plaintiff in error.

      Mr. Joseph Chamberlain and Mr. Jay Leach, for defendants in error.
   Allread, J.

The plaintiff, Amanda Rice, brought the original action in the court of common pleas against the arresting officers for false imprisonment.

Upon the trial it' was shown that the plaintiff was arrested upon a writ issued by the clerk of the municipal court upon a capias blank containing the following:

“The State of Ohio,
“Plaintiff,
vs. “Amanda Rice, No. 6183, Capias.
“133 St. Clair Street,
“Defendant.
“To the Chief of Police,
“■Greeting: — ■ * * *
“Whereas, Amanda Rice has been ordered into court for contempt * * *
“You are therefore commanded to take and safely keep said Amanda Rice so 'that you have her body before this court forthwith to answer to said charge and abide the order of the court, and have then and there this writ.”

The evidence tends to prove that the so-called “capias” was issued under a verbal order of the court in the case of State v. Ida Johnson, and that the only record made of the proceedings prior to the arrest was “5/25/1915, the court ordered a capias issued.”

The evidence further tends to show that' the plaintiff, Amanda Rice, was not a party or witness in the Johnson case nor was she present or represented in that case.

The testimony does not justify an inference that Amanda Rice had committed any offense in the presence of the court or so near the court as to obstruct the administration of justice.

Her offense, if any, was for indirect contempt of court. It was not, therefore, a case where the court could act summarily and under verbal orders and process, but it was one where the charge must be fairly stated, either by. affidavit, written charge, or written order upon the court’s docket describing the offense.

While the usual process for bringing in parties in cases of indirect contempt is a citation or notice, yet, where the offense is flagrant, or in cases of emergency, the original process may be by capias or order of arrest. But in the latter event the process under which the arrest is made should state briefly the substance of the offense charged. 9 Cyc., 39; Lowe v. State, 9 Ohio St., 337; Post v. State, 14 C. C., 111; and Myers v. State, 46 Ohio St., 473.

It is claimed, however, that the arresting officers were not bound to go behind the process issued to them to ascertain the regularity of the warrant or capias.

While that is undoubtedly true, yet that contention does not help out in the present case, because even the capias contains no statement of the offense charged.

The fact that the plaintiff had been ordered into court for contempt is no statement of an offense. Contempt of court is a general description of a class of offenses. No criminal act is stated,, and the process was therefore insufficient to protect the officers in making the arrest.

It therefore follows that the trial court erred m directing a verdict in favor of the defendants and that the judgment should be reversed and the cause remanded for a new trial.

Judgment reversed and cause remanded.

Kunkle and Ferneding, JJ., concur.


author: Jones, P. J.

text:
    The Cincinnati Traction Co. v. Lied.

      Charge to jury — Credibility of witness — ■Effect of conviction of felony — Refusal of additional instruction — Not reversible error, when.

    It is not reversible error for the trial judge in a civil case to decline to give an additional instruction to the jury, defining the relation plaintiff’s conviction of a felony bore to his credibility as a witness, where counsel failed to formulate any specific rule of law in their request that such a charge be given.
    (Decided November 19, 1917.)
    ■Error: Court of Appeals for Hamilton county.
    The plaintiff below recovered a judgment for damages resulting from injuries while a passenger alighting from a car of defendant company. A reversal of that judgment is sought in these error proceedings.
    The plaintiff was the only witness who testified ■as to just how the accident occurred. No operative of the defendant company was called, the only ■witness offered by it being a claim agent who ■was unable to testify in relation to the accident itself. Numerous witnesses on behalf of plaintiff testified as to his injury and results therefrom, and medical evidence was introduced as to the fact that sarcoma had developed from a bruise, resulting in the necessary amputation of his leg.
    The only evidence offered by defendant, other than the testimony of the claim agent, was a certified copy of an indictment of plaintiff for accepting a bribe while a public officer; a certified ■copy of the verdict finding him guilty; and a certified copy of the sentence of the court.
    The court in its general charge used the following language:
    “You, the jury, are the sole judges of the facts, of the weight of the evidence and of the credibility of the witnesses. The evidence has to be weighed in the scales of credibility. You must consider, whether the evidence is probable or improbable, whether it is sustained with reason and common sense as applying to the transaction, whether it appears that the testimony has been given frankly, openly and squarely, or whether it has been given otherwise. You will consider all the things that appeared in this case that ought to be considered in determining the credibility of the testimony that has been given to you by the various witnesses. You do not have to believe what a witness states just because he may have stated it, but you may disbelieve it altogether if you consider that the witness is unworthy of belief, or you may believe a part and disbelieve other parts; you should consider the interest, the motive, if there is any, which. prompts a witness to testify, or you may consider the want of interest, whether or not a witness is disinterested and has no reason under all the circumstances for telling anything but tht truth The truth is the most sacred thing courts of justice deal with. There is not anything in a court of justice that is more shocking than an untruth. Therefore, gentlemen, while you are sitting in the jury box and acting under the solemn obligation you have undertaken, you have a sacred job to perform, and you know nothing but your conscience and your oath and your duty as members of this jury.
    “You have a right to determine from the appearance of the witness on the stand, his manner of testifying, his apparent candor, his apparent intelligence, his relationship, business or otherwise to the party, his 'interest if any may appear from the evidence, his temper, feeling or bias, if any, and from all these and all the other circumstances appearing in connection with the evidence produced at the trial, you, the jury, have the right to determine which witness is the more worthy of credit and to give credit accordingly.”
    At the close of the general charge, counsel for defendant made this statement to the court:
    “I desire to call attention to an omission in the charge, and I request your honor to charge upon the relation of the conviction of the plaintiff of a felony, an infamous crime as bearing on his credibility as a witness.”
    This request was refused and counsel for defendant excepted and also took a general exception to the charge.

      Messrs. Kinkead & Rogers, for plaintiff in error.

      Messrs. Belcher & Connor and Mr. Simeon M. Johnson, for defendant in error.
   Jones, P. J.

'Counsel for plaintiff in error insists that the trial court committed reversible error in refusing to make an additional charge to the jury in response to his request at the end of the general charge, defining the relation that plaintiff’s conviction of a felony bore to his credibility as a witness; and he relies chiefly upon this so-called error to secure a reversal of the judgment below.

While under the common law one who had been convicted of an infamous crime was not permitted to testify, that harsh rule has been abrogated, and under our code all persons are competent witnesses except those of unsound mind and children of tender years. Section 11493, General Code.

In criminal cases it is provided, Section 13659, General Code:

“No person shall be disqualified as a witness in a criminal prosecution by reason of his interest in the event thereof, as a party or otherwise, of by reason of his conviction of crime. * * * Such interest, conviction or relationship may be shown for the purpose of affecting the credibility of such witness.”

There is no question, therefore, but that the plaintiff was a competent witness in this case. Defendant furnished to the jury ample proof of his conviction of the crime of bribery, and, that being ' practically all of the testimony offered by defendant, it certainly must have been impressed upon the minds of the jurors as one of the important “circumstances appearing in connection with the evidence produced at the trial” from which the jury were directed by the court “to determine which witness is the more worthy of credit and to give credit accordingly.”

It would have been proper for the court to instruct the jury that they might take into consideration the fact of his conviction in determining his credibility. (Conkey v. Carpenter, 106 Mich., 1.) But that was not necessary, and possibly might have been considered improper under the rule laid down in The State of Ohio v. Tuttle, 67 Ohio St., 440, in which the fourth clause of the syllabus is as follows:

“It is not the province of the court to classify witnesses, and give to the jury what the experience of the courts may be in respect to such a class, but their credibility should be left to the jury, under all the competent facts and circumstances of the case before it.”

No written charge in this respect was asked by counsel for defendant, as might have been done under Clause 5 of Section 11447, General Code, nor was any distinct rule of law suggested or formulated by counsel in his request to the court at the close of the general charge. It was clearly the duty of counsel not only to call the court’s attention to such omission as he claimed, but, if he desired to found error upon it, to indicate clearly what he claimed the law to be and what charge he desired the court to give. It does not seem to be essential that this request should be in writing, but there must be some specific rule of law formulated in that request in order to predicate error upon its refusal. The Columbus Railway Co. v. Ritter, 67 Ohio St., 53, and Whitaker, Admr., v. The Michigan Mutual Life Insurance Co., 77 Ohio St., 518, 522.

In the opinion of this court it was not prejudicial error in the trial judge to fail to add anything, further to what had been said by him in the general charge on the suggestion made by the counsel for defendant below; and a careful review of the record fails tó disclose any error to the prejudice of the plaintiff in error, and the judgment is therefore affirmed.

Judgment affirmed

Gorman and Hamilton, -JJ., concur.


author: Houck, J.

text:
    Reifsnyder et al. v. The Canton Fertilizer & Chemical Co.

      Nuisances — Power of legislature to create — Injunction lies, when — Garbage disposal plant — Effect of contract with city.

    1. The authority vested in municipalities by the legislature to contract for garbage disposal does not authorize the creation of a continuing nuisance, which will be a menace to health and an injury to private property; on the contrary the power so granted must be exercised with due regard to the health and comfort of the community and the rights of property owners, and where not so.exercised injunctive relief may be granted.
    2. The fact that a garbage disposal plant, operating under contract with a municipality, is equipped with the most modern facilities and operated with skill and care does not preclude relief from smoke and noxious gases and odors emitted by such plant.
    (Decided April 1, 1918.)
    Appeal: Court of Appeals for Stark county.

      Messrs. Webber & Turner, for plaintiffs.

      Messrs. Lynch, Day, Fimple & Lynch, for defendant.
   Houck, J.

This is a suit' in equity in which the plaintiffs seek to enjoin the defendant company from operating its garbage disposal plant, located near the city of Canton, Ohio, and'say that said plant throws off offensive gases, smokes and odors, which plaintiffs claim are injurious to their health, and, further, that their homes, by reason of same, have become and are almost useless.

The pleadings being somewhat lengthy, we deem it necessary in this opinion to set out only such parts as we think essential to a proper determination of the facts and the law in the case.

Plaintiffs’ petition avers that “said so-called garbage disposal plant so erected by said company, and which is now operating for the so-called disposal of the garbage so delivered by said city of Canton to it, is either totally unfit and unsuited for the purpose of a garbage disposal plant and for the purpose of properly disposing of garbage, or the same has at' all times by said defendant company been ^so unskilfully and inefficiently oper- ■ ated as to cause the same to be so unfit and inefficient. * * * Plaintiffs say that they are not well enough acquainted with the mechanism of a plant of that kind and character to allege or aver as 'to whether or not the cause of said injuries is by reason of the inefficient operation of said plant, or by reason of the fact that said plant is not adapted to nor is it fit for the purpose of a garbage disposal plant.”

The answer of the defendant denies all of the material allegations of plaintiffs’ petition, and affirmatively sets forth “that defendant’s said plant complained of in plaintiffs’ petition was built, and was and is constructed and maintained upon the most modern sanitary and scientific plans, and was and is equipped and operated with the highest degree of care, and with the most modern and improved machinery, mechanism and devices for the elimination and destruction of any and all odors, vapors and gases which may arise in the operation of said plant, or which in any wise may be- incident thereto, and that no odors, vapors or gases have arisen therefrom save and except such only as are unavoidable, and are necessarily incident to the conduct of said business by the highest degree of care, and by -the most skilled and improved methods, both as to the construction of said plant and in the manner of its operation.”

The defendant, as a further defense, says “that on the 6th day of December, 1916, the defendant entered into a written contract with the city of Canton, Ohio, for the erection by defendant of a garbage disposal plant adjacent to its said fertilizing and rendering plant and for the disposal thereat by defendant of the garbage collected by said city within the limits of said municipal corporation during a period of ten years after said disposal plant was completed and ready for operation. That said contract between said city and defendant was duly made and entered into, and said disposal plant constructed and operated under it, and in accordance with and as authorized by the provisions of law contained in Section 3809 of the General Code of this state, and under and in pursuance of an ordinance duly passed by the council of said city, on the 27th day of November, 1916, authorizing the making of said contract on behalf of said city. * * * ■ Defendant especially denies that it at any time in the operation of its said plant has caused plaintiffs or any of them any actual, substantial or material injury or annoyance in the use and occupancy of their homes, and avers that in the event the operation of said disposal plant is enjoined and discontinued, such action would result in great and immediate loss and damage to the city of Canton and to the defendant, and would result in great and irreparable injury to the health and welfare of the residents of said city and the community at' large.”

Counsel for defendant in their printed brief say “that the garbage disposal plant in question, .having been erected by defendant at a place designated by the city of Canton, under a contract entered into by defendant for the purpose of conserving the public welfare, in pursuance of legislative authority conferred upon the city by Section 3809 of the General Code, its operation can not properly be enjoined, providing the plant is properly constructed, and equipped and operated with the highest degree of care and skill, so as to produce the least possible annoyance.”

To this claim we can not and do not assent. While it is true that the legislature has enacted a law authorizing a city to contract for garbage disposal, yet the legislature can not authorize the creation of a continuing nuisance, which in effect becomes a standing menace to health and destroys private property. It seems to us that the power granted by the legislature to municipalities in this respect is to be exercised with due regard for the health and comfort of a community, and, when not so exercised, courts of equity will not and should not deny an application for relief until violated private rights have been in some way protected. Does the mere fact that a garbage disposal plant is constructed, equipped and operated with the highest degree of care and skill, so as to produce the least possible annoyance, bar and preclude plaintiffs from the relief asked by them in their petition, in the face of the fact that the evidence before- us clearly shows that the plant as. now operated emits gases, smokes, vapors and noxious odors, to the injury of the healtl of plaintiffs as well -as to the material injury of their property? Certainly not.

The plant may be conducted with as little annoyance as those who operate it can produce, yet does not the law require it to be so operated as not to injure the health of persons living near it? Also that it shall not throw off destructive vapors, causing' injury not only to human life but destruction to property as well ? There can be but one answer, and that is in the affirmative.

The owner of a garbage disposal plant has a right to send the smoke, vapors and noxious odors from the same into the open air, provided no one is actually injured or annoyed thereby; but such owner has no right to cast off from such plant smokes, noxious odors and unwholesome smells upon his neighbor’s home and property, and then plead as • a defense that he has done so with as little annoyance and inconvenience as possible. Such owner will not be allowed to manage, control and operate his business according to his own notions of how it shall be done, in total disregard of the health and comfort of his neighbor. A person is bound to use his own property in such way and manner as not to injure the property of his neighbor; therefore a use which produces injurious and destructive vapors, smokes and noxious odors, causing an annoyance to property owners in the neighborhood, is such an annoyance as will authorize a court of equity to act and grant the proper relief.

We must bear in mind that the city of Canton is not a party to this suit, nor is it necessary or proper that it should be. The fact that it made a contract with the defendant in this case to dispose of it's garbage does not add to or take from the plaintiffs any of their' legal or equitable rights in the premises, and it in no wise creates in the defendant any greater rights in law or equity as to the proper determination of this suit.

Coming now to a brief discussion of what appears to us to be the real question in the case, Have the plaintiffs or any of them suffered any actual, substantial or material inconvenience or annoyance in their homes, or have any of them been injured in health? This must be determined by the evidence in the case, which consists of more than nine hundred pages of typewritten matter. We have read this testimony with much care and no small amount of labor. Before the plaintiffs are entitled to the relief prayed for in their petition they must establish by clear proof all of their material allegations, as set forth in their said petition. A .court of equity is not authorized to grant injunctive relief unless the proof clearly warrants it. We are then led to inquire, How stand the issues of fact in this case? The great weight of the evidence is with the plaintiffs, and they have fully satisfied us that the claim they make is right and is clearly sustained by the evidence in the case.

\ After a careful consideration of the whole case we are of the opinion that the plaintiffs are entitled to an injunction restraining and preventing the defendant from operating its said plant' in such a way or manner as to cause offensive or noxious odors, vapors, gases and smokes to be thrown off or cast from its plant upon the homes or premises of said plaintiffs, or either of them, to the substantial or material injury or annoyance of the said1 plaintiffs or any of them.

Decree and judgment accordingly.

Powell and Shields, JJ., concur.


text:
    Beckman, Trustee, et al. v. The Emery-Thompson Machinery & Supply Co. et al.

      Courts of appeals — Jurisdiction of proceeding in error — Prom order setting aside sheriff’s sale, etc. — Judgment defined — Section 11582, General Code — Parties — Purchaser at sheriff’s sale.

    ’ 1. An order setting aside a sheriff’s sale of property and appointing a receiver therefor, after confirmation of the sale and an order putting the purchaser in possession, is a judgment within the terms of Section 11582, General Code, and error will lie to the court of appeals.
    2. A purchaser at sheriff’s sale can prosecute error to reverse a judgment sustaining a motion to set aside such sale.
    (Decided May 14, 1917.)
    Error: Court of Appeals for Hamilton county.
    On Motions to dismiss petition in error and to set aside stay of execution.

      Messrs. Dolle, Taylor, O’Donnell & Geisler, for plaintiffs in error.

      Mr. Alfred B. Benedict; Messrs. Hackett, Yeatman & Harris and Messrs. Galvin '& Bauer, for defendants in error.
   Jones, P. J.

The action below was one for a foreclosure of a mortgage upon real estate and chattel property of a manufacturing business.

Pending the proceedings, on June 28, 1916, a receiver was appointed, as provided under the terms of the mortgage or deed of trust, to take charge of the property, with authority to operate said factory for the purpose of executing its contracts, and with other powers.

Afterwards a judgment was entered for plaintiff, and a decree for sale of the mortgaged property. Under this decree a sale was made by the she'riff' and reported to the court. Said sale was duly confirmed by the court by decree entered January 12, 1917, which directed the sheriff to convey the property to the purchaser and put him in possession thereof, and ordered distribution of the proceeds.

After the purchaser had taken over the property under this sale and had sold and disposed of same, on February 17, 1917, a motion to set aside the confirmation of the sale was filed.

On April 12, 1917, this motion was granted, and the court made certain findings of fact and conclusions of law and entered an order or judgment setting aside said sheriff’s sale and appointing a receiver for said property.

This error proceeding was filed in this court, and an entry was made staying proceedings until hearing could be had herein.

While in the course of the oral argument and •upon the briefs the merits of the proceeding ’in error have been somewhat discussed, the case'has not 'been reached for trial or heard upon its merits, but the questions now presented to the court are confined to those raised by the motion to dismiss the petition in error for want of jurisdiction and the motion to set aside the stay of .execution granted by this court.

It is claimed on the part of defendants in error that this court is without power to review the judgment or order of the court of common pleas, contending that it was an interlocutory order and in no sense 'a final order or judgment. They rely upon Niles v. Parks et al., 49 Ohio St., 370, where on the motion of a purchaser of land. sold at sheriff’s sale the order of confirmation of such sale, and the sale, were set aside, and from such order error was prosecuted to the circuit court and thence to the supreme court. In that case the supreme court did not decide that the order setting 'aside the confirmation was an interlocutory order or that it could not be reviewed, but on the contrary took jurisdiction of the case and affirmed the judgment. If the circuit court had no jurisdiction, the error proceeding should have been dismissed in that court, and its judgment of affirmance would not have been affirmed by the supreme court, but to the contrary its lack of jurisdiction would have 'been pointed out, and the judgment of affirmance would have been reversed and the cause remanded with instructions to dismiss for want of jurisdiction. In the first paragraph of the opinion the court says:-

“This court will not consider the evidence introduced on the hearing of the motion, for the purpose of determining whether it is sufficient to sustain the judgment of the court on the motion.”

The reason for this holding of the court is not given. It may have been because the pleadings and the record failed to show any abuse of the discretion of the trial court, or it may have been because under Section 12253, General Code, the supreme court is not required to weigh the evidence. Be that as it may, it surely did not decide that there was no jurisdiction to review the judgment of the trial court' on the motion.

It might be noted as significant that in this language of the supreme court the action of the trial court is termed a “judgment,” not an interlocutory order. So far as the purchaser of the property is concerned it is a complete and final determination of his rights, and as to him it would be a judgment within the terms of Section 11582, General Code.

But it is argued that the purchaser was not a party to the original action and therefore has no standing to prosecute error proceedings. In Niles v. Parks it appears that Parks was the purchaser, and there is nothing in the report to indicate that he was an original party. The sale there was set aside because he knew nothing of the property, which did not contain the quantity represented, so it might well be inferred that he was not a party to the action.’

In Ackerman, Recr., v. Cornell et al., 14 C. C., N. S., 525, it is squarely decided that a purchaser at sheriff’s sale -can prosecute error to reverse a judgment sustaining a motion to set aside a sale of real estate. There can be no question of the correctness of such a decision in a case like the one at bar where the property has passed into the possession of the purchaser and he- has made disposition of it. And it' will not do to say that as to him it is a mere interlocutory matter that can only be reviewed after final disposition of the entire case with reference to all the parties.

The judgment sought to be reviewed not only set aside the sale, but also appointed a receiver to take possession of the property and operate the business. It was not a mere substitution of one receiver for another. Whatever the powers of the original receiver may have been, he' surrendered possession of the property to the purchaser upon confirmation of the sale, and he had no further duty except ¡to render an account. In so far as this judgment appointed a receiver to take charge of this property and divest the vendee or his purchaser of its possession, it is clearly a final order subject to review. This court has so held in several cases. One of its recent cases is that of The D. T. Williams Valve Company v. Williams, 25 C. C., N. S., 497. Probably the most frequently cited case on this question is The Cincinnati, Hamilton & Dayton Rd. Co. v. Duckworth, 2 C. C., 518 (affirmed 21 W. L. B., 36), where it was held that an order of the court of common pleas made upon a preliminary application appointing a receiver was a final order within the* meaning of Section 6707, Revised Statutes (Section 12258, General Code), which might be reversed, vacated or modified by the circuit court. It was also held that execution of such final order could be stayed by the court, pending the hearing of the petition in error. In the able opinion of Judge Smith the conditions under which a stay of execution should be allowed are fully discussed. Applying the principles enunciated in that case to the case here under consideration we-believe this court was right in granting the stay already allowed in order that matters may remain in the condition in which they were found when 'the court of common pleas entered the judgment to be reviewed, until the case can be heard on its merits.

Both the motion to dismiss the petition in error and the motion to set aside the stay of execution are overruled.

Motions overruled.

Gorman and Hamilton, JJ., concur.


author: Hamilton, J. Jones, P. J.,

text:
    Friedberger v. The Baltimore & Ohio Southwestern Rd. Co.

      Negligence — Obstruction in aisle of railroad coach — Train lurches and passenger injured — Contributory negligence — Presumption and bttrden of proof — ■Proximate cause.

    1. Where a passenger on a train of defendant ^leaves his seat in a day coach to go to another coach to see a party and in so doing, while stepping over a bag of linen in' the aisle of the dining compartment in such coach, the train gives a lurch and such passenger is thereby injured, there is a clear presumption of contributory negligence which plaintiff must remove before he is entitled to recover.
    2. In such case the proximate cause of the injury was the lurch of the train, and not the placing of the linen bag in the aisle.
    (Decided April 16, 1917.)
    Error: 'Court of Appeals for Hamilton county.

      Mr. Henry T. Hunt and Mr. E. P. Moulinier, for plaintiff in error.

      Messrs. Harmon, 'Colston, Goldsmith '& Hoadly, for defendant in error.
   Hamilton, J.

Meyer Friedberger -brought suit in the common pleas court of Hamilton county, Ohio, against The B. & O. S. W. Rd. Co., claiming to have been injured while a passenger on defendant’s train going from Cincinnati to Louisville, alleging negligence on the part of the railroad company in placing a bag of linen in the passageway to the dining car and permitting said linen bag to remain in 'said aisle of the car. The defendant company made denial of negligence, alleging contributory negligence on the part of the plaintiff.

At the close of plaintiff’s testimony defendant moved for an instructed verdict, which was "granted and judgment rendered thereon. To this judgment plaintiff prosecutes error to this court.

The only witness testifying to the facts concerning-the negligence complained of was the plaintiff. According to his testimony he took passage on defendant’s train, on a day coach, to go from Cincinnati, Ohio, to Louisville, Kentucky; he left his seat in the day coach to go into the chair compartment of a combination dining and chair car to see a party on business, who he thought might be in the chair car compartment. To reach the chair car compartment he started to pass through the aisle or passageway leading into the dining compartment, and encountered a bag of linen in the aisle, which filled the aisle. He did not state ‘how the 'bag got there, or how long it had been there, but it may be inferred that it' was placed there by an employe of the defendant company. He further testified that he tried to step to the side of the bag, and then tried to push the bag with his foot, -and failing in this endeavored to lift it with his hands, and not being -able to do so undertook to step over the bag, and, as he lifted his foot for that purpose, the train gave a lurch and he was thrown upon his 'back in the aisle and twisted his foot.

If we admit that there was some evidence tending to show that the bag had been placed in the aisle by the defendant company’s employe and was permitted to remain there an appreciable time, still was not the testimony of the plaintiff sufficient to defeat his recovery upon the ground of contributory negligence?

The law governing this question as stated in B. & O. Rd. Co. v. Whitacre, 35 Ohio St., 627, is as follows:

“1. In an action for an injury, oceásioned by negligence, where the circumstances require of plaintiff the exercise of due care to avoid the injury, and his testimony does not disclose any want of such care on his part, the burden is upon defendant to show such contributory negligence as will defeat a recovery.
“2. But if plaintiff’s own testimony in support of his cause of action raises a presumption of such contributory negligence, the burden rests upon him to remove that presumption.”

The uncontradicted evidence of the plaintiff is that he had traveled over this route on defendant’s trains for more than forty years and was consequently fully acquainted with the curves and conditions of defendant’s road. He was an old man, seventy years of age; he was safely seated in the day coach; on his owh impulse or desire, while the train was in rapid motion, he got up from his seat in the day coach and started through the ■train in search of a party who he thought might .be in the chair car compartment of the diner; and, in passing through the aisle leading to the diner, he encountered a bag of linen obstructing the aisle. ■Not only was the bag in plain view of the plaintiff, 'but the plaintiff actually endeavored tor remove it, and then started to step over it, without making any effort to have it removed by the employes of the defendant company. And in his effort to step over it the accident happened.

As to whether of not under this state of facts there -is any evidence of negligence on the part of ■the defendant company admits of grave doubt; but, ■aside from that, the plaintiff’s testimony clearly raises a presumption of contributory negligence which the plaintiff failed to remove. Consequently he must fail in his action. Railroad Co. v. Whitacre, supra, and Cincinnati Traction Co. v. Edwards, Admr., 22 C. C., N. S., 539.

Aside from the question of the contributory negligence of the plaintiff, the majority of the court are further of the opinion that the proximate cause of the injury was the lurch of the train, and no’t the placing of the linen bag in the aisle, which is the charge of negligence claimed in the petition. The plaintiff’s testimony was the only evidence offered, and on page 7 of the record he says: “Took the right foot, tried to step over it [the linen bag], the car gave a lurch and threw me right in the passage-way.” This evidence is undisputed, and clearly establishes the fact that the placing of the linen hag in the aisle was not the immediate cause of the’ injury.

The judgment- of the ¡court of common pleas is affirmed.

Judgment affirmed.

Gorman, J., concurs.

Jones, P. J.,

dissenting. The question whether the obstruction made by the bag of soiled linen in the passageway of the car, or the lurching of the train, was the proximate cause of plaintiffs injury was not a question of law but of fact for the jury; as was also the question of whether plaintiff in attempting to step over this obstruction was guilty of contributory negligence. In my opinion the case should have been submitted to the jury, and the court erred in directing a verdict. Ellis & Norton v. Ohio Life Ins. & Trust Co., 4 Ohio St., 644, and Gibbs v. Village of Girard, 88 Ohio St., 34.


author: Lieghley, J.

text:
    The Goff-Kirby Coal Co. v. Skufca, etc.

      Master and servant — Scope of employment — Liability to third person — Wagon driver permits child to ride — And child injured in alighting — Imputed negligence. .
    1. The plaintiff, a boy of the age of nine years, together with other boys, was invited by the driver of a coal wagon, owned by the defendant company, to take a ride. While so doing the plaintiff requested the driver to allow him to alight from the wagon, and upon such request being ignored, attempted to alight from the wagon and was thrown and injured by the wagon. Held: That the company was not liable for the act of its servant, for the reason that the driver was not acting within the scope of his employment.
    2. Acts done by a servant not within the scope of his employment nor in furtherance of the master’s business can not be imputed to the employer.
    (Decided May 7, 1917.)

      Error : Court of Appeals for Cuyahoga county.

      Messrs. Kline, Clevenger, Buss '•& Holliday, for plaintiff in error.

      Messrs. Payer, Winch, Rogers & Minshall, for defendant in error.
   Lieghley, J.

The parties in this court stand in reverse order to what they did in the lower court, ■and will.be mentioned herein as they were below.

It is claimed by the plaintiff that on the 9th day of March, 1914, Joseph Skufca, a boy of the age of nine years, left a parochial school at about 3.30 o’clock in the afternoon, and that he and four or five other boys were invited bythe driver of a large coal wagon, then and there owned by the defendant company, and in charge of its driver, one Andrew O’bster, to climb upon the wagon and take a ride; that Joseph and the other boys did so, and rode on said wagon in a northerly direction on Chardon road until they reached the intersection of Chardon road and St. Clair avenue, and when the driver was about to turn west on St. Clair avenue-Joseph requested the driver to allow him to alight from said wagon, which request the driver ignored and refused; that thereupon Joseph attempted to alight from the wagon and was thrown and fell and caught and run over by the rear right-hand wheel thereof, and injured; that after Joseph fell in alighting from the wagon it is claimed that one or more of the boys with him 'called the attention of the driver to the perilous position of the boy, which he heeded not, but drove on; that' the driver, of course, knew of the presence of the boys on the wagon; that he was acquainted with the boys, for the reason that they lived in the same neighborhood with him; that at the place on the street where the injuries were sustained there was a slight down grade in the direction in which the wagon was going; that other boys on the wagon requested the driver to stop, which request the driver did not heed; that this conduct on the part of the driver was of a character so reckless as to constitute wilful negligence; and that the undisputed proof is that the driver was not authorized by his employer to invite and haul Joseph and the other boys.

Under this summary of the claims and facts, it is alleged by plaintiff that the defendant is liable.

A petition was filed in the common pleas court to recover damages for the injuries which the boy, Joseph Skufca, received on said date, which resulted in a verdict and judgment in favor of the plaintiff, from which error is prosecuted to this court.

It is our conclusion that there can be no recovery for the injuries which the boy sustained, unless it be shown that the acts of the driver 'were within the scope of his employment' and in furtherance of his master’s business. The driver was in charge of a coal wagon loaded with coal for delivery at some point beyond the place of injury. It is conceded that he was not authorized by his employer to invite and haul this boy or others. Nothing has been urged tó show that anything done by the driver on this day in respect to this boy was or could be in furtherance of the business of the defendant.

“In determining whether, a particular act was done in the course or within the scope of the agent’s employment, two things are always to be primarily considered:

“First — Was the agent engaged.at the time in serving his principal?
“Second — Even though so engaged, was the act complained of within the scope of the agent’s employment?” Lima Ry. Co. v. Little, 67 Ohio St., 91, 98, and The White Oak Coal Co. v. Rivoux, Admx., 88 Ohio St., 18, 33.

A master is not liable for the act of his servant unless it was done for the purpose and as a means of doing what the servant was employed to do. “An act done by the servant while engaged in his master’s work, but not done as a means or for the purpose of performing that work, is not to be deemed the act of the master.’ Bowler v. O’Connell, 162 Mass., 319, 320.

In the Massachusetts case a son of the defendant was directed and instructed to lead a colt from the stable to water, and while in the performance of that duty the son invited the plaintiff, a boy of five or si:^ years, to take a ride upon the colt. The boy accepted the invitation and approached the colt for the purpose of mounting, and was -kicked and severely hurt. Suit was brought against the owners of the colt and the -employers of the son. The court applied the principle last above quoted, and held that 'the son in inviting -the boy to ride the colt was acting beyond the scope of his employment, and that the defendant was not' liable. Also see Foster-Herbert Cut Stone Co. v. Pugh, 115 Tenn., 688.

In order that the plaintiff may be entitled to recover it must 'be found that the defendant owed the plaintiff at the time some duty. It was practically conceded in the argument, in the instant ease, that up to the time the plaintiff made a request to be permitted to alight from the wagon no duty was owing by the defendant to the boy.- It was claimed, however, that when the boy made a request to alight the driver owed the boy the duty to exercise ordinary care to permit him to do so, being charged with knowledge of 'his age and his position on the wagon and the possibility of his being injured in the event he jumped. It was further urged that at this point of time the situation was the same as if the boy had run in front of the wagon across the street.

In this view we are unable to agree with counsel, for the reason that this would permit the boy to elect to jump and 'thereby imperil his life or limb, rather than remain in a place of comparative safety, and by his election to do so impose a duty on defendant. The law of the, road imposes certain duties upon both the driver of a vehicle and a pedestrian in the street. Both must exercise ordinary care in the light of all the circumstances then and there existing, based upon the age, etc.,' of the parties, to avoid injury to themselves and others. No such relative duties and obligations existed between this boy riding on the wagon and the driver, in any respect binding upon the defendant.

It is claimed that the acts of the driver constituted wilful negligence. It must be conceded that whatever the driver did in respect to this 'boy was not done within the scope of his employment nor in furtherance of his master’s -business, and therefore -can not be imputed to his employer. If the acts of the driver constituted wilful negligence, it was 'his own negligence, in the same manner as if he had alighted from his wagon and committed an -assault upon a pedestrian on the sidewalk.

We are unanimously of the opinion that the verdict and judgment are -contrary to law and should be reversed and remanded for further proceedings.

Judgment reversed, and cause remanded.

-Grant and 'Carpenter, JJ., concur.


author: By the Court.

text:
    The City of Cincinnati et al. v. Westinghouse Electric & Manufacturing Co. et al.

      Interurban railroads — Receivership — Authority to abandon and dismantle line — Consent of public utilities commission exclusive— Corporation to make application — Who are necessary parties.

    1. Authority to discontinue service on an interurban line, the dismantling of the road and sale of its tangible property can be granted only by the public utilities commission.
    2. Receivers of an interurban road, appointed for the purpose of preserving and operating the property pending a settlement between the company and its creditors, are without authority to apply for an order to abandon- and dismantle the line. Such an application must come from the corporation itself, and municipalities, villages and counties through which the road passes and which have granted franchises for its operation are proper parties and should be heard.
    (Decided November 26, 1917.)
    Error : Court of Appeals for Hamilton county.

      Mr. Charles A. Groom, city solicitor, for city of Cincinnati; Mr. Charles A. Brannock, for village of Bethel; Mr.-Charles G. White; Mr. Charles C. Kearns and Mr. Eli H. Speidel, for village of Amelia and commissioners of Clermont county; Mr. Smith Hickenlooper, for commissioners of Clermont county, and Messrs. Fulford, Shook & Wilby, for property owners, plaintiffs in error.

      Messrs. Dinsmore & Shohl, for defendants in error.
   By the Court.

In the common pleas court of Hamilton county, on October 1, 1914, two receivers were appointed by that court upon the application of the plaintiff, in an action brought merely for the purpose of taking possession of the property of The Interurban Railway & Terminal Company and managing and controlling it and operating its traction lines, and were authorized and empowered to employ the necessary assistants, purchase the necessary material, and make the necessary contracts, to continue the operation of the roads.

The appointment of these receivers does not appear to have 'been ancillary to any other relief prayed for. These receivers were appointed upon the consent of the defendant company.

These receivers continued to operate the three lines of the defendant company for a period of about two and a half years and are still in the possession and control of the properties of the defendant Interurban Railway & Terminal Company, and are operating the three lines of road owned by it: one to New Richmond, Clermont county, Ohio; another to Bethel, Clermont county, Ohio; and the third to Lebanon, Warren county, Ohio.

On April 25, 1917, these receivers filed a petition in the common pleas court which had appointed them as receivers, praying for an order authorizing them to dismantle one of the lines of the said company, to-wit, the line running from Cincinnati to Bethel, Ohio, and to discontinue the operation of the road and to sell and dispose of all the tangible property, including the rails and ties, the overhead wiring and poles. They represented to the court that they had an offer from The Clermont Construction Company to pay for the tangible property $240,000, "par value of first mortgage bonds, and $433,000, par value of the common stock of The Cincinnati, Georgetown and Portsmouth Railroad Company, a competing traction line paralleling almost the entire distance between Bethel and Cincinnati the line of The Interurban Railway & Terminal Company.

The court, upon the application, and after giving notice, made an order directing the receivers to dismantle the road known as The Suburban Division of The Interurban Railway & Terminal Company, and to sell and dispose of the tangible property upon the terms stated in the application.

Before this order was made the villages of Bethel and Amelia, the city of Cincinnati, to which was annexed the village of Mt. Washington, the county commissioners of Hamilton county and the county commissioners of Clermont county were all made parties upon the proper 'application and were given leave to plead, these political subdivisions 'having granted the franchise to The Suburban Division of The Interunban & Terminal Company-several years ago. These new defendants objected to the granting of the application and excepted to the order of the court of common pleas authorizing the receivers to dismantle the road and discontinue its operation. .

It appears from an examination of the pleadings in this case that there was no authority vested in these receivers to dismantle this interurban road or to sell. the tangible property, and the court of common pleas had no power or authority to make such an order. These receivers were appointed to take charge of the property and preserve the same, and to maintain and operate it pending a settlement between the defendant company and its creditors. The effect of dismantling the road and' selling the rails, ties, overhead construction and movable property would be to abandon the franchise, and this could be done by the company only, and not by these receivers. ■

It is true that the company through its secretary comes in and consents to the granting of the application made by the receivers, but this cannot confer power on the receivers to abandon the road, nor to dismantle it. Nor is it the equivalent of an application made by the corporation itself' to abandon its franchise.

Under the law as it now exists, Sections 501, 502, 504-2 and 504-3, General Code, this company cannot abandon its tracks and discontinue its service except upon an application made to the public utilities commission of the state of Ohio. See Section 501, General Code; also, an act passed by the legislature March 21, 1917 (107 O. L., 525), entitled “An act enlarging the powers and duties' of the public utilities commission with reference to the abandonment of service and facilities by railroads.”

We do not pass upon' the question of the authority of the court of common pleas originally to appoint these receivers for the purposes for which they were appointed, as that question is not raised in the record in this case, but we hold that under the order appointing these receivers it was their duty to preserve the property, maintain the road and operate it, and not to abandon it and sell the movable property as junk. The right to abandon the road, if any exists at this time, is in the defendant Interurban Railway & Terminal Company. The public, the villages of Bethel and Amelia, the city of Cincinnati, the •counties of Hamilton and Clermont, which granted these franchises, have an interest in the maintenance and operation of the traction lines, and they are therefore proper parties in this case and should be heard objecting to the discontinuance •of the operation of the road.

For the reasons stated the judgment of the ■court of common pleas is reversed, and the cause is remanded for further proceedings.

Judgment reversed, and cause remanded.

Jones, P. J., Gorman and Hamilton, JJ., concur.


author: Metcalfe, J.

text:
    Silver et al. v. Thomas et al.

      Mechanics’ liens — Individual partner may perfect lien, when — Statements to owner — Who to furnish same — Contractor or subcontractor— New trial — Court to render judgment, when.

    1. When a contract to make an excavation to a building is let to a copartnership, but before the work is completed one of the partners -refuses to proceed and leaves the contract, and the other partner carries it on to completion, the latter is entitled to a mechanic’s lien on the property, in his own name.
    2. The provisions of Section 8312, General Code (103 O. L., 369, 371), “until the statements provided for in this section are made and furnished in the manner and form as herein provided, * * * the subcontractor shall have no right of action,” etc., do not require the subcontractor to furnish such statements directly to the owner unless required by such owner to do so. It is sufficient for him to furnish such statements to the original contractor, whose duty it is to furnish them to the owner.
    3. When the undisputed facts shown in the trial of an action entitle the plaintiff to judgment, it is not error for the trial judge, after granting a motion for a new trial, to render judgment for the plaintiff upon such facts.
    (Decided June 18, 1918.)
    Error: 'Court of Appeals for Mahoning county.

      Mr. L. L. George, for plaintiffs in error.

      Mr. E. N. Brown, for defendant's in error.
   Metcalfe, J.

This action was begun by defendant in -error J. V. Thomas, to foreclose a mechanic’s lien against the property of the defendant below, Minnie Silver..

Mrs. Silver is the owner of a lot in the city of-Youngstown, and she entered into a contract with one Katzman to erect a building thereon. Katzman sublet the excavation of the basement work to the defendant Ralph Maso, and Maso sublet the contract to Thomas & Keegan, a copartnership.

After the work had begun, Keegan, Mr. Thomas’ partner, refused to go on with the work, and thereafter Thomas continued it alone to its completion, and afterwards took out a lien upon the premises in his own name and not in the ñame of the partnership.

It is insisted that the lien should have been taken in the name of the copartnership, and not in the name of Thomas alone, and that by reason thereof the lien is invalid.

The right to a mechanic’s lien does not depend upon contract, but depends upon the fact that the plaintiff who claims the lien furnished labor and materials that entered into the construction of the building. The contract gives him the right to do the work, but, after he has completed it, it is the law that gives 'him the right to the lien. We think, ■in this instance, it makes no difference that the contract was with the firm. After the work was commenced, but before it was completed, one of the partners dropped out, and the other Carried .it forward to completion. We think he is clearly entitled to take out the lien in his own name.

But, it' is insisted that the law was not complied' with by Mr. Thomas, in the fact that he did not give to the owner any notice of the work and labor performed and materials furnished by him.

We do not think the statutes require a subcontractor to furnish any statement to the owner of the premises unless he is required to do so by the owner himself. The language of the statute, Section 8312, General Code (103 O. L., 369, 371), relied upon to sustain the contention of plaintiff in error Mrs. Silver, is as follows:

“Until the statements provided for in this section are made and furnished in the manner and form as herein provided, * * * the subcontractor shall have no right of action or lien against the owner, part owner, * * * until he shall have furnished such statements,” etc.

We have to look to the further provisions of the statute to find out what the “statements provided for” in this section are. The statute provides for certain statements which the original contractor shall make on his own account before he can require any payment of money on the contract, and then that “the original contractor shall also deliver to such owner, part owner, lessee or mortgagee, similar sworn statements from each subcontractor accompanied by like certificates from every person furnishing machinery, material or fuel to such subcontractor.”

'It seems to us clear, from the provisions of Section 8312, that the subcontractor is required to furnish the statement named only to the original contractor, and that the duty does not rest upon him to make any statement whatever to' the owner, unless such owner requires him to do so. This seems to us to be made clear by the following provision in the same section: tractor or subcontractor and given to the owner, * * * within ten days after demand is made.”

“In order that the owner, part owner, lessee, mortgagee, or contractor may be protected, he or his agent may at any time during the progress of the work demand in writing of the contractor or any subcontractor any or all statements herein provided for, which -shall be made by -the con-

We think that when Mr. Thomas made the statements required by the statute, and delivered them to the original contractor, he fully complied with the law.

Another question is raised in this case, which is of some interest. The question of the amount of the indebtedness in favor of Thomas against Mrs. Silver was submitted to a jury. After the verdict was rendered the trial judge granted a new trial, and thereupon on his own motion rendered judgment in favor of Thomas 'for the amount of his claim.

It is urged that this was error, but, upon the undisputed facts as they appear from this record, there is no question of the right of the plaintiff to recover. We think, therefore, that the defendant below could not have been prejudiced by the action of the court. Therefore the case is affirmed.

Judgment affirmed.

Pollock and Farr, JJ., concur.


text:
    The Cleveland Trust Co., Trustee, v. The Cincinnati, Dayton & Toledo Traction Co.

      Court of appeals — Jurisdiction on appeal — Interlocutory and final orders — Confirmation of sale — Foreclosure of railroad mortgage.

    An order confirming a sale made in proceedings to foreclose a railroad mortgage, which order -however reserved for future consideration the right to liens- upon the fund received as proteeds of the sale, in favor of those made parties and who filed answers and cross-petitions after the decree for sale had been- entered, is interlocutory in its nature and appeal does not lie therefrom, under the provisions of Section 6, Article IV of the Ohio Constitution.
    (Decided December 3, 1917.)
    Appeal : Court of Appeals for Hamilton county.
    'On Motion to dismiss appeal.
    An appeal has been taken herein from an order of the common pleas court confirming a sale made in proceedings to foreclose a railroad mortgage.
    It is now heard upon a motion to dismiss this appeal on the ground that the order or judgment appealed from is not a final one.
    The parties prosecuting the appeal are of two classes, one class claiming to hold liens under certain debentures upon an integral portion of the railroad, dating back to a period before its consolidation with other railroads to form the property s-old, and the other class claiming to be holders of certain bonds which constitute a minority of the bonds secured by the mortgage -which is being foreclosed by the trustee at the request' of the holders of a majority of said bonds.

      There is some question of the standing in the ease of the parties constituting this second class of ■appellants, as their respective answers and cross-petitions, which had been. filed by leave, were stricken from the'files by an'order to which they reserved exceptions. They are not n'amed as defendants in the original petition, and no formal entry appears making them parties, although, by leave of court, after the return of the sale, they filed written objections to its confirmation and-took exceptions and gave notice of appeal in the order confirming the sale.
    'Certain owners of debentures constituting the parties of the other class of appellants were, on motion, made parties defendant with leave to plead, after the decree for sale had been entered, and filed answers and cross-petitions setting up their liens and alleging that there was an amount of rental due from The Ohio Electric Railway Company to The Cincinnati, Dayton & Toledo Traction Company, under lease of said railway, sufficient, if collected, to satisfy all their liens, and praying that said order for sale should be set aside ' and the petition dismissed, that said rent be ordered collected and their claims paid, and for further relief.
    A motion of these defendant debenture owners to set aside' the decree and order for sale, or to modify the same and instruct the receiver to bring suit to collect rentals due as prayed in their cross-petitions, was overruled, to which ruling said defendants excepted. Afterwards the sale was made and returned, and on motion of plaintiff an order was made confirming the sale and postponing for future determination all questions relating to distribution of the proceeds, to all of which order all of the defendants other than The Cincinnati, Dayton & Toledo Traction Company excepted, and gave notice of appeal.

      Messrs. Harmon, Colston, Goldsmith & Hoadly and Mr. G. M. Cummings, for plaintiff.

      Mr. Robert S. Alcorn, for Alcorn & Levi; Mr. Starbuck Smith and Mr. Oliver S. Bryant, for Edna Wilson et al, and Messrs. Burch, Peters & Connolly, for Leopold & Levi.
   Jones, P. J.

Just what is a final order or judgment from which appeal lies has always been a •difficult question, and since the change in the 'courts and their jurisdictions, effected by the amendments of the constitution in 1912, that difficulty has not been made less.

Under the law as it stood before this change it was held that a mere order confirming a sale, being administrative in its character, was not appeal-able. Reeves et al. v. Skenett, Jr., et al., 13 Ohio St., 574, and McRoberts v. Lockwood et al., 49 Ohio St., 374.

Section 12224, General Code, which purports to provide for appeals, has been held unconstitutional in Wagner v. Armstrong et al., 93 Ohio St., 443, and the jurisdiction of the • court of appeals is wholly fixed — as held in The Cincinnati Polyclinic v. Batch, 92 Ohio St., 415 — by Section 6, Article IV of the new Constitution, which gives it “appellate jurisdiction in the trial of chancery cases.” The word “trial” does not mean every interlocutory order or step taken in the court as the case proceeds, • but its meaning is well stated in the words of the supreme court in Thompson et al. v. Denton, 95 Ohio St., 333, at page 341 of the opinion:

“We hold that the term ‘trial’ as used in the constitution is broad enough to include any judgment, final order or decree, not interlocutory in its nature, affecting the substantial rights of a party to a chancery suit.”

To be sure, the property in this case is disposed of by the confirmation of the sale, so far as the complaining parties are concerned, except as to their rights to liens upon the fund received as proceeds of the sale, which was by that order reserved for future consideration of the court. But these rights were not concluded by the order of confirmation from which the appeal was taken. If appellants 'had been parties at the time of the decree of foreclosure 'and order for sale, that would have been the judgment which would have substantially affected their rights, from which they should have appealed. But having 'become parties •to the case after that time, they raised the question of first compelling The Cincinnati, Dayton & Toledo Traction Company to pursue their lessee, The Ohio Traction Company, for unpaid rent due, and enforce its payment, instead of selling claims for unpaid rent with the railroad itself on foreclosure. An order was then made by the court refusing to set aside the decree and order for sale and to grant the motion for this relief. This was undoubtedly an order affecting their substantial rights, and inasmuch as they came into the case •too late to seek a review of the decree and order for sale at the time it was made, this order refusing to set it aside should have been made the basis of error proceedings or appeal, rather than the ■decree confirming the sale.

In our opinion the order confirming the sale is interlocutory in its nature, and the motion to dismiss the appeal must be granted.

Motion to dismiss appeal allowed.

Gorman, J., concurs.

Hamilton, J., not participating.


author: Gorman, J.

text:
    Hawke et al. v. The Baltimore & Ohio Southwestern Rd. Co.

      Contracts — Attorney and client — Contingent fee and exclusive right to settle damage claim — Champertous and void, when — - Promise by tort-feasor to recognise contract — Without consideration and nudum pactum, when — Liability of tort-feasor after direct settlement with claimant. .

    1. A contract for an attorney’s fee contingent upon the amount to be recovered, which provides that the client can not settle his claim without the consent of the attorney, is void on the grounds that it is champertous and contrary to public policy.
    2. A promise by the tort-feasor to the attorney of the claimant that it recognized the contract of employment and would protect the attorney under the terms of the contract, in the absence of consideration for the promise, is nudum pactum and not enforceable against the tort-feasor; and this is not altered by the fact that the settlement was made after the tort-feasor had informed the claimant and agreed that it would settle with his attorney.
    (Decided June 18, 1917.)
    Error : Court of Appeals for Hamilton county.

      Mr. Robert S. Alcorn, for plaintiffs in error.

      Messrs. Harmon, Colston, Goldsmith & Hoadly, for defendant in error.
   Gorman, J.

The plaintiffs in error, George S. Hawke and Ernest N. Paooas, were employed by one Mike Pintar to represent him and to present a claim for personal injuries which he claimed to have received while in the employ of the defendant company, owing to the negligence of said company. The injuries which said Pintar received were quite severe.

Plaintiffs in error claimed that they had a contract with said Mike Pintar whereby they were to receive twenty-fwe per cent, of any and all sums which they should succeed in getting from the railroad company, either through settlement and compromise, or at the termination of litigation. They aver in their second amended petition that they notified the' defendant that they had such a contract of employment whereliw they were to be paid an amount equal to twenty-five per cent, of whatever should be paid by way of compromise or as a result of litigation; that thereafter the defendant company through its officers and agents negotiated with plaintiffs in an effort to settle said •claim and the defendant company informed the plaintiffs that it recognized their contract of employment and would protect them under the terms thereof; that, thereafter, without the knowledge of the plaintiffs and without their consent or acquiescence, the defendant company settled said claim directly with Mike Pintar for the sum of $2,000; •and that said settlement was made after defendant had informed Pintar and agreed that it would settle with his attorneys. Plaintiffs further aver that after said settlement the defendant again recognized plaintiffs contract with Pintar and offered to pay plaintiffs a sum in full of its obligation to them 'by reason of the aforesaid facts; but that defendant ■.refuses to pay plaintiffs either the sum of $2,500 or a sum equal to twenty-five per cent, of the amount actually paid to Pintar. Plaintiffs pray judgment for $2,500 against the defendant company.

To this second amended petition the defendant •company demurred, and the common pleas court •sustained the demurrer on the ground that the plaintiffs’ second amended, petition failed to state a cause of action against the defendant. And the plaintiffs not desiring to plead further a judgment was entered in favor of the defendant.

The plaintiffs in error, plaintiffs below, prosecute error to this court, and ask for a reversal of this judgment.

Three questions are presented by the averments of the petition:

First, did the plaintiffs acquire any right by reason of the contract with Pintar which they were in a position to enforce against the defendant company? Wh are of the opinion that they did not, and this conclusion- is based upon the decision in Pennsylvania Co. v. Thatcher, 78 Ohio St., 175, which holds in substance that the plaintiffs -acquired no right by their contract with Pintar which would prevent the defendant from making a settlement with Pintar of his entire claim. The case of Davy et al. v. The Fidelity & Casualty Ins. Co., 78 Ohio St., 256, holds that a contract for an attorney’s fee contingent upon the amount to 'be recovered by judgment or settlement is ordinarily 'valid, but that a contract which precludes the client from compromising or ' making a settlement is champertous and voidable. Therefore, if in this case the plaintiffs had a provision in their contract with Pintar that Pintar could not settle his claim with the defendant company without the consent of his counsel, such a contract would be void on the grounds that it is champertous and contrary to public policy.

The second question for consideration is whether or not the plaintiffs acquired any right against the defendant by reason of the fact, as they aver, that the defendant informed plaintiffs that it recognized their contract of employment and would protect them under the terms thereof. There is no consideration averred to have passed from plaintiff to defendant for this promise. It was a mere nudum 'pactum, and not enforceable against the defendant. The defendant promised to protect the plaintiffs under their contract, but there was no consideration moving to the defendant for this promise and it was not’ therefore bound to observe the promise.

The third proposition is that the said settlement was made after the defendant had informed Pintar and agreed that it would settle with his attorneys. It is claimed by counsel for plaintiffs in error that this averment brings the case within the rule laid down in Emmitt v. Brophy, 42 Ohio St., 82, in which the court' sustains the rule that a contract made between two persons for the benefit of a third may be enforced for the benefit of the third person; but that case holds that when the contract is entered into for the benefit of the third person, upon a valid consideration moving from one person to another, then the third person may enforce the contract. But the averments of this petition fail to disclose that there was any consideration moving to the B. & O. railroad from Pintar or the plaintiffs in error to induce it to make the compromise to settle with Pintar’s attorneys, plaintiffs in error.. If the averment of the petition was to the effect thait as part of the consideration for 'settling with Pintar the defendant company agreed! and promised to settle with plaintiffs in error, Pintar’s attorneys, we have no doubt that this averment would make the petition proof against a demurrer. But in the absence of any averment in the petition to the effect that as a part of the consideration of the settlement with Pintar the defendant company agreed to pay plaintiffs in error as attorneys for Pintar, or promised to settle with them, we find there is failure of consideration to support this promise.

For the reasons stated we think that the conclusion reached by the trial court is correct, and that the judgment of the common pleas court should be affirmed.

Judgment affirmed.

Jones, P. J., and Hamilton, J., concur.


author: Middleton, J.

text:
    The Elworthy-Helwick Co. v. Hess, Exr., etc.

      Negotiable instruments — Installment payments constitute separate notes, when — Notice of nonpayment of installments — •Endorsers discharged, when — Section 8194, General Code.

    1. When a promissory note is made payable in installments the promise to pay each installment is a separate note in itself.
    2. Under favor of Section 8194, General Code, an endorser of a note payable in installments is entitled to notice of the nonpayment of each installment, and if such notice is not given he is discharged from all liability in respect to such'installment.
    (Decided May 17, 1918.)
    Error : Court of Appeals for Cuyahoga county.

      Messrs. White, Brewer & Curtis, for plaintiff in error.

      Messrs. Hoyt, Dustin, Kelley, McKeehan & Andrews, for defendant in error.
   Middleton, J.

The parties stood in reverse order in the court below and for convenience we will refer to them here in that order.

The plaintiff filed his suit as executor and trus- . tee of the last will and testament of William G. Amor, deceased, against one Holberger and his wife as makers, and The Elworthy-Helwick Company as endorser, of a certain note for the sum of $1,600, dated at Cleveland, Ohio, April 8, 1912, with interest at the rate of six per cent.', payable semiannually on the 15th day of June and December of each year. Said note provided that the makers thereof should pay each and every calendar month from and after date, a sum of not ■ less than twenty dollars, until the principal and the interest of the obligation were 'fully paid. It was further provided that if the makers of said note should fail to make any two of said monthly pay-, ments, when due, the whole amount or balance due on said note should become due and payable at the option of the holder thereof.

The petition contained two causes of action, one in the usual form on a promissory note, by which plaintiff claimed judgment against the makers and against The Elworthy-Helwick Company as 'endorser; in the other the plaintiff sought to foreclose a mortgage given as security for the payment of said promissory note.

To the petition of the plaintiff The Elworthy-Helwick Company filed an answer containing two ■defenses, which are substantially as follows: First, 'that the Holbergers failed to make the monthly payments called for in the note from the month of June, 1912, to the 11th day of September, 1914, except a payment of one hundred dollars in December, 1912, and a payment of thirty dollars in July, 1914; and that the plaintiff failed to present the note.for payment as the other installments came due, and failed to notify said The Elworthy-Helwick Company, the endorser, of the dishonor of said installments as they fell due, until about the 11th day of September, 1914, for which reason the endorser claims it is no't liable for any of the unpaid installments which fell due prior to said September 11, 1914,” and alleges that if it is liable for anything it is only liable for the sum of the installments falling due after said date. This is termed a “partial defense.” Second, that the plaintiff failed to exercise his option to declare due the balance remaining unpaid on said note until long after two monthly installments were due and unpaid, and for an unreasonable period, during which time the premises described in the mortgage were vacant, and were depreciating in value^, thus impairing the security and thereby discharging the endorser.

The plaintiff filed á general demurrer to both defenses, which was sustained, and the defendant endorser not desiring to plead further judgment was rendered against it as such endorser for the sum of $1,939.25, being the full amount of the unpaid 'balance on said note, including the unpaid installments falling due before September 11, 1914. Error is now prosecuted in this court to reverse said judgment on the ground that the court erred in sustaining said demurrer.

The chief contention, however, now made by the defendant endorser is as to the sufficiency of its first or partial defense. This defense presents the question as to when a note is dishonored which contains a provision for payment by installments, with a further condition that upon the failure to pay two or more installments the whole unpaid balance due on said note shall become due and payable at the option of the holder. It seems to be conceded by both parties that when a .note is dishonored 'by nonpayment, notice thereof is necessary to hold the endorser. It is contended by the plaintiff that the note in question must be regarded as an entirety, and that as an instrument for the payment of money it did not become due and payable until the holder exercised his option to declaré it due and made presentment and demand for payment. Upon the other hand, the defendant company urges that the obligation to pay the installments named in said note amounted in law to a separate and independent promise to pay each of said installments when the same became due by the terms of the instrument, and that upon nonpayment of any installment, when so due, the note as to that particular installment was dishonored and notice of nonpayment was necessary toiiold it liable for that particular installment.

Attention is directed by both plaintiff and defendant to the provisions of Section 8194, General Code, being Section 89 of the Negotiable Instruments Act, which provides as follows:

“Except as herein otherwise provided, when a negotiable instrument 'has been dishonored by nonacceptance or nonpayment, notice of dishonor must be given to the drawer and to each indorser. Any drawer or indorser to whom such notice is not given is discharged.”

This section appears to be the only provision that may be found in the Negotiable Instruments Act reflecting in any way on the question at issue. It must be conceded that this section does not expressly cover a situation like the one under consideration. It does, however, by positive terms, require notice to all drawers or endorsers of the dishonor of the instrument by nonpayment or nonacceptance in order t'o hold them liable thereon. The ¡necessity of noticé, therefore, obtains in all cases save those named in the exception's, which exceptions have no application to the instant case. This being so, we are unable to conceive of any substantial reason why such notice of dishonor is not required as to each installment' provided for in the instrument under consideration, when such installment became due and was not paid. This instrument is the equivalent in law to a number of separate and independent instruments, each conditioned for the payment of twenty dollars at the times named. When, therefore, an installment became due and was’ not paid, the note to the extent of such installment became and was dishonored by nonpayment. No subsequent act of the holder in •the exercise of his option could add in any degree whatever to the liability of the maker in respect to .the payment of that particular installment. It was due and payable, and an action would lie for its collection by the holder regardless and independent of the exercise by him of the option to declare the whole unpaid balance due. The instrument having definitely and unconditionally provided for the payment of twenty dollars each and every calendar month after its date, the nonpayment thereof in any month was a dishonor of the instrument to the extent of such amount; and, thereafter, the instrument as to such installment was overdue and unpaid. The argument advanced that more than one hundred su'ch payments are required to fully discharge this note, and therefore an equal number of notices would be required in case of nonpayment, can not affect the principle of law involved. If notice was necessary to charge an endorser in the event of nonpayment in a case in,, which the aggregate amount Was fifty thousand dollars, payable in installment's of ten thousand dollars each, it is necessary in the instant case.

We do not question the soundness of the argument that if notice is npt required by the provisions of Section 8194, supra, we may not refer to the common law for authority. Under the common law, however, it seems to be well settled that notice is required as to each default in the payment of any installment. It is said in 1 Daniel on Negotiable Instruments, Section 599:

“If a note be payable in instalments, the presentment should be made on each consecutive instalment as it falls due, as if it were (as in fact it is legally considered) a separate note in itself.”

In 8 CyC., page 961, it is said:

“If commercial paper is payable in instalments demand of each instalment must be made to preserve the liability of the endorser.”

Many other authorities might be cited in support of the common-law rule, but, as before observed, they may not be considered here, for it is now definitely settled that the Negotiable Instruments Act in this state is ■ exclusive as to all matters actually provided for therein. Elyria Savings & Banking Co. v. Walker Bin Co., 92 Ohio St., 406.

1‘t would seem that the question presented here would be one of frequent occurrence, but we have not been cited to a case in which it appears to have been presented, nor have we been able by our own investigations to find any adjudication of the precise question here under consideration. In the case of Hopkins v. Merrill, 79 Conn., 626, an action was brought against the endorser of a promissory note, payable in monthly installments, to recover the amount due on three of such installments, due notice of the nonpayment of which had been given to the endorser. The court ruled that a failure of the plaintiff to notify the endorser of the nonpayment of other installments did not affect her right to recover the three installments which were the subjects of the suit. While the court does not in terms say so, it may be inferred from its discussion of the question that if suit had been brought upon installments past due, of the nonpayment of which notice had not been given, judgment would have been for the endorser upon such installments. While in the above case the note did not contain an option enabling the holder to declare the whole sum due for the nonpayment of an installment, or installments, that difference can not affect the principle involved.

We conclude, therefore, that under favor of said Section 8194, supra, the defendant endorser in the instant case was entitled to notice of the nonpayment of the installments falling due between the dates named in its answer, and that by reason of the failure of the plaintiff to give such notice the 'defendant company endorser is discharged from any liability as to such installments.

We affirm the judgment of the lower court in its ruling on the demurrer to the second defense. Section 8225, General Code.

Judgment reversed and cause remanded for further proceedings according to law.

Judgment reversed, an'd cause remanded.

Walters and Sayre, JJ., concur.

Judges of the Fourth Appellate District, sitting by designation in place of Grant, Dunlap and Lawrence, JJ., of the Eighth Appellate District.