author: HENRY, J.

text:
    BILL OF EXCEPTIONS — NEGLIGENCE.
    [Summit (8th) Circuit Court,
    April 17, 1906.]
    Marvin, Winch and Henry, JJ.
    Akron Waterworks Co. v. Hiram S. Swartz, Admr.
    1. Bill of Exceptions Transmitted too Soon if Sent on Tenth Day after Notice of Piling — This not Jurisdictional.
    Where an excepting party has filed a bill of exceptions and the clerk, through no fault of the exceptor, transmits the same to the trial judge on the tenth day after service of notice of the filing thereof on the adverse party, this is too soon under Rev. Stat. 5301 (Lan. 8813) but this irregularity is not jurisdictional unless it is made to appear that such adverse party has been really prejudiced' thereby.
    2. Mere Existence of an Artificial Body of Water Is not Dangerous Allurement to Children.
    A reservoir owned by a waterworks company, without circumstances making it especially hazardous or enticing to children, is not a dangereus allurement and the owner thereof is under no more obligation to infant trespassers in respect" thereto than to adults.
    [Syllabus approved by the court.]
    Error to Summit common pleas court.
    Allen, Waters & Andress, for plaintiff in error:
    The Water Works Company owed no legal duty to Claribel Bush to fence her out of its premises, or to make and maintain a fence around its reservoir child proof. The case is distinguishable from the so-called turntable cases. Gillespie v. McGowen, 100 Pa. St. 144 [45 Am. Rep. 365]; Lake Shore & M. S. By. v. Liidtke, 69 Ohio St. 384 [69 N. E. Rep. 653]; Ann Arbor By. v. Kmc, 68 Ohio St. 210 [67 N. E. Rep. 479] j Gin. H. <& 2>. By. v. Aller, 64 Ohio St. 183 [60 N. E. Rep. 205]; Buchtel College v. Martin, 25 O. C. O. 494; Greeley Bros. Co. v. Zeithaml, 25 O. C. C. 451; Stendal v. Boyd, 73 Minn. 53 [75 N. W. Rep. 735; 42 L. R. A. 288; 72 Am. St. Rep. 597]; Erickson v. Bailway, 82 Minn. 60 [84 N. W. Rep. 462; 51 L. R. A. 645; 83 Am. St. Rep. 410]; Bedigan v. Bailway, 155 Mass. 44 [28 N. E. Rep. 1133; 14 L. R. A. 276; 31 Am. St. Rep. 520]; Cusick v. Adams, 115 N. T. 55 [21 N. E. Rep. 673; 12 Am. St. Rep. 772]; Walsh v. Bailway, 145 N. Y. 301 [39 N. E. Rep. 1068; 27 L. R. A. 724; 45 Am. St. Rep. 615]; Moran v. Gar Go. 134 Mo. 641 [36 S. W. Rep. 659; 33 L. R. A. 755; '56 Am. St. Rep. 543]; Paolino v. Mc-Kenclall, 24 R. I. 432 [53 Atl. Rep. 268; 60 L. R. A. 133; 96 Am. St. Rep. 736]; Byan v. Towar, 128 Mich. 463 [87 N. W. Rep. 644; 55 L. R. A. 310; 92 Am. St. Rep. 481]; Uthermohlen v. Bogg’s Bun Co. 50 W. ,Va. 457 [40 S. E. Rep. 410; 55 L. R. A. 911; 88 Am. St. Rep. 884];
      'Frost v. Railway, 64 N. H. 220 [9 Atl. Rep. 790; 10 Am. St. Rep. 396]; Dobbins v. Railway, 91 Tex. 60 [41 S. W. Rep. 62; 38 L. R. A. 573; 66 Am. St. Rep. 856] ; Ritz v. Wheeling, 45 W. Va. 262 [31 S. E. Rep. 993; 43 L. R. A. 148]; Peters v. Bowman, 115 Cal. 345 [47 Pac. Rep. 113, 598; 56 Am. St. Rep. 106].
    The evidence in law does not establish as to the decedent or anyone else an invitation expressed or implied, or a license; mere sufferance or toleration of trespassers does not create either. Buchtel College v. Martin, 25 O. C. C. 497;..Pitts. Ft. & C. Ry. v. Bingham, 29 Ohio St. 364 [23 Am. Rep. 751]; Cin. H. & D. Ry. v. Alter, 64 Ohio St. 183 [60 N. E. Rep. 205] ; Ryan v. Towar, 128 Mich. 463 [87 N. W. Rep. 644; 55 L. R. A. 310; 92 Am. St. Rep. 481].
    The opening in the fence was hot the proximate canse of the injury. Lake Shore & M. S. Ry. v. Liidtke, 69 Ohio St. 384 [69 N. E. Rep. 653],
    No recovery could be had in ease there could be any liability for the opening in the fence until it was shown that the Water Works Company had notice of such opening and in violation of some legal duty to the deceased failed to remedy it. Greeley Bros. Co. v. Zeithaml, 25 O. C. C. 450.
    The defendant in error undoubtedly relies upon the principles involved in the so-called turntable cases to support a right of recovery in this case, but we say, first, the case is -distinguishable from the turntable cases and the doctrine of those cases will not be extended, and we desire to call the court’s attention to the law limiting, as well as the court’s attention to the most eminent authorities in this country that have repudiated the doctrine of the turntable cases, to wit: Frost v. Railway, 64 N. H. 220 [9 Atl. Rep. 790; 10 Am. St. Rep. 39§]; Daniels v. Railway, 154 Mass. 349 [28 N. E. Rep. 283; 13 L. R. A. 248; 26 Am. St. Rep. 253] ; Walsh v? Railway, 145 N. Y. 301 [39 N. E. Rep. 1068; 27 L. R. A. 724; 45 Am. St. Rep. 615] ; Rodgers v. Lees, 140 Pa. St. 475 [21 Atl. Rep. 399; 12 L. R. A. 216; 23 Am. St. Rep. 250]; Gillespie v. McGowen, 100 Pa. St. 144 [45 Am. Rep. 365]; PaoUna v. McKendall, 24 R. I. 432 [53 Atl. Rep. 268; 60 L. R. A. 133; 96 Am. St. Rep. 736] • Turess v. Railway, 61 N. J. L. 314 [40 Atl. Rep. 614]; TJthermolen v. Bogg’s Run Co. 50 W. Va. 457 [40 S. E. Rep. 410; 55 L. R. A. 911; 88 Am. St. Rep. 884] ; O’Connor v. Railway, 44 La. Ann. 339 [10 So. Rep. 678]; Catlett v. Railway, 57 Ark. 461 [21 S. W. Rep. 1062; 38 Am. St. Rep. 254] ; Indianapolis v. Fmmelman, 108 Ind. 530 [9 N. E. Rep. 155; 58 Am. Rep. 65].
    The following states once adopted the doctrine but now repudiate it. Ryan v. Towar, 128 Mich. 463 [87 N. W. Rep. 644; 55 L. R. A. 310; 92 Am. St. Rep. 481] ; Overruling Powers v. Barlow, 53 Micb. 507 19 N.. W. Rep. 257; 51 Am. St. Rep. 154]. Savannah, P. & W. By. v. Beavers,. 113 Ga. 398 [39 S. E. Rep. 82; 54 L. R. A. 314]; Nolan v. Railway, 53-Conn. 461 [4 Atl. Rep. 106]; Dobbins v. Railway, 91 Tex. 60 [41 S. W-Rep. 62; 38 L. R. A. 573; 66 Am. St. Rep. 856],
    The doctrine of the turntable cases is recognized but strictly confined to the facts and made applicable to nothing else but turntables in Minnesota, Tennessee, California and Nebraska.
    The child has been a trespasser upon the premises for some hours’ before she knew that there was any water or a reservoir upon the premises, and as said in 3 Elliott, Railroads Sec. 1259:
    “But even if a railroad company should be held liable as in some of the cases where it leaves a turntable unguarded and unfastened in an exposed place near a highway or place where the public have a right to go, and children frequently do go, it does not follow, it seems to us, that it would be liable where the turntable is far from such a place in an isolated position upon the company’s grounds and we believe that in such a case the court might so hold as a matter of law. See St. Louis, V. & T. H. By. v. Bell, 81 Ill. 76 [25 Am. Rep. 269].”
    Certainly this must be true where the child could .not have been attracted by it until after he became a trespasser.
    The mother, who is asking for a money judgment against the Water Works Company, ought to be charged with the negligence of the Bowers girl. She and only she trusted the Bowers girl. Ann Arbor By. v. Kim, 68 Ohio St. 210 [67 N. E. Rep. 479]; Uthermohlen v. Bogg’s Bun Co.. 50 W. Ya. 457 [40 S. E. Rep. 410; 55 L. R. A. 911; 88 Am. St. Rep. 884]; Savannah, F. <& W. By. V. Beavers, 113 6a. 398 [39 S. E. Rep. 82; . 54 L. R. A. 314].
    Cases commented upon. Bellefontaine & Ind. By. v. Snyder, 18 Ohio St. 399 [98 Am. Dec. 175]; Bellefontaine Bailwwy v. Snyder, 24 Ohio St. 670; Wolf v. Railway, 55 Ohio St. 517 [45 N. E. Rep. 708; 36 L. R. A. 812],
    Musser, Kohler & Mottinger and. Grant & Sieber, for defendant in error:
    Cited and commented upon the following authorities. Davies v. Railway, 71 Ohio St. 325 [73 N. E. Rep. 213]; Ford v. Osborne, 45 Ohio St. 1 [12 N. E. Rep. 526]; Lake Shore & M. S. By. v. Liidtke, 69 Ohio St. 384 [69 N. E. Rep. 653] ; Bellefontaine & I. By. v. Snyder, 18 Ohio St. 399 [98 Am. Dec. 175]; Harriman v. Railway, 45 Ohio St. 11 [12 N. E. Rep. 451; 4 Am. St. Rep. 507]; Mattson v. Railway, 104 N. W. Rep. 443, 445 (Minn.); Stenddl v. Boyd, 73 Minn. 53 [75 N. W. Repi 735; 42 L. R. A. 288; 72 Am. St. Rep. 597]; Price V. Water 58 Kan. 551' [50 Pac. Rep. 450; 62 Am. St. Rep. 125]; Birge v. Gardiner, 19 Conn. 507 [50 Am. Dec. 261]; Mullaney v. Spence, 15 Abb. Pr. (N. S.) 819. Kansas C. By. v. Fitzsimmons, 22 Kan. 686 [31 Am. Rep. 203]; Sioux City & P. By. v. Stout, 84 U. S. (17 Wall.) 657 [21 L. Ed. 745]; Keffe v. Bailway, 21 Minm 207 [18 Am. Rep. 393]; Mackey v. Vicksburg, 64 Miss. 777 [2 So. Rep. 178]; Daley v. Bailway, 26 Conn. 591; Powers v. Harlow, 53 Mich. 507 [19 N. W. Rep. 257; 51 Am. Rep. 154] ; Bransom V. Labrot, 81 Ky. 638 [50 Am. Rep. 193]; Whirley v. Whiteman, 38 Tenn. (1 Head.) 611; Pekin (City) v. McMahon, 154 Ill. 141 [39 N. E. Rep. 484; 27 L. R. A. 206; 45 Am. St. Rep. 114]; Smith v. O ’Connor, 48 5*a. St. 218; Union Pac. By. v. Dunden, 37 Kan. 1 [14 Pac. Rep. 501]; Koons v. Bailway, 65 Mo. 592; Evansich v. Bailway, 57 Tex. 126 [44 Am. Rep. 586]; Nelson v. McLellan, 31 Wash. 208 [71 Pac. Rep. 747; 60 L. R. A. 793]; Chicago & E. By. v. Fox, 70 N. E. Rep. 81 (Ind.); Walters v. Light Co. 17 Colo. App. 192 [68 Pac. Rep. 117]; Consolidated Elec. L. & P. Co. v. Healy, 65 Kan. 798 [70 Pac. Rep. 884]; Bachmel v. Clark, 205 Pa. St. 314 [54 Atl. Rep. 1027; 62 L. R. A. 959].; Kessler v. Berger, 205 Pa. St. 289 [54 Atl. Rep. 887; 61 L. R. A. 611]; Harper v. Kopp, 24 Ky. Law. 2342 [73 S. W. Rep. 1127]; Edgington v. Bailway, 116 Jowa 410 [90 N. W. Rep. 95; 57 L. R. A. 561]; Union Pac. By. v. McDonald, 152 U. S. 262 [14 Sup. Ct. Rep. 619; 38 L. Ed. 434]; Atchison & N. By. v. Bailey, 11 Neb. 332, 336 [9 N. W. Rep. 50]; Tucker v. Draper, 62 Neb. 66 [86 N. W. Rep. 917; 54 L. R. A. 321]; Barrett v. Bailway, 91 Cal. 296 [27 Pac. Rep. 666; 25 Am. St. Rep. 186]; Chicago, B. & Q. By. v. Krayenbuhl, 65 Neb. 889 [91 N. W. Rep. 880; 59 L. R. A. 920]; Huff v. Ames, 16 Neb. 139 [19 N. W. Rep. 623; 49 Am. St. Rep. 716] ; 2 Shearman & Redfield, Negligence (4 ed.) Sec. 705; 1 Thompson, Negligence p. 304; Wharton, Negligence Secs. 250-265; St. Louis, V. & T. H. By. v. Bell, 81 Ill. 76; Kinchlow v. Elevator Co. 57 Kan. 374 [46 Pac. Rep. 703]; McAllister v. Jung, 112 Ill. App. 138; Donk Bros. Coal & C. Co. v. Leavitt, 109 Ill. App. 385; Chicago & E. By. v. Fox, 70 N. E. Rep. 81 (Ind.) ; Lawson v. Waterworks Co. Ill La. 73 [35 So. Rep. 390]; Northwestern Elevated By. v. O ’Malley, 107 Ill. App. 599; Alabama C. S. By. v. Crocker, 131 Ala. 084 [31 So. Rep. 561]; American Advertising & B. P. Co. v. Flannigan, 100 Ill. App. 452; Kopplekom v. Cement-Pipe Co. 16 Colo. App. 274 [64 Pac. Rep. 1047]; De Tarr v. Brewing Co. 62 Kan. 188 [61 Pac. Rep. 689] ; Jeusen v. Wetherell, 79 111. App. 33; Denver City Tramway Co. v. Nicholas, 84 Pac. Rep. 813 (Colo.) ; Wahlgreny. Bailway, 132 Cal. 656 [62 Pac. Rep. 308; 64 Pac. Rep. 993]; Evansville v. Christy, 29 Ind. App. 44 [63 N. E. Rep. 867]; 29 Am. & Eng. Enc. of Law (2 ed.) 35; Cleveland Bolling Mill Co. v. Corrigan, 46 Ohio St. 283 [20 N. E. Rep. 466; 3 L. R. A. 385; 15 Am. •St. Rep. 596]; Lake Erie & W. By. v. Mackey, 53 Ohio St. 370 [41 N. E. Rep. 980; 29 L. R. A. 757; 53 Am. St. Rep/640].
   HENRY, J.

This was an action for death by wrongful act, begun August 1, 1903, by Hiram S. Swartz, as administrator of .the estate of Claribel ■Georgia Bush, a child of nine years, who was drowned May 23, 1903, in a reservoir of the Akron Waterworks Company, in the outskirts of the city of Akron. The plaintiff below recovered a verdict of $1,100, December 12, 1905, whereon judgment was rendered January 8, 1906. The defendant below filed its bill of exceptions February 16, 1906, and notice thereof was mailed to plaintiff’s attorneys upon the same day. No objections or amendments thereto were filed, and the bill was transmitted to the trial judge on Monday, February 26, 1906. It was signed and returned to the clerk on the second day thereafter. The record of the ease is before us for review upon petition in error. The defendant in error has, however, interposed a motion to strike the bill of exceptions from the files upon the ground that it was prematurely transmitted to the trial judge and that the full time allowed by law for filing objections .and amendments was, therefore, not afforded.

Revised Statutes 5301 (Lan. 8813) provides that such objections or amendments shall be filed “within ten days after” the notice of the filing of the bill, and that the time for transmitting the bill to the trial judge begins to run “on the expiration” of said period of ten days.

Revised Statutes 4951 (Lan. 8466) provides that,

“Unless otherwise specially provided, the time within which an act is required by law to be done shall be computed by excluding the first day and including the last; and if the last be Sunday, it shall be excluded. ’ ’

It is'clearly apparent, from these provisions of law, that where, as' in this case, notice of the filing of a bill is given on the sixteenth day of the month, the adverse party, being entitled to ten full days within which to file objections or amendments, should have the entire twenty-sixth day of the month, unless it be Sunday, available to him for that purpose. And since the bill in this case was transmitted to, and received by, the tri^l judge on that day, it is manifest that the right of •defendant in error in that behalf was invaded by the clerk in thus •abridging his time by one day. It should be noted, however; first, that "the plaintiff in error is not in any way chargeable with this mistake, for the statute makes it the duty of the clerk alone to attend tp the transmission of the bill, and the plaintiff in error is under no duty to instruct the clerk or to anticipate that he will act prematurely in this behalf. ' Secondly, it is not shown nor suggested that the bill is in fact open to any objection or amendment. In Davies v. Railway, 71 Ohio St. 325 [73 N. E. Rep. 213], it is held that where a party taking a bill of exceptions has seasonably filed the same “he has performed all the duties imposed upon him by the statute.” And in the opinion of the court by Price, J., it is said at page 334:

“Under our former statutes, several things were required of the' excepting party in order to obtain a review of his case. Some of these-were held in former decisions of this court to be mandatory and jurisdictional, and if not complied with the bill could not be considered. We hope that day is now past.”

The present statute differs in no material particular from the one then under consideration, and we think the rule now is, that, where the excepting party is not in fault and the bill is, in fact, properly and seasonably signed, absolute regularity with respect to intermediate steps is-not jurisdictional. If the adverse party, in good faith and within the time allowed him by law, applied in vain for an opportunity to examine the bill, or to file objections or amendments thereto, we apprehend that the law will not permit him to be prejudiced if he takes appropriate measures to manifest and secure his rights.

The motion of defendant in error to strike the bill of exceptions from the files will therefore be overruled. 1

On the merits of the case, the facts are substantially as follows:

The reservoir into which the child fell was an artificial body of water surrounded by an embankment, with steep sides sloping towards the water, and enclosed by a picket fence. There was a footpath along the embankment inside the fence, and a private driveway led from the highway to and around the reservoir. The place was not adjacent to any public road or habitation, but was sómewhat frequented by pleasure seekers, including children, without any protest on the part of .the water works company, though the facts imply some notice to it of the practice as Veil as of the circumstance that two pickets were missing from the fence at a point where children might, if they chose crawl through the hole thus left and enter the enclosure.

The decedent, who lived some distance away, was given permission by her mother, on the afternoon of the accident, to go into the woods in that, vicinity with two companions to play. Neither the mother nor-any of the children knew of the existence of the reservoir at that time,, so far as- appears. The children, wandering about, discovered the reservoir, crawled through the hole in the fence and were playing on the embankment when the decedent fell into the water and was drowned. No one else was present while the ' children were there. There was nothing about the reservoir to make it more attractive to children than other natural or artificial bodies of water usually are.

The fundamental question in the case is, therefore, whether these facts constitute the negligent maintenance of an object alluring and dangerous to children. We think there cannot be any question of contributory negligence left in the case after the verdict of the jury. Furthermore, although there is some conflict of authority on this point, we find the decided weight of authority to be, that the mere existence of a body of water, natural or artificial, does not amount to a dangerous allurement to children so as to bring it within the rule of the-torpedo eases, in this state, or the turntable cases, in other states. Unless there are, besides the presence of the water itself, other circumstances specially enticing and hazardous to children, whereby they are led by their infantile instincts to incur the danger of drowning, the proprietor of a body of water is under no higher duty to infant trespassers or licensees than to adults. Dobbins v. Railway, 91 Tex. 60 [41 S. W. Rep. 62; 38 L. R. A. 573; 66 Am. St. Rep. 856]; Grindley v. McKechnie, 163 Mass. 494 [40 N. E. Rep. 764]; Peters v. Bowman, 115 Cal. 345, 365 [47 Pac. Rep. 113, 598]; Omaha v. Bowman, 52 Neb. 293 [72 N. W. Rep. 316; 40 L. R. A. 531; 66 Am. St. Rep. 506]; Moran v. Car Co. 134 Mo. 641 [36 S. W. Rep. 659; 33 L. R. A. 755; 56 Am. St. Rep. 543]; Klix v. Nieman, 68 Wis. 271 [32 N. W. Rep. 223; 60 Am. Rep. 854]; Richards v. Connell, 45 Neb. 467 [63 N. W. Rep. 915].

Many other authorities directly in point on the facts might also be cited.

The judgment must be reversed for error in refusing to grant the motion of defendant below that a verdict in its favor be directed. ■And proceeding to render the judgment which the court of common pleas should have rendered upon the conceded facts of the case, we here enter judgment for plaintiff in error.

Marvin and Winch, JJ., concur.


source: Caselaw Access Project

author: DONAHUE, J.

license: Public Domain

text:
    BONDS — INJUNCTIONS—MUNICIPAL CORPORATIONS.
    [Licking (5th) Circuit Court,
    March, 1905.]
    Taggart, Donahue and McCarty, JJ.

      Charles Vadakin v. Andrew J. Crilly et al.
    1. Maintenance — Taxpayer Bringing Suit to Enjoin Sale of Bonds Acting for a Party Interested Adversely to Sale and Not for Public Interest has no Standing in Court.
    A taxpayer of a city, bringing suit to restrain the consummation of a sale of waterworks bonds by the city authorities, who, the evidence shows, has brought such suit wholly at the instance and in the interest of a private water company which has agreed to stand all the costs and expenses of maintaining such suit, has no standing in court to enforce his rights as a taxpayer.
    2. Bonds of City Regularly Offered for Public Sale may be Sold at Private Sale without Further Authority from Council.
    When the bonds of a city have been offered for public sale by due advertisement, after authority for same has been given by the council, and before the bids received have been opened, an injunction restraining such sale has been allowed, and the bidders, in consequence, withdraw their bids, the mayor, auditor, and the finance committee of the council may proceed without further authority from council, after the dissolution of the injunction, to sell such bonds at private sale under the provisions of Rev. Stat. 1536-289 (Lan. 4014).
    3. Regular Sale of City Bonds will not be Disturbed without Strong Showing of Acts Involving Fraud or Moral Turpitude.
    If the proper officials of a, city, acting within their statutory authority, sell bonds of the city at private sale, the sale will not be disturbed by the court on mere showing that it was consummated with haste at a price not so low as to indicate moral turpitude in the officials making the sale.
    [Syllabus approved by the court.]
    Appeal from Licking common pleas court.
    Flory & Flory and Jones & Jones, for plaintiff:
    Rights accruing to innocent purchasers of public securities by the recitations contained in the bonds. 1 Am. & Eng. Enc. of Law (2 ed.) 987, 988; Buchanan Bridge Go. v. Campbell, 60 Ohio St. 406 [54 N. E. Rep. 372]; Welision v. Morgan, 65 Ohio St. 219 [62 N. E. Rep. 127] ; Hubbard v. Fitzsimmons, 57 Ohio St. 436 [49 N. E. Rep. 477] ; White-side y. United States, 93 U. S. 247 [23 L. Ed. 882]; Delafield v. Illinois, 26 }Vend. 192.
    The attitude of the Supreme Court of the state, in relation to legislative restrictions upon public affairs. Art. 15, Sec. 2 Const.; Buchanan Bridge Go. v. Campbell, 60 Ohio St. 406 [54 N. E. Rep. 372]; Lancaster
      v. Wliller, 58 Ohio St. 558 [51 N. B. Rep. 52] ; McCloud v. Columbus, 54 Ohio St. 489 [44 N. B. Rep. 95]; State v. Yeatman, 22 Ohio St. 546; Wellston v. Morgan, 65 Ohio St. 219 [62 N. E. Rep. 127]; Gates v. Toledo, 57 Ohio St. 105 [48 N. B. Rep. 500]; Cincinnati v. Gucken-berger, 60 Ohio St. 353 [54 N. 'E. Rep. 376]; Guckenberger v. Dextor, 3 Circ. Dee. 667 (17 R. 115) ; Guckenberger v. Dexter, 8 Dec. 530 (5 JST. P. 429) ; Roberts v. Taft, 13 O. F. D. 162 [116 Fed. Rep. 228] ; Roberts v. Taft, 13 O. F. D. 675 [109 Fed. Rep. 825; 48 O. C. A. 681],
    The private sale of the bonds was unauthorized and illegal because they had not been “once advertised and offered for public sale” and the same or any part did not remain unsold after such offer, as contemplated by Sec. 97 of the municipal code, p. 52 (Ellis 282).
    Power and duty to open and determine the validity of the bids, ■which is the highest and best, whether the bids should all be rejected, to order further offer at public sale or to make private sale. Elyria Gas & Water Co. v. Elyria, 57 Ohio St. 374 [49 N. E. Rep. 335],
    The discretion as to all those matters resides in the council alone and cannot be delegated. Elyria Gas & Water Co. v. Elyria, 57 Ohio St. 374 [49 N. E. Rep. 335]; State v. Bell, 34 Ohio St. 194; Board of Education v. Mills, 38 Ohio St. 383; Hengst v. Cincinnati, 9 Dec. 730 (7 N. P. 1) ; 4 Dillon, Mún. Corp. See. 96; Tiedeman, Mun. Corp. See. 113.
    The motive which actuates a party in bringing a suit is not inquired into. When he has the legal right the court will not question his motive is asserting it. McClain v. McKisson, 8 Circ. Dee. 357 (15 R. 517); affirmed, McClain v. McKisson, 54 Ohio St. 673 [47 N. E. Rep. 1114]; Cincinnati Yolksblatt Co. v. Hoffmeister, 62 Ohio St. 189 [56 N. E. Rep. 1033; 78 Am. St. Rep. 707; 48 L. R. A. 732]; Hamilton, G. & C. Trac. Co. v. Parish, 67 Ohio St. 181 [65 N. E. Rep. 1011; 60 L. R. A. 531]; Letts v. Kessler, 54 Ohio St. 73 [42 N. E. Rep. 765 ;> 40 L. R. A. 177] ; Peppard v. Cincinnati, 9 Dec. 102 (6 N. P. 57); Raynolds v. Cleveland, 24 O. C. C. 215; Lewis v. White, 16 Ohio St. 444; Frazier v. Brown, 12 Ohio St. 294; State v. Columbus (Bd. of Ed.), 35 Ohio St. 368; Kinner v. Railway, 69 Ohio St. 339 [69 N. E. Rep. 614]; Elyria Gas <& Water Co. v. Elyria, 57 Ohio St. 374 [49 N. E. Rep. 335] ; 10 Cyc. 978-20.
    A. A. Stasel, P. B. Smythe, Kibler & Kibler, J. R. Fitzgibbon, Squires, Sanders & Dempsey and W. C. Boyle, for defendants.

       Affirming Vadakin v. Crilly, 16 Dec. 719; affirmed, without report, Vadakin v. Crilly, 73 Ohio St. 380.

   DONAHUE, J.

The city council of Newark, Ohio, provided for the issue of $300,-OOO of what were denominated waterworks bonds. This was in pursuance of a vote of the electors of the city authorizing that to b& done; an ordinance was then passed directing the finance committee,, mayor and auditor to proceed with the sale of the bonds.

The bonds were advertised according to law and, at the time that these officers were to act on the bids received for the purchase of the bonds, an injunction was served upon them, restraining them from proceeding with the sale upon that day. Thereupon the bids were withdrawn by all bidders, and a motion was made and carried by the finance committee that all the bids be rejected. That was done after the bids were withdrawn by the bidders, and there were really no bids then before that committee.

A few days after that, negotiations were had by these officers with certain bond-buyers and a sale of the bonds were negotiated at private sale; the bonds were delivered and the money paid. The money is still in the .hands of the treasurer of this city, and the bonds are still in the hands of the first purchasers. This suit is brought by Yadakin, as a taxpayer, on behalf of the city of Newark, Ohio, for the purpose of' declaring that sale a nullity, requiring the bonds to be delivered up and canceled, and requiring the city officials to return the money received from the purchasers of these bonds, and not appropriate it to any other purpose.

The first question in this case is as to the good faith of the plaintiff in bringing .this action, and upon this question the court is not a unit. A majority of the court, however, think that that is one of the important questions in this case; and if he is not bringing this suit as a taxpayer, in the interest of the city and the taxpayers of the city, but is bringing it solely for the. purpose of furthering private ends, and the ambitions and schemes of other men who are not in court themselves, and bringing it with the express provision and understanding that he shall not be burdened with costs or expenses, attorney fees or the legitimate costs incurred in court that is conclusive in this case.

The authorities in Ohio upon this question at this time are divided. We do not think the Supreme Court has spoken with any certainty upon the question; and while it is insisted that in Elyria Gas & Water Co. v. Elyria, 57 Ohio St. 374 [49 N. E. Rep. 335], that question was determined, yet a careful reading of that case fails to disclose that it was called in question by counsel or the court; and there the question of maintenance could not have been in the case, because of the fact that it was the gas company itself that went into court and asserted its rights as .a taxpayer, and took its chances of paying its own legitimate costs and •attorney fees.

This question of maintenance is one of grave importance in a court of equity. It is against public policy that a man shall be urged into litigation with the assurance that the necessary expenses that ordinarily make men hesitate before they annoy their neighbor with litigation, should be secured to them, and if a man comes into court with that sort of an arrangement, or with that agreement manifest upon the face of things, he is not in good faith; he does not come in with clean hands; he ought not to be heard in a court that he is asking to exercise extraordinary powers for his relief.

The authorities upon which the majority of this court rely to support their position are collected and carefully considered in the case of Ampt v. Cincinnati, 15 Dec. 237.

In the opinion, on page 241, this language is used:

“It certainly should not be contended that, in considering such a case from the standpoint of equity and justice, a court of equity should ignore the time-honored and settled principles that constitute the warp and woof of its jurisdiction and shut its eyes to the obvious evils that would flow from permitting, in a case where a fact is plainly proven and -openly admitted, a party to farm out, for a money consideration, to private interests and for private .benefit solely, the high privilege conferred by the statute.”

And again on page 243:

“The provision of the act is, that actions may be prosecuted by a taxpayer to prevent waste or injury to the property of the corporation; lienee it is apparent from the language of the statute that if such is not the object of the action * # * no power is conferred upon the court to entertain the suit.”

That doctrine is supported by Gallagher v. Johnson, 1 Dec. 264 (31 Bull. 24), Fergus v. Columbus, 8 Dec. 290 (6 N. P. 82); Johnson v. Farley, 11 Dec. 639 (8 N. P. 498); Brown v. Toledo, 5 Circ. Dec. 115 (10 R. 642); 1 Pomeroy 397.

On the other hand, there are authorities of equal respectability -with these authorities that we cite, that hold the statutory right to bring the action being once fixed and determined, the motives of the actor are in nowise important; that if he is a taxpayer, he has a right to bring the .action, without giving to any man a reason why he brings it.

That is very strong reasoning and it is supported by Raynolds v. Cleveland, 24 O. C. C. 215; McClain v. McKisson, 8 Circ. Dec. 357 (15 Ti. 517), and some other authorities of equal value. However, a majority of this court thinks that if the evidence shows that this action, is brought in the interest of somebody else, and not in the interest of the taxpayer, that if there is a contract of maintenance here between the water works company and the plaintiff, that the plaintiff ought not to be granted any relief in this case, but if any of the citizens or taxpayers are aggrieved by what has been done, there are many of them who can come in in the interests of the city and bring it to the attention of the court in a proper case.

Upon the evidence submitted we find there was a contract between the Newark Water Company and the plaintiff, Yadakin, to bring and maintain this suit, and the same to be free of all costs and expenses to him; that the suit is brought wholly in the interest of the water company now supplying the city of Newark with water; that it is brought, by the plaintiff for the purpose of delaying and preventing the city from building its own waterworks and assisting the water company to sell its plant to the city or continuing its contract with the city to supply water to the city and its inhabitants.

Mr. Yadakin by entering into this arrangement, destroys his standing in court, and in the opinion of the majority of the court ought not further to be heard, but in courtesy to our 'associates, and believing that this ease ought to receive some further investigation, we have gone beyond that to consider the conduct of the officials ,and their rights to sell these bonds.

The sections authorizing the sale of bonds read as follows:

“Whenever- any municipal corporation issues its bonds, it shall first offer them at par and accrued interest to the trustees or commissioners, in their official capacity, of the sinking fund.”

That was done in this case.

The next provision is, that all bonds shall be sold at not less than par and accrued interest. That was also complied with.

The next provision is that,

“All sales of bonds, other than to the sinking fund, by any municipal corporation, shall be to the highest and best bidder, after thirty days’ notice in at least two leading newspapers of opposite politics and of general circulation in the county where such municipal corporation is situated, setting forth the nature, amount, rate of interest and length of time the bonds have to run, with time and place of sale.” * * *
“Provided, however, when any such bonds have been once so advertised and offered for public sale, and the same, or any part thereof, remain unsold, then said bonds, or as many as remain unsold, may be sold at private sale at not less than their par value, under the direction of the mayor and the officers and agents of the corporation by whom said bonds have been, or shall be prepared, advertised and offered at public sale.”

We think that is conclusive of the right of these officers to sell the bonds, provided the advertisement and offer were sufficient. All other conditions precedent having been complied with, the officers who did sell these bonds were authorized to sell them, by 96 O. L. 96, Sec. 97 (Rev. Stat. 1536-289; Lan. 4014). But if that is not sufficient, 96 O. L. 96, Sec. 123 (Rev. Stat. 1536-618; Lan. 3093) certainly is. A part of said last section is as follows:

“All contracts requiring the authority of council for their execution shall be entered into and conducted to performance by the board or officers having charge of the matters to which they relate, and after authority to make such contract has been given and the necessary appropriation made, council shall take no further action thereon. ’ ’

The council had nothing further to do with a sale of these bonds after directing these officers to make the sale.

It is claimed that there was a change in the ordinance as published; and there is some evidence to support the claim of the plaintiff in that behalf, but we think it absolutely unnecessary to make any finding as to that, because the ordinance as published must obtain, and what we find there is the authority upon which we base our conclusions in this case. If that ordinance as published is sufficient, well and good. If not, the words that were left out of the publication cannot aid or add to the authority of these officers.

The question of vital importance in this case is as to the right to sell at private sale. It is undoubtedly the law of Ohio that municipal bonds may be sold at private sale after offering them by advertisement to competitive bidders. The purpose, as stated by the Supreme Court of Ohio, is twofold: One, to give publicity to the act of the officials, of what is going on in the affairs of the city; the second is, to provide for competitive bidding, in order that the highest and best bid may be had. And these being the objects, they are the guides to courts in determining whether in fact they have been done. Upon first glance, it would seem that all that is provided for — the advertising and offering to sell at competitive bidding — had been aborted and had not accomplished tbe purpose of the statute and had brought no good results to the taxpayers; that it had invited competitive bidding, and at the same time had destroyed the effect of that by withdrawing the bids. But let us see. The section reads that the bonds may be sold at private sale if any part or all of them remain unsold after advertising and offering to sell at competitive bidding. Advertisement was made; competitive bids were duly received, but, owing to the service of the injunction, which, in fact, is directly traceable to Mr. Vadakin himself, the people whose bids had been filed in good faith, with a large cash deposit, were induced to withdraw their bids before the acceptance of the bids made by them.

There is no question but that, at any time before the acceptance of the bid, the person who makes a bid may withdraw it. So that the effect of it all us, that, notwithstanding the advertisement, there were absolutely no bids at the time the officers were called upon to award the bonds to the highest and best bidder. The people who had made those bids, for purposes satisfactory to themselves, and serving their own' interests, as they had a right to do, had withdrawn their bids. The purpose of the deposit of the money is to insure that the bonds will be taken when the bid is accepted, and not that it shall remain there for weeks or months waiting the pleasure of the board having charge of the sale of the bonds. They were withdrawn as a matter of right, and that left the officers without a bid to act upon. True, their hands were tied for a time, by an injunction, but that was not important. A suspension of the act on’ the part of the board from the time the injunction was served until the injunction was dissolved would not affect their right to accept the bids had the bids remained. They were entitled to accept any bid that had been received, but there were none there to accept. So that the advertisement was made, there were no offers received as contemplated in the statute, no propositions were left in the hands of the board for them to accept, either at the time they were authorized under the advertisement to accept them, or later, when the injunction was dissolved and they might act without being in contempt of court.

If they had conspired to that result in any degree whatever, the whole cause would have been attributable to them, anc[ there would have been no offer to sell at competitive bidding. But they were absolutely without fault or blame for any of the conditions that existed. If they had been culpable in the least degree, that would perhaps charge them with all the wrongs, and would show an unfairness on their part, and a desire not to sell at competitive bidding but to sell at private sale in the interest of their friends or against the interests of the city. But up “to that time, so far as this record discloses, they were absolutely without ■fault. They had advertised the bonds, as required by the statute; they were there ready for competitive bids; there were no bids; the bonds, in the language of the statute, “remained unsold;” and that was all that was necessary to authorize them to sell at private sale.

We realize the full force and effect of the argument of counsel that simply because the terms of the statute are fulfilled apparently to the letter, that that is not sufficient. That we must not stick in the bark. That the question is, whether the purposes of the statute have been subserved. If the purposes were not subserved, it was the fault ■of somebody beyond the committee, and they were called upon to do the next best thing they could do, and that was, to follow the statute in •such ease made and provided; and they did do that.

Now, having the right to make this sale of bonds at private sale (and we so find), the fact that they proceeded with haste is not commendable in the opinion of this court, yet we cannot condemn it because it was their business; they were clothed with discretion to dispose of the bonds as best they could, but with an honest discretion, and a discretion that they must exercise in good faith, and with an eye single to the interests of the people they represented; and the fact that they moved with such alacrity in the sale of the bonds is not'sufficient to attribute any particular intent on their part to do wrong, yet it is a circum•stance to be considered. But this fact is 'not sufficient to show that there was any conspiracy or intent to wrong; but, on the contrary, we find that they were acting in good faith, in their opinion in the best interests of the city.

As to the manner of procuring the dissolution of the injunction that had been obtained to restrain the sale of the bonds in the first instance at the request of Vadakin, that is a matter that does not appeal to us as being a thing that ought to have been done. We think the ■solicitor should have walked into court and dismissed his suit if he thought there was nothing in it. And, so far as that is concerned, we think the solicitor was at fault in bringing that suit at all, unless he believed in it. It is true that solicitors in Ohio bring a great many •suits that they think probably ought not to be brought, because of the fact that if they do not bring them some one else will, and large fees therefor will be paid out of the public treasury and they feel that they •ought to protect the treasury because they are paid for that sort of ■service, and therefore that they ought to represent the city in these suits. But that is a mistaken idea. We think the solicitor ought to> exercise discretion in that behalf, and not bring a suit for every man. who demands it.

So, if there was any blame it was in bringing the original suit to. enjoin the1 sale, unless he believed in it. If he believed in it, he ought to have brought it. Yet, that is not important at this, time. The fact that the injunction was suspended by putting the entry on sustaining the demurrer and dismissing the petition, without the action of the court, does not commend itself to this court. But it does not affect the other officers.. It does not affect him, so far as-that is concerned, except that it was unwise and an improper thing to-do. It was a mistake of judgment, no doubt, on his part; but, passing that, we come to the question whether the consideration received for the bonds was such as to show conspiracy or want of good faith on the-part of the officers. From what we have before us, we think they were not sold for such an inadequate price as would raise a presumption of moral turpitude on the part of the officers, or of any conspiracy against the interests of the city, or in favor of any particular buyer., We think the committee believed, at the time they sold the bonds, that they were receiving a good, fair, and liberal price for them; and we are not prepared to say from the evidence that they were not receivng such price. Other investors may give more, and others may give less, but they did get a fair and liberal premium for the bonds, and such, a premium as evidences to our mind that there was no moral turpitude, nor corruption, nor conspiracy, on their part to sell these bonds for less than they believed them to be worth in the market. Whether they made a good bargain or not is not a question that comes to this court.. They may have made a poor bargain. That is not important, for if they had the power to sell, they had the power to sell at what they believed to be right, or what they thought was the best price they could obtain,, provided it was not less than par value and accrued interest.

We think this covers the entire case. Upon this latter' question, as: to the right to sell the bonds, the court is unanimous. The court is also-unanimous as to the good faith of the officers making the sale. The-court is also unanimous in the opinion that the price obtained was substantially the full value of the bonds; and we are also unanimous upon the question as to who should sell these bonds after the' failure to sell at public sale. We are also unanimous that the advertisement and offer at public "sale was sufficient under the statute, and while perhaps it. did not accomplish all that the statute intended it should do or that we might hope now it would have done, yet it did put them in that position that there was no legal reason why they should readvertise these bonds.

Therefore, the judgment of this court is, that the temporary injunction allowed by the probate judge, and dissolved by the common, pleas court, be dissolved at the costs of the plaintiff.

McCarty, J., concurs.

Taggart, J., concurs in judgment dissolving injunction and in second and third propositions of syllabus but dissents from first proposition.


author: COOK, J.

text:
    FEES OF PROBATE JUDGES.
    [Columbiana (7th) Circuit Court,
    March Term, 1906.]
    Cook, Burrows and Laubie, JJ.
    State ex rel. James A. Martin v. J. Frank Adams, Aud.
    1. Probate Judges Held Entitled to Six Cents per Hundred Words oe Orders Entered on Journal.
    Under Rev. Stat. 546 (Lan. 835) probate judges are entitled to receive six: cents for each one hundred words of orders entered upon the journal. Burrows, J., dissents.
    2. Probate Judges are not Entitled to Thirty-five Cents for Certificates to Copies of Findings and Certificate of Medical Witness.
    Under the same section they are not entitled to thirty-five cents for each; certificate under the seal of the court to the copies of the certificate of: the medical witness and of his findings in the case as required by Rev. Stat. 705 (Lan. 1176).
    [Syllabus by the court.]
    BkeoR to Columbiana common pleas court.
    Billingsléy, Clark & DeFord, for plaintiff in error.
    C. S. Speaker and M. J. McGarry, for defendant in error.
   COOK, J.

Plaintiff in error is the probate judge of this county and he brought a suit in mandamus to compel the auditor to allow two claims; for fees which the inspector had instructed the auditor to reject and in accordance with which instruction the auditor did reject.

The common pleas court sustained a demurrer to the petition.

The first claim was for entering orders upon his journal in inquests of insanity.

devised Statutes 546 (Lan. 835) provides for the fees of probate judges in counties having 22,500 inhabitants or more, and for services of this character. The language is: “Entering order on journal, six cents; each one hundred words,” etc.

The claim of plaintiff is, that he is entitled to six cents for each one hundred words contained in the order entered upon the journal, while the claim of defendant in error is, that he is only entitled to six cents for entering the entire order, independent of its length. We are of opinion that the plaintiff is right in his contention.

Defendant relies principally on the punctuation of the statute to support his claim. It will be observed that the services performed are first mentioned, then the fee he is entitled to receive. For instance: ■“Issuing a subpoena where there is but one witness named, eight cents, and for each additional name, three cents; # *. /* entering •attendance of each witness, five cents; indexing each cause, eight cents; entering judgment on journal, eight cents; recording general verdict) eight cents; entering order on journal, six cents; each one hundred words, for .transcribing judgment or order on .the docket, eight cents. ’ ’

Clearly the semicolon is in the wrong place; likewise the comma. The semicolon should have been placed after “each one hundred words” and the comma after “six cents.”

It is true the same punctuation has been carried through the various revisions of the statute for many years. That is unimportant as it could easily arise from a clerical error. That the punctuation is wrong in this section is made clear when we turn to Rev. Stat. 1260 .(Lan. 2636), providing for the fees of clerks of court which are of the same character. “For entering an order, verdict, rule or judgment on the journal, eight cents for each hundred words;”

“Punctuation ought never to vary the true sense or the general object and the courts can disregard, or repudiate it.”

The other claim which was rejected by the auditor was for fees for certificates attached to copies of his findings and also attached to the certificate of the medical witnesses.

Revised Statutes 546 (Lan. 835), to which we have referred provides that he shall receive for “each certificate to which the seal of the court is required, and not herein provided for, thirty-five cents.” It further provides: “Making out copies of records of any proceedings in a cause, when required by either party, or the law, with a seal annexed eight cents for each hundred words.”

Revised Statutes 705 (Lan. 1176), provides:

“The probate judge, upon receiving the certificate of the medical witness, made out according to the provisions of the preceding section, shall, forthwith, apply to the superintendent of the asylum for the insane, situated in the district in which such patient resides; he shall, at the same time, transmit copies under his official seal of the certificate of the medical witness, and of his findings in the case; upon receiving the application and certificate, the superintendent shall immediately advise the probate judge whether the patient can be received, and if so, at what time.”

Revised Statute 714 (Lan. 1186), provides:

“In all cases of inquests held under the provisions of this chapter, the probate judge shall file and preserve all papers left with him, and shall make such entries upon his docket as will, together with the papers so filed, preserve a perfect record of each case tried by him.”

From these provisions it would seem that the certificate of the medical witness and his findings are part of the record in the proceeding and, as payment is provided for the same under Rev. Stat. 546 (Lan. 835), at eight cents for each one hundred words, he is not entitled to be paid for the certificate in addition to the eight cents for each one hundred words.

Judgment of common pleas court is reversed and cause remanded for further proceedings.

Laubie, J., concurs.

Burrows, J., dissents from first paragraph of syllabus.


author: McCARTY, J.

text:
    EXECUTORS AND ADMINISTRATORS — HUSBAND AND WIFE.
    [Muskingum (5th) Circuit Court,
    June, 1906.]
    Donahue, McCarty and Taggart, JJ.
    In re Est. Divver McMillan, Deceased.
    Widow Separated from her Husband Entitled to Year’s Support and Articles oe Property Mentioned in Rev. Stat. 6038 (Lan. 9578) nr not Divorced.
    A widoW who had separated from her husband and had continued to live apart from him for some years before his death but who was never divorced from him is, nevertheless, entitled to her year’s support and the articles of personal property mentioned in Rev. Stat. 6038 (Lan. 9578) set apart te her by the appraisers of her husband’s estate.
    [Syllabus approved by the court.]
    Appeal from Muskingum common pleas court.
    McHenry & Ribble, for plaintiff.
    Winn & Basset, for defendant.
   McCARTY, J.

This matter comes before us on appeal from the common pleas and probate courts.

The statute authorizes certain property to be held exempt by a widow in her own name. This the appraisers of the estate of Diwer McMillan failed to do in the first instance, and being called together again and instructed as to their duties, they went out to make a different appraisement; hence the question arises as to the rights of the widow and the rights of the executors under the will. A demurrer has been interposed to the answer of the executors by Mary A. McMillan, by Eli Border, her guaSdian, which answer reads as follows:

“Now come the executors of the last will and testament of the said Diwer McMillan, deceased, and for answer to the application of Mary A. McMillan, by Eli Border, her guardian, to recall the appraisers, etc., of said estate and make allowances under the provisions of Rev. Stat. 6038, 6039, 6040, 6041 (Lan. 9578, 9579, 9580, 9581), say:
1 ‘ That the said Mary A; McMillan on the fourteenth day of October, 1897, without cause deserted her husband and lived apart and separate from her husband during the remainder of his life-time, to wit, seven years; that said separation was a voluntary act of the said Mary A. McMillan, and was misconduct on her part, and the family relationship of husband and wife did not exist at the time of the death of the said Diwer McMillan, and had not from said fourteenth day of October, 1897, and that the right of the widow to said year’s allowance does not exist, for the reason that the family relation as above stated did not exist at the time of the death of the said Diwer McMillan, and for the further reason that an agreement was made between the said Diwer McMillan and the children of the said Mary A. McMillan, on the twenty-third day of October, 1897, whereby it was agreed that the said Diwer McMillan should be relieved of any claim on account of support of said Mary A. McMillan so long as she might remain away from his home. Wherefore, •these executors pray that the inventory filed by said appraisers be approved and that the application for recalling the appraisers, etc., be overruled and for such other relief as is proper.”

To- this answer a demurrer was interposed which raised the question as to whether the answer sets forth facts sufficient to constitute a defense on the part of the appraisers,for not setting apart a year’s support.

This brings us to another question, viz., Is the widow entitled, in lier own right, to certain things without administration; has she,a right to a year’s support and certain articles of personal property? The question was fully argued, heard, and disposed of in the probate court, and a petition in error was filed in the common pleas court, which court sustained the demurrer.

Revised Statutes 6038 (Lan. 9578) is in this language:

“When any person shall die, leaving a widow, or minor child, or -children, under the age of fifteen years, the following property shall not be deemed assets nor administered as such, but shall be included and stated in the inventory of the estate and signed by the appraisers, without appraising the same:
“First — One family sewing machine, to be retained by said widow absolutely as her own property, and all spinning wheels, weaving looms, and stoves set up and kept in use by the family.
‘ ‘ Second — The family bible, family pictures, and- school books used by or in the family of the deceased, and books, not exceeding one hun-dred dollars in value, which were kept and used as part of the family library before the decease of such person.
“Third — One cow, or if there be no cow, household goods, to be selected by the widow, or if there be no widow, by the guardian or next friend of such minor child or children, not exceeding forty dollars in value, or if there be no household goods such as the widow or guardian or next friend may desire to select, then forty dollars in money; all sheep to the number of twelve, their valuation not to be greater than seventy-five dollars, and the wool shorn from them, and the yarn and cloth manufactured by the family; all flax in possession of the family intended for the use thereof, and yarn or thread cloth manufactured therefrom.
“Fourth — All the wearing apparel and ornaments of the family .and of the deceased, all the beds, bedsteads, and bedding, cooking utensils, and tableware necessary for the use of the family, one clock, one side-saddle, and any other articles.of personal property not to exceed one hundred dollars in value, which the widow, or if there be no widow, the guardian or next friend of such minor child or children, may select, to be valued by the appraisers. ’ ’

It is said here in argument that there was some controversy between husband and wife, and it was perhaps mutually agreed by them that they would live apart and not cohabit together as husband and wife any further, which they continued to do for about the period of seven years. It is contended that relations between them as parts of the same family ceased to exist, and it is also said that the wife at one time brought an action for divorce; there was an answer to this petition praying for •divorce, but there was never any divorce granted. Therefore, when this husband died, he left this woman as his widow, there being no legal separation, and as his widow she would be entitled to a year’s support and the articles of personal property as I have stated.

In the note under Rev. Stat. 6038 (Lan. 9578) is the following:

“The allowance to the widow for her support for the year, is such a debt against the estate of her husband that resort may be had, for the payment of the same against land conveyed away by the deceased for the purpose of defrauding his creditors.”

There are several decisions along this line, holding, in effect, that until a wife and a husband are divorced, the wife is, at the husband’s death, entitled to a year’s support and the articles of personal property mentioned in the statute.

We have, therefore, concluded that the answer set up by the executors does not constitute a defense to the cause of action stated in the application of Mary A. McMillan, and we shall affirm the decision of the common pleas court, and we sustain the demurrer to said answer.

Donahue and Taggart, JJ., concur.


author: MARVIN, J.

text:
    ATTACHMENT AND GARNISHMENT.
    [Cuyahoga (8th) Circuit Court,
    October 29, 1906.]
    Marvin, Winch and Henry, JJ.
    Ravenna Nat. Bank v. Jay E. Latimer.
    Sufficient Evidence to Sustain Attachment on the Ground of Concealment op Assets.
    A motion to discharge an attachment will be overruled where the evidence in support of the order of attachment, being entirely in the form of affidavits, shows that the defendant had told several reputable persons that he could pay a certain judgment if he wanted to but that he had nothing that creditors could reach; that he was execution proof; that he had plenty of property with which to pay his debts but that he could not he forced into paying anything he did not want to pay.
    [Syllabus approved by the court.]
    Error to Cuyahoga common pleas court.
    J. F. Patterson, for plaintiff in error.
    Smith, Taft & Arter, for defendant in error.
   MARVIN, J.

Suit was brought by the bank against Latimer on a promissory ■note, and an order of attachment was issued against the defendant upon an affidavit filed by the plaintiff’s attorney, charging as grounds therefor that the defendant was about to sell and convert his property, or a part thereof, into money for the purpose of placing it beyond the reach of his creditors, and that said defendant had property or rights in action which he concealed.

The defendant moved to discharge the attachment on various grounds, none of which need here be considered except the third and fourth grounds. These read:

“3. It is untrue that defendant is about to sell and convert his property or a part thereof into money for the purpose of placing it beyond the reach of his creditors.
“4. It is untrue that defendant has property or rights in action which he conceals.”

In support of this motion the defendant filed his own affidavit, asserting that these matters contained in the affidavit upon which the order was’granted, and mentioned in the third and fourth grounds of the motion, were untrue. This put upon the plaintiff the burden of sustaining the allegations in this regard.

The matter was heard in the court below upon affidavits, with the result that tbe court ordered the attachment discharged. To reverse this order error is prosecuted here.

We have before us in a bill of exceptions all the evidence on which -the court acted, and this, as already said, is in the form of affidavits. It is true there are depositions in the bill, but these bear upon the ownership of the note sued on, and there is no question that the plaintiff was such owner, so that all we need consider is the weight of the evidence as appears by the affidavits.

It differs from the ordinary case in which we are called upon to determine in proceedings in error the weight of the evidence in this, that whereas usually the trial court and the jury see the, witnesses and can note their manner and bearing and so have better means of judging what weight should be given to their testimony than a reviewing court. , In this case the trial court did not have the witnesses before it and had no better means of judging than this court has. In this respect the language used by Judge Gholson in the opinion in the case of Harrison v. King, 9 Ohio St. 388, 396, does not apply. That language is:

“But there was offered on both sides, what the code declares to be proper evidence, and we are called upon to review the decision of the court below, as to the credibility of the witnesses, and the weight to be given to their statements. We may very reasonably conclude from the different phases of the complicated controversy, bringing the parties so frequently before the court, that the judge who decided the motion, had advantages in forming an opinion which we do not possess.”

There is nothing in this ease to show or to make probable that the court below possessed any means of judging of these affiants, not possessed by us. We are therefore to judge the matter as though the motion to discharge was addressed to us. So judging of it, we reach a different conclusion from that reached below on one phase of the case. We do not think that the evidence was sufficient to show that the defendant was about to sell his property or convert it or a part of it into' money for the purpose of placing it beyond the reach of his creditors. True, he offered to sell his farm at what was apparently a very low figure and to accept notes and mortgage for all or a large part of the purchase price, but this one who is in debt may do for the very purpose of getting means to pay his debts.

On the other question we think the court should have found that the defendant had property which he concealed.

James W. Holcomb makes affidavit that the defendant told him, on March 10, 1906' — the affidavit for attachment was made on the twenty-fourth day of the same month — that he had no property that could be found on which to levy if judgment should be recovered against him; that he could pay the debt if he wanted to but that his property was beyond the reach of his creditors. He says that again, on the fifteenth day of the same month, Latimer told him that he could pay a certain judgment which had been rendered against him if he wanted to, but that he would not; that he had no property that anyone •could find; that his property was out of the reach of his creditors.

B. B. Patterson makes affidavit that on March 20, 1906, Latimer told him that he had plenty of property to pay any of his outstanding indebtedness, but that he could not be forced into paying anything he did not want to.

Jerome F. Patterson makes affidavit that on March 16, 1906, Latimer told him that he had plenty of property with which to pay “this note if he wanted to pay it, but that he was execution proof. He says this was repeated in his hearing March 20, 21 and 22, 1906, and that he heard him say to B. B. Patterson what said B. B. Patterson swears to in his affidavit.

He says, 'too, that on March 24, 1906, Latimer said to him that if he sued this note he could get nothing, but that his property would all be beyond the reach of his creditors. These conversations are denied and explained by Latimer, but it seems clear that the weight is •decidedly with the plaintiff; that the statements were made, and that they clearly show that the defendant was concealing his property to evade the payment of certain of his debts.

Remembering that there was nothing known of the appearance and character of the witnesses which is not known to us, and the fact being, that two of the affiants are well known and reputable members of this bar, we reach the conclusion that these statements were made. If they were made and their truth is now denied, what is said in Hanks v. Andrews, 53 Ark. 327 [13 S. W. Rep. 1102, 1103], is decidedly in point. The language is:

“If his representations as to his assets were false, the falsehood does not increase confidence in his intention to make an honest disposition of them.”

Finding as we do that the plaintiff sustained its allegation that the defendant had property which he concealed, the order discharging the attachment is reversed and the case remanded.

Winch and Henry, JJ., concur.


text:
    APPEAL — GUARDIAN AND WARD.
    [Lorain (8th) Circuit Court,
    September 28, 1906.]
    Marvin, Winch and Henry, JJ.
    In re Guardianship of James E. Murray.
    1. Uncle of Ward may Appeal from Order Overruling Motion for Removal.
    An uncle of a minor child may make a motion for the removal of the guardian appointed for the child by the probate court, and may appeal from an order of this court overruling the motion.
    2. Guardian — Domicile of Parents.at Death Determines Jurisdiction of Court to Appoint Guardian of Child.
    Where the parents of a minor child have been living for some months with the child’s paternal grand parents and both die at this home, and the-child, with the grand parents’ consent, is taken by an aunt to another county, the jurisdiction to appoint a guardian is in the county where the parents resided at the time of their death, and not in the county to-which the child has been removed. (
    [Syllabus approved by the court.]
    Error to Lorain common pleas court.
    Clayton Chapman and G. A. Resek, for plaintiff in error.
    E. G. & H. C. Johnson and Lee Stroup, for defendants in error.
   MARVIN, J.

James Edward Murray is an infant, now about seven years of age. His father was Patrick J. Murray. His mother’s maiden name was. Moroney. Both are now dead.

At ope time these people lived in Athens county in this state. James Edward was born there. Mrs. Murray was threatened with or attacked with pulmonary disease on account of which they broke up their home at Athens in the fall of 1903, selling a part of their, goods and storing the remainder, and went to the state of Texas. After remaining in that state a few months, until probably March or April, 1904, Mrs. Murray not getting better, they returned to Ohio, stopping for a few weeks with Mrs. Murray’s sister at Toledo, then, in May, 1904, going to the home of Patrick’s parents in Wakeman, Huron county, Ohio. The goods which Patrick had left in Athens, he had shipped to him at Wakeman.

The entire family — that is, Patrick, his wife and the child, James Edward Murray — remained at the home of Patrick’s father in Wake-man until July 11, 1904, when Mrs. Murray died. Patrick and the child continued at the home and in the family of Patrick’s parents until he, Patrick, died there on November 24, 1904. Thereafter the child remained with his paternal grand parents until the twenty-eighth or "twenty-ninth day of the same month, when, with the approval and consent of the grand parents — at least with such approval and consent given by the grandmother and without objection on the part of the grandfather — said infant was brought from Wakeman by Katherine loveland, a sister of his deceased father, to her home in Lorain county.

On December 9, 1904, this aunt made application to the probate «court of said last-named county for appointment as guardian of said infant; said application was granted and she was appointed by said ■court as such guardian on said last-named date.

Said infant was not the owner of any property; the only duty imposed upon the guardian by such appointment was the care and custody «of his person.

On January 12, .1905, J. J. Moroney, a brother of the infant’s deceased mother, made a motion in said probate court to hate said guardian removed on the ground that said infant | was not a resident ■of Lorain county at the time of such appointment, and that, therefore, "the court was without jurisdiction to make the appointment.

Upon hearing the court overruled said motion whereupon said Moroney appealed to the court of common pleas. Upon trial in said last-named court said motion was sustained and said guardian was removed, the court holding that said infant was not, at the time of the appointment, a resident of said Lorain county.

By proper proceedings the ease is in this court on error to the order <of the court of common pleas.

Some question is made by the defendant in error that said Moroney is entitled to no standing in court. This does not seem to be well taken; he is an uncle of the infant, and ought to be interested in his welfare.

If this were a civil action, perhaps the way for him to have proceeded would have been to make the motion in the name of the infant, the uncle appearing as his next friend but it would seem that if the court was without jurisdiction to make the appointment, and attention was called to such want of jurisdiction by motion of one acting in good faith and having the interest, which an uncle might properly have in the welfare of the infant, the motion should be heard by the court, and if judgment should be against the party* filing the motion, taxing the costs against him, his interest in the casé would be sufficient to entitle iiim to appeal. Revised Statutes 6407 (Lan. 9983), provides that,

“Appeals may be taken to the court of common pleas from * * * an order removing or refusing to remove an executor, administrator, guardian, assignee, trustee or other officer appointed by the probate court. ’ ’

In the case, Johnson, In re, 87 Iowa 130 [54 N. W. Rep. 69], one Sturges filed his petition to be appointed guardian of a minor daughter born to him, but who had by legal adoption become the daughter of Mr. and Mrs. Johnson, both of whom had died. One D. W. Diggs filed a remonstrance to the malting of the appointment, setting up that he was by will of the adopting father, Johnson, made testamentary guardian of the person and property of the minor; that said will had been duly probated, and that he was acting as guardian of the child and then had her at his home.

A motion was made to strike the remonstrance from the files, this motion was sustained, and said Sturges was appointed; from this order Diggs appealed; Sturges moved to dismiss the appeal, and the court says in reference to said last-named motion:

“Appellee moves to dismiss the appeal upon the grounds that appellant, Diggs, is not a party to the proceeding; is not interested therein; that no judgment has been entered against him, that affects any substantial right of his, in such manner as to entitle him to appeal. It requires no citations to show that in the appointment of guardians the controlling consideration is the welfare of the ward. It is a special proceeding to make an appointment, to which no person has a private right.”

And the court held that Diggs had a right to be heard and overruled the motion to dismiss the appeal.

Certainly the proceeding to remove a guardian is equally a special proceeding with that of making the appointment. This proceeding was instituted by a near relative of the infant. It challenged, the jurisdiction of the court in. making the appointment, and it was proper that this motion should be heard and determined by that court, and it seems olear that- the party defeated was entitled to appear to the common pleas court.

The question then remains whether the court erred in holding that-said infant was not a resident of Lorain county at the time the appointment was made, as the word “resident” is used in Rev. Stat. 6254 (Lan. 9795).

After a careful examination of the question, the conclusion is reached, that there was no error in the judgment of the court of common pleas.

The carefully prepared opinion of Judge Washburn in this ease, Murray, In re, 16 Dec. 612, expresses our views of the law in the case, and is so exhaustive as to render it unnecessary to discuss to any considerable extent tbe questions there discussed.

This conclusion, on the part of two members of the court, is at variance with their views when the consideration of this case was first taken up.

We have the feeling expressed by the judge of the common pleas, that it is unfortunate that this guardian should, have to be removed,, but the law seems to require it.

And since as both this court and the court of common pleas hold that the residence of the child is in Huron county the probate court of that county can and doubtless will, upon proper application being made, appoint a suitable guardian for the child, whether- it be the one appointed here or some other person; but from the evidence in the-case it seems altogether probable that the probate court of Huron county will appoint, on proper application, the same guardian that was appointed in this county.

The order of the common pleas is affirmed.

Winch and Henry, JJ., concur.

      Affirming Murray, In re, 16 Dec. 612.


text:
    BRIBERY — SOLICITING BRIBE — WORDS AND PHRASES.
    [Summit (8th) Circuit Court,
    April 17, 1906.]
    Marvin, Winch and Henry, JJ.
    Jeremiah Amundson v. State of Ohio.
    1. Words “Other Officer” in Rev. Stat. 6900 (Lan. 10534) Include Councilmen.
    The words, “other officer,” as used in the statute covering bribery, Rev. Stat. 6900 (Lan. 10534), must be extended to include members of the council of a municipality.
    2. Evidence Constituting Prima Eacie Case Against Accused for Soliciting Bribe.
    Evidence tending to show that member of a city council told two attorneys for a corporation interested in a proposed improvement about to be submitted to the council that he wanted nothing for himself but that there were others whose interests would have to be takén care of, is sufficient to constitute a prima facie case of soliciting a bribe. .
    ERROR to Summit common pleas court.
    Stuart & Stuart and E. F. Voris, for plaintiff in error.
    H. M. Hagelbarger, prosecuting attorney, and C. S. Grant, for defendant in error.
   HENRY, J.

Plaintiff in error was convicted of soliciting a bribe in October, 1905, to influence bis official action as a member of the council of the city of Akron in the matter of the North Arlington street improvement, then' pending before that body. The indictment was drawn under favor of Rev. Stat. 6900 (Lan. 10534), which provides that,

“* * # Whoever, being a member of the legislature, or a state or other officer, or public trustee, or agent or employe of the state, or of such officer or trustee, ether before or after his election, qualification, appointment or employment, solicits or accepts any such valuable or beneficial thing to influence him with respect to his official duty, or to influence his action, vote, opinion, or judgment, in any matter pending or that might legally come before him, shall be imprisoned in the penitentiary not more than five years, or .fined not more than five hundred dollars, or both.”

The first assignment of error involves the application of this section to the members of a city •council. It is contended that 'the words “other officer” in the statute, in connection with the references to the “state” or “public” service therein contained, cannot be deemed to include mere local officials such as the officers of p municipal "corporation. "We do not agree, with this contention. There is no other provision in the statutes covering eases of this particular character, and it is unreasonable to suppose that the general assembly, by thus discriminating, has left wide open the door o'f municipal corruption. True, the statutes contain separate provisions covering the giving or accepting of bribes, or the promise thereof, in the case of jurors, jury commissioners, referees, county seat commissioners, etc.; but the very large and vitally important classes of officials who administer our county, city and village governments seem to be made subject to no other provision of law in this behalf than the section under which this indictment was drawn.

The second assignment of error relates to the sufficiency of the state’s evidence to make a prima facie case. The main witness for the state, Arthur J. Rowley, Esq., of counsel for persons interested in the improvement, testified that the accused, in conversations with him in the fore part of October, represented that he was in favor of said improvement and wanted nothing for himself but the political friendship of the persons interested, but that, “so far as some of the others were concerned, they would have to be taken care of.” And the next day the accused told him further: “I talked that matter over and it will take $1,400.”

Frank W. Rockwell, another witness for the state, testified to a conversation which he had with the accused about the same time. He had understood from Amundson who was chairman of the council committee having the matter in charge, that the pending ordinance would be brought up for passage at the next meeting; but just before the meeting convened he told Rockwell that “He didn’t want to bring it up.” The witness asked him “Why?” and he replied that the proposition to the city by the corporation interested in the improvement was unsigned. The witness thereupon reminded him that the proposition referred to had been signed and submitted in June, and should be in possession of the street committee. Amundson then remarked, “Well, there were interests of some of the other members of the council that would have to be fixed up. ’ ’ The witness inquired what interests they :had in it, to which the accused answered, “Well, I will bring it up.”

We think the testimony of the witnesses, Rowley and Rockwell, taken together was sufficient to carry the case to the jury as tending to prove that he was soliciting from the corporation above mentioned, through the above-named witnesses, the payment of $1,400 to him for -other members of the council, as a condition of his own official action in favor of said improvement. And this is the gist of the offense for which he was indicted and of which he was convicted.

It is claimed, however, that there is such confusion and discrepancy of dates and circumstances in the testimony above quoted and the records of council proceedings as to render it insufficient for a prima facie case. Without entering into a discussion of this question, we are, •content to say that our examination of the record fails to sustain this •claim.

It is said further that Amundson’s explanations of his conversations with Rowley afford the only reasonable interpretation thereof, viz.: The $1,400 was his estimate of the damages for which the city would become liable to adjacent property owners by reason of the improvement and which he believed Rowley’s client should agree to pay to the -city, and that the taking care of other councilmen meant that they ■should be acquainted by those interested with the facts which rendered the improvement desirable and advantageous to the city. This was ■properly a question for the jury and we see no reason for disturbing their verdict in view of all the evidence.

There being no error in the record, the judgment is affirmed.

Marvin and Winch, JJ., concur.


text:
    DIVORCE AND ALIMONY.
    [Cuyahoga (8th) Circuit Court,
    October 29, 1906.]
    Marvin, Winch and Henry, JJ.
    Carl M. Hoffman v. Minnie Hoffman.
    Judgment foe Alimony not a Debt — Enfokcible though the Husband Re-MAERIES.
    A decree for the payment of alimony in monthly installments will he enforced by proceedings in contempt, as a judgment for alimony is not a debt in the ordinary sense of the term, and an order directing the husband to pay or be committed to jail is not erroneous where the husband has remarried and it is not shown that he is using the strictest economy in his new family relations and is, notwithstanding, unable to comply witjh the order of the court.
    [Syllabus approved by the court.]
    ERROR to Cuyahoga common pleas court.
    Miller & Linder, for plaintiff in error.
    Kerruish & Kerruish, for defendant in error.
   MARVIN, J.

In November, 1903, Minnie Hoffman was granted a divorce from Carl M. Hoffmau, and a decree entered that Carl pay her as alimony the sum of $15 per month until the aggregate amount paid should be $750. He paid the monthly installments up to the month of April, 1906, when he was in default, and proceedings in contempt were brought against him, and on April 21, 1906, he was found guilty and ordered to pay to Minnie $15 on or before May 10, 1906, and in default of such payment that he be committed to jail until payment should be made or until he be otherwise discharged by due course of law.

Error is prosecuted to this order, because it is said the facts show that Mr. Hoffman had a good and lawful reason for not paying. This, reason was, that less than two weeks after the divorce was obtained against him, he married another woman, whereby he became a husband living with his wife. He is a resident of Ohio, and neither he nor his. wife is the owner of a homestead. His earnings are but $15 per week and it takes it all, he says, to support himself and his new family.

It is manifest that if this decree for alimony were an ordinary debt, nothing could be collected upon it except as he saw fit to pay. But it is not a debt in the ordinary sense; it is not a judgment in the ordinary sense. See State v. Cook, 66 Ohio St. 566 [64 N. E. Rep. 567; 58 L. R. A. 625]. The second clause of the syllabus reads:

‘ ‘ A final decree for alimony is not a debt within the purview of the constitutional inhibition against imprisonment for debt, but it is such an order as that, under favor of Sec. 5640 [Lan. 9172] Rev. Stat., punishment as for a contempt may follow a wilful failure to comply with it.”

And in the opinion in the same case, at page 572, speaking of the obligation to pay alimony, Judge Spear says:

“It seems manifest, that so far as the obligation of the husband' enters into the consideration and affords a basis for the .court’s action, it is not a debt in the sense of a pecuniary obligation; it arises from a, duty which the husband owes as well to the public as to the wife. * * * The liability originates in the wrongful act of the husband.’1.

Again he says, on page 573:

“The withholding of this allowance, therefore, by the husband, when able to respond, is a refusal to abide by and perform the order and decree of the court, and it is difficult to see why such refusal should not be punished as a contempt for the same reason and upon the same grounds that orders and decrees of courts of equity, in injunction and the like, are in like manner enforced.”

.The only remaining question is, whether this plaintiff in error was unable to perform the order made.

He gets but $60 per month, or at most $15 per week. He goes into» detail somewhat about his expenses and shows that he is expending this amount in the support of himself and his present wife, but his evidence fails to show that, by close economy, he could not get on with less. It needs no going into details to show that it would require close-economy, very close economy, to support his present family and pay this alimony, but no reason appears why he and his present wife should not be required to exercise the closest economy that this alimony should be paid. With the order upon him to pay the alimony he saw fit to» marry another woman. She presumably knowing that his treatment of his former wife had been such as to entitle her to a divorce and to» this alimony, both of them knowing this, they chose to marry one another; they must abide the consequence. It would be a travesty to allow this husband to defeat the order of the court by voluntarily taking upon himself new obligations and then having them treated as superior to the obligations already incurred by him to his former wife and to the public, as- determined by the court.

Judgment affirmed.

Winch and Henry, JJ., concur.


author: WINCH, J.

text:
    AFFIDAVIT — BILL OF EXCEPTIONS — INTOXICATING LIQUORS.
    [Cuyahoga (8th) Circuit Court,
    October 29, 1906.]
    Marvin, Winch and Henry, JJ.
    Minnie Page v. State of Ohio.
    1. Scienter not Necessary in Prosecution eor Keeping Place where Liquor is Sold, Purchased or Given Away.
    An affidavit charging a person with a violation of the Beal law (95 O. L. 87; Rev. Stat. 4364-20 et seq.; Lan. 7259 et seq.) in that he kept a place where intoxicating liquors were, sold, purchased or given away, need not aver that such place was “knowingly” kept.
    2. Bill op Exceptions, Certified to Contain All the “Substantial” Points oe Evidence Presented at Trial not Review able.
    A bill of exceptions, transmitted to the reviewing court with a certificate that it contains all the evidence except that presented on one day of the trial, and all the “substantial” points presented on that day, may not be reviewed as to the weight of the evidence by the higher court as it does not contain all the evidence.
    [Syllabus approved by the court.]
    ERROR to Cuyahoga common pleas court.
    D. M. Bader, for plaintiff in error.
    A. V. Taylor, for defendant in error.
    Unless knowledge is made an element of the offense by statute it need mot be averred nor proved. State v. Kelly, 54 Ohio St. 166 [43 N. E. Hep. 163]; Bissman v. State, 6 Circ. Dec. 712 (9 R. 714) ; State v.-Weston, 3 Dee. 15 (1 N. P. 350) ; Myer v. State, 6 Circ. Dec. 477 (10 R. 226) ; Black, Intoxicating Liquors Sec. 500; State v. Kroner, 6 Dec. 374 <7 N. P.172).
    The statutes dealing with the traffic are not regulative statutes. They are called local option statutes, but when the option has been exercised the traffic is as unlawful in dry territory as it would be if the constitution of the state provided for state-wide prohibition. Even the possession of intoxicating liquor except in a regular drug store or Iona ■fide private residence is unlawful, and is made prima facie evidence of a violation of the statute^ 98 O. L. 15, See. 12. ,
    The statute must be so construed as to carry out the intent of the law. It is the policy of the law in Ohio to discourage the liquor traffic. Kellar v. Koerber, 61 Ohio St. 388 [55 N. E. Rep. 1002. J
   WINCH, J.

This is a proceeding in error brought to reverse a judgment of the common pleas court affirming a conviction of plaintiff in error, before a police justice, on an affidavit charging her with keeping a place where intoxicating liquors were sold, purchased and given away contrary to the provisions of the Beal law (95 O. L. 87; Rev. Stat. 4364-20 et seq.; Lan. 7259 et seq.).

It is said that the affidavit is defective in that it does not state that'-, the accused “knowingly” kept said place.

We hold that an averment of scienter is not necessary in an affidavit; or indictment charging.a violation of the Beal law, so called.

A full consideration of the authorities on this subject will be found in the ease of State v. Fromer, 6 Dec. 374 (7 N. P. 172), decided by Judge Wildman, then common pleas judge of Huron county, now one of the judges of the circuit court of Ohio, sixth circuit.

It is also said that the judgment is not sustained by the evidence, but this proposition we are unable to review for the bill of exceptions does not contain all the evidence. This is no fault of counsel for plaintiff in error. It appears that trial was begun on August 3, 1906, the accused having no counsel present. After some evidence had been offered the trial was adjourned to August 10, with consent of the defendant. On the last-named day the defendant was present with her counsel who made an effort to bring out all the evidence that had been offered at the previous hearing, by a re-examination of the only wit-nesá who had then testified. At the conclusion of this effort the court said:

“You have substantially proved everything that he testified to before in this case in chief; may not be in the exact language, but the substantial points of that evidence you have in.”

The certificate to the bill, of exceptions recites:

“This bill of exceptions contains all of the substantial points of the testimony of the witness, F. P. Merrill, taken on August 3,1906, and all of the evidence offered by either party on August 10,1906, in the trial of this, cause.” We are compelled to say that the certificate does not authorize us to weigh the evidence contained in the bill of exceptions presented to us. It is- not sufficient that we have before us what the trial judge considers all the “substantial points of the testimony,” but we should’ have all the evidence. The reviewing court might not agree with the-, trial judge as to what were the real substantial points of the testimony. The certificate in this ease substitutes the judgment of the trial judge: on that point for the judgment of this court, leaving us unable to pass upon the weight of the evidence with any satisfaction to ourselves or-certainty of arriving at a correct conclusion.

The plaintiff in error was content to rest this matter in the judgment of the trial judge and there it must remain and the judgment must be affirmed.

Marvin and Henry, JJ., concur.


text:
    NEGLIGENCE — RAILWAYS.
    [Cuyahoga (8th) Circuit Court,
    October 29, 1906.]
    Marvin, Winch and'Henry, JJ.
    Baltimore & O. Ry. v. John Campbell.
    Negligence to Operate Locomotive without Light or Bell at a Point in the Yard where Persons have Long Been in the Habit of Walking.
    Where a railway company maintains yards and switch tracks along docks and near to a much-traveled thoroughfare of a city, and persons have heen in the habit for a long time of walking along these tracks and up to this thoroughfare to the knowledge and with the acquiescence of the company, and without notice or warning to the contrary, a person who, while walking carefully along these tracks at a point near the thoroughfare on a dark night, is struck by a locomotive backing down upon him without warning, may recover from the company for his injuries thus ■sustained. Harriman v. Railway, 45 Ohio St. 11, followed.
    .ERROR to Cuyahoga common pleas court.
    Kline, Tolies & Goff, for plaintiff in error.
    McGrath & Stern, for defendant in error.
   WINCH, J.

This was a personal injury damage ease with verdict and judgment for the plaintiff below.

The petition alleges that,

“On the twenty-fourth day of November, 1903, the defendant was the owner of, and engaged in operating, a line of railway, extending to the village of Fairport in said state of Ohio; that said line of railway, together with two or three side tracks, extended along the easterly •side of Grand river, and the space between Grand river aid said tracks was taken up and occupied by docks, used chiefly for unloading ore ■from vessels and loading the same into cars on defendant’s tracks; that at the point about opposite the center of said village of Fairport, a street called Third street, extending in a westerly direction, intersects ;said tracks at about right angles, and leading directly to the business ■portion of said ore docks; that there are no other streets near by, leading to or from that portion of said ore docks, by reason of which. ■-said Third street was, and for many years had been, a very busy thoroughfare, used at all hours of the day and until late at night, by large numbers of men employed at said docks, and by the employes and officers of boats lying in said river; that a large part of the men :so employed on boats and on said docks, and many other persons having business in the neighborhood of said docks, were obliged to, and did, for many years past, use and walk upon the tracks of the defendant from both directions to the point intersected by said Third street, which was the chief and principal outlet from said docks, leading to the center of said village.
“Plaintiff alleges that the tracks of the defendant had been used in the manner aforesaid, by persons going tQ and from their work at said docks, for more than ten years preceding said twenty-fourth day •of November, 1903, and that the defendant acquiesced in, and consented to, the use of its tracks in the .manner aforesaid and made no objections thereto.
“On said twenty-fourth day of November, 1903, plaintiff was an •employe of the “Hartnell,” a vessel plying the waters of the Great Lakes and then lying at said docks; that at about 6 o’clock in the evening of said day, he left his boat to go to the post office, and entering upon the tracks of the defendant, walked in a northerly direction toward the point of intersection of said Third street; that while thus walking in a careful, safe and proper manner, between two of said tracks along and upon a well-beaten path, suddenly and instantly without any notice or warning to him whatsoever, and when he was at a point within 150 feet from said Third street, a switching engine of the •defendant under the charge and control of its employes, silently backed ■down upon him from behind, and «struck him on the back, below the left shoulder, suddenly throwing him forward in *sueh a manner that .he fell with his left arm across the rail, so that the same was then and there run over by said locomotive, and so badly crushed and mangled that the same had to be immediately thereafter amputated near the shoulder.
“Plaintiff further says that said locomotive was without a headlight and that no signal of its approach was given by the ringing of its bell or otherwise; that had there been a headlight on the rear of said •engine, its reflection would have given Him notice and warning; and no headlight being thereon, he was deceived and misled and induced to believe that he was in safety, and that no train or locomotive was approaching.
“That said injuries were received in the manner aforesaid without any fault on his .part, but solely by and on account of the grosá negligence of the defendant through its servants and agents in charge of said locomotive; that said negligence consisted chiefly in the failure of the servants of defendant in charge of said locomotive to carry a headlight and in failing to give any signal or warning of the approach of said locomotive; said servants and agents of defendant were also' negligent in failing to see plaintiff before striking him, and in failing to stop said locomotive or slacking speed so as to avoid the injuries plaintiff complains of.”

The bill of exceptions shows that such evidence was introduced to establish the allegations of the petition that the jury might well have' found that the accident occurred in the manner and under the circumstances claimed in the petition. The night was dark; the plaintiff testified that as he proceeded along the beaten path between the tracks, he-looked back frequently and listened, but saw and heard nothing until he was struck. Nobody saw him struck and the train crew did not know they had injured anybody until some time after the accident.

No prejudicial errors appear to have occurred on the trial. The sole question which has given us concern is whether, under the law,, the plaintiff was entitled to recover at all.

His counsel rely upon two cases in this state, Bellefontaine & I. Ry. v. Snyder, 18 Ohio St. 399 [98 Am. Dec. 175], and Harriman v. Railway, 45 Ohio St. 11 [12 N. E. Rep. 451; 4 Am. St. Rep. 507].

Part of the syllabus of Bellefontaine & I. Ry. v. Snyder, supra, reads as follows:

“It is the duty of persons in charge of .ears passing along streets- or other frequented places to exercise great caution; and if, by failure-to do so, a child of tender years is injured, the company is liable in an action by the child.”

The first paragraph of the syllabus in Harriman v. Railway, supra, reads:

“Where a railroad company has for a long time permitted the-public, including children, to travel and pass habitually over its road at a given point, without objection or hindrance, it should, in the-operation of its trains and management of its road, so long as it acquiesces in such use, be held to anticipate the continuance thereof,, and is bound to exercise care, having due regard to such probable use, and proportioned to the probable danger to persons so using its road. ’ ”

Counsel for a railroad company insists that the, liability of the-railroad company in Bellefontaine & I. Ry. v. Snyder, supra, grew out of its negligently running down a child on its tracks, after it saw the; child in a place of danger and could have stopped or warned the child off the track.

The true test in Harriman v. Railway, supra, is claimed to be the negligent keeping on its premises, at a place where it knew the public was accustomed to go, of a thing dangerous in itself, to wit, a torpedo, attractive to children, and which the plaintiff by childish instincts was led to explode.

It is said that the B. & 0. Railroad Company was operating its switch engine in its own yards and in its usual and customary manner on the night Campbell was injured and that at best Campbell was a mere licensee, without invitation or inducement, and that his permitted use of the track was subject to all risks incident to the ordinary use of the track by the company.

Our attention has been called to four cases later than the Harriman ease in which it is claimed that the doctrine of that ease is modified, but our examination of said cases leads us to believe that the Supreme Court has not departed from the rule stated by it in the Harriman case, so far as the same applies to duties of the company to the public upon its tracks at places known by it to be frequented by the public without objection by it.

The ease of Clev. T. & V. Ry. v. Marsh, 63 Ohio St. 236 [58 N. E. Rep. 821; 52 L. R. A. 142], was also a torpedo case, but the boy, Marsh, had been employed by the station agent without authority and without the knowledge of the company to attend to switch lamps and was on his way about that business when injured.

The fourth paragraph of the syllabus reads:

“While a railroad company owes a duty to the public to keep its tracks free from unnecessary danger along where the public are allowed to use such tracks as a way for travel, one who is not using such tracks as such way, cannot be heard to complain of the breach of such duty, and in ease of injury to him, cannot bring the breach of such duty to his aid in attempting to recover for an injury caused by reason of some other alleged negligence of. the company.”

In the case of Cin. H. & D. Ry. v. Aller, 64 Ohio St. 183 [60 N. E. Rep. 205], it appears that Aller departed from the path used by the public and was so injured. Judge Shauck, delivering the opinion, page 193, says of Harriman v. Railway, supra:

“The doctrine of the case is, that when the company became aware that persons were using the road for purpose of their own it became its duty, not to alter the construction of its road, but to operate it consistently with the facts thus known to it.”

The ease of Clev. A. & C. Ry. v. Workman, 66 Ohio St. 509 [64 N. E. Rep. 582; 90 Am. St. Rep. 602], involved the duties of the company toward one of its own employes, using a “speeder” upon the main track, “without any invitation or inducement therefor by the company, but with no objection on the part of the company.”

Judge Davis, on page 541 of the opinion, says:

“The doctrine of Harriman v. Railway, 45 Ohio St. 11 [12 N. E. Rep. 451; 4 Am. St. Rep. 507], does not apply here, because there is in this case no pretense of acquiescence in the public use of the railway track in the way in which it was used by the deceased, nor was there any invitation or inducement held out to the deceased to so use it. ’ ’

The case of Ann Arbor Ry. v. Kinz, 68 Ohio St. 210 [67 N. E. Rep. 479], cites the Harriman ease and suggests that that decision was bottomed upon the sound principle that the railroad company maintained an attractive and dangerous thing^ upon its .premises. It does not suggest that the fir^t paragraph of the syllabus of the Harriman case, which has been heretofore quoted, is not good law, but shows that the law as so stated is not applicable to the facts in Ann Arbor Ry. v. Kinz, supra.

Finally, no Ohio casé has been cited to us which holds a doctrine contrary to that quoted from the Harriman case. The only suggestion of counsel has been, that the ruling was not necessary to a decision of said ease and that the Supreme Court has found it inapplicable to the facts of the other cases cited.

Nor do we believe that the facts of this case show that Campbell was upon the path between the tracks as a mere licensee, without invitation or inducement. To use the language on page 243 of Clev. T. & V. Ry. v. Marsh, supra, his being upon the pathbetween the tracks at that time was induced by the fact that said path had been used for years as a line of travel by the public.

The company must be held to care commensurate with this inducement, so long as it permits the same to continue, without signs or other warning to keep the public off.

To back down upon said path and upon a person walking carefully thereon, in the night season, without warning, as the jury found in this case, is actionable negligence.

Judgment affirmed.

Marvin and Henry, JJ.f concur.