author: ROCKEL, J.

text:
    ASSESSMENTS.
    [Franklin (2nd) Circuit Court,
    January 24, 1911.]
    Rockel, Dustin and Allread, JJ.

      Mary S. Page v. Columbus (City) et al.
    1. Limitation of Reassessment to One-half Cost of Repaving Applies to Original Improvements Made Before and After Enactment of Statutes.
    The limitation of Gen. Code 3822, providing that reassessments for repaving improved streets shall not exceed one-half of the cost, does not violate the constitutional inhibition as to retroactive or retrospective legislation; and it appliesjto improvements whether made before or after the enactment of the law restricting the amount of assessments in such cases.
    2. Assessment of Cost of Improvement against Abutting Property Determining Factor as to Application of Reassessment Limitation.
    No distinction is made by Gen. Code 3822, limiting amount of reassessments for repaving or repairing improved streets, as to the material used or cost of the original improvement; but the restriction applies generally to all road improvements from which an unimproved street is transformed into an improved one and for which the cost and expense is assessed specially against abutting property.
    [Syllabus approved by the court.]
    Error to common pleas court.
    W. 8. Page, for plaintiff.

      E. L. Weinland, city solicitor, J. L. Davies and C. A. Leach, assistant city solicitors, for defendants.

       Affirmed, no op., Columbus v. Page, 86 O. S. 333.

   ROCKEL, J.

Plaintiff in her petition below alleged that she was the owner of certain properties located in the city of Columbus; that one of her said properties is located on Sandusky street in said city, and that on or about December 6, 1890, in front of .the premises said street was graded, a boulder paving put in the gutters, five inch Berea curb was put in said street. The roadway was graveled and an assessment made and paid against said property, at the rate of $1.07 per foot; and that she avers that said work done upon said street was an improvement upon said street, said street being a public street in the city of Columbus and that said improvement was necessary and beneficial and substantial at the time it was made; that after-wards on November 10, 1900, the said Sandusky street in front of the premises hereinbefore described was surfaced with crushed gravel, the roadway was repaired and an assessment was made and paid upon the property, and the same was a substantial improvement on said street.

And avers further that during the year of' 1908 the city of Columbus duly authorized the improvement of Sandusky street in front of the premises hereinbefore described and levied an assessment upon the property, the same was a lien thereon; that the grade of said Sandusky street was not changed from its former grade by reason of the last improvement; and avers further that said street had been formerly improved by said city and she should not be assessed for more than one-half of the cost and expense of repaving said street.

Further allegations are made that thé county treasurer was demanding the same and that there would be a penalty added thereon and other matters which go to the facts that determine the right of injunction, etc.

There are other tracts or lots in reference to which substantially the same averments are made.

In the court below the city filed a demurrer which .was sustained by the court, and plaintiff, not desiring to plead further, prosecutes error to this court from the decision of the court below in sustaining the demurrer.

The question to be considered in this case is purely one of a" statutory construction. The third paragraph of Sec. 53 of the Municipal Code, which was R. S. 1536-213, and which now appears as Gen. Code 3822, as it was worded in said Sec. 53, reads as follows:

“Provided that whenever special assessments have been levied and paid for the improvement of any street or other public place, the property so assessed shall not again be assessed for more than one-half the cost and expense of repaving or repairing such street or other public place, unless the grade of the same is changed.”

In the General Code the wording has been varied somewhat, but not materially.

The contention of the plaintiff is that by the plain wording of this statutory provision, she is not liable for more than one-half of the assessment, and it will be.conceded that the plain words in this statute would seem to support her contention.

The defendant, however, and the court below agreed with it, contends that plaintiff in her cause of action does not bring herself within this statutory provision.

The defendant bases its ground of contention on two reasons:

The first is that said statutory provision does not apply to improvements made before the passage of said act.

The plaintiff contends that the Supreme Court in the s*ase of Gray v. Toledo, 80 Ohio St. 445 [89 N. E. Rep. 12], has held to the contrary and supports her claim. The syllabus of this case is as follows:

"Section 53 of the municipal code of 1902 (Section 1553-213, Revised Statutes, prior to the amendment of April 21, 1904, 97 O. L. 126) which provided that assessments upon a lot for any and all purposes, within a period of five years, were limited to thirty-three per centum of the tax value thereof, is so construed that assessments levied prior to that enactment, and within the five year period, are to be considered in applying the limitation to assessments subsequently levied.”

This decision and the syllabus in reference thereto was given in construction not to the clause of said Sec. 53, under consideration in this case, but to the first clause thereof. The clause under consideration by the Supreme Court read as follows:

‘ ‘ In all cases of assessment, the council shall limit the same to the special benefits conferred upon the property assessed, and in no case shall there be levied upon any lot or parcel of land within the corporation, any assessment or assessments for any and all purposes, within a period of five years, exceeding thirty-three per cent of the tax value thereof.”

It will be observed that the language of the clause that the Supreme Court had under consideration did not indicate that it should be applied to past assessments, but rather that it applied to the present and future, and from the language used the court would have been justified in so holding. In the clause applicable to the case at bar, the language used clearly indicates that it is to be applied to a past .transaction. And for that reason, it appears to us that the present ease is a stronger one for the plaintiff than the one which was decided by the Supreme Court.

The statute applicable to the case at bar specifically says “that when any special assessments have been levied and paid. ’ ’ This certainly refers to assessments that have been levied and paid in the past, and there is no reason to be gathered from the language of the statute why it should be. limited in its application to assessments that have been levied and paid after the passage of the law, neither is there any reason why' the legislature should not have made it apply to. original assessments that have been made in the past, as well as in the future.

Certainly, as a matter of justice and right, there is no reason why a distinction should be drawn.

Suppose that ten days prior to the passage of this act, one person’s property had been levied upon and an assessment made and paid, and in ten days after the passage of the act another person would have an assessment levied and paid on his property, is there any moral or equitable reason why, if these several persons should have improvements made on their property thereafter, the first should be compelled to pay the entire assessment and the latter only one-half?

Defendants seek to draw a distinction between this case and Gray v. Toledo, supra, that the Court in that case gave the construction it did largely because the new statute was merely a continuance of the old one and made the same provisions that had been in force in the old statute for years, and that, therefore, it applied in its limitations, even though the assessment in question was made after the present act went into effect. That was perhaps one reason. But we think that when the court uses the language hereinafter quoted, that it indicates that there were other considerations in the minds of the court, and which are applicable to the case at bar. The language I refer to is as follows:

“The exaction from a lot owner of an assessment equal to one-third of the value of the property, for an improvement which he may not wish and cannot afford, even though an equivalent special benefit results, is a heavy burden, and the general assembly wisely has provided that it shall not be exceeded and that he shall have five years in which to lighten the load before additional burdens may be imposed. No reason is suggested why an exception should be made of these unfortunates who already were bearing the full burden when See. 53 was enacted, and if the statute is to be so interpreted then a similar misfortune must follow every repeal and amendment of the section. ’ ’

In the case at bar, there is nothing that we can see that in making it apply to the plaintiff’s case would make the law retroactive or retrospective and this is well answered in Gray v. Toledo, supra.

- “The power to make an assessment for the improvement of this street is given by the same act that limited the amount of the assessment, and the extent of the power is measured by the limitation; and so long as assessments made prior to the passage of that statute are not affected, but only considered .in applying the limitation to assessments subsequently made, no vested right is taken away or impaired, nor a new obligation created, nor a new duty imposed, nor a new disability attached in respect to transactions or considerations already passed.”

The language of the statute applicable to the case at bar is positive in reference to what property should be included within its provisions and these provisions are, first, that there must have been a special assessment levied thereon; second, that the assessment has been paid; third, that it was for the improvement of a street, then, unless the grade is changed, if there be thereafter another assessment, only one-half of the same can be assessed against the .property.

The constitution, Art. 13, Sec. 6, especially gives to the general assembly power to pass laws restricting the power of assessment. The passage of the act under consideration was an exercise of this power and the legislature was the sole judge as to its application, so. long as it did not contravene any other constitutional provision.

The theory of assessments rests purely upon the fact that a benefit is conferred upon the property. Now it would seem that it is certainly within the power of the legislature to determine that if property has once been assessed, and there be future assessments made, that the property shall not bear more than a certain proportion of such future assessments, and that the remainder must be borne in some other manner.

So we are unable to see how either from the words of the statute itself, or theory of public policy, or constitutional provisions,- it should not be applicable to the plaintiff’s case and bring her property within its limitation.

The second question that is raised is that the graveling of a roadway or surfacing it with crushed gravel is not within the statute. In other words, that what is meant to be included in the statute is that when a stréet has been once paved with brick or something of that character, and is thereafter repaved or repaired, that then it comes within the meaning of the statute. It is possible that this was chiefly what the legislature had in mind, but the statute must be construed according to the meaning of the words used in the statute.

It may be true that a person might receive the benefits of this limitation, who had not been taxed very heavy for some prior improvement, but as the statute draws no lines of distinction between whether the original improvement shall be a gravel, cobble, plank, brick, or stone roadway, or one of some other description, we must hold that it applies to all improvements of the character to which it might apply.

The fact that the statute limits the limitation to a case where the grade is not changed would, to our mind, seem to indicate that it was to have a general application to all roadway improvements. It is a well-known fact that streets are frequently improved by cutting and grading and re-surfacing with gravel or some other substance out of which a reasonably good roadway could be made, and no street or roadway in a city is recognized as an improved street until such is done. The transforming of an unimproved street to what is known as an improved street is an improvement which the statutes have recognized to be a suitable one, for which the cost might be levied and assessed against the adjoining lot owners.

In a well considered ease by Judge Kunkle of the Clark common pleas, Baldwin v. Springfield, 20 Dec. 265 (10 N. S. 65), it is held:

“ ‘Macadamizing’ a street, formerly improved by graveling pursuant to municipal direction, constitutes a ‘repaving’ within the meaning of Sec. 53, Mun. Code of 1902 (Gen. Code 3822) for which not more than one-half the cost may be assessed against the abutter.”

In discussing the question as to whether the words repaving and repairing could be applied to a case where the street in its improvement had only been graveled, or macadamized, and not paved with brick, etc., he cites and examines a number of authorities, and as it is quite pertinent to the decision of the case at bar, we will quote at some length from the’ opinion:

“Does the macadamizing of the highway in question, constitute a repaving thereof, where the first improvement consisted merely of graveling the street? We have had considerable difficulty in arriving at a determination of this question.
“There are a number of decisions to the effect that macadamizing is considered paving. Leake v. Philadelphia, 171 Pa. St. 125 [32 Atl. Rep. 1110]; Williamsport v. Beck, 128 Pa. St. 147 [18 Atl. Rep. 329]; Brady, In re, 85 N. Y. 268; 36 Am. Dig. 1267; Philadelphia v. Ehret, 153 Pa. St. 1 [25 Atl. Rep. 888]; Harrisburg v. Segelbaum, 151 Pa. St. 172, 185 [24 Atl. Rep. 1070; 20 L. R. A. 834]; Adams v. Fisher, 75 Tex. 657, 661 [6 S. W. Rep. 772].
“Does an original improvement of a street by graveling constitute the paving of a street, so as to render a subsequent improvement a repaving?
“To pave includes the usual means of covering the street with stone or brick, so as to make a convenient surface for travel. Warren v. Henly, 31 Iowa 31.
“Many statutes provide for levying assessments for paving a street. The question presented under such statutes is as to the meaning of the term ‘paving,’ and the forms of improvement which may be included thereunder.
“Paving consists in producing, by any means, a hard, firm, smootli surface for travel. Paving consists in producing a compáct, even, hard surface, or covering the street with stone or brick, so as to make a convenient surface for travel. Page & Jones, Taxation 437.
“No particular material is necessary to constitute a pavement. It may be made of anything which will produce a hard, firm, smooth surface for travel. Philadelphia v. Eddleman, 169 Pa. St. 452 [32 Atl. Rep. 639].
“To pave is to cover with stone or brick, or other suitable material, so as to make a level or convenient surface for horses, carriages, or foot-passengers. Phillips, In re, 60 N. Y. 16, 22.
“A pavement is not limited to uniformly arranged masses of blocks of wood, brick or stone, but it may be as well formed of pebbles or gravel or other hard substance which will make a compact, even, hard way or floor. Burnham v. Chicago, 24 Ill. 496, 499, 500; Dillon, Mun. Corp. See. 796, and authorities cited.
“Any material by which a hard, firm or smooth surface for travel is secured, constitutes a paving, and from the above definitions of paving and repaving, we think the macadamizing in question constituted a repaving, and that the limitation of Sec. 3820 Gen. Code (B. 1536-213), as to repaving, applies to the improvement in question.
“While brick or stone are the materials employed in most cases of paving and were the materials used in certain of the cases above cited, yet it is apparent from the reasoning of the court, even in those eases, that the controlling element was the fact that a hard, firm, smooth surface for travel was thereby secured, and a hard, firm and smooth surface for travel may be secured from the use of gravel, as well as froih other kinds of material.
“The purpose of the legislature seems to be to permit the city to assess against abutting property owners the principal cost of originally improving a street, of originally transforming it from.an ordinary roadway into a street, but after such original construction, the policy of the legislature in our state, and the same rule seems to prevail in most states, is to limit the amount which may be assessed after a street has been originally improved at the expense of the abutting property.
“We have nothing to do with the wisdom of such legislation. We are merely required to determine what the legislature has enacted upon this subject. If we have correctly interpreted the intention of the legislature and the limitation so prescribed is unwise, the remedy is with the legislature. ’ ’

At the May term of this court the decision of Judge Kunkle was affirmed by this court. This case, we think, is decisive of the question of the ease at bar, as to whether the statute in its limitation applied to a street that had been improved by paving with brick or some similar substance only, or whether it could also be applied to a street improvement where gravel was used to make the surface, and we think that the court in the Clark county ease has clearly shown that the statute is not limited to a street that has been paved with brick, etc., but that those that have been improved by making a graveled surface as set forth in plaintiff’s petition come within its provisions.

We are, therefore, of the opinion that the court below erred in sustaining the demurrer to plaintiff’s petition, and said cause is, therefore, reversed and remanded to the court of common pleas for further proceedings.

Dustin and Allread, JJ., concur.


source: Caselaw Access Project

author: SMITH, P. J.

license: Public Domain

text:
    ANIMALS — EVIDENCE—PLEADING.
    [Hamilton (1st) Circuit Court,
    January 6, 1912.]
    Smith, Swing and Jones, JJ.

      Leopold Kleybolte v. Clifford D. Buffon, a Minor.
    Averment of Viciousness of Dog or Knowledge thereof by Owner not Prerequisite to Recovery for its Bite.
    An allegation that a dog was vicious or that, its vicious disposition was known to the owner is not prerequisite to recovery of damages for injuries resulting from its hite under Gen. Code 5838; evidence of its character as to viciousness is admissible.
    Error to common pleas, court.

      Kramer & Beitman, for plaintiff in error.

      L. H. Pummill and J. A. Budel, for defendant in error.
    Cited and commented upon by the following authorities: Simpson v. McCaffrey, 13 Ohio 508; Roberts v. Mason, 10 Ohio St. 277; United Poiver Co. v. Matheny, 81 Ohio St. 204 [90 N. E. Rep. 154] ; Hayes v. Smith, 62 Ohio St. 161 [56 N. E. Rep. 879] ; Toledo, St. L. & W. Ry. v. Burr, 82 Ohio St. 129 [92 N. E. Rep. 27].

      Affirming, Buffon v. Kleybolte, 22 Dec. 362

   SMITH, P. J.

As R. S. 4212-2 (Gen. Code 5838) now reads, it is not necessary that the petition in this case should have stated that the dog owned and harbored by plaintiff in error was vicious and that this viciousness was known to the owner.

We see no error in the admission of evidence as to the character of the dog, whether or not he was or was not a vicious animal, nor in the charge of the court upon the question of damages. Under the facts as disclosed by the record we think the special charges and general charge correctly state the law in the case.

The verdict for $366 is not excessive.

The alleged misconduct of counsel for defendant in error in his address to the jury can not be considered by this court under the ease of State v. Young, 77 Ohio St. 529 [83 N. E. Rep. 898], where it is held, that “remarks of counsel in addressing a jury, to be the predicate of a 'proceeding in error on the ground of misconduct, must be brought into the record of the trial by the certificate of the trial judge, as are other matters occurring u$on the trial and in his presence. They can not be introduced by affidavit.”

As there are no errors in the record the judgment is affirmed.

Swing and Jones, JJ., concur.


author: GIFFEN, P. J.

text:
    BILL OF EXCEPTIONS.
    [Hamilton (1st) Circuit Court,
    November 26, 1910.]
    Giffen, Smith and Swing, JJ.
    Cincinnati (City) v. John Kilgour.
    Bill of Exceptions Filed More Than Forty Days after Motion for a New Trial Stricken From Files.
    A motion for new trial being, under R. S. 5307 (Gen. Code 11578), made within three days after the announcement by the court of its conclusion upon the issues joined, a bill of exceptions, filed more than forty days after the overruling of such motion, is too late and will on motion be stricken from the files under R. S. 5301 (Gen. Code 11564).
    Error to common pleas court.

      Charles F. Eornberger, assistant city solicitor, for plaintiff in error.

      Burch & Johnson, for defendant in error.
   GIFFEN, P. J.

This case was submitted upon a motion to strike the bill of exceptions from the files because not filed within forty days from the overruling of the motions for a new trial.

Two motions for a new trial were made, one within three days from the oral decision by the court, the other within three days from the entry of judgment, both being overruled.

R. S. 5307 (Gen. Code 11578) provides that a motion for a new trial “shall be made within three days after the verdict or decision is rendered.”

The word decision is here used as the -means of expressing the finding or conclusion of the court in a case submitted without the intervention of a jury, just as the verdict conveys the finding of a jury. In each case the finding is suspended by the application for a new trial, and where the motion for a new trial is overruled, a judgment is entered upon the journal as the final determination of the case. Both the verdict by a jury and the decision of a court are subject-to review, before judgment is entered, each being treated as a preliminary determination of the issues in the case. As said by Spear, C. J., in the case of Coe v. Erb, 59 Ohio St. 259, 263 [52 N. E. Rep. 640; 69 Am. St. Rep. 764] :

“The requirement that all judgments must be entered on the journal carries the implication that until that is done the judgment is inchoate only; it is incomplete. Though possessing the character of potentiality, it lacks the character of actuality, and hence is without probative force.”

It seems proper therefore that, before it is given such probative force, the application for a new trial should be heard and determined, and we think the legislature used the word decision advisedly, and intended to thereby distinguish the announcement by the court of its conclusion from the judgment as evidenced by journal entry. This view is supported by the cases of Ashton v. Thompson, 28 Minn. 334, 335 [9 N. W. Rep. 876]; Evansville Ry. v. Maddux, 134 Ind. 573 [33 N. W. Rep. 345], and other cases collected in 9 Enc. Law, 2 and 3.

It follows therefore that the bill of exceptions should have been filed within the statutory period after the first motion for a new trial was overruled. •

Motion sustained.

Smith and Swing, JJ., concur.


author: KINKADE, J.

text:
    ARREST — GENERAL ASSEMBLY — PROCESS.
    [Lucas (6th) Circuit Court,
    November 20, 1909.]
    Parker, Wildman and Kinkade, JJ.
    Minnie Walsh v. Daniel M. Mooney.
    Privilege Exempting Members of General Assembly From Service of Summons in County Other Than That of Residence Is Available to a Member as to Cause Accruing Ten Days Before Session Opens.
    A member of the general assembly , by virtue of R. S. 5031, 5457 (Gen. Code 11278, 11754), is exempt from service of summons in a county other than that of his residence, during the sessions of the assembly and the time usually occupied in traveling to and from such sessions, where the cause of action accrued ten days before the opening of the session.
    Error to common pleas court.

      Hamilton & Kirby, for plaintiff in error:
    Cited and commented upon the following authorities: Berlet v. Weary, 67 Neb. 75 [93 N. W. Rep. 238; 60 L. R. A. 609; 108 Am. St. Rep. 616]; Rhodes v. Walsh, 55 Minn. 542 [57 N. W. Re’p. 212; 23 L. R. A. 632] ; Johmon v. Offult, 61 Ky. (4 Mete.) 19; Catlett v. Morion, 14 Ky. (4 Lift.) 122; Gentry v. Griffith, 27 Tex. 461; Merrick v. Giddings, lVIacAr. & M. (11 D. C.) 55; Howard v. Bank, 12 App. Cas. ,(D. C.) 222; Orth v. McCook, 2 Dec. Re. 624 (4 W. L. M. 215); 26 Am. & Eng. Enc. Law 661, 662.

      Charles 8. Northu-p, for defendant in error.
   KINKADE, J.

This is an action for damages for breach of promise of marriage in the court of common pleas brought in this county by Minnie Walsh, who is a resident of Lucas county, against Daniel M. Mooney, who was a resident of Auglaize county, and service of summons had in this county. The defendant in that case appeared in court and moved the court to quash the summons that had been served upon him in this county npon the ground that he was a nonresident of the county, being a resident of Auglaize county; that he was then a member of the senate of Ohio, that the senate was' then in session, that he was here on senatorial business only at the time he was served, and the cause of action in the case accrued more than ten days prior to the first day of the session of the senate; and the court of common pleas, upon consideration of that motion, quashed the service, and this is a proceeding in error to reverse that action of the court of common, pleas.

Our attention, is directed to Art. 2, Sec. 12, of the constitution, to R. S. 5031 (Gen. Code 11278), and to R. S. 5457-5459 (Gen. Gode 11754-11756). It is said in behalf of the defendant in error here that the action of the court of common pleas was fully justified by R. S. 5031 (Gen. Code 11278), which reads as follows.:

. “A member- of the senate or house of representatives, or any officer of either branch of the general assembly, shall be privileged from answering to a suit instituted against him in a county other than the one in which he resides, upon a cause of action which accrued ten days before the first day of the session of the general assembly of which he is an officer or member. All proceedings in actions to which such a person is a party shall be stayed during such session, and the time necessarily1 employed in going thereto and returning therefrom:”

Counsel for the plaintiff in error contend that this section amounts to no more than a privilege to a member of. the house or of the senate from filing an answer in the ease in which he is thus sued; that it does not relieve him from being served with summons and required at a later time to answer, but only suspends the time within which he must answer, and our attention in support of this proposition is directed to the sections I have mentioned, R. S. 5457 (Gen. Code 11754) and incidentally R. S. 5458 and particularly R. S. 5459 (Gen. Code 11756).

R. S. 5457 (Gen. Code 11754) is the section of the statute that enumerates the persons who are exempt from arrest. It has seven subdivisions, and the first mentions the members, clerks, sergeants-at-arms, doorkeepers and messengers of the senate and the house during the session of the senate or house and during the time they travel either way in attending- the sessions, allowing twenty-five miles per day, etc. The second subdivision mentions electors attending and returning from election, and the third, judges of court while attending court, and the time necessarily employed in going and returning; the fourth, officers of the court, including attorneys, counselors' at law, clerks, sheriffs, coroners, constables and criers, and all suitors and jfirors. and witnesses; the fifth, females and soldiers of the Revolutionary war; sixth, Israelites, and persons observing the last day of the week, etc., and seventh, persons of the militia during the time they are on duty and going and returning therefrom. R. S. 5458 prescribes the places in which arrest shall not be ’made — the senate and the house and a court in session. R. S. 5459 is the general section that prescribes that none of the foregoing privileges shall apply in certain instances, and says:

“‘Nothing in this subdivision contained shall be construed to extend to cases of treason, felony, or breach of the peace, or to privilege any persons herein specified from being served at any time with a summons or notice to appear; and all arrests, not contrary to the provisions herein contained, made in any place, or on any river or water course within or bounding upon this state, shall be deemed lawful.”

The particular part of the section to which our attention is directed is, “or to privilege any persons herein specified from being served at any time with a- summons or notice- to appear, ’ ’ and it is said that unless effect be given to this language and the service in this case sustained by reason of this language in R. S. 5459 (Gen. Code 11756), then the language must be held to have no effect in the statute at all. Our attention has been called to but one ease in Ohio which supports the action of the court of common pleas, and counsel on behalf of the plaintiff in error contend that it is not a controlling authority and really of no weight in consideration of,the question presented here. This section of the statute, R. S. 5457 (Gen. Code 11754), is the only section of the statute which provides for this privilege from arrest, and it might appear upon a hasty reading of the section that it refers to nothing bnt arrest; but an examination of the question will show that that is not the ease.

This question was before the Supreme Court of Ohio in the case of Andrews v. Lembeck, 46 Ohio St. 38 [18 N. E. Rep. 483; 15 Am. St. Rep. 547], in which a man had been brought from Virginia on a requisition from the governor of Ohio and was in Cincinnati, and before he left there, after being released upon bail, a summons and order of arrest was issued and served upon him. He moved that the summons and order of arrest both be quashed, and this same contention was made, that this language here did not exempt the accused from service of summons at any time, that he might be required to appear. But the court held otherwise and set aside both the order of arrest and the summons and remarked in doing so that it was not necessary to refer to the statute in order to find authority to do it, but because the man being a suitor and having been brought vnthin the jurisdiction of the court to attend to a litigation in court, that it had been the law from time immemorial that he was exempt, not only exempt while returning to his home, but that he was likewise exempt from the service of summons — and was entitled to have the motion granted and the summons that had been served upon him quashed.

The same ruling will be found in Barber v. Knowles, 77 Ohio St. 81 [82 N. E. Rep. 1065; 14 L. R. A. (N. S.) 663], citing Andrews v. Lembech, supra, with approval and following it. There was no order of arrest in the case. A lawyer was journeying to Cincinnati to try a case, and stopped at Dayton and was there served with summons. If I remember correctly, the point was not made that they had a right to serve him if he was going direct to Cincinnati, but they claimed he had tarried longer than he should, and therefore the authority of Andrews v. Lembech, supra, did not apply, and they had a right to serve the summons upon him; but the court held that that was not the case and that the summons should be quashed in that case. It will be observed that this section, R. S. 5459, follows all the provisions exempting parties from arrest, one of the seven subdivisions of R. S. 5457; and it would look, as I have said, upon first reading, as though while those parties thus enumerated are all exempt from arrest, none of them would in effect be exempt from the service of summons, and no very good reason appears why a suitor or witness or a lawyer or any of the other parties enumerated in these seven subdivisions, with the exception of two, should be exempt from arrest and be exempt from summons if the members of the legislature should not. They are all put on the same ground, and the first persons enumerated as being exempt are the persons mentioned as members of the legislature. They are exempt from arrest and it would seem as if the legislature had made ample provision in those sections which have long been upon the statute book J;o prevent the arrest or the summoning of a legislator while attending the session or while going or returning from it. But in addition to that we find R. S. 5031 (Gen. Code 11278) specifically provides that they shall be exempt during the session from answering to any cause of action which accrued more than ten days prior to the opening of the session. It seems to us that the sections of the statute which I have mentioned, and taken in connection with the two eases which I have cited, clearly indicate that the legislature did not intend to provide that a member of the senate might be relieved from the duty of answering some petition filed against him in a county other than his residence until the session had closed and he had returned home, and then he must answer; but the section, we think, clearly indicates that during the session, or during the period necessary to travel to and return from the session, .and especially when the matter in question is a cause of action which arose more than ten days before the beginning of the session, as mentioned in R. S. 5031, the privilege is that he will not be summoned at all, and that no legal summons can be served upon him, excepting of course in the county of his residence, and therefore we conclude that the action of the court of common pleas must De affirmed in quashing the service.

Parker and Wildman, JJ., concur.


author: NORRIS, J.

text:
    CONFLICT OF LAWS — SALES.
    [Columbiana (7th) Circuit Court,
    March Term, 1912.]
    Pollock, Metcalfe and Norris, JJ.
    Harry Wurzel v. S. Delph’s Sons.
    1. Requirement of Refunder of Part of Payment Made on Chattels Conditionally Sold Applies to Remedy and Operates in Ohio against Recovery on Sales Made in Other States.
    The provision of Gen. Code 8570 requiring one who sells chattels with reservation of title till payment of price to tender or refund back part of the money already paid before taking possession, pertains only to the remedy and will be observed by the courts whose jurisdiction is invoked to recover posJ session of the property where such sales have been made in another state.
    2. West Virginia Laws Conflicting with Ohio Laws as to Refunder of Part Payments on Chattels Sold with Title Reserved in Seller not Enforclble Here. i
    The laws of West Virginia on the subject of conditional sales of chattel property not requiring the vendor in such sales to tender or refund to the purchaser of such property or any party receiving it from the vendor any portion of the money paid for the property before recovering possession of the same, although more than 25 per cent of the contract price has been paid, being in conflict with the established policy of our own state on the subject as shown by our statutes, will not be enforced by the courts of this state.
    Error to common pleas court.

      W. F. Lones, for plaintiff in error.
    ■ W. B. Hill, for defendant in error.
   NORRIS, J.

. This is a petition in error to reverse a judgment of the court of common pleas in a replevin case.

S. Delph’s Sons brought an action before a justice of the peace to recover possession of two pool tables. Such proceedings were had that the case was appealed to the court of common pleas, and there tried on the pleadings and an agreed statements of facts. Judgment was rendered in favor of the plaintiff therein.

The material facts are as follows: S. Delph’s Sons doing business in Pittsburg, Pa., on Sept. 7, 1905, made an agreement to sell to J. W. Woolsey of Chester, W4 Va., four pool tables for $508. A portion of the purchase price was paid down and the balance'was to be paid in monthly installments on the seventh day of ea,ch month ensuing until the full purchase price was paid, S. Delph’s Sons by the contract retaining title until the purchase price for the tables was paid in full. This written agreement of conditional sale was filed with the clerk of Hancock county, W. Va., in accordance with the laws of that'State.'

Some time thereafter Woolsey removed the tables to Liverpool or Wellsville in the state of Ohio, and there sold them to one Campbell and took a chattel mortgage back to secure the purchase price. This chattel mortgage was subsequently transferred to the Reggs company who finally took possession of the tables under the mortgage, sold them at public sale and bid them in, and thereafter sold them to the defendant for valuable consideration, he purchasing them in good faith without any knowledge or notice of any prior claim on the part of the plaintiffs or other persons to the tables. The defendant took possession of the tables and kept them for some time.

It appears they were in Ohio for two or three years prior to the commencement of this action before the justice of the peace. , No claim, contract or lien against the tables was filed by plaintiffs under the law of the state of Ohio. By the law of the state of West Virginia such written agreements of conditional sale must be filed with the county clerk stating the claim of the vendor. There is no provision in the law of West Virginia requiring the payment or tender back to the vendee of any portion of the money paid on such conditional sale as a condition to recovering possession of the property in that state.

There appears to have been paid prior to the removal of the tables from Chester the sum of $308,' leaving a balance due of $200. No repayment or tender back of any portion of the money paid was made by the plaintiffs prior to bringing their action.

Under sucfii statement of facts, had the plaintiffs the right to recover possession of the property? Will the courts of Ohio enforce the law of West Virginia in this kind of a case, or should the law of Ohio be applied? The law of West Virginia is not pleaded but is found in the agreed statement of facts. Gen. Code 8570 of Ohio reads as follows:

“When such property except machinery equipment and supplies for railroads and contractors, for manufacturing brick, cement and tiling, and for quarrying and mining purposes, is so sold or leased, rented, hired or delivered, the person who sold, leased, rented, hired, delivered or his assigns or the agent or servant of either or their agent or servant shall not take possession of such property, without tendering or refunding to the purchaser, lessee, renter, or hirer thereof or any party receiving it from the vendor, the money so paid after deducting therefrom a reasonable compensation for the use of such property, which in no case shall exceed fifty per cent of the amount so, paid, anything in the contract to the contrary notwithstanding, and whether such condition be expressed in the contract or not, unless such property has been broken, or actually damaged, when a reasonable compensation for such breakage or damage shall be allowed. But the vendor shall not be required to tender or refund any part of the amount so paid unless it exceeds twenty-five per cent of the contract price of the property. ’ ’

Does this statute apply to the'remedy? This was an action to recover possession of the property. The statute says possession shall not be taken without tendering or refunding back a portion of the amount paid. It appears in this case that such an amount had been paid that the statute required a portion. thereof to be refunded or tendered back by the party seeking to recover possession.

It seems to us that the statute in express terms denies any remedy to a vendor under such circumstances without some tender back. If the above quoted statute applies to the remedy, then by familiar rule of law the law of Ohio should be enforced and not the law of the state of West Virginia.

In the case of Heaton v. Eldridge, 56 Ohio St. 87 [46 N. E. Rep. 638; 36 L. R. A. 817; 60 Am. St. Rep. 737], we find in the syllabus:

“ Contracts receive their sanction from the law of the place where they are executed and to be performed, and their ipterpretation is controlled by that law; but the remedy upon the contract will be administered according to the law of the place where the remedy is sought.”

The third proposition:

“An agreement which, by its terms, is not to be performed within one year from the time it was made,- will not be enforced in this state, unless the agreement, or some memorandum or note thereof, is in writing, and signed by the party to be charged or by some person authorized by him to sign it, although the agreement was made in another state or country where it was competent to prove the same by parol evidence.”

In Furgeson v. Clifford,. 37 N. H. 86:

“The remedy on chattel mortgages executed in another state must be by lex fori.”

In Public Parks Amusement Co. v. Carriage Co. 64 Ark. 29 [40 S. W. Rep. 482], the syllabus is as follows:

“Though a sale of chattels in Missouri, with reservation of title in the seller till payment of price, is void as to subsequent bona fide purchasers, unless evidenced by a writing, acknowledged and recorded, it is valid between the parties; and if the purchaser brings the property into Arkansas, and conveys it to a third person, the law of the latter state governs the conveyance, and such person acquired no title as against the original seller, though the original contract was not recorded.
“The statute of Missouri requiring one who sells chattels with reservations of title till payment of price to refund part of the money already paid, before retaking the property, pertains only to the remedy, and does not govern a suit in Arkansas to recover chattels so sold in Missouri.”

Applying the law of this state as to remedy, the plaintiff must fail in this case. In Speyer v. Baker, 59 Ohio St. 11 [51 N. E. Rep. 442], it is held:

“The purchaser is entitled to the possession of the property under the circumstances of this case until there shall be refunded or tendered back the amount paid as a reasonable compensation for the use of the property, and for any damage done while in his possession. ”

And in National Cash Register Co. v. Gervone, 76 Ohio St. 12 [80 N. E. Rep. 1033], it is held that this statute applies to a mortgagee or purchaser from the original vendee.

Therefore, applying this statute, before the plaintiff can recover possession of the property in this state, tender back must be made in accordance with its -provisions. But, aside from that question, can the statute of West Virginia be enforced in this state? It is urged that it cannot because the statute not providing for repayment of any portion of the purchase price paid before taking possession of the property, it is against the policy of this state, and -therefore our courts would not enforce it.

The statutes of one state or country are not enforced by the courts of another state or country as a matter of right, but only as a matter of comity. As said in Edgerly v. Bush, 81 N. V. 199, 204, in speaking of the statutes of Canada the court say:

“Yet the statutes of the land have no extraterritorial force proprio vigore, though often permitted by •comity to operate in another state for the promotion of justice, where, neither the state or its citizens will suffer any inconvenience from the application of them. The exercise of comity in admitting or restraining the application of the laws of another country must rest in sound judicial discretion, dictated by the circumstances of the ease.”

When the statutes of another state or country are against the policy of the laws of our own state, our courts then refuse to enforce- such foreign law.

In Kanaga v. Taylor, 7 Ohio St. 134 [70 Am. Dec. 62], we quote from the third proposition of the syllabus:

“By the law of comity between different states, the lex loci contractus controls as -to the validity and construction of personal contracts, tho not as to the remedy or rule of evidence ; nor where it «clashes with the rights of oür own citizens, or the policy of our own laws.” 1

Kulp v. Fleming, 65 Ohio St. 323 , 340 [62 N. E. Rep. 334;

87 Am. St. Rep. 611]. The same rule is found in The Kensington, 183 U. S. 263 [22 Sup. Ct. Rep. 102; 46 L. Ed. 190]. In Walworth v. Harris, 129 U. S. 355 [9 Sup. Ct. Rep. 340; 32 L. Ed. 712], we quote from the syllabus:

Although a court of one state will give effect to the law of domicile of another state, yet this is a mere principle of comity between the courts, which must give way when the statutes of a country where property is situated, or the established policy of its laws, prescribe-to its court a. different rule.”

The statute of Ohio which we have quoted above establishes a very different rule in this class of cases as we have seen, and such statute we think must be held to establish ■ the policy of this state in regard to the same, and the law of West 'Virginia being in conflict with the settled policy of our own law as enacted by the legislature, cannot be enforced by our own courts. For this reason the judgment of the court of common pleas was erroneous and the same will be reversed, and the case remanded for a new trial according to law.

Pollock and Metcalfe, JJ., concur.


author: POLLOCK, J. Metcalfe, J.,

text:
    CRIMINAL LAW — INTOXICATING LIQUORS.
    [Columbiana (7th) Circuit Court,
    October Term, 1911.]
    Pollock, Metcalfe, and Norris, JJ.
    State of Ohio v. William Savors.
    1. Jurisdiction of Offenses Committed Beyond Low Watermark on Ohio River Opposite Ohio.
    The state of Ohio has criminal jurisdiction of offenses committed beyond low watermark on the Ohio river, opposite the boundary of the state of Ohio.
    2. Sale of Intoxicating Liquors on Boat in Ohio River Opposite Dry Territory with Passageway to Boat, Illegal.
    It is a violation of R. S. 4364-20b (Gen. Code 13232) to sell intoxicating liquors, as a beverage, on a boat anchored in the Ohio river opposite the shore of a municipality of this state, with a passageway fqr persons to and from the bank of said river in said municipality to said boat, after a majority of the voters of the municipality had voted to prohibit the sale of intoxicating liquors therein.

      Error to common pleas court.

      L. P. Metzger, for plaintiff in error.

      E. E. Grosshans, for defendant in error.
   POLLOCK, J.

East Liverpool is a municipal corporation in this county, and its southeastern boundary extends some distance along the Ohio river.

Under favor of R. S. 4364-20a (Gen. C'ode 13232), the electors of this municipal corporation voted in favor of prohibiting the sale of intoxicating liquors as a beverage. While the sale of intoxicating liquors was prohibited in East Liverpool under this act, William Savors, the plaintiff in error, anchored a boat in the Ohio river, opposite the boundary of this municipality, and beyond low watermark. He then constructed a passageway for persons to pass to the boat from the bank of the river, within the corporate limits of East Liverpool, and was engaged in selling intoxicating liquors as a beverage on this boat.

An affidavit was filed before the mayor of East Liverpool charging plaintiff in error with a violation of the municipal local option laws of this state, by selling intoxicating liquors within this municipal corporation. He was arrested, tried and convicted. From the judgment of the mayor error was prosecuted to the court of common pleas, resulting in a reversal of the judgment of the mayor, for the reason that the sales were not made within the municipal corporation. The state of Ohio prosecutes error to this court, seeking to reverse the judgment of the common pleas court and to affirm that of the mayor.

Two questions are urged in this court: First, were these sales made within the jurisdiction of the state of Ohio? Second, are sales of intoxicating liquors, on the Ohio river opposite the shore of a municipal corporation of this state, a violation of the municipal local option law?

In 1787 Virginia granted to the United States the Northwestern Territory, she conveyed the territory “Situate, lying and being to the northwest side of the river Ohio.”

Afterwards, in 1802, the state of Ohio was formed from a part of this territory.

No question now exists but what Virginia, by this grant, conveyed to low watermark on the Ohio side of the river, Handley v. Anthony, 18 U. S. (5 Wheat.) 374 [5 L. Ed. 113], limiting the territorial boundary of the state of Ohio, where it borders on the Ohio river, to low watermark on the northwest side of the river.

Afterwards by the act known as the “Virginia Compact” of 1789, which proposed the creation of the state of Kentucky, it was provided that:

“The use and navigation of the Ohio river, so far as the territory of the proposed state, or the territory which shall ' remain within the limits of this commonwealth lies thereon, shall be free and common to the citizens of the United States, and the respective jurisdictions of this commonwealth and of the proposed states on the river, as aforesaid, shall, be concurrent only with the states which may possess the opposite shores of the said river.” 13 Iiening, St. L. 17.
“This compact, by the sanction of congress, has become a law of the Union. What further legislation can be desired for judicial action?” Pennsylvania v. Bridge Co. 54 U. S. (13 How.) 518, 566 [14 L. Ed. 249].

Whether or not by this compact the state of Ohio was given authority to enforce her laws on the Ohio river beyond low watermark, has never been determined by the Supreme Court of this state. In the case of State v. Stevens, 1 Dec. Re. 82 (2 W. L. J. 66), the common pleas court of this county held “that the state of Ohio had criminal jurisdiction on the Ohio river below low watermark.”

This case went to the Supreme Court and was reversed on other grounds, but the jurisdiction on the Ohio river was not considered. Stephens v. State, 14 Ohio 386.

This compact, and similar provisions, have been a fruitful source of litigation in other jurisdictions. The supreme court of Indiana, after referring to this compact, say:

“A state has jurisdiction to try and punish offenses against its Sunday Laws committed by persons engaged in carrying passengers over navigable ' waters o£ the United States, lying along its borders, between different points within its territory.” Dugan v. State, 125 Ind. 130 [25 N. E. Rep. 171; 9 L. R. A. 321].

In the case of Wedding v. Meyler, 192 U. S. 573 [24 Sup. Ct. Rep. 322; 48 L. Ed. 570], the Supreme Court of the United States say:

11 Jurisdiction is acquired by an Indiana court by service, of process on the Ohio river, on the Kentucky side' of the low watermark on the Indiana shore, in view of the condition contained in the Yirginia compact of 1789.”

Mr. Justice Holmes in the opinion in this case, says:

“Concurrent jurisdiction, properly so called, on rivers, is familiar to our legislation, and means the jurisdiction of two powers over one and the same place.”

The jurisdiction of a state is the sovereign authority to make and the power to execute laws. Arnold v. Shields, 35 Ky. (5 Dana) 18, 22 [30 Am. Dec. 669, 673]; Sanders v. Anchor Line, 97 Mo. 26 [10 S. W. Rep. 595].

Persons, -while on the waters of the Ohio river flowdng along the boundaries of this state, are amenable to our laws, and the courts of this state have jurisdiction to punish for crimes committed on the waters of the Ohio river.

The remaining question, then, is the construction of the Municipal Local Option act. When the boundary line of a municipal corporation is on the Ohio river, does this law include sales on the river opposite a municipality in which the sale of intoxicating liquors is prohibited?

R. S. 4364-20b (Gen. Code 13232) provides:

“If a majority of the votes cast at such election shall be in favor of prohibiting the sale of intoxicating liquors as a beverage, then from and after thirty days from the date of lidding said election, it shall be unlawful for any person, personally or by agent, within the limits of such municipal corporation, to sell * * * intoxicating liquors.”

This is one of the statute laws of the state of Ohio, differing from the other la-ws of the state only in requiring, the approval vote of the electors of the municipal corporation, to infuse life into it. A vote in a municipality in favor of prohibiting the sale of intoxicating liquors therein, puts in force a law of the state of Ohio making it a crime against the state to do any of the things prohibited by that act within the corporate limits.

If the law had applied to all municipal corporations within the state, without requiring a vote of the electors, it would hardly be claimed it did not include sales on the Ohio river opposite municipalities, just the same as other laws of the state. J>ut the violation of this law within the municipality of East Liverpool was a crime against the state of Ohio, just the Same .as the violation of any of her criminal statutes.

It is insisted that the sale made by plaintiff in error was not made within the corporate limits of East Liverpool, but on the waters of the Ohio river.

An act that is a crime within the territorial limits of the state bordering on the Ohio river, is a crime if committed on the river; and the state has power to enforce her laws on the Ohio river just the same as if the criminal act had been committed on the shore opposite that point.

No person can be convicted of a crime except in the county where the offense was committed, yet a crime committed on the Ohio river is punishable in the county bordering upon the river opposite the place where the act was committed. The jurisdictional limits of the- county extend over the river to enforce the laws on the river, just the same as on the land. If iMs is true where the law is in force along, the entire boundary 'of the county, does it not apply where the law is only in force along a part of that boundary? Conviction can be had for a violation of this municipal local option law in any court having jurisdiction of such offenses within the county where the municipality is situated.

It is claimed that the sale of intoxicating liquors made under this statute is only prohibited “within the limits of such municipal corporation.” This provision places no greater limitation upon the jurisdiction of the state to enforce its laws than the statute requiring all criminal eases to be tried in the county where the offense was committed.

Both the county and municipal corporations are political divisions of the state; and if the jurisdiction of one, when it is bounded by the river, extends across the river to punish offenses against the law, no good reason can be given for limiting the other to the territorial boundaries of the state.

The object of the Virginia Compact was, no doubt, the protection of the citizens living along the river from crimes committed on this public highway against the la>s gf their state. The circumstances in this ease prove the wisdom of that compact. Here the accused -had permanently anchored his boat in the river opposite this municipality, and on the banks of the river, within its territorial limits, constructed a means of access to his boat, and then proceeded to violate the criminal laws of this state then in force on the shore of the river opposite.

Because this law was limited to only a part of the boundary of the state on the Ohio river, would not tend to deprive it of any of the sovereign power of the state. To limit the application of this law to the territorial limits of the state, under the circumstances of this ease, would make the Ohio river a sanctuary for the violation of this law.

For these reasons the judgment of the common pleas court will be reversed, and that of the mayor affirmed.

Norris, J., concurs.

Metcalfe, J.,

dissenting.

Finding myself unable to agree with my brethern in the judgment rendered in this case, I have thought best to state briefly my reasons for such disagreement.

I do not question but that the jurisdiction of the state of Ohio extends over the Ohio river for the service of summons in civil eases, and for the punishment of offenses which may be committed upon that river. In fact, I think the decisions upon those questions settle them beyond controversy. Neither do I question that the jurisdiction of every county in the state bordering on the Ohio river extends to crimes and offenses committed on the river, so that if a crime is committed upon the Ohio river within the lines of a county extended across the river, the jurisdiction of that county extends to that crime. But does it follow that because the state has jurisdiction for certain purposes over the Ohio river that a municipality bordering upon the river, the boundary line of which is low watermark, has jurisdiction over the river opposite the limits of- such municipality, and confessedly outside of such limits? I am compelled to think that it does not. It' is said very'truly that a county is a political subdivision of the state. It is the unit through which the state acts in putting its legal machinery in operation.

An act is not punishable as a crime within the county of Columbiana because the people of that county have declared it shall be so, but because a general law of the state has so declared. It is punishable as a crime because it is against the laws of the state of Ohio and the county wherein the act is committed has jurisdiction of the offense. That, however, is not true of an act punishable by a municipal ordinance. Of course, the people within a municipality have to obey the laws of the state just the same as the people outside thereof; but a municipality is not a political subdivision of the state. It has nothing whatever to do with the execution of the state laws except in some instances where the authority to execute those laws is specially delegated. A municipal corporation is purely a Creature of the law. It cannot exercise a single power unless tffat power is expressly delegated to it by the legislature of the state, and such powers incident to those expressly delegated as may.be necessary to carry them into execution. Being a creature of the law, a corporation exercising only delegated powers, and not a political subdivision of the state, can it be said that when the legislature delegates to a municipality the power to pass an ordinance making a certain act an offense within the limits of that corporation, that the authority of the corporation, by virtue of that ordinance extends and operates beyond the limits of that corporation for any purpose whatever unless the power delegated permits an extraterritorial operation. It is conceded that in no case do the ordinances and laws ■ of a municipality have an extraterritorial effect unless one of the boundaries of the municipality is the Ohio river. The city of Lisbon is not bounded by a navigable river. It could not be contended for a moment that for any purpose an ordinance passed by the council of this city would operate beyond the limits of the city. Why should such authority operate beyond the limits of the municipality simply because one of its boundaries happens to be a navigable river ? Have its powers been enlarged in any way by the fact that one of its boundary lines is low watermark of the Ohio river? The power ceases to operate outside the municipal limits on dry land but continues to operate on the water. So far as the laws of the state are concerned, there is no distinction between dry land and water. They operate equally upon both, and the jurisdiction of the state or county to punish an act committed on the river extends to that offense because the jurisdiction of the state exends to every part alike, whether it is land or water.

But it is said that the offense with which the defendant is charged in this ease is made punishable by a law of the state and not by a municipal ordinance. A law is passed by the legislature which delegates to the people of the municipality a right to vote upon the question whether intoxicating liquors shall or shall not be sold within its boundaries. Therefore, it is said there is a distinction between this particular law and a municipal ordinance. But it appears to me to be a distinction without a difference. It is only by virtue of a general law that the authorities of a municipal corporation can act at all. It is by force of a general law delegating power to a municipality that an ordinance can be passed by the council, or other lawmaking power of the municipality. Laws have been passed authorizing the council of municipalities to prohibit the sale of intoxicating liquors; other laws have been passed authorizing the prohibition of the liquor traffic within the municipality by a vote of the people. In both cases the power to prohibit such sales is purely a delegated power. When the people of a municipality have voted upon that question against the sale of intoxicating liquors, then “within the limits of such municipality” the sale or keeping a place for the sale of intoxicating liquors is prohibited. Therefore the sale having been prohibited within the limits is not by that vote prohibited without the limits, and no power exists in the municipality to punish an act not committed within its boundaries.


author: SWING, J.

text:
    DAMAGES — GUARANTY.
    [Hamilton (1st) Circuit Court,
    December 10, 1910.]
    Giffen, Smith and Swing, JJ.
    Degenhardt v. Billings.
    Warranty Horse as Sound and Adapted to Family Use Not Available for Damages Suffered in a Runaway, After Vicious Disposition of Horse is Known.
    The warranty of a horse as sound and a good family horse is not avauame to the purchaser as a basis for damages resulting from his running away, where the purchaser from personal experience became aware of the vicious disposition of the horse before the runaway occurred.
    Error to common pleas court.

      II. G. Busch, for plaintiff in error.

      Powell & Smiley, for defendant in error.
   SWING, J.

This was an action in the court of common pleas to recover damages resulting from a horse running off, which horse Billings had sold to Degenhardt, and which Degenhardt claims Billings represented to be a sound horse and a good family horse. The horse ran awray, breaking up the coupe and harness and dangerously wounding Degenhardt’s wife. The damages claimed were $1,000, of which amount $25 was for medical services for the horse.

Degenhardt testified that in buying the horse he relied on the representations of Billings as to the horse being a good family horse and that the horse was sound. He says he drove him three times; that the first time he drove Min he found the horse to be a hard puller on the bit, always wanting to break from a jog trot into a gallop. On page 25 of the bill of exceptions, Degenhardt testified as follows:

“Q. And you found then after the second or third time you drove him, he was not a family horse? A. That is what t found out; yes, sir.
“Q. He was not a good driving horse? A. No, sir; he was not.
“Q. He would be dangerous for anybody? A. Dangerous horse to drive.
“Q. You knew that? A. Yes, sir.”

This information came to Degenhardt before the horse ran away. He did not then rely on the statements of Billings as to the horse being a family horse or as a horse being sound. He had by actual experience found out that the horse was a dangerous and unsafe horse to drive, and knowing the horse to be unsafe and dangerous, he must be held to have.assumed all the risk of any damage to himself which occurred by reason of the dangerous character of the horse.

This being the only ground for recovery stated in the petition, and the evidence on this point being without contradiction’ the court did right in directing a verdict for the defendant at the conclusion of the plaintiff’s evidence.

Judgment affirmed.

. Giffen and Smith, JJ., concur.


author: PER CURIAM.

text:
    DESCENT AND DISTRIBUTION.
    [Licking (5th) Circuit Court,
    September Term, 1911.]
    Powell, Voorhees and Shields, JJ.
    Wm. H. Goff et al. v. Lemuel R. Disbennet et al.
    Nonancestral Property of Intestate Dying Without Other Heirs Than Nephews and Nieces Descends to Them Per Capita.
    Title to property acquired by purchase, upon death of the owner intestate, with no heirs except nephews and nieces, is cast by Gen. Code 8574 upon such nephews and nieces as a class, and they take under Gen. Code 8581 per capita and not per stirpes.
    [Syllabus approved by the court.]
    Error to common pleas court.

      Crum, Raymond & Hedges and Fulton & Fulton, for plaintiffs in error.

      Kibler & Kibler, for defendants in error.
   PER CURIAM.

An order of distribution of the proceeds of the sale of lands in partition is sought to be reversed.

The question arises under the construction of R. S. 4159, (Gen. Code 8574), relating to the descent- of real estate which -came to the intestate by purchase.

The action was for the partition of the lands of one Samuel Goff who died intestate, never having married and who had no brothers or sisters living at the time of his death, but who had had six brothers and sisters all of whom 'had died before his own death leaving children surviving them, to whom the lands mentioned and described in the petition descended by virtue of said statutes.

It is claimed on the part of plaintiffs in error that these lands descended to the children of his brothers and sisters as legal representatives of such brothers and sisters, and that the lands - should be divided not as though the children were, themselves, the next of kin of said Samuel Goff and inherit the same direct from him upon his death, but that it should be divided as though the brothers and sisters were living; and they contend that.such construction is sustained by the Supreme Court in the case of Dutoit v. Doyle, 16 Ohio St. 400.

In that case the intestate left surviving several children and also issue of the two other children who were then deceased. One left three children and fhe other five. The Supreme Court held that the children of the deceased children of the intestate took such share of said estate as their parents would have taken 'had they been living at the death of the intestate. In other words, the estate was divided equally among all the children of the intestate living at his death, and including such as had died before that time leaving children surviving them, the grandchildren receiving such share of the estate as their parents would have received had they been living. That is, the share of the deceased child who left three children was divided into three portions and the share of the deceased child who left five children was divided into five portions. It is claimed that this decision justifies the contention of plaintiffs in error under this section of the said statutes. We think this question has been settled otherwise by the Supreme Court in Ewers v. Follin, 9 Ohio St. 327, and followed and fully sustained by Parsons v. Parsons, 52 Ohio St. 470 [40 N. E. Rep. 165].

In Ewers v. Follin, supra, it is held that by the provisions of the tenth section of the act regulating descents, passed February 24, 1831, when an estate descended to nephews and nieces, legal representatives of brothers and sisters, no brother nor sister of the intestate surviving, the nephews and nieces took per capita; and if a nephew or niece had died before the intestate, leaving children, such' children took per stripes the share of the deceased parent.

Section 10 of that act provided, that “when any of the before-mentioned children, brothers, sisters, or their legal representatives, in the same degree of consanguinity or kindred, came into partition of any real estate, they shall take per capita; but where one or more of them are dead, and one or more of them are living, the issue of those dead shall have a right to partition; and such issue, in such case, shall take per stirpes.”

Under this provision, the parties in this ease would be included as legal representatives of the brothers and sisters of the intestate. They are in the same degree of consanguinity or kindred — all either living nephews and nieces of the intestate, or children of a nephew or niece deceased; the former would take per capita, the latter per stirpes.

Gen. Code 8581 reads as follows:

“"When all the descendants of an intestate, in a direct line of descent, are of an equal degree of consanguinity to the intestate, whether children, grandchildren, or. great-grandchildren, or of a. more remote degree of consanguinity to such intestate, the estate shall pass to such persons of equal degree of consanguinity to such intestate in equal parts, however remote from the intestate such equal and common degree of consanguinity may be.”

It is claimed that this section does not apply to the case now under discussion for the reason that it applies only to lineal descendants and not collateral descendants. The Supreme Court, however, in the case decided in Ewers v. Follin, supra, have disposed of this contention. It is said at page 330:

“It might, upon a first inspection of that section, be supposed that the ‘descendants’ to which it refers, were the lineal descendants only of the intestate, such as grandchildren and great-grandchildren; but a more careful examination shows the contrary. It will be seen that in Sec. 6 children as well as grandchildren and great-grandchildren are named, which, if the lineal descendants of the intestate alone are intended, would have been unnecessary, the children of the intestate having been provided for in Sec. 5. The concluding language of that section also shows, that descendants, in the sense of those to whom the estate descends, were in the contemplation of the legislature. Its provisions are to apply ‘so. that the estate shall pass to such persons of equal degree of consanguinity to such intestate in equal parts, however remote from the intestate such equal and common'degree of consanguinity may be.’
“Our conclusion is that the legislature, instead of limiting the rule as provided in Sec. 10 of the act of 1831, intended to extend and apply it to every case in which an estate was to be divided among a class of descendants, whether their consanguinity to the intestate be lineal or collateral.”

This construction is also followed and commented upon by the Supreme Court in Parsons v. Parsons, supra. On page 485, the court say:

“The section was under consideration in Dutoit v. Doyle, 16 Ohio St. 400, where the principle of representation, was! recognized, and made the basis of the conclusion, that in ease® of this character, grandchildren take per stirpes, and not' per capita. To the representative character with which they are thus clearly invested, representative rights are appropriate; and full effect should be given to the provision which- defines their inheritance, and limits it to ‘that portion of the estate to which such deceased child would be entitled if - such deceased child were living.”

And this applies in cases of this kind after those who are heirs to such estate have been ascertainéd, in case any such heirs shall have died leaving children or other issue surviving them. That is, the nearest of kin of an intestate under this section of the statute became his heirs at law and took the estate per capita, but if any such nearest of kin have died leaving children or other issue they shall take by representation only such share of the estate of the intestate as - their parents would have taken if living, or per stirpes.

We think the court of common pleas did not err in making its order of distribution in this case and that its judgment should be affirmed.

It appears that some of the plaintiffs in error have accepted the amounts awarded them in the order of distribution made in the court of common pleas, and an answer to the petition in error has been filed setting forth this fact and- claiming the same to be a waiver of any error that may have occurred in said proceedings in the court below.

We do not so hold, since the amounts .received, by them have never been in dispute, but the same have been conceded by all parties to belong to such plaintiffs in error as have received them. ■

The answer to the petition in error will be dismissed. Exceptions.


author: PER CURIAM-.

text:
    EXECUTORS AND ADMINISTRATORS.
    [Putnam (3rd) Circuit Court,
    1908.]
    Parker, Wildman and Kinkade, JJ.
    (Sitting by virtue of transfer under statute.)

      State ex rel. McCullough v. Joab Moffitt et al.
    1. Discharge of Administrator' Upon Submitting Resignation and Confirmation of Final Account Filed Held General.
    Where an administrator submits to the probate court his resignation tc become effective on a certain day named, and files what he denominates “an account of final distribution,” and an entry is made reciting that the account has been found correct and is allowed by the court, and the “administrator is discharged,” the discharge will be construed to be general and final, and not simply a discharge as to matters found in the account.
    2. Administrator Discharged After Final Account Filed and Con-firmed not Liable for Maladministration in Failing to Answer in Suit Subsequently Brought.
    An administrator so discharged can not be held liable for maladministration, in that he failed to answer when thereafter served with summons in a proceeding involving among other things a chose in action belonging to the estate of his decedent, and in consequence of such failure default judgment was taken against the estate.
    [[Syllabus approved by the court.]
    Error to common pleas court.

      Handy <& Unverferth, for plaintiff in error.

      Ross & Kinder and J. W. Smith, for defendants in error:
    Cited and commented upon the following authorities: Brush v. Kinsley, 14 Ohio 20; McCombs v. Howard, 18 Ohio St. 422; Miller v. Albright, 60 Ohio St. 48 [53 -N. E. Rep. 490] ; Mutual Aid Bldg. & L. Co. v. Gashe, 56 Ohio St. 273 [46 N. E. Rep. 985] ; Coggshall v. Bank Co. 63 Ohio St. 88 [57 N. E. Rep. 1086] ; Karan v. Robinson, 17 Ohio St. 242 [93 Am. Dee. 617] ; Wffod v. Butler, 23 Ohio St. 520; Doan v. Biteley, 49 Ohio St. 588 [32 N. E. Rep. 600J ; Douglass v. Massie, 16 Ohio 271 [47 Am. Dec. 375] ; Dayton, X. & B. Iiy. v. Lewton, 20 Ohio St. 40J; Giauque, Settle. Est. 267; Miller v. Proctor, 20 Ohio St. 442; State v. Guilford, 18 Ohio 500; Perry, Trusts Secs. 441, 914; 3 Redfield, Wills 535, 563, 453;' Dabney’s Appeal, 120 Pa. St. 344 [14 Atl. Rep. 158] ; Clark v. Craig, 29 Mich. 398; McCabe v. Fowler, 84 N. Y. 314; Rockel’s Complete Ohio Prae. Secs. 210, 212, 230; 1 Woerner, Administration 588, 589; Weyer v. Wait, 48 Ohio St. 545 [28 N. E. Rep. 670] ; .Slagle v. Entrekin, 44 Ohio St. 637 [10 N. E. Rep. 675] ; 11 Am. & Eng. Enc. Law (2 ed.) 813.

       Affirmed, no op., State v. Moffitt, 82 O. S. 433.

   PER CURIAM-.

In May, 1888, Daniel.U. McCullough, then the owner of, certain lands in Putnam county, Ohio, entered into a written contract with the New York, Mahoning & Western Railroad Company agreeing to convey to said company a right of way for its railroad over said lands in consideration .of certain things to be done by the company, in the way of removing and placing on new foundations buildings standing on said proposed right of way, etc., and the payment by said company to him of $2,150.

In pursuance of said agreement said company took possession of the part of said lands to be so used by it for railroad purposes, removed and placed new foundations under said buildings as agreed, built its railroad on said lands, the same forming part of a continuous line of railroad ever since in operation between Ottawa, Ohio, and Findlay, Ohio, but neither said company nor any of its successors in interest, hereinafter mentioned, ever paid said consideration price nor any part thereof.

On May 22, 1889, David F. McCullough died intestate, in Putnam county, Ohio, leaving several children (among them the relator) his"heirs at law.

On June 17, 1889, the defendant, Joab Moffitt, was duly appointed' and qualified as administrator of the estate of said decedent, in the probate court of Putnam county, Ohio.

On November 25, 1891, said administrator filed in said court what he denominated his “second and final account,” in which, he stated certain items of debit and credit between himself and said estate, and showed a balance of $346.25 in his hands for distribution, followed by a statement, to wit:

“Said administrator states that there is an unsettled claim against the railroad company, whose road pusses through the lands of said D. U. McCullough, deceased, arising by virtue of a contract made by said defendant and one H. E. McClure, the agent of the railroad company, and which is wholly uncollected and which said administrator has so far failed to collect or compromise, and he further states that so far he has made no effort to collect the same by law by reason of difference amongst the heirs with regard to the same .* * *
“Said administrator hereby tenders to this court his resignation as administrator of the estate of D. U. McCullough, deceased, to take effect January 20, 1892, for the reason that it will be necessary to have some litigation to settle said estate in full, and he has not the time tp attend to the same, and therefore asks that the same may be accepted.
“Ottawa, 0., 11-25, 1891. Joab Moffitt.”

On January 2, 1892, the probate court took action in the matter set forth in this account, as shown by its journal of January, 1892, as follows:

“Joab Moffitt, administrator of the estate of D. U. McCullough, deceased, having on the 25th day of November, A. D. 1891, filed in this court his second and final account, and notice of the filing and of the time of hearing thereof having been given, for not less than three weeks prior thereto by publication in The Putnam County Sentinel, a newspaper of said county; the said account is now here heard.
“Whereupon the court finds said administrator ehargeabli with the assets of the estate of said D. U. McCullough, deceased to the amount of $3129.26, and that he is entitled to credits in the sum of $2783.01, leaving due said estate the sum of $346.25 which said amount said administrator is hereby ordered to distribute to the heirs only and not to widow of said decedent according to law.”

Said administrator also filed in said court what he denominated an “Account of final distribution,” showing how he had distributed and paid out said balance of $346.25.

The record of the probate court sets forth that this account was “produced to this court” on the 16th day of January, 1892, but all the items are dated November 25, 1891, and the verification thereof bears the same date, and this account was doubtless filed on that day, i. e., the same day as the “2nd and final” account.

The record of that court of January 16, 1892, further shows as follows:

“This day came Joab Moffitt, administrator of the estate of D. IT.'McCullough, deceased, and produced to this court his account of final distribution of assets of the personal property and estate of said decedent, remaining in his hands after his final settlement heretofore made, and the same being, found in all respects correct, was allowed by the court, ordered filed and duly recorded, and the administrator is hereby discharged.”

This suit in the court of common pleas was brought by the relator under favor of R. S. 6212 (Gen. Code 10871)- and an order of the probate court of Putnam county, Ohio, made in pursuance thereof, on behalf of himself and others interested in the estate of David TJ. McCullough, deceased, against Joab Moffitt as principal and the other defendants as his sureties on the bond of said Joab Moffitt, as administrator of the estate of said David IT. McCullough, deceased, for and on account of alleged maladministration.

A jury was empanelled for the trial of the issues, but at the conclusion of the introduction of the evidence in chief on behalf of the plaintiff, the jury, on motion of the defendants and under the direction of the trial judge, returned a verdict against the plaintiff, upon which verdict judgment was entered against the plaintiff, and to that judgment the plaintiff prosecutes error in this court.

The evidence submitted on behalf of the plaintiff tended to establish certain facts (most of which were not controverted by the pleadings or otherwise), which plaintiff contends entitled him to have the cause submitted to the jury, and to have a verdict in his favor.

The facts investigated upon the trial making up the history of the transactions above outlined, and other matters related thereto, were many and were somewhat complicated, but only such facts will be stated herein (in addition to those hereinbefore stated) as may be deemed vital and controlling and such as may be essential to an understanding of the views and opinions of this court.

It appears that by judicial sale the property of the N. Y. M. & W. R. R. Co. was acquired by one Dorwin in 1890, and that it was thereafter transferred by Dorwin to the Findlay, Ft. Wayne & Western Railroad Co., but these sales and transfers did not affect the claim in favor of the estate of Daniel U. McCullough, or any right in or lien upon the right of way that might have existed in favor of his estate or his heirs.

Afterward a Suit was' brought in the court of common pleas of Putnam county, Ohio, against the Findlay, Ft. Wayne & Western Railroad Co. et al., by one Sands, to enforce a lien and marshal all liens upon the property of said company so acquired, and a like suit was brought in said court by one Josephine Mass, for a like purpose. These suits were consolidated.

In November, 1893, one Charles C. Patterson, a party defendant therein) set forth in an amendment to his answer and cross petition, that Joab Moffitt, as administrator of the estate of D. U. McCullough, deceased, had a claim for right of way against the railroad company, but that the claim was not valid, and he asked that said administrator might be made a party defendant, and be compelled to set up said claim or be forever barred from asserting the same. Moffitt, as administrator, was duly served with the summons, but he failed to answer, and ultimately a decree was entered in the case which obtained a finding that the estate had no valid claim against the company or interest in or lien upon the property.

The alleged maladministration of said administrator in making such default and in permitting such decree to be taken against the estate is the basis of the action, the judgment wherein is now under review.

There is a question made as to whether the administrator was not excused from asserting the claim in that suit, and as to whether the plaintiffs in the case under review are not estopped from now complaining of such aetion by reason of the assertion and prosecution of the claim in that suit by certain of the heirs, and by certain circumstances connected therewith, but we do not deem it necessary to consider this question.

A general demurrer to the petition was sustained and judgment for defendant was given by the court of common pleas of Putnam county, on the ground, it is said, that the petition discloses that if there was a cause of aetion against the said railroad company on the right of way contract, it was in favor of the heirs who inherited the lands affected by the grant, and was not in favor of the administrator. This judgment was reversed by the circuit court of that county, whereupon an answer was filed and the trial to which we have referred took place, resulting in the judgment now under review. But counsel for defendant in error has urged us to examine into that question de novo, and we have done so, and we concur in the conclusions announced by the circuit court of the third circuit. Upon this question counsel for both parties place much reliance upon the case of Dayton, H. & B. Ry. v. Lewton, 20 Ohio St. 401. We are unable to see that the decision in that case necessarily supports either contention. The precise question here presented, i. e., whether suit to enforce the contract either specifically or by foreclosing a lien, must be brought by the personal representatives or the heirs, does not seem to have been involved in that case. There the litigation was between the original contracting parties. In our judgment this contract resulted in an equitable conversion of the interest in real estate into personal property, so that the claim was one for money enforceable by. the personal representative only, and for the benefit of the estate he represented. It was a chose in action, and constituted an asset of the estate. Without "discussing the question in extenso, we cite in support of our views, and as an expression of our views upon this question, the case of Isham v. B. Stave Co. 25 O. C. C. 167 (2 N. S. 1) and especially the authorities cited in the opinion in that ease, including quotations from Pomeroy, Eq. Jurisp. and a decision by Judge Wild-man in.a ease which on that point is quite like this in principle, found in Stang v. Newberger, 8 Dec. 80 (6 N. P. 60).

Manifestly this suit cannot be maintained against the ad-' ministrator and his sureties on the bond, if at the time of the alleged default or misfeasance Moffitt has been discharged as administrator and released of all responsibility with respect to the trust.

The action of the judge of the trial court in directing a verdict for the defendants was based (as we are advised) upon his conclusion that the administrator had been so discharged and exonerated.

Upon the introduction in evidence of the record of the probate court discharging the account of the administrator, and especially his tender of his resignation of November 25, 1891, and the order of discharge on January 16, 1902, it devolved upon the trial judge to put a construction thereon, and to determine whether (as contended by counsel for defendant in error) such discharge was general -and final and relieved Moffitt from further or future duties respecting said estate; or whether (as contended by counsel for plaintiff in error) it was simply a discharge as to the matters involved in his account of final distribution.

This duty the trial judge discharged when he directed the verdict for the defendants. Was he correct in his conclusion that the discharge was general and final? If so, that was an end of the controversy.

In the case of Weyer v. Watt, 48 Ohio St. 545 [28 N. E. Rep. 670], which was an action by an executor to collect a note which was an asset of the estate, it was held, in support of the authority of the executor to maintain the suit, that an entry based upon what he denominated his final account, that the executor “had well and faithfully discharged his duties, and paid out to the proper person or persons all moneys coming to his possession as executor,” and ordering that the account be made final, and said “executor discharged from his said trust,” and that he ‘ ‘ distribute among the legatees and distributees of the estate of said decedent all the uncollected assets of said estate,” was not a final discharge as to the notes (one of which was the note sued on) reported by him in his final account to be uncollectible.

The court, speaking through Williams, C. J., after quoting the statutes, relating to the said question, said inter alias:

“Under our legislation * * * an executor or administrator may be removed by the probate court for cause, or he may resign his trust with the consent of the court. But we find no power conferred upon that court to discharge an executor or administrator from his trust, upon the settlement of what is called a final account, and thus extinguish his authority as trustee. ’ ’

And in the absence of a tender of a resignation, or charges or findings justifying removal, the court held that there was not in that case a final discharge as to the assets unadministered. The court thought it obvious that the order was not intended to have such operation.

But, in the case at bar, it appears that a resignation had been tendered, and was before the court for its consideration when the entry was made approving the account and concluding, “and the administrator is hereby discharged,” and the record of the probate court is to be construed in the light of that important circumstance.

This tender of his resignation is dated November 25, 1891, and was, “to take effect January 20, 1902.” That is, it was the expressed desire and purpose of the administrator that it should take effect at that time. The date of the discharge is January 16, 1892. Whether it then took effect, or was ineffectual until four days later, we need not consider, as nothing depends upon the solution of that question.

It seems to us quite apparent that, in thus ordering the discharge of the administrator under those circumstances, the probate court- was acting not only upon the final account, but upon the tendered resignation as well.

It is true that the phrase, “the administrator is hereby discharged,” is appropriate to a discharge respecting an aecounting only; but we think it is sufficient to effect the acceptance of a resignation, though doubtless more explicit — perhaps more appropriate — terms could have been chosen for that purpose.

While R. S. 6015 (Gen. Code 10627) provides that the court may receive the resignation “if it thinks fit, and upon good cause shown,” the absence of a specific finding that the court thought it fit or thought the cause sufficient cannot defeat what was actually done. Such findings are not essential to the validity or effectiveness of the order.

The provision in R. S. 6015, that the court upon receiving such resignation shall “appoint an administrator in his place. ” and that in R. S. 6016 (Gen. Code 10628), that “the acceptance of such resignation and the appointment of another administrator, shall not affect the liability of such former executor or administrator, ’ ’ etc., we do not regard as making the' appointment of a successor essential to the taking effect of the acceptance of the resignation.

The matter of appointing a successor is something not at all within the control of the administrator. He has no duty to perform with respect thereto, and the fact that none was appointed in this ease we regard as wholly immaterial.

We conclude and hold that the attempt of November, 1893, to obtain jurisdiction over this estate, and over Joab Moffitt as administrator thereof, was futile and ineffectual, because he was no longer the administrator of the estate. That therefore he had no duty to perform in the premises, and could not have been guilty o'f misfeasance in failing to attempt to prosecute the claim on the right of way contract.

It is suggested that thereafter Joab Moffitt allowed the prosecution of a suit on this claim in his name as such administrator, whereby he is estopped to deny that he was such administrator at the earlier date.

We are unable to see how in any event such action after his discharge could bind his sureties on his administration bond, or how a suit for misfeasance in an earlier transaction could be supported by a showing that after being discharged he represented that he was still the administrator.

But, aside from this, we do not find in the circumstances disclosed enough to have made it the duty of the court to submit the case to the jury on the theory that this defendant might be bound under the principles of estoppel, nowithstanding his final discharge before the happening of the event supposed to raise the claimed estoppel.

We find no error in the record prejudicial to the rights of the plaintiff in error, and therefore the judgment of the court of common pleas is affirmed.