text:
    BANKRUPTCY
    [Lorain (8th) Circuit Court,
    September 28, 1910.]
    Henry, Marvin and Winch, JJ.

      James B. Seward, Admr. v. Frank R. Fauver et al.
    Bankruptcy of One Judgment Debtor not Bar to Revivor against Other Joint Debtors.
    In proceedings to revive a joint judgment against three makers of a promissory note, the discharge in bankruptcy of one of them from his indebtedness thereon is no defense to a revival of the judgment against the other two, notwithstanding the debt was not proved up in the bankruptcy proceedings, there being no assets of the bankrupt for distribution to his creditors.
    Appeal.

      Fritz Budin, for plaintiff.

      F. M. Stevens, for defendant.

      Affirmed no opinion, Fauver v. Seward, 85 Ohio St. 466.

   MARVIN, J.

On March 5, 1906, George H. Arnold recovered a judgment in the court of common pleas of this county against all three of these defendants. No part of that judgment has ever been paid, and, Arnold having died, the administrator of his estate brings this suit to have judgment revived in his name.

The judgment was founded upon a promissory note, which reads:

“Elyria, 0., June 8, 1904.
$2,800. January 1st, 1907, after date, we promise to pay to the order of George H. Arnold twenty-eight hundred and no 100 dollars. This does not draw interest. Value, received.
“John C. Koepke,
“Frank-B. Fauver,
“Bollin H. Sprague.”

On November 9, 1907, the defendant, John C. Koepke, upon proper proceedings and upon his own petition, was discharged in bankruptcy in the district court of the United States for the northern district of Ohio. This judgment was included in the schedule of debts filed in the bankruptcy proceedings, so that Koepke was discharged from this indebtedness by such proceeding. The claim was not proven in the bankruptcy proceedings. The schedules in bankruptcy showed, however, that the bankrupt had no assets other than such as were exempt by law and he made his claim for exemptions, which were allowed; so that the proving up of any claim in the bankruptcy proceedings would have been a vain thing, the schedules themselves showing there was nothing with which to pay anybody.

The defendants Fauver and Sprague claim to be discharged, because they say that the discharge of Koepke was a discharge and release of them, and they make in their brief and in oral argument the claim that this was a joint note and not joint and several, and that the judgment in any event was a joint judgment, and that it being a joint judgment, not joint and several, the discharge of the one discharges all, and in any event that they are only liable for an aliquot part of the indebtedness; and they cite some authorities which, at least, it is claimed sustain them in this. But we regard it as absolutely indifferent whether this note made a joint and several indebtedness or a joint indebtedness; the judgment was a joint judgment, and that is what is sought to be revived.

It is said that the release was a voluntary release and is that kind of a release, of course, which they claim would be a release of them, because no proof was made in the bankruptcy proceeding of this debt; but we think this matter is absolutely and completely settled by the bankruptcy statute itself as it reads in plain words and as it has been construed by the Supreme Court of the United States. .

In the case of Abendroth v. Van Dolsen, 131 U. S. 66 [33 L. ed. 57; 9 Sup. Ct. 619], reading from the opinion on'page 7, the court say:

“The only remaining point relied on by plaintiff in error as a ground for reversal of the judgment below is, that the defendants were sued in the action as general partners, and the judgment in favor of the plaintiffs determined that they were general partners; and that the. adjudication in bankruptcy of Griffith and Wandram was a judgment against the two partners, which is a ba,r to any action subsequently brought by the creditors against the two defendants as such general partners. Against this view theré is, we think, an insuperable objection. By Section 5118 of the Revised Statutes, formerly Section 33 of the act of March 2, 1867 (and which is now Section 16 of the Bankruptcy Act of 1898), the rule of the common law, as declared by the court in Mason v. Eldred, 6 Wall. 231, that a judgment upon a contract, merely joint, against one of several persons, bars an action against the others on the same contract, is rendered entirely inapplicable to' adjudications in bankruptcy. That section provides: ‘No discharge shall release, discharge or affect any person liable for the same debt for or with the bankrupt, either as partner, joint contractor, indorser, surety, or otherwise. ’
“If the discharge of the two bankrupt partners, which is the final judgment in the proceedings, can not estop the creditor from afterwards setting up the liability of the third partner for the-joint debt, clearly the other and previous adjudication in the course of the proceedings can not be held to have that effect. Though the action in the court below was brought against the three defendants, the jury was directed by the court to render its judgment against Abendroth alone, and the judgment was entered up against him alone, thus fully recognizing the validity and. force of the adjudication of bankruptcy of the other two partners.” -. ...

■Applying'that to this case, and the language can not be stronger than the language of the act itself, that it shall in nowise affect .any release of -any joint debtor, the judgment of the court will be that the judgment sought- to be revived is revived as against Fauver- and Sprague.- '

Henry.and Winch, JJ., concur.


source: Caselaw Access Project

author: MARVIN, J.

license: Public Domain

text:
    MUNICIPAL CORPORATIONS
    [Lorain (8th) Circuit Court,
    September 28, 1910.]
    Henry, Marvin and Winch, JJ.

      Citizens Gas & Electric Co. v. Elyria (City).
    Charge to Jury in Action against Municipality Stating that Negligence of Gas Company was Issue Conclusive Evidence in Action by Municipality for Reimbursement against Gas Company.
    In an action by a municipality to recover the amount of a judgment recovered against it, which it has paid, brought against a gas company holding a franchise from it authorizing it to lay pipes in the streets of the municipality and furnish gas to its inhabitants, by the terms of which franchise the gas company agreed to defend all actions brought against the municipality for damages resulting from its excavations in the streets, and pay all judgments against the city for such damages, when the issue between the gas company and the city is whether the judgment against the city was for damages resulting from the sole negligence of the gas company in leaving unguarded an excavation in the street made by it, or for independent negligence of the city in some other respect, the charge of the court in such former action with respect to the issue submitted to the jury therein is conclusive evidence with respect thereto, no matter what evidence was permitted to be introduced in the case.
    Error.

      8. M. Douglass and Geo. II. Chamberlain, for plaintiff in error.

      H. A. Pounds, for defendant in error.

      Affirmed no opinion, Citizens Gas and Elec. Co. v. Elyria, 85 Ohio St. 472.

   MARVIN, J.

The petition in this case below avers that a man by the name of Bnsswell obtained a judgment against the city of Elyria for injuries sustained by reason of a defect in the street caused by the Citizens Gas & Electric Co. and it says that the gas and electric company put in its pipe and the like under a franchise granted to it by the city and accepted by the company, which franchise contained the following:

“The said Citizens G-as & Electric Co., its successors and assigns, shall further fully protect and save the city of Elyria harmless from any or all claims of damages, losses, costs, charges and expenses of every nature and kind made, suffered or incurred in any manner by reason of, or connected with the use and occupation of said alleys or streets, or resulting from the excavation of any such alleys or streets; and in case the said city shall be compelled to pay any person, persons, company or corporation for any loss, injury or damage of person or property as aforesaid, the same shall be fully paid or reimbursed to said city, with all the costs and expenses connected therewith or arising therefrom, and the same shall be binding upon said company, its successors and assigns; said company, its successors and assigns, shall hold the city of Elyria free, harmless from the payment of any judgment rendered or claims described herein, and further said company, its successors and assigns, shall defend each and all law suits wherein the Citizens Gas & Electric Co., its successors and assigns, is the real party in interest, although the city of Elyria is or may be the nominal party in interest, done, caused or instituted by reason of the construction, operation and maintenance of said mains and pipes.”

The petition further alleges that the man injured, Busswell, brought'suit against the city of Elyria for the injuries received by him on account of his wagon getting into a trench that was dug by the gas company, that the gas company was notified and appeared and aided in the defense, that there was a recovery against the city of $300 damages, that the gas company has refused to pay it and the city has been obliged to pay it, together Avith the costs, and seeks a judgment against the gas company.

The gas company answered admitting it accepted the franchise and that Busswell commenced an action in the court of common pleas against the city of Elyria for certain personal injuries sustained, and among other things:

“Avers the fact to be that said Busswell alleged that several weeks' previous to the date of his injury, the defendant permitted the Citizens Gas & Electric Co. to dig up said avenue by excavating certain trenches in said street, and also, negligently left said trench open and unfilled, without placing thereon any danger signal whatever.
‘ ‘ Said defendant admits that notice was given to it that said Busswell had commenced said action referred to against said city; that this defendant appeared and aided the city of Elyria, sole defendant, in the defense ‘thereof. It further admits that upon the trial of said cause in said court, that a verdict was rendered in favor of said Busswell in the sum of $300, and that judgment was rendered thereon, together with costs, and, as it is informed, that the city of Elyria, against whom said judgment was rendered, paid the same as averred in its petition; and said plaintiff further answering denies each and every other allegation in said plaintiff’s petition contained.
‘ ‘ Said defendant further answering, says that in said action by Henry Busswell against the city of Elyria mentioned in said plaintiff’s petition, that plaintiff averred that the defendant charged was with the care, supervision, and control of all the streets and public highways within the limits of said municipality, and that it was the duty of said city to keep said streets and highways open.”

I will not stop to read the balance of the answer. The substance of it is that the suit was brought against the city charged not only negligence for failure to keep this trench, which was opened by the gas company, in such repair as that the street could be used, but that the city was further negligent in the care of that street and failed to perform its duty as charged in the original petition, and the defendant says that the result was, not the jury found, as alleged in the petition, that Busswell was injured bécause of the negligence of the gas company alone, but that it might have found, as in fact it did find, that the city was liable because of other negligence than that of the gas company.

We were not favored with an oral argument on the part of the plaintiff in error, but we were furnished yesterday with a very full brief on the part of the plaintiff in error, which we have examined and which we find not of special aid to us. We have examined it and find this so because it is based upon a wrong theory of the situation.

Counsel for plaintiff in error claims in his brief that it was not determined in the former action that it was the negligence of the gas company that brought about the injury, but that from what appears in that case it is clear that there was other negligence on the part of the city for which a recovery might well have been had, and the argument is that if the city and the gas company were both negligent and a recovery is had against the city, it can not under its franchise call in the gas company to respond. That is completely answered by the charge of the court in the case showing just what issue was submitted to the jury in the former case. I read from the charge these words:

“It is alleged in the petition and conceded by counsel for' the plaintiff that there can be no recovery in this case unless it is proven and shown to you by a preponderance of the evidence that the negligence complained of is the negligence of the Citizens Gas & Electric Co. in digging a trench for gas mains in the street and not properly filling that trench. That is the first thing that is alleged. I say to- you on that subject that unless you do so find that the trench in question which it is alleged caused the injury to the plaintiff was dug and. left without being properly filled by the Citizens Gas & ELeetrie Co. your verdict must be for the defendant, for plaintiff would then have failed in proving to you one of the essential and material allegations of the case which it is necessary for him to prove in order to recover.”

And again, the court emphasizes this in these words:

‘ ‘ So that if you so find, then the plaintiff would be entitled to recover, if you find this further fact that is essential and necessary, that this negligence of the gas company, which I have supposed would be the negligence of the city, in failing to properly fill the trench, directly and proximately, and without the intervention of any other independent cause, caused the injury to the plaintiff of which he here complains. If you find those two things in the affirmative by a preponderance of the evidence, then you would find for the plaintiff and he would be entitled to a verdict; while if you find either of them in the negative and find either that the gas company did not dig the trench or did not leave the same in an improper and dangerous shape so that it was negligent, then I say to you .that the defendant is entitled to a verdict. ” .

So that the court submitted just one question and that only, and that was, was it the negligence of the gas company and of the gas company only, that brought about the injury to the plaintiff in that case. The jury necessarily answered to the affirmative when they found a verdict for the plaintiff in that former case. That being so, the entire argument as to the evidence in that case and what is decided, is of no avail in this case, and the judgment of the court of common pleas is affirmed.

Henry and Winch, JJ., concur.


text:
    DAMAGES — PARENT AND CHILD
    [Summit (8th) Circuit Court,
    April 12, 1911.]
    Marvin, Winch and Henry, JJ.
    Gottlieb V. Seitz v. August J. Witzberger.
    1. Payment of Wages to Mother does not Prevent Father Suing Person Inflicting Injuries for Loss of Services.
    In an action by a father for loss of a minor son’s services by reason of injuries inflicted upon the son by the defendant, the fact that the son, while working, paid over his earnings to his 'mother instead of to his father, the father, mother and son living together and constituting a single family, does not indicate that the father is not the proper party to sue for loss of earnings of the son.
    2. Presumption that Minor, Living with Parents though Working for Wages, not Emancipated.
    The presumption is that a minor son living with his parents, though working for another for wages, is not emancipated.
    3. Father Entitled to Reimbursement for Hospital and Physicians in Action for Injuries to Son.
    A father may recover for expenses incurred for medicines, physician’s services and hospital expenses made necessary in the care of his minor son, by reason of injuries inflicted upon him by the defendant.
    4. Board and' Lodging not Deducted from Hospital Expenses in Suit for Injuries to Son.
    The per diem charges of a hospital for care of minor, son- of the plaintiff injured by the defendant, are not to be reduced by the value of his board and lodging at home during' the time he is at the hospital. .

      Musser, Kimber <fe Huffman, for plaintiff' in error.'

      C. W. May and A. J. Wilhelm, for deféndant in error.
    Error.
   MARVIN, J.

August J. Witzberger brought suit against Gottlieb V. Seitz, claiming damages by reason of the loss of service of his minor son, Emil Oliver Witzberger, because of injuries received by.the son at the hands of Seitz in an assault and battery. -

Defense was made that the son was not injured and that the plaintiff was not entitled to the services of the son in any event, and that no expense had been caused, nor loss of service, by reason of the injuries inflicted upon the son by Seitz.

The trial resulted in a verdict for- $400 in favor of the. plaintiff below.

On motion for a new trial the court stated that the judgment would be reversed unless the plaintiff would remit $75 from the amount of the judgment. This amount was remitted and judgment entered for $325; it is here sought to reverse that judgment.

As to the question of whether the son received injuries at the hands of Seitz and thereby was unable to work for any length of time, this was submitted to the jury; the jury found that the injuries were received; that the son was thereby rendered unable to perform service, and under the evidence we are not surprised that the jury so found. It is urged, however, that the father lost nothing in the way of service of the son, who was at the time about seventeen years old, because, it is said, that the evidence shows that the wages the son earned (if he was earning.wages at the time of the injury), were paid, in part at least, to his mother. This fact should have no bearing on the case. The mother seems rather to have been the treasurer of the family, and the money earned by the father, as well as by the son, was in large part, at least, paid into her hands. But even if all the son’s wages had been paid into the hands of his mother instead of the hands of the father at the time he was working, so long as the father and mother lived together and the three constituted a single family, it would not indicate at all that the father was not the proper party to sue for the loss of the earnings of the son.

It is urged on the part of the plaintiff in error that since it appears that the son, who was not at the time of the trial of full age, was then engaged in doing business on his own account, the presumption is that he was emancipated by his father before the time of this alleged injury.

This is not well taken. The presumption is the other way. So long as the son is a minor, the presumption is that his father is entitled to his earnings.

It was sought to show on the trial that the son’s injuries were probably due to some hurt received by him in the playing of foot-ball.

As already said, we are not surprised that the jury reached the conclusion that he was injured at the hands of the plaintiff in error, and that his inability to work has been the result of such injuries. On the trial it appeared that the son was in a hospital at Cleveland for about sixty days, and the father was permitted to testify that he paid for a room and board at the hospital for his son while he was there $1.25 per day. The only other expense which was made to appear in the evidence, to which the father was put, was some $10 or $12 for medicines and $5 paid to Dr. Lyon. It should have been said that the petition seeks to recover not only for the loss of service of the son, but also for the expense to which the father was put by reason of the son’s injuries.

The evidence as to the $1.25 per day paid at the hospital for room and board of the son was put in under the objection of the defendant below, the court ruling at the time the evidence was introduced, that this was a proper subject for compensation. But, on the motion for a new trial, the court seems to have reached a different conclusion, and to have required the remittitur of $75 from the verdict, because he thought that the father was not entitled to be reimbursed on account of this payment. On the part of the plaintiff in error it is urged that it can not be known that the jury found that the father was entitled to just $75 for this account, and that, therefore, the remittitur may not have been put upon the proper basis, and that the amount for which judgment was finally allowed may be a different amount from that which the jury would have found, but for the evidence in relation to the room and board.

It is difficult to understand how the plaintiff in error can complain in this regard. The evidence was that the son was in the hospital about sixty days at an expense of $1.25 per day. If the jury allowed for this, it is hardly possible that it could have allowed more than $75 and therefore the deduction made from the verdict by the court, when it entered judgment, must have relieved the plaintiff in error from any prejudice that he could have received by the admission of this evidence. "We are of the opinion, however, that the evidence was entirely competent, and that if the father was entitled to recover at all in this case he was entitled to recover for this hospital expense. It is said that he ought not to recover for this because whether the son was injured or not, the father would have had to furnish him with board and a home, and that the duty thus imposed upon him as a father was not greater because of any injury which necessitated his being taken care of at the hospital. This reasoning is not sound. Though it is the duty imposed by law upon parents to furnish a home and board for his minor children, it is no part of his duty to furnish them a home and board at a hospital where the expenses are $1.25 a day, when such hospital service is not necessary by reason of some disability of the minor, and in this case the disability of the minor was brought about by the wrongdoing of the plaintiff in error. These people were not in circumstances such as made the expense of each member of the family for room' and board $1.25 a day, at home. Every head of a family understands that probably the expenses at home would be the same whether this boy was at home or not, and that practically the room and board paid for at the hospital was just that much additional expense, caused by the injury to the boy. If the plaintiff in error thought this was too much, perhaps it would have been- proper for him to have shown by the evidence what the fair expense would have been to the father to have kept the boy at his own house and thereby reduce the amount which he should recover by reason of the hospital expenses; but even-if such evidence would have been admissible, it still would not render incompetent 'the evidence as to the hospital expenses and, in the absence of any evidence on that subject, we should not feel warranted in reversing the case, even if the judgment included the whole amount allowed for expenses at the hospital. We suppose that the attorneys-in this case and that all men who do business for others, when they are required to go from home to attend to such business, regard it as entirely legitimate that their hotel expenses shall be paid by the employer, and that none of us would regard it as a good answer against the payment of such expenses by the employer, that if the employed had remained at his home, he would have been at the expense of his board and room.

Complaint is further made that the court erred in its charge to the jury. The first statement -in the charge pointed out as erroneous reads in these words:

“A parent is entitled to the services of his son, and anyone by committing an assault upon him, so that he is unable to perform any services, is liable to the parent for the service the parent has thereby lost. ’ ’

It is urged that this has no application to the present case and is misleading and prejudicial to the plaintiff in error. In the brief for plaintiff in error, it is said, after quoting from the above paragraph of the court’s charge:

■‘The jury could infer nothing else than that the parent is always and under all circumstances entitled to the services of his son, be the son a minor or a man of mature years; be he single or a married man; be he living with the parent or be he emancipated.”

This criticism is not well founded. The court so instructed the jury as to what they should take as the law in this particular case.

Even if the jury understood this to mean what they surely did not understand it to mean (because they were men of some intelligence, undoubtedly), that every father was entitled to the services of every son, still it could not have affected or injured the plaintiff in error in this case, for it was this son, who was a minor and unmarried and lived with his father, to which they were to apply the law as given to them.

But, it is said, that a minor may be emancipated by the father, so that the father would not be entitled to his earnings. This is true. But there was no evidence in this case tending to show emancipation of this son at the time of this injury. The evidence all tended to show the contrary.

In Schouler’s Domestic Relations’ Sec. 267», it is said that emancipation may be by instrument in writing or by parol agreement, or may be inferred from the conduct of the parent. That at the present day a father can verbally sell or give his minor son his time, and that after payment or performance the son is entitled to his earnings; that is, after the son has paid to his father a specified amount or has performed something on his part to be performed to entitle him to emancipation, he may be emancipated. And in speaking on this subject this language is used in the same section:

“We are to distinguish between a license for a child to go out and work temporarily and the more positive renunciation of parental rights.”

And again:

‘ ‘ All emancipation strictly so-called, is not to be presumed; it must be proved.”

There is no error in this part of the charge.

It is further charged that after stating the issues the court used this language:

“That makes the issue for you to determine, first, whether there was an assault made upon the plaintiff’s son, and second, whether he has sustained any damage. ’ ’

The complaint as to this is, quoting from the brief of the defendant in error:

“We believe the natural and reasonable interpretation of this paragraph from the language used is that the second issue of fact is whether the minor son has sustained any damage. If this is the meaning that the jury has taken from the charge, it is clearly not the law, and when taken in connection with the second pargraph set forth, we believe was misleading the jury to the defendant’s prejudice.”

This criticism is not well taken. The language fairly construed means that the second issue is whether the plaintiff has sustained any damage, and this is made clear from other parts of the charge, in which the court distinctly said that there was nothing to be taken into account but the pecuniary loss of the father. In one part of the charge this language is used:

“If you find then that this was done by the defendant to the plaintiff’s son, and you further find that the plaintiff’s son was injured by reason of the assault and battery perpetrated upon him by the defendant, then you may proceed to ascertain how much the plaintiff in this case has been injured.
“Now he is entitled to only compensatory damages or for the loss he has sustained by reason of the loss of his son’s services.
“If you find for the plaintiff, you should award him compensatory damages. The mental suffering of the victim and his parents or the culpability of the defendant are not proper elements of the damage.”

Other parts of the charge are to the same effect and make it perfectly clear that it is for the damages sustained by the father and not for any damage that the son has sustained.

Various other paragraphs of the charge are complained of, none of which we find to have been erroneous or misleading.

Attention is especially called to this language, complained of by the plaintiff in error:

“You may also award him his necessary expenses, including medicines required in treating said son, to relieve him while suffering from the injuries sustained; also for medical bills which he has paid or for which he is liable, as shown by the evidence in the case.”

It is said that there was no evidence on the matter of expenses for medical bills and medicines. This is a mistake. • There was evidence showing that $10 or $12 had been expended for medicines and $5 for special medical attendance, and the court took especial pains to see to it that the jury should not take into account anything in regard to medicines or attendance, or anything else, except as it appeared from the evidence in the case, and said:

“You should not go outside of the record and interject any deductions not reasonably made from the evidence and justified thereby. The testimony in the ease must have furnished the data upon which you may calculate and approximately estimate the value of the services of the son in question to the plaintiff. ’’

We regard the charge as a whole an excellent statement of the law applicable to the case, and of the rules by which the jury should be governed.

There is no error in the record of this case to justify a reversal and the judgment is affirmed.

Winch and Henry, JJ., concur.


text:
    ERROR — PROCESS
    [Summit (8th) Circuit Court,
    April 12, 1911.]
    Marvin, Winch, and Henry, JJ.
    Nathan Morris et al v. Baltimore & O. Ry.
    1. Amendment Falsifying Return on Summons not Permitted.
    No amendment can be made to a summons which will falsify the sheriff’s return thereof.
    2. Summons in Error Made Returnable on or before First Day of Next Term, Irregular but Sufficient.
    Notwithstanding Sec. 12259 G. C. provides that a summons on á petition in error to the circuit court if issued in term time shall be made returnable on a day therein named, still a summons so issued and made returnable on or before the first day of the next term of court is sufficient though irregular, and service thereof will not be set aside.
    Error.

      Holloway & Chamberlain, for plaintiff in error.

      Allen, Waters, Young & Andress, for defendant in error.
   MARVIN, J.

This case is before ns on a motion to set aside the service of summons issued on the petition in error.

The ground of the motion is that the summons is not in conformity with the provisions of the statute providing for such-summons.

Section 12259 G. C., so far as it need here be considered, after providing for the filing of a petition in error reads':

“Thereupon a summons shall issue and be served, or publication made as in the commencement of an action. * * * The summons shall state that a petition in error has been filed in the case. If issued in vacation, it shall be returnable on or before the first day of the term, of court; if issued in term time, on a day therein named. ’ ’

The summons in this case was issued on November 18, 1910, which was a day in the October term of this circuit court. The summons was made returnable on the first day of the next term of said circuit court. The return of the sheriff on the summons shows that it was served upon the attorney of record of the defendant in error on November 22, 1910. It will be noticed that tbe return day in- the summons was made as though the summons .had been issued in vacation. It will be further noticed by reading the summons that the order as to its return is directed to the sheriff. It is he to whom these words in - the summons are addressed: “You will make due return of this summons on or before the first day of the next term of said circuit court. ’ ’ It was suggested on the argument that possibly there might be an amendment ordered with reference to this summons, and counsel for the plaintiff in error, following such suggestion, has filed a motion asking for an amendment to the summons and suggesting that the return day be made December 1,1910. It seems clear that no amendment can now be made to this summons which will cure any defect therein. Amendments are allowed in proceedings in court, and- especially upon a return made on a summons and other writs, to conform to the facts, but here, if an amendment were made, as suggested in the motion, or any amendment which should fix a day certain for the return of this summons, we should have the curious situation of having by an order of court falsified the return of the sheriff. For the sheriff says in his return that he “served the same by handing a true and attested copy thereof with the endorsements, thereon,” etc. If the summons is changed to read, as suggested, this return of the sheriff would not be true, because we should have then to fix a summons, a true copy of which he did not serve on anybody. It seems clear, therefore, that no amendment can help out any defect in this summons. And this brings us to the question whether there is a fatal defect in the summons, so as to render it void. We have reached the conclusion that there is no such fatal defect. The purpose of the summons is to notify the defendant in error that proceedings have been commenced, seeking a reversal of the judgment of the" court below. That is the only purpose of the summons. That notice was received by the defendant in error and received at a time sufficiently long before the opening of the next term of court to give him all the time for preparation which could reasonably be necessary.

It is suggested on the part of the defendant in error, that when the statute provides that a summons issued in term time shall be made returnable on a day certain, it necessarily means a day within the term. This is clearly not tenable, because neither the clerk nor the attorney who files the precipe for the issuing of the summons can know when the term will close. He does know, however, whether or not the summons is being issued during the term of court, and clearly the intention of the statute was to have a day certain fixed and that if that day certain should turn out to be a day within the term, the case might be ready for hearing at that time, and if that day certain should turn out to be a day after the adjournment of the term, the case would not stand for hearing until the next term, but in no event would the day for hearing be later than the next succeeding term, unless it should be that the day certain is later than the beginning of the next term.

Counsel for defendant in error call attention to 20 Encyclopedia of Pleading and Practice, 1159, and to cases cited, under paragraph C, note 4, on that page. The language of the text in the citation referred to reads:

“All writs must be returnable, as provided by law, and the return day can not be extended beyond that fixed by the statute for the purpose. A writ not returnable, as provided by law, as where a less number of days intervene between its teste and the return day than the statute requires, is fatally defective.”

Many of the eases cited have been examined and in several of them it appears that the summons being considered was a summons issued by a justice of the peace in which the party is notified in the summons of when his case will be for trial; and in the other cases it is where a summons is issued upon a petition filed in a nisi prius court, where the summons indicates to the party when he will be required to answer to the petition. The summons in these cases are clearly distinguishable from the summons required to be issued by our statute in proceedings in error. No time is fixed either by the summons or by the statute for an answer to be filed. No answer is required. The defendant is Simply notified that a petition has been filed, and by examining the summons he knows when the sheriff is required to make return of the writ, and thereby he knows when the case will be ready for hearing in court.

The Supreme Court of Wisconsin, in the case of Porter v. Vandercook, 11 Wis. 70, had this situation before it. An action was commenced in June, 1859. Summons required the appellant to answer within twenty days, whereas the statute provided that the answer should be filed within ninety days from the service of summons, and the court said in the syllabus:

‘1 Though the better practice would be to state the true time prescribed by law for the defendant to answer the plaintiff, yet it is not error to state that the answer must be made in twenty days. ’ ’

In the opinion at page 71, it is said:

“Perhaps, the better practice is to specify in the summons the true time as prescribed by law for the defendants to answer the plaintiff. Still, this court held, in the case of Lawrence v. Brown, decided at the January term, 1859, not reported, that the phraseology of the summons in this particular was not material; that the defendant must be presumed to know the law and the time which it gave him to answer; and that therefore a summons should not be set aside even though it did not conform to the law in that respect, and require the defendant to answer according.
‘ ‘ This was the extent of the decision in that case and upon so unimportant a question of practice, must be considered decisive as to the objection taken to the summons in the present case. The appellants undoubtedly well knew that the law gave them ninety days to answer the plaintiff and were not misled by anything which the summons contained.”

In the ease of Guion v. Melvin, 69 N. C. 242, it is said in the syllabus:

A summons served on a defendant commanding him to answer on a day certain, which day is less than twenty days from the time of the service, is not necessarily on that account void, and the probate judge is not bound to dismiss it. He should have allowed the defendant the time allowed by the code for an appearance. ’ ’

The court stated the case in these words, at page 243:

‘ ‘ The defendants appeared before the judge of probate and objected that the summons was irregular, because it commanded the sheriff to summon the defendants to answer the plaintiff on a day certain. That twenty-one days had not elapsed from the time when the summons was served on the defendants before the day set for its return. That under the code of civil procedure the defendants were entitled to twenty days, to which one day is to be added for every twenty-five miles travelled in which to answer the plaintiff, and the defendants can not be required to answer in a less time. The defendants therefore moved to dismiss the proceeding.
“The court being of opinion that the defendants could not be required to answer the plaintiff within a shorter time than twenty-one days, counting from the service of the summons, al-' lowed the motion and dismissed the proceeding. From this judgment the plaintiff appealed.”

And in discussing the question the court at page 248 quotes the statute as follows:-

“It (the summons) shall command the officer to summon the defendant to appear, etc., within a certain number of days after the service, exclusive of the day of service to answer, etc. The number of days shall in no ease be less than twenty.”

And then goes on to say:

“In the present case the plaintiff made the summons returnable on a day certain, and not on a certain day after service. We do not say that this deviation from the statute .form is such an irregularity as will make the summons void, although it is always best and safest to follow the form prescribed by the code. But clearly the defendant can not be deprived of any right by such an irregularity. He is not obliged to appear until the twentieth day after service, exclusive of the day of service, and any proceeding had before that day is null and void. We think the probate judge was not bound to dismiss the proceeding-for the irregularity but that he should have allowed the defendants the time allowed by the code for an appearance. As that time has long since expired, when the ease is remanded to him, it will be his duty to allow them a reasonable (which will be generally twenty days) after notice of the remanding, within which to appear and answer. He will then proceed as required by law.”

The reasoning of these two cases seems to us to be sound. No possible prejudice can come to the .defendant in error by requiring him to appear to this summons, and whether or not it were a summons which required him to answer on a given day we should hold the summons good, we do hold in the present ease that .notwithstanding the irregularity in the summons as to the day on which the sheriff was to make return, the service will not be dismissed, and the motion to dismiss is overruled.

As to -the motion made by the plaintiff in error, we suggest that it be withdrawn. If it is not withdrawn, it is overruled.

Winch and Henry, JJ., concur.


author: HENRY, J.

text:
    NEGLIGENCE — WITNESSES
    [Lorain (8th) Circuit Court,
    May 1, 1907.]
    Winch, Henry and Marvin, JJ.
    Lake Shore Electric Ry. v. Alice Gatens.
    1. Inquiry as to Physician’s Acting as Expert for Defendant Corporations not Erroneous.
    In a personal injury damage case against a corporation, it is not reversible error to ask a physician, testifying as an expert for the defendant, if he has not frequently acted as an expert for defendant corporations.
    2. Inquiry of Expert Excluding Possible Causes Other than Accident Competent.
    It is competent to ask an expert witness in such a case, if certain injuries from which the plaintiff is shown to be suffering, could be attributed to an accident of the character claimed in the petition, if followed by other evidence tending to exclude all other possible causes than the accident itself, and tending to establish an actual causal relation between the accident and the injuries in question.
    3. Headache Included in “Internal Injuries.’’
    When a petition alleges internal injuries generally, evidence may be received that the plaintiff suffered from pains in the head, irregular menstruation, enlarged ovaries and displaced womb.
    4. Verdict of $3,500 not Excessive though Woman not Permanently Crippled.
    A judgment for $3,500 is too large though it is not shown that the plaintiff was permanently crippled in any manifest way, nor that there will be any great permanent impairment of her general health or incapacity in the performance of her duties.
    Error.

      E. G. & E. C. Johnson, for plaintiff in error.

      Skiles, Green & Skiles and Stroup & Fmwer, for defendant in error.
   HENRY, J.

The defendant in error, Alice'Gatens, recovered a. verdict and judgment for $4,000 in the court of common plehs against the Lake Shore Electric Ry., on account of personal injuries sustained by her while alighting from one of its cars, in which she had taken passage. The negligence alleged consists in the premature starting of the car, causing her to be thrown violently to the ground.

Among the errors alleged is, first: The overruling of an objection asked on cross-examination of an expert medical witness for the defendant below, namely, whether he had not frequently acted as an expert witness for defendant corporations. We think this does not transcend the limits of reasonable cross-examination; it implies no necessary reflection upon defendant corporations in general, nor upon the plaintiff in error in particular. It may or may not tend to weaken the testimony of an expert to elicit the fact that he has been frequently employed by others in like cases, but its force in that behalf, if any, is perfectly legitimate. A corporate defendant occupies neither a better nor a worse position than other defendants with regard to the cross-examination of witnesses which it produces, and this question does not assume anything else with regard to the defendant below.

It is complained further here that the trial judge overruled an objection to a hypothetical question addressed by counsel for the plaintiff below to one of her expert witnesses, which called for an opinion as to whether or not certain injuries, from which she was shown to have been suffering since the accident, could be attributed to an accident of that character. The witness’ answer was that they could be. This question did not seek to elicit, nor does the answer disclose, whether the injuries in question probably did result from such an accident. The most that can be said is that they involve the possibility of such a causal relation. Thus limited in its scope and effect we see no valid objection to the admissibility of the evidence, if supplemented by other evidence tending to exclude all other possible causes than the accident itself, or by expert or other evidence establishing the existence of an actual causal relation between the accident and the injuries in question. The evidence on the subject would then be full enough for submission to the jury.

It is, however, insisted that the petition below fails to allege some of the injuries, as to which the medical experts were permitted to testify, and that the evidence fails to show that some of those injuries resulted from the accident in question. Particular attention is called to pains in the head, irregular menstruation, enlarged ovaries and displaced womb. Upon examination of the petition we find, however, that it does allege internal injuries, without specifying in full detail what they were, and the evidence discloses, although somewhat meagerly it is true, a causal relation between the accident and the internal ailments referred to, with a possible exception of the enlarged ovaries, and even these are somewhat doubtfully included by one expert among those organs, the unhealthy condition of which he ascribes to an accident of the kind and character complained of.

The extent of the injuries of the plaintiff below was sharply contested, and it is claimed here that the verdict of $4,000, even as reduced below by remittitur to $3,500, is still so large as to evince bias or prejudice on the part of the jury, in view of all the evidence upon the subject, and it is insisted that the damage awarded, as thus reduced, is still in excess of any amount warranted by the evidence. We have carefully read the testimony in this behalf, and we conclude that the jury were misled in this respect. We can not attribute such bias to any particular cause, although it is suggested that the repeated reference to one of the defendant’s medical witnesses in the arguments of counsel for the plaintiff below, asa“ company doctor,” without warrant in the evidence for such characterization, might have had the effect of prejudicing the jury against his testimony; but we find that no prejudice of any kind could have arisen from this remark, for the witness referred to did not testify on the sharply contested issues, and we may remark parenthetically at this juncture, that although the repetition of the reference in question, after the admonition of the court, was improper, we do not think that it constituted such misconduct as to amount to reversible error.

Recurring to the amount of the judgment, we are unable to find from the record that the plaintiff below offered any such proof as to the extent of her injuries, as to justify the inference that she had been damaged to the extent of $3,500. It is impossible, of course, to measure accurately in money the damage that accrues to a person injured, in consequence of impaired health, but some proportion must be admitted to exist, and should be maintained between the amount of damage referable to injuries of a permanently crippling and incapacitating character upon the one hand, and the damages recoverable on account of temporary injuries and moderate impairment of health, upon the other. That this- woman was severely injured we do not doubt, but she is not permanently crippled in any manifest way, nor does it appear that there will' permanently be any such gross impairment of her general health or incapacity in the performance of her housewifely duties as to warrant the recovery of so large a sum. It is possible that upon a new trial and a more complete disclosure of the facts the evidence might warrant a recovery of the amount which the jury in this case awarded, but, taking the record as we have it, we find that there was error in overruling the motion for a new trial, upon the ground that the verdict was excessive, and the amount awarded indicated bias or prejudice and that the verdict in respect of the damages awarded was not sustained by the evidence, and unless the defendant in error shall remit $1,000 from her verdict and judgment, the judgment will be reversed and the cause remanded.

Winch and Marvin, JJ., concur.


text:
    TRUSTS — WILLS
    [Lorain (8th) Circuit Court,
    May 1, 1907.]
    Marvin, Winch and Henry, JJ.
    Judson C. Starr v. N. H. Forbes et al.
    Trust to Provide Luxuries for Inmates of Infirmary Enforcible.
    A trust created in a will for the purpose of providing for the inmates of a county infirmary such luxuries as they would not have in the regular administration of the institution, is not illegal or impossible of accomplishment.
    Error.

      Geo. II. Chamberlain, for plaintiff in error.

      E. G. & S. C. Johnson, Ingersoll, Stetson & Wilcox, F. M. Stevens and Lawrence Gillmore, for defendant in error.
   HENRY, J.

This is an action by an heir at law against legatees in trust who are in possession of a fund which, it is alleged, they had no capacity to take. By the will of Orline R. S. Hamilton, the residue of her estate remaining after the payment of certain other bequests, was bequeathed to the directors of the Lorain county infirmary, and’ their successors in office forever, upon certain trusts for the poor of said county, who were defined to be, in a suit instituted for the purpose of construing the trust, the inmates of said infirmary. In that suit it was also decreed that the object of the trust was to provide for said inmates such luxuries as they would not have in the regular administration of that institution. Some $3,813.17 is now in possession of the directors of said infirmary, who are the successors in office of the persons who occupied that position at the time the will was made and the bequest paid. The estate has been fully settled, and this action is brought without making the executor a party. It is objected on behalf of the infirmary directors that they are not liable to be thus directly sued, but in the view we take of the case, it is not necessary to determine that question. The main contention is that neither Sec. 20, R. S. (Sec. 18 G-. C.), nor any other section thereof, empowers infirmary directors as such, to take a legacy, or to accept or execute a charitable trust; that the testator’s intention was to repose a personal confidence in those whom the people might elect to the office of infirmary director, and to those who by reason of occupying that official position would be peculiarly qualified to carry out her wishes, and that, therefore, no substitute trustees appointed by a court of equity could carry out the purpose of the will; that in any event the interference with the public administration of the poor laws and incentives offered by the trust thus sought to be created, to induce the poor to become public charges in order that they may become beneficiaries of this kind, are so repugnant to the public policy of the state as to render the trust illegal and impossible of accomplishment through any agency, official or non-official.

Upon the other hand it is claimed that the infirmary directors are within the spirit if not the letter of Sec. 20, that no statutory authority is required to authorize public officers to administer gitasi-public trusts; that if the infirmary directors can not take in their official capacity, they may nevertheless take as individuals, and that in any event, if the trustees named in the will are incapable of taking, a court of equity may and should in the ease of a charitable trust, appoint suitable trustees to carry out the general purpose provided for in the will.

It is perfectly manifest that the plaintiff’s ease must stand or fall upon its own merits. Unless the trust provided by the will is utterly illegal or incapable of enforcement by any lawful means, the plaintiff has no claim to this fund. It is not necessary for us to decide whether or not the title of the trustees who now have possession of the fund is unassailable, unless we further hold that the trust itself is void. We see nothing incompatible with the public policy of the state and with the enlightened humanitarianism which it offers, to defeat this most charitable attempt to alleviate the unfortunate condition of those who through age, sickness or other adverse circumstances become unable to support themselves, and hence a charge upon the community. This is eminently such a public or eleemosynary trust as will be enforced by a court of equity, if necessary, through a trustee of its own appointment. It is not to be supposed that the testator reposed a personal confidence in persons whom she never saw or knew, simply because they held elective office and have supervisory control over paupers. On the contrary, a court of equity must be presumed to be quite as capable of appointing a trustee who is well qualified to administer a trust of this character, as the general electorate of the county, and if necessary, such trustee can hereafter be appointed.

It follows, therefore, that the plaintiff’s claim to this fund, resting as it does upon the supposed invalidity of this trust, is not well founded, and his petition is dismissed.

Winch and Martov, JJ., concur.


text:
    CRIMINAL LAW — FORGERY
    [Lorain (8th) Circuit Court,
    May 1, 1907.]
    Winch, Henry and Marvin, JJ.
    Frank Lieblang v. State of Ohio.
    1. Disregarding Certificate of Prejudice Filed on Trial Day.
    It is not error for a trial judge to disregard an affidavit of prejudice filed on the day of the trial.
    2. Misstatements by Prosecutor in Opening Statement not Prejudicial if Ordered Disregarded.
    No prejudice results from misstatements as to the crime charged by the prosecuting attorney in his opening statement of the case to the jury in a criminal case, if, after the evidence is all in thB trial judge instructs the jury to consider only the evidence admitted and to disregard all statements of the prosecuting attorney with regard to evidence offered, but not admitted.
    '3. Uttering and Publishing Forged Note.
    One who seeks to obtain money on a forged check purporting to be payable to himself, by presenting it to the bank on which it is drawn and asking that it be cashed, is guilty of uttering and publishing the forgery, though it is not until afterwards that he endorses his name iipon the back of the check.
    4. Circumstantial Evidence Sufficient to Lay Foundation for Comparison of Writings.
    Circumstantial evidence may be sufficient to lay a proper foundation whereby one writing is so authenticated as to authorize the comparison therewith of another writing to show identity or diversity of authorship.
    5. Accused Absenting Himself during Trial not Conclusion of Proceedings except Sentence.
    If, after the trial of a felony case has begun and before it is finished, the accused absent himself, the trial may continue, after forfeiture of the recognizance, and the verdict be received and recorded, but sentence can not be pronounced until the accused is in court, or is retaken.
    Error.

      Anthony Neiding and Brady & Dowling, for plaintiff in error.

      F. M. Stearns, for defendant in error.
   HENRY, J.

The plaintiff in error was convicted of uttering and publishing a forged instrument. An affidavit of prejudice was filed against the trial judge, who disregarded it upon the ground that it was filed immediately before the trial began and on the same day, and was, therefore, too late. Under the recent amendment of tbe statute in that behalf, we think the trial court committed no error in disregarding the affidavit.

It is said that the prosecuting attorney was guilty of misconduct in his opening statement in intimating that the prisoner was guilty of attempted blackmail or extortion in connection with the offense for which he was tried. His statement was challenged at the time by the prisoner’s counsel but the court overruled the objection, stating that he could not at that stage of the case determine whether evidence of these collateral matters would or would not be competent. The prosecuting attorney seems to have been acting in good faith upon the supposition that the matters in question were material, but later in the trial when he attempted to introduce evidence thereof, such evidence was excluded. The trial judge, moreover, carefully instructed the jury to consider only the evidence introduced, and to disregard all statements made by the prosecuting attorney with regard to evidence offered but not admitted. In this, we find no prejudicial error.

Apother error complained of is that the forged instrument set forth in the indictment did not contain the endorsement of the prisoner’s name, which appears on the back of the instrument' as introduced in evidence. We think there is no material variance in this respect. The evidence shows that before the forged check had been introduced, the prisoner sought to obtain money on it by presenting the same and requesting that it be cashed. This, of itself,, constitutes an uttering and publishing. The prisoner was told when he thus presented the check, which was payable to his own order, to write his name on the báck of it. He turned and went a few feet away to a desk and came back after a few moments with what purported to be the same check, bearing his signature. On this state of facts it is further complained that this endorsement was determined by the court to afford a sufficient basis of comparison to admit of the introduction of evidence of a letter alleged to have been written' by Lieblang, and to authenticate his handwriting thereon. Another writing proved to have been made by the prisoner was also used as a basis of comparison. It is objected, however, inasmuch as no one actually saw the prisoner endorse the check, the circumstantial evidence that the endorsement was written by him was not sufficiently'positive to make it a proper basis of comparison. We think that circumstantial evidence may, and in this case does suffice, to lay a proper foundation whereby one writing is so authenticated as to authorize the comparison therewith of another specimen of handwriting to show identity or diversity of authorship.

It is further complained that the court committed error in proceeding with the trial when, after the evidence was all in, the prisoner failed to appear at the opening of court oh the morning of the last day of the trial:

Section 7301 R. S. (Sec. 13676 G. G.) provides:

“A person indicted for a misdemeanor may, upon his request in writing, subscribed by him and entered on the journal, be tried in his absence, or by the court; no other person shall be tried unless personally present; and if a person indicted escape, or forfeit his recognizance, after the jury is sworn, the trial shall proceed, and the verdict be received and recorded; if the offense charged is a misdemeanor, judgment and sentence shall be pronounced as if he were personally present; and if the offense charged is a felony the case shall be continued until the convict is in court, or is retaken.”

It is insisted that this being a case of felony there is no authority for going forward with the trial during the prisoner’s absence and that the only course open in this event is indicated by'the words, “The case shall be continued until the convict is in court or. is retaken.”

We think that counsel misinterpret this section. The true intent and meaning thereof is, that in the prisoner’s absence a trial may not be commenced and carried on in case of felony; that it may be commenced and carried on in case of' misdemeanor, upon the prisoner’s request in writing, subscribed by him and entered on the journal. If, after the trial is commenced the prisoner absent himself, the trial may continue whether it be a ease of felony or misdemeanor. Sentence, however, can not be pronounced in the prisoner’s absence, except in case of misdemeanor. ■ ■ •

■ It is further contended that even with this interpretation of the statute, the trial was erroneously proceeded with, inasmuch as it did not appear that there had been an escape or forfeiture of recognizance. It is suggested that his absence may have been due to sickness, accident, arrest, or other cause beyond his control. This, however, would not be sufficient to prevent a forfeiture of his recognizance, although it might justify the setting aside of such forfeiture thereafter. The transcript here shows that the recognizance was duly forfeited on the same day that the bill of exceptions shows the objection to the further prosecution of the trial was made and overruled. We think there was no error in submitting the case to the jury and receiving their verdict under these circumstances in the defendant’s absence.

No other error in the record is alleged, and we find none.

Judgment is therefore affirmed.

Winch and Marvin, JJ., concur.


text:
    ATTACHMENT-EXEMPTIONS
    [Lorain (8th) Circuit Court,
    May 1, 1907.]
    Winch, Henry and Marvin, JJ.
    Maud Barnes et al. v. H. P. Elickman.
    Lewd Woman Held Entitled to Homestead Exemption as against Attachment.
    It is no reason for refusing to discharge an attachment of goods shown to he the property of a married woman living with her husband, neither of whom have a homestead and the goods being claimed as exempt in lieu of a homestead, that the debtor is a prostitute, plying her vocation.
    Error.

      Thompson, Glitsch & Cinniger, for plaintiff in error.

      S. H. Williams, for defendant in error.
   HENRY, J.

The error alleged in this proceeding is the failure of the court below to discharge an attachment levied upon a piano, the property of Maud Barnes, a married woman living with her husband, neither of whom has a homestead; the piano in question being claimed by way of exemption in lieu of homestead. All these facts are admittedly true, save that it is alleged that Maud Barnes is a prostitute, plying her vocation, and that her husband, therefore, does not live with her in the sense contemplated by the exemption statutes intended for the protection of the family.

We are not able to read into the statute any qualification of this sort, and the judgment below is reversed.

Proceeding to enter the judgment which the court below should have rendered, we now order that the attachment be and the same is discharged.

Winch and Marvin, JJ., concur.


text:
    COVENANTS
    [Summit (8th) Circuit Court,
    April, 1907.]
    Winch, Henry and Marvin, JJ.

      West Hill Land Company v. Samuel J. Ritchie.
    Restrictions in Deed as Part of General Plan Enforclble.
    Restrictive covenants contained in a deed in defendant’s chain of title, of which he had constructive notice, which are part of a general plan or scheme of restrictions published and adhered to by plaintiff and its trustee, will be enforced notwithstanding plaintiff has offered to sell the defendant other lots in the allotment, without restrictions.
    Error.

      Sfoiart c§ Stuart, for plaintiff in error.
    TP. E. Young, for defendant in error.

      Affirmed no opinion, Ritchie v. West Hill Land Co., 80 Ohio St. 722.

   HENRY, J.

We see no reason why the restrictions in the deed of defendant’s grantor should not be enforced so as to prevent defendant from erecting any building nearer than the stipulated distance from the street. He had constructive notice of the restrictions when he bought. They were a part of the scheme or plan of restrictions published and adhered to by plaintiff and its trustee, Christy, who has now executed his trust by conveying the entire allotment to plaintiff. The restriction complained of is not unreasonable. There is nothing in the evidence to show that plaintiff has waived it. True, it offered to sell to defendant its entire line of lots on defendant’s side of the street, without restrictions; but that does not amount to a waiver, much less to an estoppel. The plaintiff may, therefore, take a decree in accordance with the prayer of the petition.

Winch and Marvin, JJ., concur.


text:
    BILLS AND NOTES
    [Summit (8th) Circuit Court,
    1907.]
    Winch, Henry and Marvin, JJ.

      William Waldo et al v. Frank P. Fuller et al.
    1. Authority of Wife to Collect and Pay not Extended to Execute Promissory Note in His Name.
    "When a husband authorizes his wife to collect what is owing to him and pay what is owing by him, that does not authorize her to give a promissory note to pay part of his debts and sign his name thereto.
    2. Liability of Wife as Accommodation Maker.
    One who receives a note purporting to be the note of his debtor and the debtor’s wife, to pay an antecedent debt of the husband, may enforce said note as against the wife, notwithstanding she signed her husband’s name to - the note without his authority, the creditor not knowing that fact.
    Error.

      Musser, Kohler & Mottinger, for plaintiff in error.

      Esgate, Spencer & Snyder, for defendant in error.

      Affirmed no opinion, Fuller v. Waldo, 79 Ohio St. 437.

   HENRY, J.

The action below was upon a promissory note alleged to have been given by the defendants in error, who are husband and wife. Plaintiffs in error were plaintiffs below and are Iowa merchants. The defenses interposed by the separate answers are: First, want of consideration. Second', that the signatures to the note are not genuine. Third, that if the wife did in fact sign her own and her husband’s names, she had no authority to bind Mm.

The last defense affects the husband only, and as to him the judgment must be affirmed. The evidence of her agency at most amounted to a statement by him that his wife would collect what was owing to him and pay what was owing by him. This does not warrant any inference that she was authorized to sign his name to promissory notes. Mechem, Agency, See. 389.

As to the wife the case is different. True, the rule is that where an answer sets up two defenses, and the jury finds on the issues for the defendant, it is a finding on all the issues, and where error intervenes affecting only one of them, the verdict must be upheld McAllister v. Hartzell, 60 Ohio St. 69 [53 N. E. 715], Here, however, we think there was error affecting both defenses interposed by the wife. An inspection of her admitted signature affixed to a deed very near the time of the note’s date, together with the other evidence on the subject, compels the conclusion that her signature to the note is genuine,- and we hold that in that respect the verdict is contrary to the weight of the evidence.

As to the other defense the court charged that inasmuch as the note was given for the husband’s debt, if given at all, a new consideration was necessary to bind the wife upon it in the hands of the original payee. Such is not the law. See, as declaratory of the common law, Secs. 3172a and 3171a;, R. S. (Secs. 8134 and 8172 G. C.).

For these errors, and these only, the judgment- in favor of the wife is reversed and the cause as to her is remanded.

■Winch and Marvin, JJ., concur.


text:
    CRIMINAL LAW — INTOXICATING LIQUORS
    [Summit (8th) Circuit Court,
    1907.]
    Winch, Henry and Marvin, JJ.
    Albert Lowther v. State of Ohio.
    1. Prejudice against Liquor Traffic not Disqualification to Juror.
    In a trial for knowingly selling intoxicating liquor to a minor, the fact that a proposed juror admits that hé has a prejudice against the business of selling intoxicating liquors, does not sustain a challenge for cause.

      2. Knowledge of Minority from Appearance of Prosecuting Witness before Jury.
    The claim that the evidence fails to show that the accused knew of the prosecuting witness’ minority, is met by the fact that the jury saw said witness.
    3. Inability of One Witness to Identify Accused beyond Reasonable Doubt Collective Effect of all Their Testimony Sufficient to Dissipate Doubt.
    Though no one of the witnesses in a criminal case identifies the accused beyond a reasonable doubt, the collective effect of all their testimony may be sufficient to dissipate any doubt upon that subject.
    Error.
   HENRY, J.

Plaintiff in error was convicted of knowingly selling intoxicating liquor to a minor, in violation of Sec. 4364-21, Rev. Stat.

Of the claims of error urged here, only three are saved upon the record:

1. Exception was taken to the refusal of the trial court to sustain the challenge for cause against juror Walker, upon the ground of his prejudice against the business of selling intoxicating liquors. That is not a ground of challenge under Sees. 5177 or 7278, Rev. Stat. and it appearing that this juror was otherwise qualified, we think the court was justified in overruling the challenge.

2. The claim that there was no proof of the plaintiff in error’s knowledge of the prosecuting witness’ minority is met by the fact that the jury saw him; and we can not now say from the record before us, that the inference of plaintiff in error’s knowledge of his minority, implied in their verdict, is unwarranted.

3. The identity of the accused, it is claimed, was not established beyond a reasonable doubt, since none of the witnesses who testified on that subject identified him with that degree of certainty. The collective effect of their testimony may, however, have sufficiently satisfied the jury so as to dissipate any doubt upon that point. Commonwealth v. Cunningham, 104 Mass. 545; People v. Stanley, 101 Mich. 93 [59 N. W. 498]; State v. Franke, 159 Mo. 535, 560 [60 S. W. 1053].

The judgment is affirmed.

Winch and Marvin, JJ., concur.


text:
    MUNICIPAL CORPORATIONS
    [Columbiana (7th) Circuit Court,
    1907.]
    Judge Taggart of Fifth Circuit and Judge Henry of Eighth Circuit.
    W. L. Sharp et al. v. Cadiz (Vil.) et al.
    Failure of Taxpayer to Request that Action be Brought Fatal, Though no Solicitor.
    An action can not be maintained by a taxpayer against a village, under favor of Sec. 1536-668 R. S. (Sec. 4314 G. C.) where the petition fails to show a request upon the village solicitor or any other official to bring the action and his refusal or neglect so to do, even though the village has no solicitor.
   HENRY, J.

It is so perfectly manifest from the face of the petition which is filed here from the notice which was served upon the mayor and addressed to the mayor and solicitor of this municipal corporation that the notice in question referred to a proposed action by the village of another and different sort from that here sought to be enjoined as indicated by the prayer of the petition, that it becomes necessary to determine whether, under the circumstances of this ease, any notice to or request of the village solicitor is prerequisite to the maintenance of an action of this character.

Ordinarily it may be said unhesitatingly that, under the statute, such request must be made and refused, or at least unacted on, before such an action as this can be maintained under Sec. 1778 (1536-668) R. S. (Sec. 4314 G. C.). This section provides :

“In case he shall fail,” that is, the village solicitor, “upon the request of any tax-payer of the corporation to make application provided for in the preceding section, it shall be lawful for such tax-payer to institute suit for such purpose in his own name, on behalf of the corporation; provided, that no such suit or proceeding shall be entertained by any court until such request shall have first been made in writing; and further, provided that no such suit or proceeding shall be entertained by any court until such tax-payer shall upon motion of the solicitor or corporation counsel have given security for the costs of the proceeding.”

Now, it is said here, that inasmuch as there was no village solicitor, as is alleged in the petition, at the time this action was brought, no such request was possible, and therefore, no such request was necessary.

The Supreme Court has seemingly expressed itself upon this subject in the case of Brundage v. Ashley, 62 Ohio St. 526, 57 N. E. 226. The syllabus of that case is:

“In an action brought by a tax-payer under Sections 1777, 1778 and 1779, R. S., where a village has no solicitor, the plaintiff is not entitled to have included in the costs allowed to him, compensation to his attorney.” ■

The opinion in the case is per curiam, and therefore is entitled to the same weight as the syllabus.

This language is used by the court:

“If there is a solicitor and no such request is made upon him, there can be no compensation for the attorney included in the costs allowed to plaintiff, and if there is no solicitor the same result must follow, because it is the request and refusal that warrants the allowance of such'fees.
‘ ‘ The fáct that 'there is no such solicitor does not have the legal effect'to■ make it unnecessary to first make such request.”

Now, there is nothing in this per curiam which seems to modify the force and effect of that last statement. Whether a request made upon some other officer than the city solicitor if there bé no such officer as city solicitor, would be a sufficient basis for this action, or an action of this sort or whether, upon failure of- the municipal corporation to have any such officer, the .statutory action provided for in these sections can not be brought at all, is another question, which it is not necessary for us to decide. Suffice it to say that no attempt was made to serve any sort of notice upon any officer of the municipal corporation, in respect to the cause of action which is asserted in this petition, ■ and inasmuch as the Supreme Court has said clearly that the service of such notice is prerequisite to the beginning of and maintenance of any such action, we fail to see how there is any proper action before us.

The petition will therefore be dismissed.

Taggart, J., concurs.


author: HENRY, 3.

text:
    ACTION — CORPORATIONS
    [Summit (8th) Circuit Court,
    1907.]
    Winch, Henry and Marvin, JJ.
    Akron Printing and Paper Co. v. Chevaliers (Supreme Council).
    Procedure in Action to Subject Liability of Trustees of Corporation Not for Profit Same as Stockholders’ Liability Suit.
    An action to subject the statutory liability of trustees of a corporation not for profit, stands on the same footing as a stockholder’s liability suit, and is governed as. to matters of procedure by Sec. 3261 R. S. et seq. (Sec. 8666 G. C.)
    Error.
   HENRY, 3.

The parties here stand as they stood below and the error assigned is upon the sustaining of a demurrer to the petition. Upon careful consideration we think the action to subject the statutory liability of trustees of a corporation not for profit, is placed by statute on the same footing as a stockholders’ liability suit, and that it is governed as to matters of procedure by Sec. 3261 et seq. (Sec. 8666 G-. C.). There are some anomalies in this practice as to joinder of causes of action and parties, but the statute must of course prevail. The demurrer should therefore have been overruled if this petition conforms to the practice thus defined, and if it presents no other defect. We think it does conform to the statute, but we have had grave doubt-whether it is otherwise impervious to demurrer.

It counts upon an account stated and a subsequent open account without, however, reciting the items of the account, or making the exhibit containing it a part of the petition. It then connects the defendant trustees therewith by averring that when the “items” of said indebtedness “accrued” the individual defendants were trustees of the corporation. If this means items of the account there is no account pleaded and the petition is bad. If the account stated can be called an item of the indebtedness that objection is cured. If the word “accrued” means incurred, or became a part of the claim asserted, instead of matured, as is ordinarily its signification, that difficulty is 'likewise removed. It is perhaps a strained construction that will save the petition but we construe the petition liberally and hold that it states a cause of action prima facie.

The judgment will therefore be reversed and the cause remanded.

Winch and Marvin JJ., concur.


text:
    MUNICIPAL CORPORATIONS
    [Summit (8th) Circuit Court,
    1907.]
    Winch, Henry and Marvin, JJ.
    Barberton (Vil.) v. Frederick Lohmers.
    Liability of Municipality for Medical Services Rendered Quarantined Small-Pox Patient.
    Under favor of Sec. 1536-741 R. S. (Sec. 4432 G. C. et seq.), a physician who renders medical service to a quarantined small-pox patient, who is unable to pay therefor, is entitled to recover compensation from the municipal corporation which was promptly apprised of the situation, but tools; no action with reference thereto.
    Error.
   HENRY, J.

This was an action to recover compensation for medical services to quarantined small-pox patients alleged to be unable to pay therefor themselves, within the meaning of Sec. 2128, Rev. Stat. (Secs. 4432 G-. C. et seq.) Plaintiff in error’s board of health was promptly apprised of the situation but failed to take any action. The main question here presented is whether a cause of action arises under these circumstances against a municipal corporation by virtue of the provisions of this statute. Does the statute, of its own force, impose a legal obligation underlying the prescribed duties of boards of health in such cases, or is the affirmative action of the board of health a condition precedent to the bringing of an action of this kind ? Such appears to be the test applied in construing a somewhat similar statute in Cincinnati Tp. (Tr.) v. Ogden, 5 Ohio 23, in which it was held that:

‘ ‘ Overseers of the poor of the proper township are bound to support a casual pauper, if found within the limits of the township, and requiring support.”

And that:

“Where, after notice the overseers of the poor refuse to provide for a pauper, an individual furnishing a necessary supply, may recover the amount in an action against the township.”

In that case the underlying legal obligation of the township rested on a meager footing of express statutory provision, reinforced, however, by the inherent urgency of the cases provided for. We can not distinguish the view there taken from the one arising here, and we therefore hold that this action is maintainable. See also Seagraves v. Alton, 13 Ill. 366, and cases cited.

It is said, however, that the trial court erred in charging the jury that the words “able to pay” found in the statute are to be construed in the light of the exemption laws of this state. But an examination of the evidence on this subject discloses that the jury must inevitably have found each of the patients unable to pay the physician’s fees, and we need not, therefore, determine whether the court’s charge was too liberal on that point.

We find no error in the record and the judgment is affirmed.

Winch and Marvin, JJ., concur.


text:
    BASTARDS — PERJURY
    [Summit (8th) Circuit Court,
    April 20, 1907.]
    Winch, Henry and Marvin, JJ.

      Georgietta Brown v. State of Ohio.
    Bastardy Case Brought by Married Woman, Impossible to Predicate Perjury Upon.
    One can not be convicted of perjury for false swearing in a bastardy case before a justice of the peace, when the affidavit upon which the justice’s jurisdiction depends shows that the complainant is a married woman.

      Affirmed no opinion, State v. Brown, 77 Ohio St 636.

   HENRY, J.

Plaintiff in error was convicted of perjury for having borne false witness in a bastardy proceeding before a justice of the peace. Tbe affidavit on which the justice’s jurisdiction, was founded alleged that the complainant was “an unmarried woman in the sense that she has not lived with her husband for five years last past, nor have she and her husband Brown been together in a sense for five years past. ’ ’

It is urged here, as it was below, that this allegation implies that the complainant was not an unmarried woman; that the justice therefore acquired no jurisdiction in the bastardy proceeding, and that plaintiff in error’s false testimony as a witness in the proceeding was not perjury. And the prosecuting attorney very justly admits in his brief that “if the complaint on its face gave the justice no jurisdiction, then whatever the testimony might have been at the hearing, no perjury could have been committed.”

Under Sec. 5614 R. S. (See. 12110 G. C.) proceedings in bastardy can not be maintained on complaint of the mother, when the child in question was born and begotten during lawful wedlock (Haworth v. Gill, 30 Ohio St. 627). And regularly the affidavit should allege that the complainant is an unmarried woman (Edwards v. Knight, 8 Ohio, 375). A judgment against' the defendant in such a proceeding has, however, been sustained by the Supreme Court of Ohio, where this allegation was omitted Harrell v. State, O. S. C. D. 101 (23 Bull. 149). And various other irregularities in bastardy cases have been held not to be fatal, upon the ground that such proceedings being civil rather than criminal, and their object beneficial and not punitive, the statute and proceedings thereunder should be construed indulgently. Roth v. Jacobs, 21 Ohio St. 646; Hoff v. Fisher, 26 Ohio St. 7; Miller v. Anderson, 43 Ohio St. 473 [3 N. E. 605; 54 Ann. Rep. 823]; Miller v. Busick, 56 Ohio St. 437 [47 N. E. 248]; Cline v. Law, 62 Ohio St. 649 [58 N. E. 1098], affirming no opinion, Law v. Albert, 8 Circ. Dec. 784 (16 R. 159).

This, however, is the rule only where jurisdiction has once attached either originally or by relation. Justices of the peace have but limited jurisdiction, which is not presumed but must affirmatively appear, and can arise only on compliance with the conditions by law prescribed. And a warrant issued and proceedings had, in any case before a justice, upon an affidavit which, if all true, alleges no offense, are without jurisdiction, unless, indeed, the defect is capable of being supplied by amendment, in such manner as to relate back and cure such want of jurisdiction (Truesdell v. Combs, 33 Ohio St. 186). There is no claim in this case that the facts disclosed in the trial of the bastardy proceeding would warrant any curative amendment of the affidavit, unless upon inspection of the affidavit alone' the words used therein to qualify the allegation that the complainant was an unmarried woman, may be rejected as surplus-age and as not necessarily irreconcilable with the allegátion itself. It is urged that complainant’s husband may well have been dead, or divorced, or long since disappeared and unheard from, or that their marriage was void, or putative merely. These suggestiohs are ingenious, but not convincing. The affidavit clearly implies that the complainant was not unmarried, in any proper sense of that term, but that, on the' contrary, she had’ a husband, with whom, however, she had not lived for five years. A fact is thus affirmatively discloséd, in the very instrument on which alone the justice’s jurisdiction could be founded, which prevented such jurisdiction from attaching. It follows; therefore, that all the subsequent proceedings in that case were void. There was no warrant of authority in law forswearing any witness or taking any testimony. The plaintiff in error’s oath and false testimony thereunder were without any lawful sanction or significance’ whatever, and perjury can not be assigned thereon. Hamm v. Wickline, 26 Ohio St. 81, 85.

Upon the facts disclosed by the bill of exceptions the conviction was unwarranted by the evidence and is contrary to law. The judgment below is reversed and the cause remanded.

"Winch and Gesten, J'J., concur.


text:
    INTOXICATING LIQUORS
    [Summit (8th) Circuit Court,
    April 17, 1908.]
    Winch, Henry and Marvin, JJ.
    Akron (City) v. William G. Seitz.
    Ordinance for Regulation of Sale of Intoxicating Liquor without Druggist Exception Held Defective.
    tinder Sec. 1536-100 R. S., Subd. 5, a municipal corporation has no authority to enact an ordinance to regulate the sale of intoxicating liquors, which does not contain the “regular druggist” exception found in Sec. 4364-20c R. S. (Sec. 6065 G. C.)
   HENRY, J.

The defendant in error was convicted before the mayor of Akron of allowing to remain open on Sunday a place where intoxicating liquors were sold on other days of the week, the same being in violation of an ordinance of said city. The common pleas court afterwards modified the sentence imposed by the mayor by eliminating the imprisonment feature to conform with the limitation of punishment for first offenses as provided in the statute defining and penalizing the like offense in the state at large.

From this judgment the city has filed a petition in error and the defendant in error a cross-petition. The latter’s claims are (1) that there is no evidence that liquors were sold in the place in question on other days of the week; (2) that the information does not allege any ownership, occupancy or control by defendant of the place by him allowed to remain open, and (3) that the ordinance is invalid because it does not fully set forth the “regular druggist” exception of Sec. 4364-20c R. S. (Sec. 6065 G. C.), without which exceptions, no municipal ordinance on the subject can be lawfully enacted because of the express limitation upon the power conferred by the general assembly on municipal corporations to enact such ordinances as laid down in See. 1536-100 R. S., subd. 5, and in Sec. 4364-20 R. S. (Sec. 6137 G. C.).

Considering the last point first, we hold it to be well taken, on the authority of Canton v. Nist, 9 Ohio St. 439, in which it was held that a general Sunday observance ordinance was invalid because it failed to make the exception of works of charity, necessity, etc., as required by statute. The Legislature might have granted to municipal corporations the power to pass ordinances on this subject without any such exception of regular druggists as is contained in the state statute penalizing the Sunday opening of places where intoxicating liquors are sold on other days of the week. And it might have done this even though it still retained such exception in the state law. No inconsistency between an ordinance omitting such exception and the statute retaining it would in that case arise. This distinction is clearly pointed out in Piqua v. Zimmerlin, 35 Ohio St. 507, 509. The trouble here is that the ordinance overlaps the grant of power to municipalities to legislate on this subject. Such municipal legislation must contain the full “regular druggist” exception in order not to exceed the authority conferred by the general assembly to enact the same.

It must not be inferred from this opinion that Sunday closing is not required of saloons in Akron for want of a valid ordinance to that effect. The state law on the subject is in full force and applies to Akron as much as to any other part of the state.

Our conclusion on this point renders discussion of the other questions unnecessary, but we remark in passing, that the information should have alleged defendant’s ownership or control of the premises which he has been charged with having allowed to remain open on Sunday. It does not help the matter that the information followed the phraseology of the ordinance in this behalf. Whether this would amount to a fatal defect in the ordinance were it otherwise valid need not now be considered ; but it is surely true that no one can be lawfully convicted of allowing a place to remain open unless it be averred and proved that he was in some way in control of it.

In this case, also, the only proof that intoxicating liquors were sold in the place in question on other days of the week, is found in the characterization of the premises as a saloon; but as the word has been judicially defined in Iowa, where a man was convicted of keeping open a saloon after 11 o’clock at night, though only soft drinks, so-called, were sold there, the evidence here is not sufficient to prove that defendant’s saloon was a place where intoxicating liquors were sold (Clinton v. Grusen dorf, 80 Ia. 117 [45 N. W. 407]. Many other cases to the same effect might also be cited.

The judgments of both courts below are reversed for the errors thus indicated; and because of the invalidity of the ordinance under which the defendant stands accused, he is discharged.

Winch and Marvin, JJ., concur.


author: HENRY, J..

text:
    CIVIL RIGHTS
    [Summit (8th) Circuit Court,
    April 17, 1908.]
    Thomas Lyons v. Akron Skating Rink Co.
    Winch, Henry and Marvin, JJ.
    Authority of Doorkeeper and Ticket Taker at Skating Rink.
    In an action for damages under the civil rights act, for refusal of admission to a roller skating rink, when there is nothing in the record to show that the doorkeeper of the defendant corporation was entrusted by it with any authority or duty whatever beyond the taking of tickets and the admission of persons with tickets to the floor, explanations of the conduct of any other employe of the defendant, or any other feature of its business, is not within the sphere of the doorkeeper’s agency.
   HENRY, J..

The parties to this proceeding in error stand related as they stood below. The original action was for damages under the civil rights act, Sec. 4426-1 R. S. (Sec. 12940 G. C.), for alleged exclusion of the plaintiff in error from the defendant in error’s rink, on the ground of his race and color. The jury returned a verdict for the defendant.

The first error assigned is upon the exclusion of evidence. The plaintiff’s father and guardian, Hannibal Lyons,' .testified that, he and his son approached the ticket window at the rink and tendered twenty-five cents, the regular price for a skating admission ticket, which the father requested for his son. The ticket seller pushed back the money, shook his head, pointed towards the doorkeeper and the regulations posted at the entrance to the -skating floor, and closed the window without saying anything. Thereupon the witness and his son approached., the doorkeeper and the father asked, “Why is it that I can’t buy a skating admission ticket for my' boy ? ” To tbe next question put to the witness by plaintiff’s counsel “What did he say?” objection' was sustained, and he excepted, offering to prove that the doorkeeper replied, “We don’t allow colored people to skate in here- ’ ’

It does not appear that either the plaintiff or his father for him made any application directly to the doorkeeper for admission to the skating floor. Their only application to him was for information as to why they were denied a ticket. There is nothing in the record to show that the doorkeeper was entrusted by the defendant with any authority or duty whatever beyond the taking of tickets and the admission of persons with tickets to the floor. Explanation of the conduct of any other employe or the defendant or any other feature of its business was not within the sphere of this doorkeeper’s agency as thus defined. Ohio Oil Co. v. McCrory, 7 Circ. Dec. 344 (14 R. 304, 306-7); Baltimore & Ohio Employes Relief Assn. v. Post, 122 Pa. 579 [15 Atl. 885; 2 L. R. A. 44; 9 Am. St. 147].

We find no error in the exclusion of this evidence.

The second error assigned is the refusal to permit plaintiff’s counsel, in cross-examination of the ticket seller, to inquire whether he had testified in the justice court, where the cause originated, to an incident apparently elicited from him for the first time in the court of common pleas.

These inquiries were:

“Did you say a word there about Mr. Gault having ordered you not to sell any more skates or skating tickets or having said anything to you?” Also, “Did you testify in the justices’s court as to any orders that you had, not to sell tickets that evening ? ”

While these questions were proper enough for the purpose of testing the witness’ recollection, his cross-examination had already been conducted at some length, and we are not prepared to say that the trial judge abused his discretion in thus limiting it.

The third error assigned is upon the charge of the court, but no particulars having been pointed out to us, by the plaintiff in error, either in argument or brief, we forbear discussing the charge further than to say that, as we read it, it appears to be as favorable to the plaintiff in error as the law would allow.

The judgment is affirmed.

Winch and Marvin, JJ., concur.