author: By the Court:

text:
    THE INCREASE OF SALARIES OF JUDGES.
    Court of Appeals for Cuyahoga County.
    The State of Ohio ex rel Edward C. Stanton, Prosecuting Attorney of Cuyahoga County, Ohio, v. John A. Zangerle, County Auditor of Cuyahoga County, Ohio, et al.
    Decided, January 4, 1922.

      Constitutional Law — Invalidity cf the Act Increasing Judicial Salaries ■ — So far as it Applies to Judges in Office.

    Tlie act of February 4, 1920, (10S Ohio Laws, Part 2, page 1301), so far as it applies t'o a Judge of the Court of Common Pleas in office at tbe time tbe act took effect, is violative of Article 4, Section 14, of tbe Constitution of Obio. and therefore void, regardless of the source -of payment of the salary.

      George D. Hile, for plaintiff.

      William II. Boyd and Thomas H. Eogsett, for defendants.
    Cbow, Hughes and Warden, Judges of the Third District, sitting in place of the Judges of the Eighth District.
   By the Court:

On February 4, 1920, the Legislature passed an amending act (108 Ohio Laws, Part 2, page 1301) to provide for an increase in salaries of judges of the courts of common pleas, and judges of other courts, which act took effect on May 24, 1920.

Under this amendment that part of the salaries of the judges of the court of common pleas of Cuyahoga county, payable out of the county treasury, was increased two thousand dollars. Those of said judges of Cuyahoga county.' whose terms of office began before the taking effect of this amending act, claimed to he entitled to the increased salary provided for in said act, and made demand upon the county auditor for his warrant covering same, which he refused to issue.

In June, 1920, these judges who are in this case as defendants, brought their action in mandamus against the county auditor to compel him to issue his warrant for the increase claimed to be due them. This case, of which more will be said hereafter, terminated in favor of the judges, and the writ was issued accordingly.

On April 19, 1921, the prosecuting attorney of Cuyahoga county, upon written demand of a taxpayer, George D. Hile, who is also an attorney at law residing and practicing in Cleveland, brought this'action to enjoin the county auditor from making these payments to said judges. .Answers were filed in the case by the judges and the comity auditor, under which an issue was raised on the merits, and under the second defense the first suit above mentioned, was plead as res judicata, and judgment was rendered in favor of the judges. From that judgment of the common pleas court, appeal Avas taken and by agreement of all parties the ease Avas assigned for trial before this court at Lima.

None of the judges of this court had any information or knowledge Avhatever concerning the nature of the case, and when counsel representing both sides appeared at Lima, the court was informed by the prosecuting attorney of Cuyahoga county, that he was convinced there was no merit in plaintiff’s present case, and he consented that a decree be entered in faimr of the judges. This being agreed to by all counsel personally present in the ease (Mr. Hile being absent), and the court, having no information regarding any aspect of the case (not hawng seen the pleadings, nor heard a statement of the facts'), instructed counsel to agree upon, prepare and file with the clerk such journal entry as would be appropriate.

Information of this step came to thetaxpayer who had made demand for the institution of this suit, and he thereupon made application to this court to be made a party that he might prosecute the suit upon its merits, and by and Avith the consent of all the parties in the case he was made a party plaintiff Avith leave to file a reply to the ansAvors filed herein by the defendants.

He has since conducted the suit in plaintiff’s behalf, with commendable skill, courage and fidelity.

AVith the other issues raised in his reply, he alleged that the former judgment plead by defendants judges, as res judicata, was a judgment procured by collusion and fraud.

The case Avas then assigned for tria! and heard at Cleveland upon all the issuer .

From the pleadings and the evidence the following questions are presented for determination.

First, whether Section 14 of Article 4 of the Constitution of Ohio prevents judges who were elected or appointed prior to May 24,1920, from receiving an increase of salary under this act.

Second, whether that point was determined in the mandamus case, and if it was, whether the parties to this case were parties to that case.

Third, whether the judgment in the mandamus case is void on the ground of fraud, and if it is, whether it can be set aside herein.

On the first question in controversy, w© are convinced that there is no doubt of the application of the constitutional provision which reads as follows:

“The judges of the supreme court, and the court of common pleas, shall at stated times, receive for their services, such compensation as may be provided by law: which shall not be diminished, or increased, during their term of office; but they shall receive no fees or perquisites, nor hold any office of profit or trust, under the authority of this state, or of the United States. All votes for either of them, for any elective office, except a judicial office, under the authority of this state, given by the General Assembly, or the people, shall be void.”

As was said by Donahue, J. in 98 O. S., 368, tbe intent of a constitutional provision must be determined from tbe language of the same, and the words employed must be given tbeir usual and ordinary meaning. If the words be attended by no ambiguity or doubt, and are plain and distinct, there is no occasion to' resort to other means of interpretation. The question is not what is intended by the words, if the latter can he understood, but what is tbe meaning of the words employed.

Tbe constrnetion urged in behalf of the judges in the present case would limit the interdiction against the increase of salary, to that portion payable from a source other than the state treasury. This is the only reason urged against the application of the constitutional inhibition.

To give such a construction would result in injecting language into the provision, for which no reason whatever has been, or in our opinion none could be, put forth.

Implication of words into a constitutional provision, or statute, can he resorted to only in aid of a doubtful or ambiguous provision, but is never permitted where the language admits of no uncertainty.

To obviate the, evil and mischief which might arise from the exercise of legislative power to increase or diminish the salary of any public officer during the term for which he was elected or appointed, the framers of the Constitution, in addition to express provisions such as the one we are discussing, prohibiting such power, incorporated Section 20 of Article I, as an obvious inhibition applicable to public officers generally.

And this latter section has been universally construed to apply, regardless of whether the officers were of the state, or the political sub-divisions thereof.

Concerning the question of fact of adjudication in the mandamus case, of whether the act in issue herein is unconstitutional so far as relates to an increase in the salaries, we find in favor of defendants judges. That is to say, the evidence shows that, upon submission of the general demurrer the question was specifically decided by the court. ,

Although in the mandamus case all the judges united as relators, and the petition was verified by only one of them, and notwithstanding the relief sought was payment of but $37.63, the question of misjoinder which might have been raised, was waivable and waived.

We are also of opinion that there is the requisite identity of parties, essential to res jucticaba. With the exception of one of the judges who died after the mandamus suit was. commenced, the same judges were parties to that case who- are parties to the record in the present ease. The defendant county auditor was, as already stated, party defendant in the mandamus ease, and by his presence there, the public was a party by representation.

That in the-mandamus ease the state on whose relation the judges brought the suit, had no direct interest in the controversy, is also true in the instant case. The public, that is the people of Cuyahoga county, were present in the mandamus case, by the county auditor, and they are present in this case by the same officer and .also by the state of Ohio.

So that, we repeat, there was an adjudication of the issue of whether defendants judges are prevented by the constitutional inhibition, from receiving the increase in salary,, which results from the act amediing Section 2252, General Code.

Coming now to the issue of fraud in the procurement of the judgment in the mandamus case, it is the position of counsel for the judges that the attempt of plaintiff to be relieved from it herein, is a collateral attack.

If the attack be collateral, of course it must fail. But we hold that the attack is direct, and comes clearly within the doctrine established by our Supreme Court. 28 O. S., 102; 56 O. S., 450. Pomeroy’s Equity Jurisprudence (fourth .edition) Section 919.

Plaintiff Hile should be permitted to amend his reply, so as to incorporate therein that the judgment in the mandamus case he set aside and held for naught.

Passing to the evidence introduced on the issue of fraud in the procurement of the judgment, the following are among the important circumstances shown by the evidence.

Counsel representing the judges prepared the petition and then prepared a general demurrer thereto, and a waiver of summons. By an understanding and agreement that he had made with the auditor and prosecuting attorney who was by law counsel for the auditor, he procured the proper signatures to this waiver and to the demurrer and filed the same, and made arrangements with the assignment clerk for an immediate or early assignment before a common pleas judge sent to the county by the chief justice. Under and by virtue of this agreement bad with the prosecutor, a hearing was to he had upon, and some kind of a submission was made of, the demurrer, it being agreed that the court should enter final judgment in the ease without leave to either side to plead further,, which was done hj”- the court isteueing the writ of mandamus. No appeal was taken in th's case, and error was not prosecuted and thus the case came to am end.

The evidence shows that the judges who are defendants here, knew or had information through conferences, of these arrangements and of these proceedings as they progressed. One of the judges prepared a brief upon the merits which was submitted to the judge in that case by counsel for the judges. The evidence shows that the prosecuting attorney filed no brief or memorandum of authorities whatsoever in that hearing, although he had prepared a written opinion advising the county auditor against payment of the increase.

He giVes evidence himself to the effect that he made all argument against the writ, being of the opinion, as he says, at that time that the judges were not entitled to the increased salary. He testifies that he had read with care, the brief of the judge submitted in their behalf, before the arguments upon the demurrer but was still of adverse opinion. lie gives as his reason for not appealing or prosecuting error, that when the judge decided the case, the written opinion convinced1 him that his position was wrong and therefore he was content to abide by the judgment of the court of common pleas.

The testimony of the county auditor, who is also a lawyer, is to the effect that from the time the judges first claimed the right to the increased salaries, he was clearly of opinion that they were not entitled thereto, and that his opinion on'that point has never undergone a change; that he did not perceive It his duty to make an effort to protect the county treasury against the unlawful increased salary, further than as the same might be incidental to his personal protection from liability which might result from his issuing l(he warrants without sanction of a court.

After the mandamus case had been commenced, the county auditor had no communication, whatever with the prosecuting attorney regarding the progress of the-suit or any matter connected with it, nor did he have any communication with the prosecuting attorney after the suit was decided in favor of the judges, tout promptly issued the warrants in issue in the mandamus suit, and all subsequent warrants covering-the increased salaries, until the commencement of this action. And he pleads as a defense herein, the judgment in that case.

"We have not attempted to set forth in detail all the testimony bearing on the conduct of the; prosecuting attorney and the county auditor, in relation to the conduct of the judges and their attorneys, in the mandamus suit. But on the whole, that conduct compels the conclusion that the judgment was the result of fraud by the collusion at least of counsel for the judges, and the prosecuting attorney with the tacit acquiescence of the judges and the county auditor.

We can not be unmindful of the indifference (if that be the appropriate term) of the county auditor, to the interest of the public in the subject of the mandamus suit and its consequences, and to his entire neglect of the case both before and after its determination.

The opinion filed by the trial judge in the mandamus case, and the brief of the judges, to which we have referred, have also been considered by us as evidence, and from our consideration of them, we find there is no argument nor authority in the opinion of the trial judge additional to the matter set forth in said brief.

Being of such firm conviction that the constitutional inhibition applies in this case, we are compelled to say that the argument presented in the brief referred to, urns so clearly based upon a false premise, that there was no justification whatever for the prosecuting attorney (whose duty under Section 2921, General Code, is to protect the county treasury against the unlawful withdrawal of money therefrom), in being content with the judgment in that case, especially in the face of the fact that while the case involved only a sma.11 sum there, it in reality involved an ultimate withdrawal from the county treasury of more than sixty-two thousand dollars of public money.

If there is any class of people who are presumed to know and revere the law and understand the effect of circumstances and evidence, it surely must be judges and lawyers.

Defendants judges must therefore be deemed to have known that the prosecuting attorney, the auditor (a nominal party only) and their own attorney, were not doing their duty, and that they were in collusion in the perpetration of a. fraud upon the county.

No one circumstance of itself proves the judgment fraudulent, but all the undisputed, facts, and such of the testimony as we find to be time, leaves no doubt that the judgment is ineffectual as an estoppel against the public in tbe case at bar.

It is settled beyond contention that where an attorney fraudulently fails in the performance of his duty to his client, which results in the rendition of a judgment, the latter may set aside at the instance of the client. 30 L. R. A. 792, note; 180 Federal Reporter, 137, 143. This principle should be, and we therefore bold that it is, applicable to the conduct of a pubb'e officer sucb as a county auditor in his representative capacity, when the fraudulent conduct of such officer contributes to the entering of a judgment against tlie public in whose place he stands. Even though the county auditor was free from collusion in the mandamus case, the judgment is still fraudulent.

A perpetual injunction must be allowed against all defendant judges excepting Maurice Bernon, wlio is entitled to the increase during his incumbency subsequent to the taking effect of the act. 27 O. C. A., 385.

The taxpayer who is party plaintiff in this case, aside from meriting commendation for insisting on a decision upon the merits in a case against parties who are judges in a court in which he practices, should be compensated for his services in saving to the public the large sum of money in controversy. Hence this court makes an allowance of an attorney fee to him in the sum of $1,000 which shall be taxed as costs in this case, pursuant to the intent of Section 2923, General Code. The costs of the ease, including said attorney fee, shall be paid by the county and judgment is rendered accordingly.


source: Caselaw Access Project

author: Washburn, P. J.

license: Public Domain

text:
    PROSECUTIONS UNDER THE CRABBE ACT.
    Court of Appeals for Summit County.
    Marcus Veal v. State of Ohio.
    Decided, March 14, 1922.

      Liquor Siezed on Premises of the Accused under a Search Warrant-May he Used as Evidence against the Accused, When — Validity of Search Warrants Issued hy Clerks of Municipal Courts.

    1. Where no application is made for the return of goods siezed on a search warrant', and the defendant on trial denies that the goods are his or that they were taken from his possession, it can not be claimed that the goods so siezed are incompetent as evidence against him because of irregularity in the issuance or service of the search warrant'.
    2. The clerk of a municipal -court is probably without authority to issue on his own responsibility search warrants for searches under the Crabbe act.

      Irvin & Lwybourne, for plaintiff in error.

      H. M. Hagelbwrger and G. T. Moore, for defendant in error.
    Error to the Court of Common Pleas.
   Washburn, P. J.

A search warrant was issued, the same being signed by the clerk of the municipal court, to search certain premises in Akron for intoxicating liquor. The officer to- whom it was issued went to the premises, found the plaintiff in error, a lessee of the premises, and read the warrant to him, and thereupon he said to the officer, “Go and make the search.”

The search was made, and several jugs of intoxicating liquor were found on the premises and taken to the municipal court.

Three days later a warrant was issued upon affidavit filed, and the plaintiff in error was arrested, charged with having unlawful possession of intoxicating liquor.

No application for the return of the liquor siezed was made, either before or during the trial. All that the plaintiff in error did. was to object, after tbe trial bad begun, to tbe introduction of tbe evidence obtained by tbe search. He did not, at tbe trial or at any other time, claim that tbe liquor siezed was bis or bad been taken from bis possession, and ask that it 'be returned because tbe search was illegal. But on tbe contrary, be testified at tbe trial that tbe liquor was not bis and was not in bis possession when siezed.

If tbe liquor was not bis and was not taken from bis possession, he bad no right to have it returned to him, even if tbe search was illegal, and if tbe liquor was bis, be could not object to its introduction in evidence, without at some time in tbe proceedings making an application for its return.

Tbe adjudicated cases require him to make a seasonable application, and most of tbe cases decide, or seem to imply, that tbe application should be made before tbe trial is begun. Weeks v. United States, 232 U. S., 383; United States v. O’Dowd, 273 Fed. Rep., 600. But we are not called upon to decide at what time tbe application must be made, because in this ease no application whatever was made.

"What we bold in this case is that where no application whatever is made for tbe return of goods siezed on a search warrant, and tbe defendant on trial denies that tbe goods are bis or that they were taken from bis possession, be can not object to tbe introduction in evidence of tbe goods siezed because of illegality in tbe issuance or service of tbe search warrant.

He can not inject into tbe trial questions as to tbe legality of tbe manner in which evidence was obtained against him which was not obtained from him or from his possession. United States v. Silverthorn, 265 Fed. Rep., 853; Burdeau v. McDowell, 255 U. S., —, 41 Supt. Ct., 574.

The reason for the rule which forbids tbe introduction of evidence illegally obtained from the possession of tbe defendant, is that tbe use of such evidence violates bis constitutional rights by making him, in effect, testify against himself, and where be denies that tbe goods siezed are bis or that they were in bis possession when taken,'he’destroys tbe basis and foundation of the rule which he invokes. If the goods are not his and were not taken from his possession, he is not made to disclose evidence against hilmself by the introduction of the goods as evidence.

Moreover, it is shown by his own testimony in this case that the plaintiff in error told the officers to go ahead and make the search; the officers testified to the same thing, and the plaintiff in error does not claim that there was any coercion or that his consent to the search was not voluntary.

An officer may search one’s premises without an authorizing warrant, if it is done with the owner’s consent. Black v. Commonwealth, 227 S. W., 455.

It is not necessary, and we do not hold, that if seasonable and proper application had been made for the return of the goods seized, in which he claimed that the goods were his and that they had been wrongfully taken from his possession — we do not hold that under such circumstances the consent shown in this case would alone defeat the right to have the property returned if the seizure was illegal. Amos v. United States, Advance Opinions Sup. Ct., April 1, 1921, No. 10, p. 316; United States v. Slusser, 270 Fed. Rep., 818; but we do hold that under the circumstances as shown by the record in this case, the trial court did not error in overruling the objection of' the plaintiff in error to the introduction of evidence obtained by the search and seizure.

One other question is raised by the record and was argued by counsel, and that is .that the conviction of the plaintiff in error is manifestly against the weight of the evidence. The record is short, and we have carefully read and considered the same, and are of the opinion (that the trial court was fully warranted in finding the plaintiff in error guilty.

Counsel for both sides have argued a question in reference to the legality of the search warrant in this ease, which question, for lack of evidence to overcome legal presumptions, is not raised by the record in the case, but concerning which we are strongly urged to express an opinion for the guidance of the authorities in the future. With the full understanding that a determination of such, question is not necessary in the decision of the ease, and without attempting to state at length our reasons therefor, we will state our present opinion to ¡be that the clerk of the municipal court, as a designated individual, is not authorized to issue search warrants for searches under the Crabbe act.

The Constitution forbids the issuance of search warrants except “upon probably cause” and an affidavit particularly describing the place to be searched and the -person and things to be seized.

Whether there is probable cause, probably presents a judicial question, for the determination of a judge or court, and our present thought is that such a question can not be determined by a mere clerk possessing no judicial power or authority, People, ex rel, v. Kempner, 208 N. Y. App., 16; United States v. Borkowski, 268 Fed. Rep., 408, even if the Legislature so provided, but as to search warrants under the Crabbe act, the Legislature has not attempted to invest a clerk, as a designated individual, with authority to issue search warrants.

The latest amendment of General Code, Section 6212-18, provides that “The officers named herein shall have authority to issue search warrants as provided for in Section 6212-16 of the General Code.” The officers named therein are “any justice of the peace, mayor, municipal or police judge, probate or common pleas judge, within the county, with whom the affidavit is filed, etc. ’ ’ A municipal judge is specifically named as having authority to issue search warrants, but the section does not attempt to confer such authority upon the clerk of the municipal court.

It is true that after the proper affidavit is filed with the judge, and he has determined that there is probable cause, and orders a search warrant issued, the clerk of the municipal court, by virtue of the order of the judge and General Code, Section 1579-536, may issue the warrant, or the judge himself may issue it, -but the clerk as a designated individual, and separate and apart from the judge or -court, does not have authority to issue search warrants under the Crabbe act.

We do not regard General Code, Section 4594, even if it applies to the clerk of the municipal court of Akron, as governing in the issuance of search warrants under the Crabbe act, because the Crabbe act is the latest expression of the Legislature, and that specifically provides who may issue warrants undér it.

Judgment affirmed.

Pardee, J., and Funk, J., concur in judgment.


author: Metcalfe, J.

text:
    MEMBER OF A FIRM EMPLOYED BY THE FIRM NOT AN EMPLOYEE OF THE FIRM.
    Court of Appeals for Columbiana County.
    McMillen v. Industrial Commission.
    Decided, November 30, 1920.

      WorJcmen’s 'Compensation — Member of Firm Acts as Foreman — Receives an Injury — Not■ Entitled to Participate in State Compensation Fund — Word “Employee” Defined.

    1. A memlber of a “firm” or partnership which has complied with the requirements of the Ohio Industrial Commission act, who agrees with his partners to devote his time to the work of the firm and to act as foreman of the men employed thereby, can not recover under said act for injuries received while acting as such foreman.
    2. The term “employee,” as used in that act, Sec. 1465-61 G-. C., does not include a member of an employing firm, who is doing the work of the firm, although he receives wages for such work.
    Heard on error.
    P. M. Smith, for plaintiff in error.

      John G. Price, Atty. Gen.; W. W. Bech, Pros. Atty., and B. B. Zv/rmehly, for defendant in error.
   Metcalfe, J.

The question in this case is raised by demurrer to the petition. The facts alleged in the petition are: That Overlander, McMillen & Company is a partnership consisting of three members, of whom the plaintiff, A. K. McMillen, is one; that the business of the company is the construction of improved roads in Columbiana county, under the employment of the state highway commission and the county commissioners; that the capital of the company was contributed in equal amounts by the members of the firm; that each member is to share equally in the profits and losses; that it was agreed 'between the plaintiff and the other members of the firm that the plaintiff should devote his entire time to the affairs of the company and act as foreman of the employees on all work done on contracts, for which he was to receive wages at the rate of five dollars ($5.00) per day; that the company employed more than five workmen and had complied with the requirements of the act creating the Industrial Commission of Ohio; and that while acting as foreman of the company’s employees, in charge of certain work under a contract, he received certain injuries for which he seeks to recover.

lie filed his claim with the Industrial Commission and the commission rejected it on the ground that the plaintiff was not an employee of the company. The plaintiff appealed and the court of common pleas sustained a demurrer to his petition.

Was the plaintiff an employee of Over lander, McMillen & Company at the time he was injured, in the sense that the term “employee” is used in the Industrial Commission act?

Section 1465-61, G. C., defines the word:

“The terms ‘employee,’ ‘workman’ and ‘operative’ as used in this act, shall be construed to mean: # * *
“2. Every person in the service of any person, firm or private corporation,' including any public service corporation employing five or more workmen or operatives regularly in the same business, or in or about the same establishment under any contract of hire, express or implied, oral or written, including aliens and also including minors who are legally permitted to work for hire under the laws of the state, but not including any person whose employment is but casual and not in the usual course of trade, business, profession or occupation of his employer.”

The word “firm” is used in its ordinary sense as designating a partnership, or an association of persons acting together for a particular purpose, and not as a person or corporation. People v. Strauss, 97 Ill. App., 47, 55, and Boyd v. Thompson & Coxe, 153 Pa. St., 78 (25 Atl. Rep., 769). But a firm or partnership is not to be understood as an entity distinct from the persons who compose it. McCosker v. Banks, 84 Md., 292 (35 Atl. Rep., 935, 936), and Stewart v. Katz, 30 Md., 334.

The plaintiff was a member of the “firm” doing the work in which he was engaged at the time he was injured. As such member of the “firm” he had entered into a contract to do this very work. As such member of the firm he shared in the profit or loss of the venture.

Does the fact that he was acting as foreman of the men engaged in the work and receiving pay therefor, independent of his share of the profits, alter his relation to the “firm” so that in respect to an injury he is t<j be treated as an employee? We do not think so.

In doing the work in which he was engaged he was acting under his contract with his partners as a member of the partnership. The fact that he received wages for his work is but an incident to the partnership contract, common in partnership transactions. He was doing the work of the firm of which he . was a member. The firm was the employer, and the plaintiff could not at the same time act in the dual capacity of employer and employee.

The English Workmen’s Compensation Commission had a similar question before it in the ease of Ellis v. Joseph Ellis Company, 7 W. C. C., 97, 99, 74 L. J. (K B.), N. S., 229, 92 L. T., N. S., 718. The reasons for denying a recovery, stated in the opinion, are very pertinent to the instant case:

“An agreement ¡between partners such as we have here, in which one partner agrees to do work for the partnership in respect of which he is to be paid what are called ‘wages,’ does not really create the relation of employers and employed. Such an arrangement is in reality nothing more than a mode of adjusting the accounts between the partners. _ It does not alter the fundamental position of each partner, which is that of a co-adventurer with each member of the partnership. A person who is a partner can not pnt himself in the position of not being a partner or into the position of being a workman employed when he is really the person giving employment.”

In Cooper v. Industrial Accident Commission, 177 Cal., 685 (171 Pac., 684), the plaintiff, a member of a mining partnership, was sent by his associates to examine a mine, for which he was to receive pay. He was killed at the mine by machinery owned and operated by the firm of which he was a member, and his widow was denied a recovery under the California Workman’s Compensation Act. The following from the opinion, at page 687, is applicable here:

“The Workmen’s Compensation Act clearly does not contemplate such a mixed relation as that existing between partners, wherein each member of the partnership is at the same time principal and agent, master and servant, employer and employee; and wherein each, in any services he may render, whether under his general duty 5s a partner or under a special agreement for some particular service, is working for himself as much as for his associates in carrying on the business of the firm.”

It seems to us clear that the words “employer” and “employee, ’ ’ as used in tho Industrial Commission act of Ohio, refer only to cases in which the relation of master and servant, employer and employee, exists, in the usual acceptation of those terms, and can not include one doing the work of the employer, firm or partnership of which he is a member. '

The demurrer to the petition was properly sustained, and the judgment is affirmed.

Farr and Pollock, JJ., concur.


author: Middleton, J.

text:
    SERVICE OF SUMMONS ON A NON-RESIDENT.
    Court of Appeals for Greene County.
    Hughes, J., of the third district and Sayre and Middleton, JJ., of the fourth district sitting in the places of the Judges of the second district.
    William M. Ruthrauff v. Alice R. Ruthrauff.

    Decided, December 30, 1920.

      Divorce and Alimony — Strict Compliance with Statutory Provisions— Required in Service of Summons on a Non-Resident — Personal Service on Defendant While Passing through the State — Sections 11983 and 11984,
    1. The overruling of a motion to quhsh service of summons is not a final order and can not he made the subject of a proceeding in, error.
    2. Error lies to the overruling of a motion for the vacation of án allowance of alimony pendente lite.

    3. Service may be had on a non-resident, defendant in an action for divorce and alimony, if he is found within the state, provided the summons is directed to and is served by the sheriff of t'he county-in which he is found.

      Zimmerman & Zimmerman, for plaintiff in error.

      Charles L. Darling, for defendant in error.

      Motion to require the Court of Appeals to certify its record in this case overruled by the Supreme Court, March 7, 1922.

   Middleton, J.

On June 23, 1920, the defendant in error, Alice R. Ruthrauff, instituted an action for divorce against the plaintiff in error, William M. Ruthrauff, in the common pleas court of this county. On the 26th day of June an amended petition was filed by the plaintiff in said action, and as we understand it an affidavit-for service by publication was filed, and a certified copy of the petition and amended petition were mailed -by the clerk of the- courts to Ruthrauff at his apartments, 22d and Chestnut Streets, Philadelphia, Pennsylvania. At the same time a summons for Ruthrauff was issued to the sheriff of this county, which summons on July 5, 1920, together with copies of the petition and amended petition, were served on him by a deputy sheriff of this county while he (plaintiff in error) was passing through Allen county, Ohio, as a passenger on a railroad train en route from Philadelphia, Pennsylvania, to Chicago, Illinois. On July 2 an application for temporary alimony was filed by the plaintiff, which application was heard on July 15, when the court ordered,

“* * * that the defendant pay to the plaintiff forthwith the sum of $250 for her maintenance for the month of July, 1920 ; and it is ordered that the defendant pay forthwith to the plaintiff the sum of $250 per month on the first day of each and every month, commencing the first day of August, 1920, for her maintenance.
“It is further ordered that the defendant pay the plaintiff forthwith the sum of $9,000 for expenses in prosecuting thi? action. Said allowance not being final, but a partial allow anee.”

On July 14, 1920, the plaintiff in error filed his first motion to quash the service of summons made in Allen county (entering his appearance for .that purpose only) on the ground that said service was without legal authority and invalid. Two affidavits were filed in support of this motion, each stating in substance that th'e plaintiff in error, William M. Ruthrauff, was not a resident of the state of Ohio, but resided in the city of Philadelphia, state of Pennsylvania, and had established a residence in said city. A second motion to quash said service of summons made in Allen county was filed on July 19, upon the same grounds and supported by practically the same evidence as in the former affidavits filed with” the original motion to quash. Both motions were overruled by the court on August 2, 1920.

On August 4, 1920, the plaintiff in error filed his third motion in said court and moved the court to set aside and vacate the order granting alimony pendente Ute, expenses and attorney fees as aforesaid, for the reason that no valid or legal service of summons was had upon him to bring him within the jurisdiction of the court, he being a non-resident of the state of Ohio. In this motion the plaintiff in error also expressly states that he enters his appearance for the purposes of the motion only.

■On August 7, 1920, the plaintiff filed a motion to strike this third motion from the files, and on August 15 this motion of plaintiff was sustained and the plaintiff in error's motion to vacate the order granting alimony' pendente lite, expenses and attorney fees was stricken from the files.

These proceedings are prosecuted by a petition in error filed August 16, 1920, which sets forth as error all of the foregoing rulings of the court of common pleas upon the different motions so filed.

A motion to dismiss the petition in error is submitted, in which it is contended, first, that the petition in error is too indefinite; and second, that the orders from which error is prosecuted were, and are not final orders. At a former.hearing on this motion to dismiss the petition in error this court held that the ruling of the court in overruling the first two motions was not a final judgment, and therefore not the subject of a proceeding in error. This ruling, however, only eliminated two of the grounds of error complained of in the petition in error, and there yet remains to be considered the complaint in respect to the order of the court in sustaining the motion of the plaintiff below io strike from the files the motion of the defendant to set aside the order and judgment for alimony pendente lite, expenses and attorney fees.

It is admitted that the allowance of temporary alimony is a final order which may be reviewed on error. Reed v. Reed, 17 O. S., 563; King v. King, 38 O. S., 370. It is held in Green v. Railroad Co., 62 O. S., 67, that the filing of a motion to vacate a judgment which was rendered without proper service of summons, and the appearance being for that purpose only, does not enter an appearance to the action. Under these authorities we must conclude that the plaintiff in error adopted the proper procedure to have the allowance for temporary alimony vacated; and it is immaterial upon what grounds, or in what manner, the court of common pleas disposed of the motion. The effect of the court’s action was to foreclose the plaintiff in error’s right to any further attack on said judgment for temporary alimony and to make that judgment a finality. The motion to dismiss the petition in error is overruled.

It is contended by the plaintiff in error that the motion to vacate the judgment for alimony pendente lite should have been sustained because there is no provision in the law of this state in respect to personal service on a non-resident such as was made in this ease, and there was and is no authority for the service of summons by the sheriff of this county on a defendant found in Allen county.

Sections 11983 and 11984, General Code, provide as follows: “Section 11983. "When the defendant is a resident of this state the clerk shall issue a summons, directed to the sheriff of the county in which he or she resides or is found, which together with a copy of the petition shall be served on him or her at least six weeks before the hearing of the cause.
“Section 11984. If the defendant is not a resident of this state or his residence is unknown, notice of the pendency of the action must be given by publication as in other cases. Unless it be made to appear to the court by affidavit or otherwise, that his residence is unknown to the plaintiff, and could not with reasonable diligence be ascertained, a summons and copy of the petition, forthwith on the filing of it, shall be deposited in the post office, directed to the defendant at his place of residence,”

It is an elementary rule of construction that the provisions of a special statute relating to a particular subject or proceeding control over the provisions of a law of general application, although the particular subject or proceeding in the first instance may be within the scope of the provisions of the general law. A review of the authorities in general leads us to the conclusion that this rule has been applied with great strictness, and this is particularly true of the laws of different states providing for service of summons on non-residents of the state. This is so because the power of the state is limited to the control of its own subjects, and that control does not pass beyond the limits of the state. It is well settled that a personal judgment may not be rendered in a state court against a non-resident of the state, unless there has been a personal service of process on him within the state or he has voluntarily entered his appearance in the action, and in case of a service by publication no personal judgment may be rendered. It is held in the case of Pennoyer v. Neff, 95 U. S., 735, that,

“Process from the tribunals of one state can not run into another state and summon parties there domiciled to leave its territory and respond to proceedings against them; and publication of process or notice within the state in which the tribunal sits can not create any greater obligation upon the nonresident to appear. Process sent to him out of the state, and process published within it, are equally unavailing in proceedings to establish his personal liability. ’ ’

Manifestly, if one of the parties in a divorce suit is a nonresident of the state, the power of such state primarily is limited solely to the control of the status of the parties, and in such a ease the action- is essentially a proceeding in rem. For this reason our statutes provide no means or method for personal service on non-residents in such an action. If, therefore, we apply the rule of construction as before observed, we must-conclude that the sections of the Code aforesaid are exclusive and provide the only legal method of service of summons in such proceedings. If no personal service on non-residents is provided for by the statute, none may -be made on them as such. But we are not without authority in this state for this conclusion based upon other reasons.

In the ease of Harter v. Harter, 5 Ohio Rep., 319, the Supreme Court committed itself to the proposition that a strict construction must be given to the law of divorce, and that an applicant for a divorce must bring him or herself “ within both the letter and the spirit of the law.” In that case the petitioner resided in the county of Delaware and the defendant in the county of Perry, and a summons was directed to the sheriff of Perry county for the defendant, which was by such sheriff duly served and- returned. No copy of the petition was delivered to the defendant. The law then provided that if the defendant did not reside in the county where the action was instituted public notice should be given in a newspaper in the state for three months. This “public notice” was not given. It was held that the parties were not properly before the court.

In another case in the Supreme Court, that of Ferrel v. Ferrel, found in 1 Ohio Dec. (Reprint), 135, the case is reported as follows :

“Defendant lives in Clarke county, Ohio. His counsel acknowledged service more than six weeks before the term and filed his answer. Reid, that the statute requiring either personal service or advertisement is peremptory and can not be dispensed with.”

Coming down to more modern rulings on this subject. In the case of Hillis v. Hillis, 17 O. N. P. (N. S.), 254, it was held that the defendant, who was in another state on military duty, and therefore not within any of the provisions of the statute, could neither be served personally nor by publication.

In Stewart v. Stewart, 20 O. N. P. (N. S.), 184, it is held:

“Where the defendant in an action for alimony is a non-resident, service of summons must be by publication, and a motion lies to set the service aside where the return shows it was personal and not by publication.”

In the same report, at page 605, in the case of Edwards v. Edwards, Judge Kinkead of the Franklin county court of common pleas held that the provisions of divorce statutes are mandatory and must foe complied with, and that service of summons in such cases can not be waived.

In DeWitt v. DeWitt, 67 O. S., 340, it is said by the court that courts in Ohio have no general equity jurisdiction in suits for alimony, and that the only jurisdiction the courts of this state have in such matters are such as are given by the statute.

In view of these considerations and authorities we are impelled to conclude that Sections 11983 and 11984, supra, are mandatory and the pretended service of summons in this ease was unauthorized, illegal and without effect.

It is urged, however, by the defendant in error that this construction of the statute would lead to results inconsistent with the due administration of law, that a defendant might become a non-resident of the state and then return to his former domicile, where he would be secure from personal service in a divorce proceeding. We do not hold that personal service may not be made upon a non-resident if he is within this state.' The rule is well established .that all persons who are found within the territorial limits of a state, whether their residence is permanent or temporary, may be considered .as subjects of such state in respect to the jurisdiction of the court. Story, Conflict of Laws,, Section 541. 'So in the instant ease, when Ruthrauff entered the state of Ohio he subjected himself to the laws of this state in respect to the service of summons. His status thereby became the same as that of a resident of the state. He then became subject to the la# df the state to the same extent and in the same manner as a resident thereof. Therefore, if he had been served as the statute prescribes in the case of a resident, that is, if the summons had been issued to the sheriff of Allen county, where Ruthrauff was found, as directed by Section 11983, stipra, and 'had been served by the sheriff of that county, we would not hesitate to hold such service valid and binding.

The court of common pleas should have sustained the motion of plaintiff in error- to vacate the judgment for alimony pendente lite, expenses and attorney fees, and the judgment of that court in -striking said motion from the files is reversed.

- Judgment reversed and cause remanded to the court of common pleas for further proceedings according to law.

Hughes and Sayre, JJ., concur.


author: Houck, J.

text:
    INTENTION TO REVOKE A WILL NOT ALONE SUFFICIENT.
    Court of Appeals for Licking County.
    John W. Lesnett et al v. Orla Hunter et al.
    Decided, November 17, 1921.

      Wills — Revocation not Effective — Unless Intention to Revolee is Concurrent with an Act of Revocation.

    The testatrix executed a will which she left' with her attorney for safe keeping. She afterward went to a hospital, and before submitting to an operation executed a paper in due form directing her attorney to “dispose” of her will for the reason that a change she desired to make had not been made. This paper she gave to her physician who, after her recovery, handed it back to her. Some time later she called upon her attorney to make the desired change in her will. He was bust and it was arranged that she should call again on another day. Before doing so she died, and her'attorney, who had never been told of her written direction to him to destroy her will, found it among her other papers..

      Held: That the written direction to her attorney was not effective, under the circumstances, to revoke her will, and she died testate.

      Jones & Jones, for plaintiffs in error.

      Fitzgibbon, Montgomery <& Black, contra.
   Houck, J.

Error to tbe common pleas court of Licking county, -Obio.

The error complained of is for reversing the judgment of the probate court in its refusal to probate the last will and-testament of J. Etta Hupp, deceased, and ordering same admitted to probate.

The facts, as disclosed by the record, are as follows:

J. Etta ITupp executed her last will and testament on the 23d day of February, 1915. Said will was drawn by Judge John M. Swartz, and he retained same in his possession for safe keeping.

On the 8th day of November, 1919, the said J. Etta Hupp went to a hospital, in the city of Newark, for an operation, and before being operated, she executed the following paper writing and handed the same to Dr. Homer J. Davis with instructions to deliver the same to Judge John M. Swartz:

“November 8, 1919.
“Mr. John Swartz dispose of my will as I have not made the change I want made.
J. Etta Hupp, Homer J. Davis,
L. Baxter,
Laura Batch, Minnie Conn.”

Dr. Davis kept the paper writing in his possession until Mrs. Hupp recovered from the operation and then returned it to her, the same being retained by her and being in her possession at the date of her death, which was on the fourth day of February, 1920.

After the paper writing had been returned to Mrs. Hupp, she called at the law office of Judge Swartz and said to him, “I want to change my will.” He replied, “I do not have time today. Get your mind together and come back again. ’ ’

. He further testified, “She did not mention this paper writing to me and I knew nothing about it until I found it among her papers after her death. She said not a word to me about destroying her will at any time.”

Question: Under these facts and the law applicable to same, did the paper writing revoke the said last will and testament of J. Etta Hupp, deceased?

Section 10555, General Code, provides:

“A will shall be revoked by the testator tearing, canceling, obliterating or destroying it with the intention of revoking it, by the testator himself, or by some person in his presence, or by his direction, or by some other will or codicil, in writing, executed as prescribed by this title, or by some other writing, signed, attested, and subscribed, in the manner provided by this title for the making of a will, but nothing herein contained shall prevent the revocation implied by law, from subsequent changes in the condition or circumstances of the testator.”

Counsel for plaintiffs in error urge that said paper writing is clearly within that portion of said statute which provides: “or by some other writing, signed, attested, and subscribed, in the manner provided by this title for the making of a will. ’ ’

We are clearly of the opinion that at the time of the execution of said paper writing it was the intention of J. Etta Hupp to revoke her will.

We further find that said paper writing, as such, was sufficient in law to have revoked said will if it had been delivered to John M. Swartz before the death of the said J. Etta Hupp and had not been returned to her by the said Dr. Homer J. Davis.

Intention alone is not sufficient, in law, to revoke a will, but such intention must (be carried into effect and by such executed act or acts as to dearly establish the concurrence of both intent and act. In other words, the paper writing instructed and directed John M. Swartz to destroy the will, and if it had' been delivered to him it would have been his duty to have carried out the instructions of the deceased, but this was not done and the paper writing was. returned to Mrs. Hupp in her lifetime and she retained it until her death.

Upon the return of said paper writing to J. Etta Hupp, she knew and in law was bound to know that her will had not been destroyed.

When she went to the office of Judge Swartz, she knew her will was still in existence, because she stated to him that she desired to make .some changes in it.

Further, at this time she knew that she had executed her will, that Judge Swartz was its custodian, that she had written the paper writing and delivered .it to Dr. Homer J. Davis to be delivered to Judge Swartz, and that it had been returned to her; and being in possession of all these facts and having am opportunity to obtain the will and destroy it, she failed to do so but upon the other hand said to him she called to make some changes.

Under these facts, we find that she still considered this will as her last will and testament and that the said J. Etta Hupp died testate.

Finding no error in the record, the judgment of the common pleas court is affirmed.

'Shields, J., and Patterson, J., concur.


author: Crow, J.

text:
    LIABILITY FOR INJURY TO PASSENGER IN AUTOMOBILE.
    Court of Appeals for Marion County.
    Charles F. Moore v. Fred W. Almendinger.
    Decided, February 21, 1922.

      Negligence — Passenger Injured in Collision Between Automobiles— Joint Enterprise — Imputed Negligence — Proximate Cause — Charge of Court.

    The owner of an automobile and a number of other persons arranged to go together to a certain point, for the purpose of hunting frogs. Pursuant to the arrangement they began iheir journey, uhe owner of the car exclusively driving and controlling the latter. While on the way, one of the occupants who was sitting !n the front seat with the driver, received an injury by reason of collision with another automobile. There was no understanding that any of the occupants of the car other than the owner and driver, should have any control over the car, or over the owner of the car in driving it. The occupant so injured brought suit against the owner of the automobile for injuries resulting from the collision. One of the defenses was contributory negligence.

      Held: That the facts recited concerning plaintiff’s relationship to the automobile in "which he v/as riding and to the owner and driver thereof, have no tendency to prove that at the time plaintiff was injured, he and the owner and driver of the car were engaged in a joint enterprise in the driving of the car, and that it was prejudicial error for the trial court to charge the jury that plaitiff was guilty of contributory negligence, if the negligence of the driver of the car was a proximate and concurring cause of plaintiff’s injuries.

      Justice, Young & Mouser, for plaintiff in error.

      William P. Maloney, for defendant in error.
   Crow, J.

This is a proceeding in error to reverse a judgment entered on a verdict in favor of defendant in the court of common pleas of Marion county, Ohio.

The petition alleged, and the evidence introduced in behalf of plaintiff tended to prove that plaintiff, his brother and another man arranged to go from the city of Marion, Ohio, several miles distant, in an automobile owned by plaintiff’s brother, to a certain point, for the purpose of hunting frogs. The three men entered the automobile and commenced their said journey. Plaintiff’s brother continuously and exclusively drove the automobile from the time it started on the journey until it collided with an automobile owned by defendant and operated by the agent of the latter. Plaintiff was injured as a result of the collision due to alleged negligence of the driver of defendant’s automobile.

There was no understanding that any of the occupants of the automobile in which plaintiff was riding, other than the owner, should or could have any control or right of control over the automobile or over the owner in driving the same, and none of such occupants at any time participated or attempted to participate in the control of the automobile or of the owner in driving the automobile. Two men in addition to the three above referred to, also rode a part of the distance covered by the journey, but their presence is of no moment.

Defendant’s answer was originally a general denial, but during the trial an amended answer was filed, containing admissions of agency of the driver of defendant’s automobile, and a denial of the other averments of the petition, and setting forth that at the time plaintiff sustained his injuries, he and the driver of the automobile in which he was riding, were engaged in a joint enterprise, and that plaintiff’s injuries were caused by the negligence of the driver of the automobile in which plaintiff was riding, directly contributing to the infliction of plaintiff’s injuries.

The trial court charged that if it was proved that plaintiff was engaged in a joint enterprise while riding with the owner and driver of the automobile, when the collision occurred, plaintiff would be bound by the acts of negligence on the part of said owner and operator, and that the negligent acts of the owner and operator of the machine in which plaintiff was riding, would be imputed to plaintiff. But that if plaintiff was not so engaged in a joint enterprise, and was a guest or passenger of the owner and operator of the automobile at the time plaintiff’s injuries were received, then plaintiff was bound only to exercise ordinary care for his own safety.

■Whatever the rule may be in other states, it is settled in Ohio, by repeated decisions of tbe Supreme Court, that the independent negligence of one person is not imputable to another person.

Facts may exist which show such a connection as will impose upon a person the consequences of the negligence of another person, but such a result rests on the relation of express or implied agency in the eommittér.

When it is claimed that contributory negligence depends on the agency which -arises out of, or because of, a joint enterprise, the negligence must be directly connected with the subject of the joint enterprise.

If plaintiff in the case before us was, with the driver of the machine in which he was riding, engaged in a joint enterprise, such joint enterprise did not at any time relate to the driving of the automobile, for he merely rvde with the driver and other oecup-ants, of the automobile.

Such joint enterprise, if that be a correct designation, was so remote from any negligence of the driver in driving the car, that it could not by any process of reasoning, be lawfully attributable to plaintiff, because, as already stated, the doctrine of imputed negligence does not prevail in Ohio.

There is no conflict between the views here .expressed, and the doctrine of the Kistler case at 66 O. S., 327, syllabus 8, for in that ease, as appears at -page 343, the joint enterprise was in looking and listening for approaching trains. 13 O. C. (N. S.), 125; 25 C. C. (N. S.), 49.

The charge further recites that plaintiff could not recover unless the negligence of the driver of defendant’s automobile was the proximate cause of plaintiff’s injury.

That is clearly erroneous, for the reason that if the driver of the car in which plaintiff was riding, was negligent, and such negligence was, with the negligence of the driver of defendant’s car, the proximate cause of plaintiff’s injury, then plaintiff would be entitled to recover, unless barred by reason of contributory negligence.. It is elementary that two or more persons may be guilty of actionable negligence for which the liability is joint and several, and, of course, it m-akes no difference, that the driver of the car in which plaintiff was riding was not sued herein with defendant.

The prejudice of the error of the trial court in this particular, becomes readily apparent when it is borne in mind that plaintiff was thus denied the right to recover if the evidence proved his injuries to have been proximately caused by the concurrent negligence of both the drivers of the two vehicles, forasmuch as defendant by amendment to his answer, and] in offering proof thereunder, made the negligence of the driver of the ear in which plaintiff was riding an issue.

The judgment must be reversed and a new trial awarded for error in charging the matter of joint enterprise, andl in restricting the right of recovery to the negligence of defendant only.

Warden, J., and Chittenden, J. (of the Sixth District sitting in place of Hughes, J.), concur.


author: Hamilton, J.

text:
    TENANT INJURED ON PREMISES OF LANDLORD.
    Court of Appeals for Hamilton County.
    Vondenberger v. Schaaf, Exrx.
    Decided, July 6, 1920.

      Landlord and, Tenant — Defective Platform Palls and Tenant is Injured —Use of Platform a Matter of Convenience to Tenant — Negligence as betvjeen Licensee and Invitee.

    1. A landlord is not liable to liis tenant for injuries sustained by being precipitated from a defective platform constructed on a part of a fire-escape for the use of property adjacent to that leased to and occupied by the tenant, where the tenant was using the platform solely for his own convenience and with the express consent of the landlord, it not being alleged or claimed that the landlord knowingly permitted the platform to become unsafe.
    2. The tenant in such ease, while using the platform with the express consent of the owner, which did not amount to an invitation, was a mere licensee and assumed ‘the risks of the premises as they existed.

      Vincent H. Beckman and J A. McDonald, for plaintiff in error.

      John 0. Eckert and Wm. A. Geoghegcm, for defendant in error.
   Hamilton, J.

Error is prosecuted here to reverse the judgment of the trial court, based on an instructed verdict, in a case wherein a tenant sought to hold, a landlord for personal injuries suffered by her.

The record discloses the following state of facts. The plaintiff in error, Alma Yondenberger, who was plaintiff below, was a tenant of the defendant and occupied two rooms on the second floor of defendant’s property. Adjoining the property was a factory building, the wall of which extended beyond the wall of the property occupied by plaintiff, forming an “L.” Defendant had constructed a wooden fire-escape for the employees of the factory building, the platform of which was in the “L,” built on a level with and extending from the window of the rooms occupied by plaintiff to the window of the factory building. There was a rope swung across over the platform, and, at the time of the renting of the property by plaintiff, plaintiff’s husband made some inquiry of the representative of the landlord with reference to the wooden fire-escape, as to its safety, and the use of the rope swung across, and was told by him that the fire-escape had been inspected and approved by the proper authorities and was perfectly safe; that the rope was lo hang things on and had 'been used by the former tenants for that purpose, and that plaintiff could use the platform for the same purpose. To get out on the platform from the rooms of the plaintiff, it was necessary to climb through a window. Th plaintiff had been occupying the premises for considerable time, when, on an occasion in which she was on the platform for the purposes suggested, the platform gave way, precipitating her to the ground, and as a result she claims to have been seriously injured. The platform was no part off the premises rented by plaintiff, and, as.above stated, was constructed for fire-escape purposes.

Upon this state of the evidence, the trial court held that the jolaintiff was a mere licensee on the platform, and, therefore, the landlord violated no duty, and instructed the jury to return a verdict for the defendant. Was this error?

The only question raised by the record is, Was plaintiff on the platform at the time it gave way by the invitation of the defendant, express or implied, or was she there as a mere licensee? A landlord owes no duty toward trespassers or licensees, except in ease he knowingly permits the premises to become a trap, when circumstances might arise where he would become liable. Sweeny v. Old Colony & Newport Rd. Co, 10 Allen (92 Mass.), 368; Phillips v. Library Co of Burlington, 55 N. J. L., 307; Berlin Mills Co. v. Corteau, 88 Fed. Rep., 860, and Pitts., Ft. W. & C. Ry. Co. et al. v. Bingham, Admx., 29 Ohio St., 364.

Nothing of that kind is alleged or claimed in this case. However, if the plaintiff was there by invitation, express or implied, a different rule applies.

The line of distinction between a licensee and an invitee is not clearly marked, but the general rule is that if one comes upon the premises of the owner, with his consent, for some purpose in which the owner may be interested, the owner would be ' held to have invited the other, either by express or implied invitation. But, if the owner of the premises gives permission to another to come upon his premises solely for that person’s own purposes, the latter would be a mere licensee and would assume the risks of the premises as they exist.

Fairly construed the evidence presented by the record shows that the plaintiff was using the platform for her own convenience with express permission of the landlord, but that this permission did not amount to an invitation, as the use or non-use of the platform by the plaintiff for the hanging out of clothing or other articles was of no consequence or interest to the landlord.

A case somewhat similar in its facts is that of Flaherty v. Nieman, 125 Iowa, 546. In that case the plaintiff, who occupied the rooms on the second floor, was permitted to keep a tub for water on the porch, back of the apartment next to hers, and in going out on that back porch to get water from the tub the ■platform fell and she was precipitated to the ground and injured. The court held that she was a mere licensee and was not entitled to recover. Also see Cincinnati, H. & D. Rd. Co. v. Aller, 64 Ohio St., 183, and cases there cited, and Ivay v. Hedges, 9 L. R., Q. B. D., 80.

The court did not err in instructing the jury for the .defendant.

The judgment will be affirmed.

Shohd, P. J., and Cushing, J., concur.


text:
    CLAIMANTS UPON THE BOUNTY OF A TESTATOR.
    Court of Appeals for Fairfield County.
    Carl Brown et al v. Ray Lane.

    Decided May 4, 1921.

      Wills — Degree of Mentality Required to Execute — Not as Great as to Malee a Contract or Transact Business — Instructions to Jury — Persons of the Blood are the Natural Objects of a Testato) s Bounty.

    The testator separated from his wife thirty years before his death. A son less than one year of age remained with the mother. By his will the testator left $1,000 of his $13,000 to this son whom he had rarely seen and hardly knew. The remainder of his estate was given to his physician and a woman friend. The jury set the will aside on the ground of lack of mental capacity.

      Held: That the language used by the court' in instructing the jury was not calculated to create the belief that a higher standard of mentality is required in disposing of property to persons not of the blood, than when it is given to relatives; nor were they led to believe that claimants upon the bounty of another are limited to blood relatives; and the finding of the jury as to testator’s mental capacity is allowed to stand.

      M. A. Daugherty and W. If. Mwrtin, for plaintiffs in error.

      L. G. Sübaugh and Geo. W. Yorys, contra.

      Motion to certify record in this case overruled by the Supreme Court, October 26, 1921,

   Houck, J.

Error to the judgment of the common pleas court of Fairfield county.

Action to set aside the will and codicil of James E. Lane, deceased, by his only son and heir at law, Ray Lane, the defendant in error. The jury found against said will and codicil, and set same aside, upon the ground of lack of mental capacity"in testator at the time of their execution. The trial judge overruled a motion for a new trial, and entered a judgment on the verdict.

Question: Is there error in the record prejudicial to the rights of the plaintiffs in error?

The following errors are relied upon for a reversal of the judgment 'below:

1. Error in the general charge of the trial judge to the jury.

2. Because the court refused to give, in charge to the jury before argument, special written request No. 3.

3. There was no evidence to sustain the verdict of the jury.

The conceded facts are as follows:—

The testator died February 2d, 1917, at the age of 52 years. The will was executed December 27, 1916, and the codicil January 5, 1917. A summary of the will and codicil is:

Will.

Item 1. Payment of debts, funeral expenses and erection of family monument costing not less than $2,000.

Item 2. To Nola Thompson, as a reward for her long and faithful service to the testator, lot No.. 132, in Bremen, Ohio, and lot No. 38, in Purvis Addition to the same village.

Item 3. To Dr. Carl Brown, for his care and attention and great friendship to the testator, lot No. 50 in Bremen, Ohio.

Item 4. To Ray Lane, testator’s son, $1,000.

Item 5. Remainder of his estate to Dr. Carl Brown, who is also named executor in Item 6.

CODIOIX;.

Item 1. For maintenance of burial lot, $500.

Item 2. Carl Hemler, $500.

The gross estate real and personal of the testator is about $15,-. 000.

Lot No. 38, devised to Nola Thompson, is of the value of $1,000 and lot No. 132 of the value of $2,800.

Lot No. 50, devised to Dr. Carl Brown, is.of the value of $2,000.

The debts, funeral expenses, and collateral inheritance taxes, amount to about $2,000, leaving the net estate about $13,000.

Of this net estate, under the will Miss Thompson will receive about $3,800, and Dr. Carl Brown approximately $5,000. because the legacies in money aggregate $4,000, which are to be paid before the remainder passes to him.

The testator and his wife separated about 30 years before his death, when their only child, Ray Lane, the defendant in error, was less than one year of age; they were living near Commercial Point, in Pickaway county, at the time of the separation.

The testator lived in Bremen, and conducted a bakery business there for seven or eight years prior to his death, and his estate was accumulated there in that business. His whereabouts from the time of the separation between him and his wife until he became a citizen of Bremen does not appear.

Learned counsel for the plaintiffs in error insist that there is prejudicial error in the general charge of the trial judge in the following instruction to the jury:

“The testator is empowered, under the law, to make a will, and to will his property to those who have natural claims upon his bounty; but if he does so he must possess sufficient mentality and sufficient intellectuality to know what he is doing, who' are his relatives, the nature and extent of his property, and the relationship that he bears to those who have natural claims upon his bounty.”

It is urged that this instruction was intended to and did cause the jury to believe that a higher standard of mentality is required of a testator who makes disposition of his property to others than those related to him by blood.

We do not agree with counsel in this claim. There is nothing in the language of the instruction complained of that warrants or justifies, the construction placed thereon by counsel. A fair interpretation of the language leads us to conclude that it does not, directly nor inferentially, so state. ■

This is not all, for the court did not stop at the above instruction, but continued, as follows:

“Now, gentlemen of the jury, if he conveyed his property fo a stranger, or if he conveyed it in unequal portions with reference to those who have no natural claims upon his bounty, you cannot return a verdict setting aside the will for that reason, but you are entitled to take that fact, if it be a fact, into consideration with all the other evidence in the case as to whether he possessed sufficient mentality at the time he executed this will and codicil to execute them. This will is in evidence-and it is here for all purposes. You have a right to examine this will and codicil in all their terms and take into consideration all the facts and circumstances and all the evidence produced in the case in considering whether it is a just or unjust will, whether it is fair or unfair.
“If you believe, again, that the will is unfair, that it is unjust, that it is inequitable, you cannot set it aside upon those grounds; but you will take its fairness or unfairness, its equitableness or inequitableness into consideration along with the other facts and circumstances in determining whether or not the testator at the time he executed the will and codicil would have so executed it if he had been of sound mind.”

A careful reading of this latter instruction clearly shows that the court fully and clearly explained to the jury the legal force and effect of a testator’s conveying by will his property, not only to his relations but to those who are not related to him by-blood, as the same might reflect upon his mental capacity to do so at the time of the execution of his will; also as to the justness or unjustness, its equitableness or inequitableness; thus in clear, forceful and direct language telling the jury that such could only be taken into consideration along with all the other proven facts and circumstances in the case, in determining whether or not the testator at the time he executed the will and codicil was of sound mind and memory, and capable in law of making a will at the time of its execution.

Counsel strongly urge that the court prejudicially erred when it charged the jury:

“The mental capacity required as a minimum in our state for the purpose of making a will is sufficient when the following characteristics exist:
“ (1) To understand the nature of the business in which he is engaged.
“ (2) To comprehend generally the nature and extent of his property.
“(3) To hold in his mind the names and identity of those who have natural claims upon his bounty.
“(4) To be able to appreciate his' relations to such persons.”

"We think the rule here laid down is sound, and the mere fact that the trial judge used the word “minimum” does not make the charge erroneous. The court did properly state the necessary requirements to be possessed by a testator to make a will, and that being true, the mere fact that the court stated that it was the minimum requirement, and at the same time clearly defined and explained to the jury what in law is conceded to be such, is in nowise prejudicial to the rights of plaintiffs in error.

We find the rule to be well settled that a testator may have capacity to make a will, although not able to make contracts or manage his estate, or engage in and conduct large business interests. He may not have sufficient mind and vigor of intellect to transact business generally, or to make and understand all the parts of a business transaction, or to analyze a contract, and yet be fully competent and qualified to dispose of his property by will. The question is whether the testator’s mind and memory are sufficiently sound to enable him to understand the business in which he is engaged at the time he executes his will; to bear in mind the property he attempts to dispose of; to remember the objects of his 'bounty, and to plan or frame a scheme of disposition. The sum and substance of this rule was given in the instruction complained of, and we are of the opinion that it ,is the rule applicable to the minimum requirement of mentality necessary to make a valid will in Ohio. The complaint of plaintiffs in error in this respect is not well taken.

It will further be observed that if there could be any possible ground for claiming that said instruction, standing alone, might be misleading or erroneous, it is certainly cleared up and made plain to the jury by the instruction immediately following the above, which is as follows:

“That standard of capacity is the minimum required of men and women and all persons in Ohio who may make a will. The law presumes that men are sane rather than insane. So in the case at bar the burden is on the plaintiff under the rule of law I have heretofore given you to establish that one or more or all of these requirements were lacking and absent in James E. Lane at the time that he executed this will on the 27th day of December, 1916, and the codicil perhaps on the 5th day of January, 1917. ■* * * Persons who have natural claims on the bounty of another are those who are his' blood relations. The testator must realize that by the laws of civilization those who are united to him by ties of blood have the first claim upon his consideration. Be these relations near or remote, the testator is always chargeable with the degree of mental capacity sufficient to appreciate the fact that those united to him by ties of blood have natural claims upon his bounty. Those who are associated with him in business or other affairs have no natural claim upon his bounty at law. * * * The testator is empowered under the law to make a will and to will his property to those who have no natural claims upon his bounty, but if he does so, he must possess sufficient mentality and sufficient intellectuality to know what he is doing, who are his relations, the nature and extent of his property, and the relationship that he bears to those who have natural claims upon his bounty.”

It is urged that the trial court erred when it said to the jury: “Persons who have natural claims on the bounty of another ace those who are his blood relations.” Counsel say: “We respectfully urge upon the court that natural claims are not limited to children and blood relations; the term fairly and properly includes all those who, under the circumstances in which testator finds himself, or sanely believes himself to be, are reasonably entitled to consideration of his estate. Business associates and friends may, and would in this case particularly, have such natural and reasonable claims on James E. Lane’s property. The persons who cared for the testator; such as the doctor who prolonged his life, and his employees who had assisted him in the accumulation of his property, had greater natural claims upon his bounty than the son who was almost a stranger to him.”

In the interpretation and construction of words and phrasers, if they are of themselves precise, clear and unambiguous, then no more can be necessary than to expound them in their natural and ordinary sense; and in such oases the • words themselves best declare their meaning. Applying this rule to ascertain the meaning, force and effect in law of the language in question, we do not find this language ambiguous, and we are unable to reach the same construction as counsel for plaintiffs in error.

The question is, what is the common, usual and natural meaning conveyed by the expression or inquiry, “Who are the persons who have natural claims on the bounty of another 1” It may be that an employee, a faithful servant, or a family physician, who have rendered some service to a person, are the objects of his bounty; but can it be claimed with any force or effect that they have any natural claims on his bounty?

The law, where one dies intestate, fixes the relatives of the decedent as the natural claimants of his bounty or estate. Then upon what course of reasoning it can be claimed that if one dies testate his relatives are not the natural objects of his bounty, we are unable to understand. True, a testator has a right by will, if he possesses the mental and other necessary qualifications, to dispose of his property as he likes, and to those, whether they be related tó him by blood or not.

Natural is an adjective and modifies claims. Then who are the natural claimants of a testator’s bounty? We are of the opinion that it is those related by consanguinity — blood relationship. It seems to us that this is the clear and ordinary interpretation, and is and should be the generally accepted meaning of the aforesaid expression, and we find and so hold.

We cite the following decisions in support of the finding thus made:

“A testator’s perception of his relation to the persons who should be objects of his bounty does not mean that he should know and recognize every distant relative who is entitled to inherit from him under the existing canons of descent. The definition refers to near relations of a testator, those who are the ‘natural objects of his bounty.’ Cousins, to the second, third, and fourth degree of propinquity, are not included in the definition of ‘natural objects of testator’s bounty.’ ” Matter of McCarty’s Will, 141 App. Div., 816, 126 N. Y. Supp., 699, 702; In re Campbell’s Will, 136 N. Y. Supp., 1086, 1096-1097.
“But in any event, be these relations near or remote, the testator is always chargeable with a degree of mental capacity sufficient to appreciate the fact that those united to him by the ties of blood have natural claims upon his bounty. These natural claims can of course be ignored; only, however, by those who, while fully understanding, yet choose to disregard them.” Niemes v. Niemes, 97 Ohio State, 157.

It will not do to simply take excerpts from a charge and insist that same is erroneous and prejudicial, but the whole charge with reference to the suject matter claimed as being erroneous must be examined, and all that the charge contains upon such subject must be inquired into and reviewed. And if from the entire charge it shows prejudicial error, then a reversal should be entered.

After a careful reading and examination of the trial judge’s charge in this case we find same to fully and completely cover every evidential fact established by the evidence, the issues raised in the case, and the law applicable to same.

We are fully convinced that our Supreme Court has passed upon the identical question here raised, and we are 'but following it and the rule of law as found in the fifth syllabus of the case' of Ohio and Indiana Torpedo Company v. Fishburn et al. as appears in the 61 Ohio State, page 609,, which reads:

“A charge to a jury is to be construed as a whole, and if, construing the whole charge, the law of the case appears to have been correctly given to the jury, and in a way that will enable them to understand the rules of law which they are to apply to the evidence before them, the charge will not be held erroneous simply because every condition to a recovery or a defense is not embraced in each paragraph, and the paragraph excepted to is not in itself calculated to mislead.”

We find that the general charge of the trial judge follows the law as laid down in the case of Niemes v. Niemes, supra, which is the last word of our Supreme Court upon the question of the mental capacity required to make a will.

Did the court err in refusing to give to the jury, before argument, written charge No. 3, as requested by the defendants below, which reads:

“You are instructed that a man who is competent and free from restraint has a right to dispose of his estate in any way he may deem best. He is not required to make an equitable will, and he may, if he choose, entirely exclude his children.”

This request is taken from the language used in the opinion in the case of Wilson v. Wilson, 14 C. C. (N. 8.), page 241.

It must be apparent to counsel, as well as to the court, that there are many things said by reviewing courts, in their opinions, that are sound in law, but which nevertheless would be and are improper if adopted as instructions to a jury. The right of parties to have proper written instructions given to a jury before argument enables counsel to present in argument to the jury the facts in 'accordance with the law, as embodied in such written instructions so given. Mere abstract propositions of law, where not applicable to the issues raised, the proven facts and the rules of law necessary for their determination, need not be given. Such requests to charge must also be complete, and state the law correctly and clearly within themselves, and 'be pertinent to at least one of the issues to be determined in the case. Applying this rule to the request in question, we find and hold that it does not come within the rule herein laid down, for the following reasons:

(a) The same is indefinite and uncertain, and is incomplete. It assumes that the maker of the will is competent, and this is the one question of fact which the jury is to determine. This is the crux of the case, and the very purpose for which the jury was impaneled, namely, .to find by its verdict whether or not James E. Lane was of sound mind and memory.

(b) It further assumes that the man making the will was of proper age, and not under duress.

(c) The request to charge as a whole does not come within the rule, and therefore all must fall. .

Lastly, does the record disclose any evidence to sustain the verdict of the jury?

We have read with much care all of the evidence as contained in the record, and we have no hesitency in saying that we must and do answer this question in the affirmative.

The jury having passed upon the weight and sufficiency of the evidence, and having found against the plaintiffs in error, it is not within the province of a reviewing court to disturb this finding, unless we find from all the facts and circumstances, as disclosed in the record, that there is no evidence supporting the verdict, or that the verdict is manifestly against the weight of the evidence. And not so finding in either instance, we must and do affirm the judgment of the common pleas court. ■ '

Judgment affirmed.

Patterson, J., and Shields, J., concur.


author: By the Court.

text:
    CONTRACT FOR ADVERTISING PERSONAL IN ITS NATURE.
    Court of Appeals for Hamilton County.
    The Starchroom Publishing Co. v. The Threlkeld Engraving Co.
    Decided, November 15, 1920.

      Advertising Contracts — Agreement to Take and Use Space not Assignable — Refusal by Obligee made to One not a Party to the Contract — Not a Refusal to Perform the Contract.

    1. A publishing company purchased material of plaintiff, an engraving company, for which it paid part cash,- the remainder to be paid by advertising space “to be taken and used by the plaintiff” in a laundry journal published by the publishing company. Subsequently the engraving company, having no use for the advertis- ■ ing space to which it was entitled under the agreement, negotiated with another -company for the sale of the space. Held: Such contract was personal in its nature and not assignable.
    2. A statement by an obligee under a contract, made to a third person not a party to the agreement, that ha would not perform the contract if assigned, dess not constitute a refusal of a demand to perform.
    Heard on error.

      Charles M. Leslie, for plaintiff in error.

      Saul S. Klein, for defendant in error.”
   By the Court.

Defendant in error brought suit in ,the superior court of Cincinnati against the plaintiff in error on an account. For the purposes -of this decision it will not be necessary to consider the propriety of the form'of action. The undisputed testimony shows that the Publishing Company bought material of the Engraving Company, for which it was to pay three-fourths of the price in cash, the remainder to be paid by advertising space in “The Starch Room” (a laundry journal published 'by the Publishing Company), “to be taken and used by the plaintiff.” The Engraving Company thereafter entered’into a consolidation with another concern and had no use for the advertising space to which it was entitled under the agreement. It thereupon entered into’ negotiations with the National Marking Machine Company with a view to selling its rights to the space. There is some conflict of testimony as to these transactions. The president of the Engraving Company testified that an assignment to the Marking Machine Company was completed, and the president of the Marking Machine Company testified that the negotiations were not consummated because of his conversations with the president of the Publishing Company. Plaintiff alleges that the assignee of its rights made demand on the Publishing Company, which thereupon refused to perform, because the right to advertising space was not assignable. Plaintiff alleges in the reply that thereafter the right of action arising by reason thereof was re-assigned to the plaintiff.

Several defenses are interposed on behalf of the Publishing Company. It is urged in the first place that the contract to furnish the advertising is not assignable. It is further contended that the defendant did not refuse performance to anyone who owned the rights to the advertising.

We will take up first the question of the assignability of the contract. At modern law contracts other than personal contracts or contracts containing' a provision against assignment, or contracts forbidden to be assigned by statute, may be assigned. 4 Page on Contracts (2 ed.), Section 2243.

So-called personal contracts, or contracts in which the personality of one of the parties is material, are not assignable. Whether the personality of one or both parties is material depends upon the intention of the parties, as shown by the language which they have used, and upon the nature of the contract. 4 Page on Contracts (2 ed.), Sections 2248-2251. See also 1 Williston on Contracts, Section 413; American Smelting & Refining Co. v. Bunker Hill & Sullivan Mining & Concentrating Co., 248 Fed. Rep., 172, 184, 185, and Wooster v. Crane & Co., 73 N. J. Eq., 22.

The nature of a contract to furnish advertising “to be taken and used by the plaintiff” would seem to be a contract in which the personality of the advertiser is material to the contract. Not only does the language used by the parties indicate that the advertising is to be on behalf of the Engraving Company, but the nature of the business is such that it is not reasonable to find that the parties contemplated the use of the space by any person that the Engraving Company might designate. Such construction would lead to the conclusion that the Publishing Company would be required to carry an advertisement of any kind that any assignee of the Engraving Company might specify. Nor would the fact that the particular person it attempted to designate was personally unexceptionable affect the nature of the contract. It could indicate no more than that the Publishing Company was arbitrary in the exercise of its right.

It is not necessary, however, to rest the decision upon this ground alone. The president of the Engraving Company testified that the contract was assigned to the Marking Machine Company. The president of the Marking Machine Company testified that it was not. Without weighing the testimony, and taking the facts to be as testified to on behalf of the plaintiff below, there was still no proper demand and refusal, even if the contract was assignable and had been assigned.

It is plain from the record that the president of the Marking Machine Company did not advise the Publishing Company that his corporation was the assignee and that it demanded performance. He, whether mistakenly or otherwise, regarded himself as a possible purchaser of the rights of the Engraving Company, and so told the president of the Publishing Company, merely inquiring of the defendant whether it regarded the con■traet as assignable and would recognize him as entitled to performance if he should purchase the Engraving Company’s rights. The statement to him by the Publishing Company, that it would not, was not a refusal of a demand. A statement by an obligee under a contract, made to a third person not a party to the agreement, that he. would not perform the contract if assigned, does not constitute a refusal of a demand to perform. It follows, therefore, that in the absence of a demand and refusal no right of action arose.

In view of the foregoing' it 'becomes unnecessary to consider the other assignments of error.

The judgment will he reversed.

Shohl, P. J., Hamilton and Cushing, JJ., concur.


author: Treash, J.

text:
    CONSTRUCTION OF THE INDETERMINATE.
    Court of Appeals for Summit County.
    George Dennison v. The State of Ohio.
    Decided, January 4, 1922.

      Sentence — Amendment Relating to Indeterminate Peiiods of Imprisonment — Not Applicable to Offenses and Froseeutions Pending at Time of Its Adoption.

    1. The amendment of Section 2166, General Code, giving to courts sitting in criminal cases authority to fix, within the limits prescribed by law, a minimum period for duration of the sentence pronounced, does not apply to pending prosecutions or to offenses committed prior to adoption of the amendment, which went into effect July 3, 1921.
    2. The jurisdiction with which the courts of appeals of Ohio are vested hy the Constitution “to review, affirm, modify, or reverse the judgments of the courts of common pleas,” would not be ousted in such a case even if the Legislature should undertake to provide that the hoard of administration or board of pardons may correct a sentence imposed by a court in excess of its authority, nor could it he presumed that such a board would properly interpret the law and correct the error complained of.

      Artee Fleming, for Plaintiff in Error.

      Arthur W. Doyle, Prosecuting Attorney, for Defendant in Error.
   Treash, J.

Error to the Court of Common Pleas.

At the July, 1921, term of the Summit county common pleas court, plaintiff in error was indicted by the grand jury for second degree murder for having shot and killed one Charles F. Johnson oil the 8th day of May, 1921. Immediately following Lhe commission of the offense he had been arrested and bound over by the municipal court of Akron to await the action of the grand jury. On September 1, 1921, he pleaded guilty to manslaughter únder this indictment, and the second degree charge of the indictment was nolled, and the court thereupon sentenced him to the Ohio penitentiary for a term of not less than twenty years.

An exception was taken to the judgment of the court, and the ease has been brought here on petition in error to reverse that judgment.

Two assignments of alleged error are noted, first: that the sentence of not less tha^ twenty years imposed by the court is against the law and illegal: and second: abuse of discretion on the part of the court in sentencing the defendant to the maximum period -allowed by law when the circumstances surrounding the commission of the crime did not warrant such punishment.

First. The indeterminate sentence law, Section 2166 General Code, was passed March 15, 1921, and filed with the Secretary of State, April 4, 1921, and not having an emergency clause attached, went into effect July 3, 1921, before sentence was imposed upon plaintiff in error but after the commission of the offense charged. This amendment is as follows:

"Courts imposing sentences to the Ohio penitentiary for felonies, except treason, -and murder in the first degree, shall make them general, but they shall fix, within the limits prescribed by law, a minvmum period of duration of such sentences. All terms of imprisonment of persons in the Ohio penitentiary may he terminated by the Ohio board of administration, as authorized by this chapter, but no such terms shall exceed the maximum term provided by law for the felony of which the prisoner was convicted, nor be less than the minimum term fixed by the court for such felony.”

Prior to this amendment, the section provided that sentence could only be imposed for an indeterminate period of not less than the minimum nor more than the maximum limit provided by law.

The question is presented: Do the provisions of this .amendment apply to pending actions and offenses committed prior to the going into effect of the amendment, but -where sentence was not imposed until after it went into effect?

If the amendment applies to offense committed and proceedings thereon pending at the time it went into effect, then the court was authorized to fix a minimum period of imprisonment in imposing sentence. If the amendment does not apply to offenses committed before the amendment became effective and pending cases, then he had no such authority.

We are of the opinion that the amendment does not apply to prior offenses and pending proceedings.

It has been held that a prosecution for crime is pending as soon as the accused is arrested and committed. Hartnett v. State, 42 O. S., 568. Since the accused was arrested and cominitted before July 3, 1921, the prosecution was pending against him at the time the amendment became effective.

Section 26 of the General Code provides that an amendment, either to the substance or the remedy of the statute, shall not affect pending actions, proceedings or causes of actions or prosecutions, unless so expressed; and the prosecuting attorney in his argument to this court agreed that this section covered the present case. There is no attempted reservation in the amendment as to pending proceedings, prosecutions or causes of actions then existing, and therefore we hold that this criminal prosecution, then existing, and this proceeding being then pending, the-former provisions of the indeterminate sentence law applied and the court had no authority or power under the amendment to impose a minimum term under the provisions of the amendment.

It has been suggested, however, that even if the court did err in imposing sentence, that such error is not prejudicial and reversible error, and that this^ court has no jurisdiction in this matter, since the latter part of Section 2166' General Code provides as follows:

“If through oversight or otherwise a sentence to the Ohio penitentiary should be for a definite term, it shall not thereby become void, but the person so sentenced shall be subject to the liabilities of this chapter and receive the benefits thereof, as if he had not been sentenced in the manner required by this section, ’ ’

the inference being that the 'board of administration or board of pardons would correct the sentence. The jurisdiction of the’ court of appeals is fixed by the Constitution of Ohio, not by the Legislature, and provides by Section 6 of Article 4 that the court of appeals has “jurisdiction to review, affirm, modify or reverse the judgments of the court of common pleas, etc.,” and jurisdiction of this court can not be ousted even if the Legislature undertook to provide that such board or commission could correct or revise the judgments of the courts. Nor are we warranted in assuming that such board or commission would properly interpret the law and correct the error complained of.

Because the judgment will have to be reversed on account of the court below having exceeded its authority in imposing sentence, it will not be necessary to consider the second assignment of error claimed by the plaintiff in error.

Judgment of the court of common pleas in imposing a minimum sentence of not less than twenty years upon plaintiff in error is accordingly reversed, and the cause is remanded to the court of common pleas for sentence according to law.

Sullivan, J., of Eighth District, sitting by designation, and Pardee, J., concur in judgment.