author: Scribner, J. (orally)

text:
    (Sixth Circuit—Lucas Co., O., Circuit Court
    Sept. Term, 1895.)
    Before Haynes, Scribner and King, JJ.
    MARY H. HUNT et al. v. SAMUEL H. HUNTER et al.
    1. Assessment fon street improvement. — Two improvements of street amounting to more than 25 per cent, of value of abutting property —Abutting property was assessed for the improvement of the street, and inthesame year also for constructing a stone sidewalk in front thereof, each of such assessments being less than 25 per cent, of the value of such lots after improvement made, while the two assessments in the aggregate amounted to more than 25 per cent. ■ of such value, which, was claimed to be beyond the power of council to do. Held, if the city authorities have provided for grading a street by a separate ordinance, and the assessment for that improvement does not exceed the 25 per cent, to which the authorities are limited,and then that is followed by another ordinance providing for the paving of that street, the two assessments in the aggregate amounting to more than 25 per cent, of the valué of the property; and.under such circumstances as to satisfactorily indicate that the second improvement was really a complement of the first improvement, and that the council by that method of proceeding had sought to evade the statute, it would be held that the city exceeded its power. But except in such a case as that, the limitation claimed of the power of a council to provide for two improvements limiting the assessments of their cost to 25 per cent, after the improvements are made, would not be applicable.

      2. Two assessments for street improvements within five years — Sec. 2283 Rev. Stat. — The statutory limitation upon the power of council to assess the cost of the improvement of a cross street, on property already assessed within five years passed for another street improvement, where the two assessments in the aggregate would exceed 25 per cent, of the value of the property, cannot be held to prevent council, after having improved a street-by grading, from further improving it by paving within the period of five years.

      3. Assessment for sidewalk not included in the 25 per eent limitation to assessments for street improvements. — Held, further, that the laying of a stone sidewalk under the ordinance of council in addition to the assessment for the improvement of the street, is not such an improvement as should be considered in determining that the assessments for the street improvements should not exceed 25 per cent, of the value of the property, as sidewalks are made under a different statute from that under which streets are improved.

      i. Ordinance for laying sidewalk — Proper proceeding — If the city proceeds to lay sidewalks in front of a man’s property and to grade that part of the street upon which the sidewalks are laid, so as to properly permit the laying of the sidewalk, without having given the due notice required by the statute to the property owner himself to lay them within a stipulated time, the city must bear the expense of it; but if after due notice the owner neglects or refuses to lay them, then the city itself may make that improvement, and may assess the cost upon the property, and the owner is made personally liable therefor.
    Appeal from the Court of Common Pleas of Lucas County.
   Scribner, J. (orally)

In this case it appears by the pleadings and from the-admissions of the parties that at the time the matters complained of occurred, the plaintiff, Mary H. Hunt, was the owner of lots 357 and 358 in Knower’s second addition to Toledo, Ohio, and that the estate of John Knower, deceased, was the owner of lots 356 and 362 in the same addition. These lots abut on Maumee avenue of the city of Toledo. On the 17th of August, 1891, the common council of the city confirmed an assessment on these lots for the cost and expense of paving Maumee avenue. The portion paved is specifically set forth in the pleadings in the case. For this improvement — the cost and expense of paving — each of these lots was assessed the sum of $137.08. In the same year there was certified by the common council of the city to the county auditor, and by him placed on the general duplicate for that year for collection against said lots, $80.70 on each of the lots for the cost and expense of constructing a stone sidewalk upon said street. The assessments were certified in November, 1892, and each of the lots was assessed $33.35. On the 8th of August, 1892, an assessment was made and confirmed for the grading of a sidewalk bed in front of the lots described, along Maumee avenue. The sum of $4.35 was assessed upon each of these lots to pay that expense.

It is stated in the pleadings that each of these lots .was assessed, but this is a mistake The aggregate of the assessments upon each of these lots is $175.90. There are only three of the lots, however, that were assessed for the expense of constructing the stone sidewalk. It is admitted that the value of each of these lots was $600. The statute limiting the assessments to 25 per cent, of the value of the lot assessed, after the completion of the improvement, will constitute a limitation upon each lot of $150; whereas, it appears that the aggregaté of these three assessments was $175.90. Three of these lots, therefore, are assessed more than the 25 per cent, limitation claimed to be applicable here.

It is claimed that under the legislation of this state, by reason of this as it is claimed excessive assessment, the city has exceeded its power. Counsel for plaintiff in this case, the petition praying for an injunction against the enforcement of this assessment, relies in part upon the language of sec. 2271 of .the statutes, which provides:

“In cities of the first grade of the first class,and in counties containing a city of the first grade of the first class, the tax or assessment especially levied or assessed upon any lot or land for any improvement, shall not, except as provided in sec. 2272, exceed 25 per cent, of the value of such lot or land after the improvement is made, and the cost exceeding that per centum shall be paid by the corporation out of its general revenue; and, except as provided in sec. 2272, there shall not be collected of such assessment, in any one year, more than one-tenth of such value of the property on which the assessment is made; and in other cities of the first class, the tax or assessment specially levied or assessed upon any lot or land for any improvement, shall not, except as provided in sec 2272, exceed 25 per cent, of the value of such lot or land, as determined in advance by the common council, which valuation shall not exceed a fair market value of such lot or land after the improvement is made, and the cost exceeding that per centum shall be paid by the corporation out of its general revenue; and, except as provided in sec. 2272, there shall not be collected of such assessment, in any one year, more than one-tenth of such value of the property on which the assessment is made; and in cities of the third grade, first class, said tax or assessment shall not in any case exceed 25 per cent, of the value of such lot or land after the improvement is made, and such value shall not be determined in advance, nor by the common council, etc.”

This is a long section. Counsel refers also to sec. 2283. Sec. 2272 contains limitations of the power of municipalities:

‘ ‘ In cities of the first class, or in corporations in counties containing a city of the first or second grade of the first class, when a petition subscribed by three-fourths in interest of the owners of property abutting upon any street or highway of any description between designated points, is regularly presented to the council for the purpose, the cost of any improvement of such street or highway may be assessed and collected in equal annual installments, proportioned to the whole assessment, in a manner to be indicated in the petition, etc.”

I should say, perhaps, that this assessment for each of these amounts is for the given year.

Me. McDonnell.

The court has stated the correct aggregate, but the petition also sets out an amount certified in each year.

SCEIBNEE, J.

“Sec. 2283. Special assessments, whether by the feet front or otherwise, shall be so restricted that the same territory shall not be assessed for making two different streets or avenues, within a period of five years, in such amounts that the maximum assessment herein provided will be thereby exceeded; and so far as practicable under the provisions of this title, regard mus.t be had, in making special assessments, to the probable benefits to the property assessed.”

Sec, 2284 specifies what the cost of the improvement shall include. The provisions of the constitution- — -sec. 6, art. 13 — are cited, by counsel, and the Chamberlin case in 34 Ohio St., and the Meissner case in 31 Ohio St., on behalf of the plaintiff, touching the limitations upon the power of the council. There is also cited in behalf of the municipality sec. 2640 as well as sec. 2272. Sec. 2640 gives the general control of the streets and the public grounds and bridges to the common council. We find in these provisions of the statutes no other limitations upon the power of the council to make improvements and assess the cost and expense upon the abutting property.

It is claimed, on the part of the plaintiffs Knower and Hunt, that the limitation upon the power of the council to make their assessments exceed 25 per cent, of the value of the property after the improvement is made, prohibits the council from making an assessment in the aggregate, although for different improvements, which shall place an assessment upon the property in excess of 25 per cent, of the value. If the improvement made is of such a nature that it may be looked upon simply as preparing the way for a second improvement, so that when the improvements are completed there shall be substantially but one improvement, there would be much force in this claim made on behalf of plaintiffs. That is .to say, if the council by its proceedings provides for grading a street, — and by a street I mean the roadway — and it is manifest that the object of that grading is simply to prepare the street for paving, and then afterwards the council by a separate ordinance provides for the paving of the street, I should be inclined to the opinion that the two improvements taken together really constituted but one improvement. That is, if the city authorities have provided for grading a street by a separate ordinance, and that improvement as provided for is completed and the assessment is made, which does not exceed the 25 per cent, to which the authorities are limited, and then that is followed by another ordinance providing for the paving of the street, under such circumstances as to satisfactorily indicate that the second improvement was really a complement of the first improvement, and that the council by that method of proceeding had sought to evade the statute, I should feel very strongly disposed to hold that the proposition claimed on the part of plaintiffs here should be enforced; that the city could not, by going on under one ordinance and grading a street, and then afterwards by another proceeding, providing for the paving of the street, evade the limitation imposed in the statute. But we are not able to say that the limitation claimed of the power of the council to provide for .an improvement, limiting the assessment of the cost of the improvement to 25 per cent, after the improvement is made, would be applicable here.

I do not see why the city might not go on and improve a ■street, and in good faith conclude that proceeding, and make the assessment and collect it, and afterwards, in the course ■of time, no matter whether the time was very long, or very short, except as that might reflect upon the good faith of the council in adopting two classes of improvements, provide for the paving of the street. Where the first improvement was the grading of the street, I should hardly think that the limitation upon the power of the council as to the time within which a cross-street might be improved or graded— that limitation being as to improvements made within a period of five years — could be held to prevent the council, after having improved a street by grading, from further improving it within the period of five years by paving it. We do not see how the circumstance of work having been done upon the street proper, outside of the sidewalk bed, and an assessment of 25 per cent, after the improvement was made, can well be construed as preventing the council from after-wards laying a stone sidewalk upon the street if that was proper. Here the ordinance of the city provided for grading the sidewalk bed in such a manner as to provide for the laying of a sidewalk upon it. It is said that in doing this this property is not chargeable with the grading, as there was no grading done in front of these lots. But the sidewalk bed, as contemplated by the proceedings of the council,it appears, was graded in such a manner as to fit the entire line of sidewalk, or where the stone was to be laid for the walk. It would seem that it was not necessary to grade in front of these particular lots, the sidewalk bed being at the proper grade to admit of laying the sidewalk without any change.

Nor do we think that the laying of a stone sidewalk under an ordinance of the council would be such an improvement as should be considered in determining that the assessment should not exceed 25 per cent, of the value of the property. Sidewalks are made under a different statute from that under which streets are improved. For instance, the city has no power to lay a sidewalk and assess the abutting property for the cost of it until the owner himself has been notified to lay it, and has had an opportunity to lay it. If the city proceeds to lay sidewalks in front of a man’s property and to grade that part of the street upon which the sidewalks are laid so as to properly permit the laying of the sidewalk, without having given the due notice required by the statute to the property owner himself to lay them within a stipulated time, the city must bear the expense of it; but if it proceeds under the statute, and notifies the owner to lay the sidewalks, and the owner neglects or refuses to lay them, then the city itself may proceed to make the improvement and is authorized by the statute to assess the cost upon' the property, and the owner is made personally liable, if he was the owner at the time the improvement was completed. I say, we cannot see how the cost of making an improvement of that kind, where a separate ordinance is passed or a separate proceeding is had by the council, should be counted as a part and included in the cost of the street paving proper, so as to bring the case within the 25 per cent, limitation. The owner has no voice in the matter of making the improvement, where the roadway proper is improved; he is not entitled to any notice. The city itself goes on, being properly authorized! to make the improvement, and makes the assessment upon the abutting property by benefits or by the foot front, as it may have elected to do. In such a case the penalty for nonpayment of the assessment is limited to 5 per cent.; in case-of failure to pay an assessment for the cost of building a. sidewalk the penalty allowed to the contractor by the statute-in 20 per cent, upon the amount of the assessment; and a certain length of time is allowed the owner within which to-make the improvement himself or to pay the cost of the improvement.

T. J. McDonnell, for plaintiffs.

C. T. Watts, City Solicitor, for defendants.

Upon the whole, we are unable to see our way clear to apply the rule insisted upon by counsel for plaintiffs to this kind of a case, and we are constrained to dismiss the petition.


source: Caselaw Access Project

author: Shearer, J.

license: Public Domain

text:
    (Second Circuit—Clark Co., O., Circuit Court
    Dec. Term, 1895.)
    Before Shearer, Summers and Wilson, JJ.
    NEW CARLISLE BANK v. BROWN.
    1. The act entitled “an act to prohibit the use of fictitious names in partnership” passed May 19, 1894 (91 Ohio St. 357), is prospective in its operation, and applicable only to contracts made or transactions had subsequently to its passage.
    2. In an action upon such contract by a domestic partnership doing business under a fictitious name, or a designation not showing the names of the persons interested in such partnership, an affirmative averment of compliance with the requirements of said act is essential to show legal capacity to sue.
    Error to the Court of Common Pleas of Clark County.
    The original action was brought by plaintiff in error to subject to the payment of its claim certain real estate alleged to have been fraudulently transferred by J. O. Brown for the purpose of hindering, delaying and defrauding this plaintiff and other creditors.
    The cause of action arose prior to the passage of the act entitled “An act to prohibit the use of fictitious names in partnerships” passed May 19, 1894, ( 91 O. L. 357).
    It is not alleged that the requirements of said act in respect to filing the certificate and publication thereof, were complied with; and for that reason a demurrer on the grounds, among others, that plaintiff had no legal capacity to sue, and that facts sufficient to constitute a cause of action were not stated, was filed, and sustained as to the first named ground; and this is assigned for error.

      Gr. C. Raiolins and H. O. Stafford, for plaintiff in error,
    cited Rev. Stat. sec. 5011; 12 Iowa 58; 10 Ohio, 174, 384; 53 Pa. St. 315; 41 Mo. 25; 21 Wis. 271; 3 Ind. 258; 11 Wis. 422; 112 U. S. 770; 64 Cal. — , 28 Pac. R. 61.

      J. L. Zimmerman and W. W, Wittemeyer, for defendant in error,
    cited: 8 Minn. 81; 28 Pac. R. 61; Bliss Code PI. 101-2; 246-200-414a; 13 Ohio St. 216; 6 Ohio St. 215; 44 Ohio St. 12; 36 Ohio St. 286, 336; 16 Ohio St. 11; 15 Ohio St. 207; 11 Ohio St. 641; 50 Ohio St. 225; 2 Ohio St. 203; 39 Ohio St.236; 46 Ohio St. 450; 25 Ohio St. 308; 2 Ohio St. 152, 203; 24 Ohio St. 563.
   Shearer, J.

The determination of the question presented depends upon the construction of the act aforesaid, section six of which provides:

“That after the passage and approval of this act, any person doing business, contrary to the provisions of this act, shall not maintain an action on or on account of any contract made, or transaction had, in their partnership name * * *. until they have first filed the certificate, and made the publication herein required; provided, however, that if such partners shall at any time comply with the provisions of this act, then such partnership shall have the right to maintain an action on all such partnership contracts, etc, entered into prior as well as after such compliance, etc. ’ ’

It is contended by the. plaintiff in error that the word “maintain” in said section is not synonymous with “begin” or “commence,” but that it is used rather in the sense of “carry forward;” that an action may be commenced notwithstanding the non-compliance with the conditions prescribed, but may not be pursued to final judgment until said conditions are fulfilled. This seems to us an artificial and strained construction. We think the word means to begin and prosecute the action to final judgment. Such is the interpretation adopted by the Supreme Court of California in the construction of an act of that state of which our statute is a substantial copy, and it is the more natural and reasonable definition. 28 Pac. 61.

And to entitle such partnership to “maintain an action,” it is necessary that compliance'with the conditions mentioned shall be averred in the petition. The absence of such an averment would render the pleading obnoxious to a general demurrer, or to a special demurrer on the ground of want of legal ■capacity to sue; that is, if it otherwise appeared in the petition as in this case that the firm was within the prohition of the statute.

The defendant should not be driven to tender an issue in respect to compliance with such conditions — vital as we have seen to- the maintenance of such action — if such compliance is not a fact. If the fact exists the plaintiff can easily aver it in limine thus avoiding delay which would ensue if such fact was available only by way of defense. The plaintiff must bring himself within the terms of the statute by affirmative averments, showing his right to sue. Haskins v. Alcott 13 Ohio St. 210-216.

But is it true as contended by counsel, that this act applies to contracts and transactions entered into before its passage? We think not. Statutes should receive such reasonable conslruction, if the words and the subject matter will admit of it, as that existing rights be not infringed. Lessee of Moore v. Vance 1 Ohio, 1, 12. No interpretation should be adopted which makes distinctions between different classes of men in the same business, and imposes penalties on some not borne by others. Nor should unjust or absurd consequences be presumed to be intended.

The construction contended for by defendant in error does violence to the rules just stated, and would possibly render the act unconstitutional

We are bound, if possible, to so construe the act as not to contravene the organic law; and we think it can be done.

To hold that no action is maintainable on a contract made before the passage of the act, by a firm doing business in a fictitious name, would suspend the right of action for at least three weeks after the passage of the act, and thus lead to serious consequences, without fault or laches on the part of such firm.

If ten days after the passage of the act a debtor upon such a contract had attempted to fraudulently transfer his property, or to do any act which would entitle the creditor to a provisional remedy provided by statute, the creditor would have been powerless to protect himself. For until the publication required was complete,he could not begin an action. Such injustice 'could not have been intended.

Of course, if the creditor firm neglected to file the certificate etc. after the act took effect, and thereby sustained loss, he could not complain. It is competent to the legislature to prescribe terms like these under consideration which shall operate prospectively.

In our opinion, this act has no application to contracts or transactions arising prior to its passage. It operates propectivelv only.

Without doing violence to the language, the statute may be read as if the words “after the passage and approval of this act” were repeated after the words “contracts made or transactions had in their partnership name” in the sixth section, thus rendering the act applicable only to contracts etc., made after the act was passed, and eliminating the question of constitutionality as well as the hardship incident to a contrary interpretation. This renders reasonable and just the provision which if construed retrospectively would be harsh and oppressive.

The demurrer was improperly sustained.

Judgment reversed,demurrer overruled, and cause remanded for further proceedings.


author: Smith, J.

text:
    (First Circuit—Hamilton Co., O., Circuit Court
    Nov. Term, 1895.)
    Before Swing, Cox and Smith, JJ.
    A. B. MEADER, Trustee for the Benefit of Creditors of THE BLYMYER ICE MACHINE CO. v. MARY L. ROOT, Ex’x of Will of WM. J. ROOT, Dec’d.

      Depositions — Right of party to tahe at any time after service of process on defendant.

    1. A party to an action may commence taking testimony by deposition at any time after service of process upon the defendant, and in case of the death of a person whose deposition has been properly taken before the trial of such action, his deposition is admissibl and may be read in evidence, though the reason for taking the same is not shown by the deposition itself.

      Assignment for Benefit of Creditors — Action to compel alloioanee of claim, equitable and appealable.

    2. An action brought under sec. 6352, Rev. Stat., against an assignee or trustee of an insolvent estate to compel him to allow a claim in the settlement of his trust, is an equitable action, is appealable, and neither of the parties is of right entitled to a jury trial therein.

      Same — Where such action may be brought.

    3. Such action may be brought in the court of common pleas of the proper county, or in the Superior Court of Cincinnati.
    Eiror to the Superior Court of Cincinnati.
   Smith, J.

The plaintiff in error in this proceeding seeks the reversal of a judgment rendered against him in the Superior Court, for the reasons alleged, that the court erred in overruling his motion for a new trial based on the ground that the finding and judgment of the court were against the evidence, and for errors of law occurring at the trial.

The action below was one by the plaintiff, William J. Root, against Meader, Trustee, averring his employment by the Blymyer Ice Machine Co. as Assistant Superintendent of the company for the year from December 1, 1890, at a salary of $3500. That he entered upon said employment, and so continued from Dec. 1, 1890, until August 7, 1891, when the company made an assignment for the benefit of its creditors. That the plaintiff continued to be ready and willing to discharge the duties of his employment, but that the assignee and trustee refused and failed to allow him to do so. That he was paid by said company on his salary $2235, and no more, whereby he .has been damaged in the sum of $1265, with interest from Dec. 1, 1891. That he duly proved and presented his claim to Meader, Trustee, for allowance, and that he rejected the same, and thereupon he asks that said trustee may be ordered to allow the same in the settlement of his trust.

The answer denies the employment of the defendant for one year as claimed. It avers that he was fully paid for his services,and that about July 14,1891,the company made an assignment for the benefit of its creditors and did not thereafter within a year from Nov. 11, 1890, resume business; that at the time of the assignment all of the officers .and employes of the company were discharged, and all of them acquiesced therein.

It admits the presentation and rejection of plaintiff’s account, and denies each and every other averment of the petition. The reply denied those averments of new matter.

On the issues thus raised the case was tried, and a decree entered as prayed for. A motion for a new trial was filed by the defendant and overruled by the court, and a bill of exceptions filed containing all the evidence in the case, with exceptions to certain rulings by the court at the trial, and on this the questions are raised.

In the first place, we are of the opiniou that the court did not err in overruling the motion for a new trial, based on the ground that the finding was against the evidence.

2nd. At the trial the executrix of the will of William J. Root, who, on the death of the original plaintiff, had been •substituted as plaintiff in his stead, offered in evidence the deposition of said William J. Root, taken in the case after the service of process on the defendant, at the taking of which the defendant was present by his counsel. The defendant at the trial objected to its introduction, on the ground that Root was dead, and that at the time the deposition was taken the witness was a resident of this county, and that the deposition itself did not show that he was sick, or unable to be in court then, or that he expected to be absent from the county at the time of the trial of the cause. It was then shown by the evidence of a witness, over the objection of the defendant, that when the deposition was taken, the plaintiff was siek, and was about to leave the state.

But we think it was not necessary to do this. Under Sec. 5266, Rev. Stats. “Either party may commence taking testimony by deposition at any time after service upon the defendant.” By sec.5265,a deposition can be used only,when the witness does not reside in, or is absent from the county in which the action is pending, or when the witness is dead, or from age, infirmity, or imprisonment is unable to attend court. It was conceded in this case that the witness was dead, and therefor his deposition properly take 1 was admissible, and we are of the opinion that it is entirely competent and proper for a party to a suit, who for any reason desires to take the deposition of a witness resident of the county, to do so, and that it is not necessary that any reason therefor appear in the deposition itself. Á party has a right to protect himself against the contingency of the death, or absence at the time of trial, of his witness. Of -course, if at the time of trial, the witness is in the county, and his presence at the trial can be had, the deposition can not be used, and the party taking it, can not have the cost thereof taxed as a part of the costs in the case. But in this case, an indorsement is made on the deposition, signed by the attorneys of the parties, to this effect: It was agreed that the testimony of the plaintiff should be taken in shorthand, and the notes signed by the witness, and the signature to the deposition waived, and that the notes when transcribed should be read as the evidence of the witness. This was a waiver on the part of plaintiff in error, of the points now raised by him.

But the principal contention of counsel for plaintiff in error is, that before the commencement of the trial, he demanded a trial of the issue raised by the pleadings, by a jury, and that the court refused to grant his motion therefor.

The action or proceeding was one under Sec. 6352, Rev. Stats, seeking a judgment against the trustee of this insolvent estate, that he allow the claim of the plaintiff in the settlement of his trusts, which the statute authorized the court to do, with or without costs, as it should think right. It was not sought to recover a judgment against the trustee, or the assignor, for the amount of the claim. The planitiff might, notwithstanding the assignment, have sued the company, and if the facts warranted, have recovered a judgment for the amount found to be due him. In such case clearly, either of the parties would have been entitled to a trial by jury. But the action or procceeding, which is provided for by the section under consideration, is a special one, and in its character, an equitable one. It has been held in two of the circuit courts of the state to be appealable. Gordon v. Walcott, 3 C. C. 343, and Kennedy v. Thompson, 3 C. C. 446, —and therefore that the parties are not entitled to a trial by jury. If this be so, and the legislature had the right to pass such a law, as we think it had, there was no error in the ruling complained of.

In the examination of this question another question has arisen as to which we have had some doubt. And that is, whether on the language of the statute itself- — -looked at in the light of several decisions of the supreme court, courts of common pleas, or any court other than the probate court in which the proceedings under the assignment are pending, has jurisdiction of the “suit” contemplated and provided for in this section 6352; that is, whether the court which is to render the judgment that the assignee or trustee shall allow or disallow the claim presented, is not the same court in which by the terms of the subsequent part of the same section, the assignee is to file his report of the claims presented to' him for allowance, and which evidently refers to the probate court in which the assignment proceedings are pending.

It must be conceded that several of the recent decisions of the supreme court of the state, give some force and color to this idea. They seem to extend the exclusive jurisdiction of the probate court in assignment proceedings, much further than was formerly supposed to be the case. The effect of them seems to be that the probate court, in the first instance, has the exclusive right to settle all questions which may arise as to the proper distribution of the estate of an insolvent, when there are conflicting liens thereon or claims thereto, and for this purpose is authorized to determine all controversies between the holders of such claims, as to their validity and priority. This seems to be fully settled by the decisions in the cases of Lindeman v. Ingham, 36 Ohio St. 1; Saylor v. Simpson, 45 Ohio St. 141, and Clapp v. the Banking Co., 50 Ohio St. 128.

This being so, the question has arisen whether it was not the intent of the legislature, in the passage of this particular section under consideration, to enact that it was the probate court in which the “suit” mentioned therein was to be brought, and the judgment in which was to determine whether the claim rejected by the assignee, should or should not be allowed. There certainly could, in the light of the decisions referred to, be no valid claim made, that such power could not legally be conferred upon such court. But a majority at least, of this court, is of the opinion that such was not the meaning and intention of the legislature; and what seems a potent argument in favor of this view, is the fact, that so far as our knowledge extends, it has been the settled and accepted view of the courts and of the profession, that such suits were to be brought in a court of general jurisdiction, that is in the court of common pleas or in the superior court of the county or city in which such a court exists, and that, uniformly, since the enactment of this provision, more than thirty years ago, such suits have been instituted in such courts, and not in the probate court in which the proceedings in assignment were pending — and that the jurisdiction of such courts in such cases, so far as any reported case shows, has never been’ questioned. The maxim, “ Communis error facit jus” when applied in such a case, is entitled to weight.

But however this may be, we all think that in view of this consensus of opinion, and in view of the holding of the supreme court in other cases, two of which were decided after the decision in the Saylor v. Simpson case, in which that court reviewed judgments rendered by the court of common pleas, and by the Superior Court of Cincinnati, in cases commenced in those courts under this section, and in which there is no intimation that such courts had not jurisdiction in such cases, that it would be unwise for us to hold now that they had no such jurisdiction. The cases referred to are those of Owens v. Ramsdell, 33 Ohio St. 439; Rouse v. The Bank, 46 Ohio St. 493, and Clapp v. Banking Co. 50 Ohio St. 528. In the first named case an action of this character had been brought in the court of common pleas, and the judgment was in favor of the defendant, which was affirmed by the district court; but both judgments were reversed by the supreme court, and the cause remanded to the court of common pleas for. a new trial, thus in effect upholding the right of the plaintiff to sue in the common pleas.

In the Rouse case (46 Ohio St.) the action was brought in the Superior Court of Cincinnati, under this section, to compel the assignee to allow a claim and to establish its priority, both of which things were done by the judgment of the Superior Court. . On error to the supreme court (page 509) the court say, that “No serious objection is made here to so much of the judgment of the court below, as establishes the amount of the plaintiff’s claim, and requires the assignee to allow the same in the administration of his trust, and to that extent the judgment is affirmed. But the judgment establishing the validity of the mortgage and giving it priority over the assignment is reversed, and judgment will be entered upon that branch of the case for the trustee.’’

Paxton, Warrington & Boutet, for plaintiff in error.

Aaron A. Perris, for defendant in error.

In the case of Clapp, 50 Ohio St. 528 the court cites and approves the decision in 33 Ohio St. 439, before referred to.

The judgment of the Superior Court in this case will be affirmed, with costs.


text:
    (Eighth Circuit—Cuyahoga Co., O., Circuit Court
    Jan. Term, 1896.)
    Before Caldwell, Hale and Marvin, JJ.
    ROSE v. STATE OF OHIO.

      Adulteration of Foods.

    1. Under the act of March 20th, 1884, as amended April 22nd, 1890, to provide against the adulteration of foods, “Breakfast Cocoa, ” in the preparation of which the manufacturer took the cocoa bean and extracted a considerable- portion of the oil therefrom, and put the product thus prepared in packages, for sale, is nota violation of the prohibition therein “that an article of 1'ood shall be deemed to be adulterated if any valuable or necessary constituent or ingredient has been wholly or in part abstracted from it. ’ ’
    2. An article of food', which is produced by abstracting from a natural fruit, a valuable part, is not a compound or mixture.
    The case of I. C. Rose, plaintiff in error, against the state to Ohio, defendant in error, involves a construction of one of the pure food statutes of the state.

      In this case, Rose, the plaintiff in error, was arrested, upon an affidavit chargiirg that on or about the 12th day of March ,1895, at the county of Cuyahoga, Ohio,- he unlawfully offered and exposed for sale and sold an article under the name of cocoa; that it was offered and exposed for sale and sold as an article of human food and to be used for human food; that the article so offered and exposed for sale axxd sold was not pure cocoa, but was an adulteration; that certain other substances were added to or mixed with the cocoa, and that there had been extracted from the cocoa a necessary constituent thereof, to-wit: a large per cent of the fat; that the article so sold was not labeled as a mixture and compound with the name and per .cent of each ingredient therein, and which entered into and formed what was so exposed and offered for sale, and sold.
    The prosecution was under the statute passed by the general assembly of this state on the 20th of March, 1884, as amended April 22nd, 1890. That statute is divided into five sections, but it is only the first three sections with which we have to deal in this case. The third section has lettered subdivisions, and such subdivisions have numbered paragraphs. Omitting from each of these sections so much as is not involved in this case, we have the statute reading as follows:
    Section 1. “No person shall, within this state, manufacture for sale, or sell any drug or article of food which is adulterated,, within the meaning of this act.”
    Section 3. “An article shall be deemed to be adulterated within the meaning of this act.” * * *
    “(b) In the case of food: (1) If any substance or substances have been mixed with it, so as to lower or depreciate it, or injuriously affect its quality, strength or purity; (2) If any inferior or cheaper substance or substances have been substituted wholly or in part for it; (3) if any valuable or necessary constituent or ingredient has been wholly or in part abstracted from it.”

      There is a proviso in the statute which reads: “Proivded, that the provisions of this act shall not apply to mixtures or compounds'recognized as ordinary articles of food, or ingredients of articles, if each and every package sold or offered for sale be distinctly labeled as mixtures or compounds, with the name and per cent of each ingredient therein, and are not injurious to health.”
    The plaintiff in error, Rose, was tried before á justice of the peace and a jury upon the charge made in the affidavit, and upon such trial was found guilty. He filed a motion for a new trial; also a motion in arrest of judgment, both of which were overruled, and judgment entered upon the verdict. A petition in error with a bill of exceptions embodying all the evidence was filed in the court of common pleas, and upon hearing there had, the judgment of the justice was affirmed, and the case comes to this court upon a petition in error to reverse the judgments of the lower courts, and the entire record, including all the evidence, is before us.
    The important question here to be determined is whether the verdict of the jury was sustained by the evidence. It is clearly established by the evidence that at the time and place charged in the affidavit, the plaintiff in error sold, to be consumed as human food, a package containing a manufactured product of the cocoa bean; the bean being a.natural product of the tree known as the cocoa tree. That such manufactured product contained nothing which was not a part of the cocoa bean. The charge in the affidavit, it will be observed, is that other substances were added to the cocoa to make the article sold, but the evidence of the experts introduced on the part of the state, shows that there was nothing added to the cocoa to make the article which was sold by Rose; that such manufactured product contained nothing which was not a part of the cocoa bean, but resulted from converts ing that bean, by removing the hulls and drying and baking, into what is known as cocoa nibs, and then abstracting therefrom a considerable part of the fat or oily matter, and then grinding the remainder into a powdered substance. There is no dispute in the evidence that this was the article sold under the name of cocoa; that such powdered substance is sold and has been known for twenty-five years past and more under the name of “cocoa”, and that besides this article produced in the way which I have explained, there is sold and known and for a like period there has been sold and known as “cocoa” a manufactured product, which is produced by the mixing and compounding with the cocoa bean, after grinding, some other harmless matter, so that the percentage of oil will be less than in the natural product, in either way; that is to say, whether manufactured as the cocoa which was sold in this case was manufactured, by abstracting the fat or the oily part of the bean, or by adding some harmless matter to the bean, to the natural product, so that the per cent of oil shall be reduced. For more than twenty-five years the evidence clearly shows that each of these has been known and generally recognized and sold as “cocoa”.
    There is no claim in this case that what was sold was not entirely wholesome. That is agreed upon by all the witnesses in this case who say anything upon that subject.
    The evidence establishes that the package sold was put up in a tin box having imprinted in the cover in large letters the words: “Walter Baker & Go’s Breakfast Cocoa,” and having a wrapper around the box, on one side of which printed in large letters are the words “Breakfast Cocoa,” and on theotherside “Baker’sBeakfast Cocoa,”inlarge letters, followed by the words in smaller letters, but still in very distinct type, “From which the excess of oil has been removed;” and on a third side the words in large letters: “This Extract of Cocoa”, and toward the bottom of the label on the same side of the box as the words last quoted these words in distinct type: “The excess of oil having been removed.”

      The sale was made to one Henry C. Lowrie, who asked for cocoa.
    The determination of the case depends upon the construction to be given to the statute under which Rose was prosecuted. It will be observed that but for the exception already read, “Provided that the provisions of this act shall not apply to mixtures or compounds recognized as ordinary articles of food, or ingredients of articles, if each and every .package sold or offered for sale be distincly labeled as mixtures or compounds, and are not injurious to health, with the name and per cent, of each ingredient therein, ’ ’ the statute would absolutely prohibit both the manufacture and sale of all articles of food named iu the statute; and it will be further observed that to bring an article within the exception, that is, to make it such an article as may be sold if properly labeled in pursuance of the statute — it must be a ‘mixture or compound which may be relieved from the prohibition of the statute by having the proper label. And this brings us to a consideration of whether the article sold by this plaintiff in error is a mixture or compound within the meaning of the statute; for if it neither the one nor the ■other, its sale is absolutely prohibited by the statute, unless we come to the conclusion that it is not included among the prohibited articles named in the statute. The sale and manufacture of articles named in the statute is absolutely prohibited in Ohio unless the thing to be sold is a mixture or compound, and is labeled as the statute requires. The noun “mixture” is defined in Webster’s Dictionary as “That which is mixed or mingled; a mass or compound consisting of different ingredients blended together.” The Oentury Dictionary defines the same noun as “That which results from mixing; a mixed mass, body or assembly; a compound or combination of different ingredients, parts or principles.” The- noun “compound” is defined by Webster’s Dictionary as “That which is compounded, or formed by the union or mixture of elements, ingredients or parts,” And the same word '.‘compound” is defined in the Century Dictionary as “Composed of two more elements, parts ox-ingredients, not simple.”
    A fair interpretation of these definitions would not seen* to include within any one of them any natural product, though, considered chemically, that natural product may have various ingredients. If we are to say that every article-is a mixture or compound which has, chemically considered, more than one ingredient, then we would make every fruit of the earth a compound. Certainly we should make the coco» bean a mixture or compound. But clealy, a fair interpretation of the meaning of the word “mixture” and “compound’ ’in the statute,is something resulting from the putting together of parts or ingredients other than as nature has put them together in the fruits of the earth. And if this interpretation is correct, then to say that the article sold by Roséis a mixture or compound, we should be driven to say that the taking of an ingredient from that which is not a mixture- or compound, leaves a mixture or a compound remaining. It would seem a very strange thing if that from which w© take something is not a mixture or a compound, that when we take something from that article, what remains is a mixture or a compound.
    If what has been already said is correct, then the statute-absolutely prohibits the sale of cocoa in the condition i» which this was when .sold by Rose, or this does not come-within the articles enumerated in the statute.
    The statute was clearly enacted for the purpose of relieving the public from being imposed upon, by the sale of unwholesome articles of food, and from being imposed upon By the sale of such articles which, though not unwholesome, are less nutritious, palatable, or valuable than would be indicated by the names under which they are sold.
    Now- reading .this statute, just that part of this statuté which applies to this case, we have, “No person shall, within hliis state, offer for sale, or sell, any article of food if any valuable or necessary constituent or ingredient has been wholly or in part abstracted from it.” Now in sudivision (b) of sec. 3, if we substitute for the word “it,” what it clearly stands for, we have ‘ ‘ If any valuable or ncessary constituent as ingredient has been wholly or in part abstracted form such article of food.” And this brings us to a consideration of what is meant by the words “article of food. ” We all know there are many articles of food which have been so long known as such, and by some particular name, that, though ¡not consisting of a single natural product, and though not made up of all the ingredients or elements of any natural product, are still so recognized as articles of food that they cannot be misunderstood by intelligent people. The most familiar of these, perhaps, is bread. Another almost equally familiar in modern-times, is cheese. We all know that one «keese differeth from another cheese in its nutrition and palatability; and yet it is doubtful, indeed it would seem to be more than doubtful whether, if there were no other statute •on the subject, the sale of cheese made from milk from which same part of the cream had been removed would be prohibited by this statute. The legislature has wisely enacted another statute to protect the public from having poor cheese imposed upon them when they suppose they are buying good ■cheese. But if the construction of the statute contended for on the part of the State in this case is the true construction, then there was no occasion at all to enact a statute, other than this, to protect the public from having skim milk cheese imposed upon them.
    I suppose nobody would think of prosecuting under this statute for the sale of skim milk cheese. We have a statute which authorizes prosecution for that certainly.
    Sugar is one of the commonest and best known articles of food, and is used extensively in every household. It is a manufactured product; it is a manufactured article of food, and it does not contain all the elements and ingredients of the natural product of the earth, the sugar cane. Ordinarily, if one orders from his grocer sugar, certainly if he orders coffee sugar, he will get an article of food which is-white in color, and from which a valuable, nutritious and palatable ingredient has been removed; or rather he will get an article of food to produce which a valuable ingredient 'has been removed, from a natural product of the earth. In the process of refining sugar, to make it white, there is taken out a considerable part of its sweetness, and yet no one will claim that there does not remain a well known, a. well recognized article of food, from which article of food no valuable or necessary ingredient has been removed, or, to use the language of the statute, “abstracted.”
    That which was abstracted was taken from the natural product, and not from the article of food known as coffee sugar.
    Flour is a well known article of food, but we all know that to produce flour of the finest quality, there has been abstracted from the wheat, which is the product of nature, a. nutritious and valuable part.
    The verb “abstract” is defined in the Century Dictionary as “to draw away, takeaway, withdraw, or remove.” With that definition the removing of cream from milk would be the abstracting, from the natural product, of a valuable part of such milk. We have a statute which was passed two years after the enactment of the one under consideration, which makes it an offense to sell milk from which the cream or a part thereof has been removed, unless by having a certain label upon the outside of each vessel, in a conspicuous place, with the words “skimmed milk.” But if the contention on the part of the state as to the construction of this statute is the true one, iFwould seem that the statute passed in 1886 as. to the sale of milk from which cream had been removed, was wholly unnecessary.

      To adopt the more modern method of allowing the cream to rise to the top of the milk, and then by a faucet allowing the milk to drain away, would not leave the natural product with all its constituent parts; but we should have removed from it a valuable part, and yet, we should have the cream left which is a well known article of food, the sale of which under its proper name would not be claimed to be prohibited by the statute under consideration.
    If the word “cocoa” is the proper name, recognized by the public, and by those engaged in the parchase and sale of articles of food, of the article sold by Rose, and if that is the name by which such article was known for many years prior to the enactment of the statute under consideration, then, it would seem to follow that it was this manufactured product from which nothing should be abstracted, rather than the cocoa bean being that from which nothing may be abstracted, and still leave a salable product.
    The evidence clearly shows that the cocoa bean, in its natural state, is not sold in this country as an article of food to be consumed without manufacture, and it is further shown that the manufactured product ofthe cocoa bean, as sold for domestic use, and from which nothing has been removed, and to which nothing has been added, is. known and recognized by dealers and the public as chocolate, and not as cocoa.
    The evidence establishes, as testified to by all the experts in the case, that without the removaKof Vconsiderable part of this fat or oil the product would not remain in a powdered state — as what is sold as cocoa is always found to be —at a temperature of above seventy degrees or thereabouts, but would by the action of the heat alone, become an oily, greasy paste. Attention has already been called to the fact that the sale of cocoa in the condition in which this was, which was sold by Rose, would be absolutely prohibited if it is among the articles of food named in the statute, and this has been done because it was urged here that a proper labeling might relieve it from that prohibition; and it was urged that such an article ought to be labeled as well as one which is produced by a compound or mixture made up of the natural cocoa bean with all its ingredients to which is added some other harmless substance; but, however true that may be — and we are not disposed to say that it ought not to be labeled — that is a question for the legislature, and not for the court. The legislature has not made any provision for relieving this; if it is among those contained in the statute, or among those so named, no provision has been made by the legislature to relieve it from that prohibition, by any label.
    And we find this curious state of things, if we hold with the State: that the manufacturer who adulterates his cocoa by mixing some harmless matter with the ground bean, may sell bis compound by putting the label, provided for by the statute, upon each package, while he who simply extracts a part of the oil from the bean, cannot sell his at all, with or without a label. We cannot think this was the intention of the legislature. .
    The decisions of the courts under the pure food laws of this state and the other states of the Union, as well as the decisions under similar statutes in England,fully sustain the claim made by the State that a liberal construction should be given to such statutes for the purpose of remedying the evils against winch such statutes are directed. As was well said by Judge Upson, in the case of Palmer v. State of Ohio, 39 Ohio St. page 236: “Those who buy food have a right to know what they buy, and to have the means of judging for themselves as to its quality and value. ’ ’ And the purpose of the several statutes of this state, known as the pure food laws, have as their object the accomplishment of this result; and yet, we find nothing in any of the authorities which go so far as to justify the prohibition under any such statute as this under consideration, of an entirely wholesome manufactured article of food which is neither a compound nor a mixture, where no deception is practiced.
    We are cited to a case found in ' the 30th volume, new series, of the Law Times Reports, at page 633. The title of the ca.se is, Roberts, appellant, v. Egerton, respondent, decided by the Queen’s Bench in 1874. From this decision •one of the justices dissented. The case grew out of the sale by Robert in 1873 of two ounces of green tea. The tea was sold in the same state in which it came from China. It had there been painted or faced with gypsum and Prussian Blue for the purpose of coloring it, and thus colored it was known in the market as green tea. It was also shown in the case that there is a -pure green tea imported from Japan,' which is not generally known by that name. Three justices, sitting in this case, delivered opinions sustaining a conviction.
    Chief Justice Cockburn used this language: “I am of the opinion that this conviction was right, although the view taken of the matter by my brother Quain has made me hesitate. The statute provides so far as is material to this case, that every person who shall sell as unadulterated any article of food or drink, or any drug which is adulterated, shall, for every such offense, be summarily convicted. ‘ The appellant has been convicted for this offense in respect of the sale of some green tea, and two questions for our consideration arise from the case stated by the convicting justices. First, Is this an adulterated article? I think it is. The case finds that a kind of green tea, which is not ' painted or plastered, comes from Japan and resembles in color and appearance what is popularly known as green tea.” Green-tea, therefore, may be had unadulterated, and this process of painting or facing, as it seems to me, amounts to adulteration. It is also found in the case that the practice of painting and facing tea sold as green tea is not known to the public who are the consumers, and further that this tea was warranted as genuine. I conclude from the case that this article was adulterated.”
    Another of the justices who rendered an opinion sustaining the conviction was Judge Archibald, and it is what he said, to which our attention has been especially called by counsel in this case, on the part of the State.
    “I agree with my lord and my brother Blackburn that this is a case within the application of this act. It may be that green tea may come in time to mean pure tea with a facing of foreign materials. According to the case, that is now in the opinion of the tea trade, and if it were material it must be taken that the appellant who is in the trade is aware of the process by which Chinese tea is colored. The question, however, is what the public who are the purchasers and consumers, understand by the expression ‘green tea’ when they ask to buy it. The case finds that the public know nothing about the coloring gypsum or Prussian blue. Except for this being an article of commerce known in the trade as ‘green tea’, this mixture would undoubtedly mean adulteration, and the fact of the public ignorance makes it so in this case, notwithstanding the received use of the term amongst persons who know what it means.”
    The ground of this opinion clearly is, that the public having no knowledge that what they buy is different from the natural product, the fact that it is known by the trade not to be in its natural state does not relieve it from being an adulteration,
    But in the case before us, it is not only shown that the trade knew that to produce the article sold as cocoa to be consumed in families, there has been abstracted from the bean a part of the oil or fat, but the public are notified of that fact by the label on the package itself. It is not meant by this that there is any labeling of this package such as the statute requires for a compound or a mixture, but only that the public are not left in ignorance in this case as to what the package contains, as the public were left in the English case from which quotations have been made in this opinion. In the case before ns, it is not only shown that the trade knows that a part of the oil of the natural product has been abstracted, but the public are notified thereof by the label on the back of the package. It is said, however, that to1 say that the excess of oil has been removed and that this is; an extract of cocoa, leaves entirely uncertain what amount • of this oil has been removed, and it would leave for every manufacturer to set up for himself a standard, and by such self-constituted standard determine ' what is the amount of the excess of oil; and this argument is not without weight and force. It must not be forgotten, however, that nature has not fixed a definite and certain standard as to the amount of oil in the cocoa bean itself.
    The case shows that the amount of oil in the bean varies from thirty-six per cent to fifty -five per cent in its natural state, so that if no oil were to be removed, one might get a ■ cocoa having as little as thirty-six per cent of oil, or he might get a cocoa containing as much as fifty-five per cent of oil. We all know that we may purchase pure coffee from which, when treated by the best cook in the world, we shall get an unpalatable and disagreeable drink; while if we obtain another kind of pure coffee treated in the same way by the same cook, we shall get a most delightful beverage.
    It is not meant by this to intimate that an article may be adulterated, provided such adulteration does not reduce the article below the standard of the poorest article of the kind which is pure, but only that the fact that this product having had the excess of oil extracted from it, and thereby leaving uncertain what per cent of the oil remains, does not make it an adulteration.
    If we were to buy a cocoa, or as a cocoa, the ground cocoa bean from which nothing has been extracted, we might ■ get a good article, if it takes all the oil to make a good article, I mean all the oil of the best bean; or we might get and still have a pure article — an article which has had very much less oil. Our ancestors, in their wisdom, had a maxim for the test of a pudding, and it is doubtful whether we can, by any amount of legislation, fix a standard that is certain to be right, without the application of the same maxim.
    A majority of the court are of the opinion that the evidence does not sustain the verdict, and that the motion for a new trial should have been’granted, and for this error the judgment of the court of common pleas and of the justice of the peace is reversed, and the plaintiff in error is discharged.

      Messrs. Coulder, Wing & Holding, for plaintiff in error.

      Messrs. Clark & Thompson, for defendant in error.


author: Day, J.

text:
    (Third Circuit—Hancock Co., O., Circuit Court
    May Term, 1895.)
    Before Sene'y, Day and Price, JJ.
    JOHN V. FARWELL &. CO., et al. v. THE FINDLAY DRY GOODS CO., et al.

      Assignment for benefit of creditors — Exclusive jurisdiction of Probate Court of all matters connected therewith.

    Where an insolvent or failing debtor makes a general assignment of all the debtor’s property to an assignee, in trust, for the use and benefit of all the creditors of the insolvent, and the deed of assignment is filed in the probate court of the proper county, and the assignee has qualified and is proceeding to administer the trust, the probate court acquires exclusive jurisdiction of the subject-matter of the assignment, and has full power to hear and determine all questions properly arising.
    Appeal from the Court of Common Pleas of Hancock County.
   Day, J.

The case in the common pleas court, as appears from the averments of an amended petition filed there, was under the provisions of sec. 0344, Rev. Stat., and was brought for the purpose of avoiding a conveyance or assignment of property by Meyer Kohn to Julius Leon, because, as averred in the amended petition, the said transfer was made without coxxsideration, and with intent to hinder, delay axxd defraud creditors.

Axx answer to the amended petition is filed by defendant, Julius Leon, which shows in substance that the assignment averred was made, not ixx fraud of creditors, but for the benefit of creditors; that the deed of assignment was ixx due form duly executed and delivered; that it was filed in the Probate Court of Hancock county long before-this action was begun; that the assignee named, qualified as such assignee by giving the bond fixed and required by the said probate court, axxd was proceeding, under the provisions of the statute, ixx the probate court, to administer the trust under the direction axxd guidaxxce of said court, by reason of which facts it is claimed plaintiffs are not entitled to maintain their suit in the common pleas or in this court. There is xxo reply to the answer, axxd the facts therein averred are coxxceded to be true.

A general demurrer to the amended petition was, we think, properly overruled. The demurrer was not well taken. The facts stated éasily constituted a cause of action entitling plaintiffs to the relief prayed, if established on the trial. The question sought to be raised by the demurrer, is not raised, for the reason the. amended petition does.not show the necessary fact that the transfer, sought to be avoided, was a general assigxxmexxt for the benefit of all creditors, axxd then being actively carried into effect in the probate court. This omission, or rather additional fact, is supplied by the answer, which makes the.statement that the conveyance ixx question was a gexxeral assignment, made by Kohn, an ixxsolvent debtor, for the benefit of all his creditors, filed ixx the probate court axxd being carried into effect ixx that court uxxder axxd in pursuance to law. This additioxial statement of fact is not denied, but is conceded to be . true, so that the essential facts are undisputed.

The question presented is one of jurisdiction, pure and simple.' Under the facts appearing, has the common pleas court jurisdiction to hear and determine the matter? Has ’ not the probate court rather exclusive jurisdiction and full power to settle and determine all conflicting claims of title, liens and priorities, and all questions likely to arise in executing the trust created by the assignment? We think in this state the question is no longer an open one. By express provision of the statute and repeated decisions of the court of last resort, it seems to us the question is definitely and properly settled. We deduce the rule to be, and it seems - to be of universal application, that in every case of an assignment, which, on its face, is a general assignment, by an insolvent or failing debtor, of all his property to an assignee, in trust for the use and benefit of all the creditors of the debtor, and the deed of assignment is filed in the proper probate court, and the trust is being administered and carried into effect in that court, for the benefit of all the creditors, in accordance with the provisions of law, the probate court is’possessed of exclusive jurisdiction, and is clothed with full power and right to hear and determine all questions properly arising. The filing of the instrument of assignment in the probate court invokes its jurisdiction which, by the law, instantly attaches and excludes the jurisdiction of every other court. It follows that all claimants of liens, rights and interest in the subject-matter of the assignment, of whatsoever character, are required to make their contention in the probate court, and submit to that court all questions and claims arising or growing out of the matter, for its consideration and determination.

If the conclusion reached is correct, then the facts disclosed in the answer, and conceded to be true, constitute a complete-defense to plaintiff’s action, making it clear that it has been instituted in the wrong court. Under the facts and circumstances appearing, the common pleas court is without jurisdiction of the case. That is in the Probate Court of Hancock county, to which forum plaintiffs must take their contention if they desire to have it adjudicated by a competent tribunal.

Geo. H. Phelps, for plaintiffs.

Boss & Kinder, Pendleton & Whiteley, for defendants.

The demurrer to the amended petition is not allowed. There will be a finding for defendant Leon on the pleadings, and the petition dismissed. The plaintiffs are directed to pay all costs.


author: King, J.

text:
    (Sixth. Circuit—Huron Co., O., Circuit Court
    Nov. Term, 1895.)
    Before Haynes, Scribner and King, JJ.

    BAKER v. LAMKIN et al.

      Jurisdiction — Setting aside judicial sale. — The probate court acquires exclusive jurisdiction to determine every question in the case by the filing of a petition to sell real estate, and the common pleas court has no jurisdiction to set aside a sale made and confirmed by order of the probate court, except when a fraudulent judgment has been procured.
   King, J.

An action was brought in the court of common pleas by Amy Lamkin against Sampson J. Baker, then the executor of the last will of Isaac J. Baker, deceased, and Floretta Baker, defendants.

The plaintiff sets forth in her petition that the defendant, Baker, was the executor of the last will and testament of Isaac J. Baker, and that he is the husband of the defendant, Floretta Baker; that Floretta Baker had, before that time, presented to Sampson J. Baker; as the said executor, a large claim for personal services against the estate of Isaac J. Baker, for over $2,500, said sum being more than the entire property of said Isaac J. Baker; that Sampson J. Baker, as said executor, colluded with Floretta Baker to obtain said sum, to wit, said $2,500 or as much thereof as said property would pay, and fraudulently allowed said claim of his said wife, to wit, said $2,500, being, as plaintiff believes, much in excess of said amount due her. “Thereupon, as a part of said plan to defraud said estate, and to wrong this plaintiff and other creditors thereof, said Sampson J. Baker, executor as aforesaid, began a suit in the probate court of Huron county, Ohio, on or about December 5, 1892, asikng an order of said court to sell said real estate, ’ ’ or certain real estate which is described in the petition.

“Thereafter said executor obtained an order, from said court to sell the said premises at private sale, terms cash in hand (the same having been duly appraised), and immediately'proceeded to sell and did sell, on the same day when said order was issued said land to his said wife Floretta Baker, at the price of $1,100.

“Thereafter, said executor made due return of said sale in words and figures as follows, to wit: ‘In obedience to the foregoing .order of sale, I sold said premises on the 5th day of December, 1892, to Floretta Baker, for the sum of $1,100, said sum being more than the appraised value of the same, and the highest and best price I could obtain. S. J. Baker, executor of the estate of Isaac J. Baker, deceased.

“Said return was duly verified and filed with said court.

“Thereupon, said probate court, supposing said sale to be in all respects regular, honest and. proper, and in accordance with the law and the orders of said court, duly confirmed said sale and ordered a deed of said property to be executed by said executor to said Floretta Baker.

“Thereupon, as further carrying out said purpose, said Sampson J. Baker, executor as aforesaid, made and executed a deed of said property to his said wife, Floretta Baker, and thereupon he took possession of said premises and has since managed and conducted the same, and said purchase was for the benefit as well of said Sampson J. Baker as of said Floretta Baker.

“The plaintiff further represents that said Floretta Baker did not pay to said Sampson J. Baker, executor as aforesaid, the purchase price of said real estate, or any part thereof, and no part of said purchase price has yet been paid, and it was and is the purpose of said Sampson J. Baker and his said wife that said purchase price should not be paid; and no attempt has been made by said Baker, executor, to collect any part of said purchase price, and no securities have been executed by said Floretta Baker, or given by her to said Sampson J. Baker, executor, for said purchase price. But plaintiff says that said estate holds a vendor’s lien on said premises for the payment of said purchase money.

!‘Because of the relation existing between said parties, and the illegal design aforesaid, said Sampson J. Baker, executor as aforesaid, will not, as plaintiff believes, take any steps to obtain said purchase price, or to protect said estate, and has taken no steps for such purpose from the date of said sale to the present-time.

‘‘Plaintiff further says that said Sampson J. Baker is wholly' insolvent, and no part of said purchase money can be collected by process of law, and that said Sampson J. Baker, as said executor, has never been required to, and never has given bond as executor of the will of said Isaac J. Baker, deceased. And plaintiff fears that unless this court interferse to protect the right of said -estate, it will suffer irreparable loss.

“Plaintiff is one of the general creditors of said estate, and has recovered judgment in this court against said Sampson J. Baker; as said executor, in a large amount, to-wit, $1,000, and said judgment remains reversed and wholly unsatisfied.

“Wherefore, plaintiff asks that said Floretta Baker be required to pay said purchase mone, to wit, said sum of $1,100.00, together with interest thereon from the fifth day of December, 1892, into this court, or that the deed of said premises, heretofore executed by said Sampson J. Baker, as said executor, to said Floretta Baker, be ordered canceled of record, and said Sampson L. Baker, as said executor, be ordered to give due notice to said Floretta Baker that unless she pay said purchase price and interest at once', said premises will be resold at her risk, and in case said Floretta Baker fails to make said payment, that said executor be required to proceed after due advertisement, to sell real estate at the risk of said Floretta Baker; and in case said real estate shall sell for Jess than the said price for which the same-was sold to said Floretta Baker, that said executor proceed against her for the loss to said estate, and the costs and expense of said proceeding and resale, or that said conveyance' be set aside at the individual expense of said Sampson J. Baker and Floretta Baker.

“That said Floretta Baker and Sampson J. Baker be enjoined, pending this action, from selling, disposing of, or encumbering aside realestate. ”

To that petition there was a demurrer based upon the ground that the court did not have jurisdiction of the sub-. ject matter;

2. That the plaintiff has not the legal capacity to sue.

3. That the petition does not state facts sufficient to constitute a cause of action.

This demurrer was heard and overruled and plaintiff excepted. Then Sampson J. Baker, executor, filed an answer denying all the allegations of fraud, but admitting the main facts of the petition.

A "reply to that answer was filed by the plaintiff. There was also an answer filed by Floretta Baker denying the allegations of the petition. There was also an answer filed by Adelbert E. Hanville, who alleged that after the commencement of the suit, “on or about August 10, 1893, the probate court of this, Huron county, Ohio, revoked the letters of administration theretofore by said court issued to the defendant, Sampson J. Baker as executor with the will annexed of the-estate of Isaac J. Baker, deceased, thereby removing him. from the trusteeship of said estate; and that on or about' August 14, 1893, said court appointed this defendant, Adelbert E. Hanvile, administrator de bonis non with the will annexed of said estate of Isaac J. Baker, deceased, and that he duly qualified, and still is acting as such administrator.”

“This defendant further says that said Sampson J. Baker informed him that the defendant, Floretta Baker, presented a claim to him for services amounting to the sum of twenty-five hundred dollars, and that he as executor allowed the same as a valid claim against said estate.

"‘That with reference to the sale of the real estate described in plaintiff’s petition, this defendant’s information is almost wholly derived from the records of the probate court, and that he has not sufficient knowledge on the subject to affirm or deny the charges of fraud contained in the plaintiff’s petition.”

On these pleadings the case went to trial, and a judgment was rendered for the plaintiff, to reverse which a petition in error is filed. The judgment which was, rendered upon the trial in the court below to which exceptions were taken, substantially finds that the allegations of the petition are true, and it is ordered that said Floretta Baker within five days from the entering of this judgment and' decree, pay, or cause to be paid to the clerk of this court the said sum of eleven hundred ($1,100.00) dollars with interest from December 5, 1892, said sum to be by said ■clerk paid over to said Adelbert E. Hanville, administrator as aforesaid.

That in default of said payment, said deed of said premises heretofore executed and delivered to said Floretta Baker by said Sampson J. Baker as executor of the will of Isaac J. Baker, deceased, be canceled of record, and the clerk of this court is ordered to certify such cancellation to the recorder ■of said Huron county.

That said Adelbert E. Hanville, administrator as aforesaid, be and he hereby is ordered to give due notice to said Floretta Baker, that, unless she pays said purchase price and interest thereon from December 5, -1892, within five ■days from the service of such notice, said premises will be resold at her risk and that she will be required to pay any loss which said real estate may .sustain by reason of said premises failing to sell for enough on said resale to cover said sum of $1,100.00 with interest as aforesaid, and the cost and expense of said resale.

That thereupon, in case said Floretta Baker fails to make such payment within the time limited after such notice, said Adelbert E, Hanville, administrator as aforesaid, proceed at once to duly advertise said premises for sale at public auction, for cash, said sale of be for not less than two-thirds of the appraised value thereof, as fixed by the appraisers in said proceeding in the probate court under which said original sale was had; and that after due advertisement, he sell the same to the 'highest bidder for cash.

That in case said premises sell on said resale for less than said sum of $1,100.00, with interest from December o, 1892, together with the costs and expenses incident to said resale, said Hanville, as such administrator, proceed by due process of law against said Eloretta Baker to recover the amount so lost to said estate.

To said finding and order in so far as it concerns recovery of costs from said estate, defendant, Hanville, by J. R. McKnight, his attorney, excepts.

There was a bill of exceptions taken after the trial and it is claimed that this judgment is against the law and not supported by the evidence, in addition to the claim also that was made by the original demurrer that the court did not have jurisdiction; and that the proper party had not brought suit.

These questions liave been argued quite at length and we have given them considerable attention.- The case presents in our judgment some quite new questions, new to the court at least.

It is claimed that the court of common pleas did not have jurisdiction to entertain this action both in the demurrer and in the trial of the case. We are not able to come to the conclusion that the court did not have jurisdiction in some senses of that word “jurisdiction.” This petition, in one clause of it, seeks to recover this money as the purchase price of this property arid to have a vendor’s lien established. . Clearly the court of common pleas has jurisdiction to establish a vendor’s lien, or to recover the purchase price of land, whether that land was sold by an administrator, or by a private individual. Upon the question whether the proper party has brought suit, more difficulty arises. I am unable to find, or to think of any case that has been sustained either for the recovery of any money or property belonging to an estate in the name of any other person than the administrator or executor. In one or two cases it is laid down that it must be brought by the administrator. The case cited in 48 Ohio St. 554, which it is claimed sustains the maintenance of this, was one where a demurrer to the petition was filed in an action which was sought to be maintained by some of the creditors of an insolvent, and it was held that the demurrer should have been overruled; that the court in that case had jurisdiction. The court in passing on the point whether the assignee should have bought suit, or one of the creditors, said that they thought in that kind of a proceeding a creditor might maintain a suit, but in that case it was alleged— and the court referred to it in the opinion — that upon a demand by the plaintiff upon the assignee to bring an action, he refused to bring it. That does not appear in this petition.

We shall not dispose of this case upon the question as to whether the plaintiff or the administrator should have brought this action. We shall hot. decide that the plaintiff could not maintain it, nor pass directly upon that question. The case, by the evidence, exhibits some other questions.

As I have said, no doubt the court of common pleas would have jurisdiction to enforce a vendor’s lien, and if this were simply a case to recover the purchase price for which this property was sold, the court, we think, clearly had jurisdiction to try that kind of a case and to decide it exactly as it did decide it, finding the purchase money had not been paid. The petition avers, and the proof shows that Sampson J. Baker was the executor of the estate of Isaac J. Baker, and he filed his petition in the probate court to sell this real estate, describing it.

So far as the sale of that real estate is concerned and its ultimate conclusion, the probate court had then acquired, by the filing of that petition, exclusive jurisdiction^ determine every question in the case. As stated by the supreme court in a very late case (49 Ohio St. 588): They have jurisdiction to determine every question arising upon the settlement of estates, and even to determine the state of title and to recover title and possession; to impanel a jury and try questions of title as to real estate. In other words, they have plain jurisdiction in every question of fact arising in any action presented to afford parties a trial by jury. The court then say that all persons having an interest in or lien upoiTland, may be made parties, and every question there determined, that every purchaser may acquire a clear and unencumbered title.

That kind of a petition was filed in the probatejbourt, and the probate court had that kind of jurisdictionjupon the filing of the petition, and the probate court madeanorder that the executor should sell this land at private salejat not less than the appraised value for cash, and that the court had the authority to make. There is no allegation that the court did not follow the statute. Thereupon,'^the^executor sold the land, and reported that he had sold it to Floretta Baker for $1,100.00 for cash, and that that was morejdian the appraised value, and the proof shows that it was more. It was appraised at $800.

In filing his petition, he alleges that) this] estate was indebted to the firm of physicians for medical~services, and for the undertaker at the funeral, amounting] to seventy-seven dollars and forty-five] dollars, respectively, and to Floretta Baker for services rendered to Isaac]J. ]Baker and his wife in caring for them during their lifetime, and in their last sickness in the sum of twenty-five hundred dollars.

On his coming in with the report that he sold this prop. erty to Floretta Baker for the sum of $1,100.00, being more than the appraised value of the same, .and being the highest and best price he could obtain, the court entered its order that:

“This cause now coming on to be heard on the return of S. J. Baker, executor, of his proceedings and sale under the order of this court, having carefully examined said return, being satisfied that such sale has in all respects been legally made, does hereby approve and confirm the same, and order that the said S. J. Baker, as such executor, make to the purchaser, Floretta Baker, a good and sufficient deed for the premises so sold.1 ’

Thereupon, he did make a deed to Floretta Baker for the premises sold, and delivered it to her, and she filed it for record, and it was recorded. That was before the filing of this petition.

This petition, as I said, was filed in July, 1893, and shortly after the filing of this petition Sampson J. Baker filed his final account which he had not done at the time of the filing of the petition in this case. He filed his final account in the probate court, and set forth in that account that he had received certain moneys, to-wit: the sum of thirty-five dollars on a note, and on another note the sum of $100,. and on the sale of the real estate to Floretta Baker the sum of $1,100.00, and he claimed credits for the following payments: Paid funeral expenses, forty-five dollars, and paid Floretta Baker on her account $1,100.00. Then he paid divers and sundry other persons, amounting altogether to $1,-315.15. Attached to that account is the following statement:

“On December 5, 1892, said Sampson J. Baker sold real estate to Floretta Baker at an agreed price of eleven hundred dollars, wffiich amount was applied upon her claim of twenty-five hundred dollars theretofore allowed. By reason of which transaction said Sampson Baker charges himself in this account with the price agreed upon as that much cash received, and credits himself with the payment of the same amount to Floretta Baker on her claim.”

That is sworn to. Then on the 28th day of December, the following appears of record:

“Notice of the filing of the accounts of S. J. Baker, executor of the last will and testament of Isaac J. Baker, deceased, heretofore filed for a final settlement, having been duly given by publication in the Norwalk Reflector, a newspaper of his county, and this being the day named therein for the hearing of said accounts, the same came on this day to be heard, and no exceptions thereto being filed, the court carefully examined said accounts, and finding them in all things true and correct, it is ordered that the- same be, and they are hereby confirmed and settled. Aud the court further find a balance of,$80.45 due said executor from said estate.”

That seems to be the last entry so far as Sampson Baker is concerned, in the probate court. Thereafter, the defendant, Hanville, was appointed executor of the estate with the will annexed. So now this is the record of the proceedings: The land was sold by the court having jurisdiction of the matter; it was sold for $1,100.00. It was sold, it is true, to the wife of the administrator, but that fact appeared in probate court, and the court confirmed the sale. Now, the only thing remaining after that of which complaint could be made, and which could give the court of common pleas jurisdiction would be that,in some manner, fraud had so far intervened as to either render the sale void, or as to permit the bringing of an action by a creditor to recover the purchase price. As I have said, this petition may be construed as an action to recover the purchase price, or it may be construed as an action to set aside the sale. We do not say that the court of common pleas would not have jurisdiction to set aside a sale in a case where fraud was averred or shown in a proceeding by the probate court by which a fraudulent judgment had been procured. But there is no evidence that such a fraudulent proceeding was had; the probate court was not imposed upon, because every step this man perpetrated in this business is set forth there, and the probate court seems to have had full and adequate knowledge of exactly what this man was doing. He sold the property to his wife and he reported it sold to his wife for $1,100.00, and the probate court confirmed that sale. Thereupon, within such time as the court permitted him to have, he made a report of the moneys and the proceeds arising from that sale. Although that had not been done when this action was commenced, it was done very shortly after, and long before this trial in the court of common pleas.

That record and report of the administrator shows exactly how this land was paid for, to-wit, by the application of the purchase price upon the debt of the estate to his wife which he had allowed, and that action was approved and confirmed by the probate court on the hearing of his final account. If the finding of the probate court is worth anything at all, and the probate court, by the laws of the state, has exclusive jurisdiction in all matters of settlement of estates, it has exclusive jurisdiction to determine how an estate shall be sold and the money distributed in the hands of an executor. It has concurrent jurisdiction with the court of common pleas in the sale of real estate, and has exclusive jurisdiction in the settlement of the debts of an estate. .

Now, the court, in confirming the sale and approving the account, we think acted'properly. The transaction was one that might be proper, The court approves and confirms it, or approves the action of the administrator in crediting his wife with the amount of $1,100.00 in that bill.

It is true, and we cannot help but say from the appearance of the record, a suspicion of fraud might arise. The sale of this land to this man’s wife, and the allowance of that bill were things that might well be criticised; but a review of this cannot be had in an independent action which the court of common pleas has no jurisdiction of whatever; it must be exercised by the court that has jurisdiction, to-wit, the probate court.

The consideration for the sale of this land, according to the records of the probate court, was paid and such payment was approved and confirmed by the probate court.

Now, can the court of common pleas, though it may have jurisdiction at the suit of a creditor to set aside a sale on the ground of fraud, where fraud exists, or to recover the purchase price where it has not been paid, go further than that and adjudge that the purchase price has not been paid, where the probate court has adjudged that it has been paid.

If it was not a proper or a just debt, it does not occur to us, taking the settlement of this estate, the filing of the account and its approval by the probate court in connection with the sale of this leal estate and the action of the probate court thereon, that the court of common pleas would have jurisdiction either to set aside that sale, or to adjudge that this purchaser should pay again this purchase price.

If it were an action simply to recover the purchase price, we do not think the order of the court was proper. The only action was to render judgment in favor of the administrator against this purchaser for the amount of this money with the order that she pay it,or that the premises be sold to pay it. Then, the premises being sold and the proceeds applied upon the payment of that debt, as far as they go, if that does not pay the whole debt and interest accruing, there will still be the judgment upon which execution might be awarded against this purchaser for the balance.

That would be the only action, in case an action were brought alone, to recover the purchase price. But if it is to set aside the sale for fraud, then it must be fraud upon the court. But here, we do not discover a single symptom of any fraud upon the court.

The record plainly sets forth exactly all that has been done, and .the only court that ever had jurisdiction and authority to approve it has approved it. So this judgment will have to be reversed on the ground that it is against the law and the evidence,