text:
    TITLE TO PROPERTY WHICH PASSED UNDER A LOST WILL.
    Court of Appeals for Licking County.
    The Consumers Brewing Company v. Mary V. Hardway et al.
    Decided, September Term, 1913.

      Wills — Necessary Proof as to Contents of a Destroyed Will — Sale of Property for Taxes — Irregularities Which Do Not Render a Tax Title Invalid.

      1. The contents of a will, which has been destroyed together with the record thereof, can not be established by the testimony of a single witness who speaks entirely from memory after an interval of more than thirty years since he saw the will and heard it read.
    2. In order to attack successfully a tax title, the former owner must show some irregularity in the proceedings connected with the tax sale which invalidates the title so conveyed, and/where the only defect shown is that the description of the property sold for taxes was not clear, and the present holder and his' predecessors in title have been in possession for more than fifty years, it is too late to seek to invalidate the Conveyance, and the present holder will be decreed to be invested with an absolute estate in fee simple.

      A. A. Stasel and Carl Norpell, for plaintiff in error.

      Kibler & Kibler and J. B. Davies, contra.
    Voorhees, J.; Shields, J., and Powell, J., concur.
   Action below was a civil action for partition of real estate in the city of Newark, Licking county, Ohio, described as lot number 46 in said city. The petition states in substance that one Steven Gill died in 1843, at which time he was the owner of said lot 46 situated on the north side of the public square in the city of Newark.

He died leaving three daughters and three sons. One of said daughters, Mary Anne Cully, died November 8, 1856, without issue; another daughter, Sarah Anne Wadhamé, died in 1885, leaving one child, a daughter, to-wit, Janet Hartley. It is claimed by the plaintiffs below that Janet Hartley had three children, but what has become of Janet Hartley or her three children is not disclosed. Another of said daughters, to-wit, Eliza M. Kidwell, died November 9, 1909, without issue. Lorenzo Gill, one of said sons, died in 1891, leaving one child, Eliza J. Henthorne; John Gill, another son, died in 1889, leaving Mary V. Hardway, his only child. Steven A. Gill, another of said sons, died in 1912, leaving Mary Francis Gill his only child.

It is contended by the plaintiffs below that said Steven Gill, who died as before stated in 1843, made and left a will whereby he devised to each of his said daughters a life estate in said lot 46 with remainder in fee to their heirs. They further contended that Mary Y. Hardway, Eliza J. Henthorne, Steven A. Gill and the unknown heirs of Sarah Anne Wadhame are the heirs of Eliza M. Kidwell who died November 9, 1909, and as such heirs are each entitled to one undivided one-fortieth of her undivided one-third of the south 120 feet of the west half of the said lot 46, and brought this suit for the partition thereof.

The petition further alleges that the Consumers’ Brewing Company was the owner of the other undivided two-thirds of said lot, and is in the sole and exclusive possession of said premises, denying the rights of the plaintiffs and unlawfully keeps the plaintiffs out of possession of their part of said premises. The petition further alleges that the brewing company has received the rents from said premises, amounting to $300 or more.

The defendant, the brewing company, filed its answer admitting as the first defense that it is in the sole and exclusive possession of said premises; and it denies the rights of the plaintiffs to said premises or any part thereof. It admits receiving of said rents amounting to $300 or more, and denies all the other allegations of the petition.

For a second defense defendant alleges that plaintiffs’ alleged cause of action did not accrue at any time within twenty-one years prior to the commencement of said action.

For a third defense defendant sets up its adverse, exclusive, open, notorious and continuous possession of said premises for more than twenty-one years.

The plaintiffs’ reply in effect is a general denial.

The defendant company filed an amendment to its answer, setting np a claim for improvements under the occupying claimant act.

Upon these issues this case was tried to the court. Neither side demanding or waiving a jury, the hearing resulted in a decree in favor of the plaintiff and ordering partition of the premises. All questions as’ to the accounting for improvements was reserved by the common pleas for a further order of the court.

From this decree the defendant, the Consumers’ Brewing Company, appealed to the circuit court, which court on motion of plaintiffs below dismissed the appeal.

From the judgment of the circuit court dismissing said appeal the defendant prosecuted error to the Supreme Court, which court, by a divided court three to three, affirmed the circuit court.

The Consumers’ Brewing Company also prosecuted error from the decree of the common pleas to this court, then the circuit court, and filed its bill of exceptions and petition in error.

The errors assigned in the petition in error are:

1. In admitting testimony offered by plaintiffs below against the objection of defendant below.

2. In rejecting evidence offered by defendant below.

3. Because the decree, judgment and finding was against the manifest weight of the evidence.

4. Because said judgment, finding and decree was against the law.

5. For numerous other errors stated.in the petition in error.

Considering the errors in the order assigned, was there error in the admission of testimony by the plaintiffs below? It is contended by the plaintiff in error that the court erred in receiving the testimony of J. F. Lingafelter as to the contents of the alleged will of Steven Gill, deceased, which was made, probated and recorded some forty years ago. But neither the will nor a copy or any record thereof is produced. It is claimed by the plaintiffs that the original will, as well as the record thereof were destroyed when the Newark court house was burned in 1874.

There being no record of the will, or the original will, or a certified copy thereof, or an uncertified copy of the record produced, the only thing left was to produce a witness or witnesses who would testify that they had read the original record and from memory would and could give so much of its contents as to make it clear and satisfactory-that the will had been probated, that it contained provisions claimed by the parties offering such proof.

The plaintiffs produced one J. F. Lingafelter, who was permitted to testify from memory as to the contents of the alleged will and the record thereof, although he had' not seen the will or a copy of it for thirty-six years. Waiving the question as to the competency of the witness Lingafelter, what probative .force, if any, is his testimony entitled to? The witness must be supported by other evidence. The unsupported parol evidence of one person who testifies that he saw and read a deed in the' grantee’s hands is not sufficient to establish a lost deed. Smith v. Neff, 5 N. P., 495.

In the ease of Cole v. McClure, the Supreme Court of Ohio reversed the common pleas and circuit court establishing and probating a lost will on the testimony of one witness as to its contents. Reported 88 Ohio State, —.

To establish a lost instrument, deed or will, the evidence must be clear and satisfactory. 7 Cyc., p. 778f.

Where parol evidence is relied upon to prove a deed alleged to have been lost, such evidence must clearly and satisfactorily show the existence and execution of the supposed deed, and so much of its contents as to enable the court to determine the character of the instrument (Gilmore v. Fitzgerald, 26 O. S., 171). The same strictness as to proof would obtain where it is attempted to establish the contents of a lost or destroyed record.

The testimony of said James F. Lingafelter as to the contents and conditions of the will of Steven Gill, deceased, contained in the record commencing on page 173 and ending with page 203 needs no comment other than the- criticism of Judge Cox, of the United States Court, in the case of Mach v. Spencer Mfg. Company, 52 Fed., 819 and 820, where the judge uses this language, concerning such a narrative of facts, from memory after so long a period, “That a witness recalling minute details of a trivial event which occurred in his daily vocation thirty years before would be amazing if not miraculous.”

2. If the will of Steven Gill was as Lingafelter testified it was, how stands the ease in view of the subsequent history and facts disclosed in the record? The will of Steven Gill, as claimed by Lingafelter, gave to his three daughters an estate for life in the property in controversy, remainder to their heirs.

March 17, 1848, Eliza M. Kidwell, one of the daughters, and her husband conveyed her life estate in the property in controversy to George S. Smith, from whom defendant company claims title. March 20, 1848, Mary Anne Cully, another daughter, and her husband conveyed her life estate to George S. Smith. On the 12th day of June, 1848, in consideration of $500 to them paid by said three daughters, said sons conveyed the fee in this property to the three daughters by quit-claim deed. On June 12, 1848, Anne Wadhame, the third daughter, and her husband sold and conveyed to Merwin Cully, husband of Mary Anne Cully, not only the life estate of Sarah Anne Wadhame, but also the fee simple title in one-third of the premises for $200. July 24, 1848, Merwin Cully and Mary Anne Cully conveyed to George S. Smith, not the life estate of Mary Anne Cully in one-third of this property, but the absolute title in fee simple for $450.

Without going into further detail as to the /various deeds to Smith, after he received these conveyances he erected a large and valuable building on said lot. The defendant company produced its chain of title for all of said premises, showing an unbroken line of conveyances from the President of the United States to the plaintiff in error, the Consumers’ Brewing Company, and they further show an actual, open, notorious, exclusive and continuous possession under color of right in these premises since 1845, a period of sixty-seven years.

On the second Monday of January, 1845, these premises were offered for sale by the county treasurer of Licking county to pay delinquent taxes, interest and penalties and were not sold for want of bidders. On the second Monday of January, 1845, these premises were forfeited to the state of Ohio under the statute then in force governing forfeited land sales.

On the second Monday of December, 1845, these same lands were sold by the county auditor under the act of March 1, 1831, providing for the sale of lands forfeited to the state for nonpayment of taxes, being the same statute that is now in force under Section 2899 of the Revised Statutes of Ohio. The land was sold to one F. H. Woodbridge, August 15, 1846; and a deed was executed by the auditor of the- county to Woodbridge under said sale. September 19, 1846, said F. TJ. Woodbridge and wife conveyed these premises by quit-claim deed to one William A. Boss. August 4, 1848, William A. Boss and wife conveyed said premises to said George S. Smith. November 10, 1849, said George S. Smith and wife conveyed the same premises to Michael Morath, in which deed there is this recital: "Being .the same premises heretofore occupied by the said George S. Smith,, on which there is a three-story stone building known as the Bazaar in said city.” June 22, 1889, Michael Morath conveyed these premises to Philomena Worley. June 20, 1889, A. J. Grilley, sheriff of said county, conveyed these premises to L. P. Schaus and J. H. ITibbert. On the 17th day of July, 1897, said premises were set off and assigned in severalty to the said L. P, Schaus in partition in and by virtue of an action pending in the. common pleas court in said county, in which L. P. Schaus was plaintiff and Anna Chilcote and others were defendants, being, case No. 10,119 of the records of court of common pleas of .said county.

At the April term of said court for the year 1897 said partition was confirmed by the court and the clerk was ordered to have so much of said decree recorded as would show the transfer of title of said land. On December 11, 1905, L. P. Schaus and wife conveyed said premises to the Consumers’ Brewing Company, a corporation, which is now the owner arid holder of said premises and the plaintiff in error iñ this action. The foregoing citations show a complete chain of title from the state of Ohio in 1846 to the Consumers’ Brewing Company, plaintiff in error, covering a period of sixty-five years.

The only attack made upon said title by the defendants in 'error is their contention that the tax deed to Woodbridge for the forfeiture of lands for the non-payment of taxes was not a legal conveyance and was void and passed no title for the reason of a defective description in the tax deed or upon the duplicate for the sale of forfeited lands to the state. Under the act of March 14, 1831, in force at the time these lands were sold for taxes, as well as in Section 2899 of the Revised Statutes, when lands are forfeited to the state for non-payment of taxes all former titles to said lands are divested and extinguished, and the effect of the tax sale was to work a forfeiture of all the prior estates of the owner, and the auditor’s deed for forfeited land sold under said act of March 14, 1831, is prima facie evidence of title, and may be given in evidence without any preliminary evidence. The statute throws upon a person seeking to avoid this deed the burden of showing that the proceedings prior to its execution were illegal. Such a deed is not only prima facie evidence, but the Supreme Court of Ohio in ease of Lessee of Ward v. Barrows, 2 O. S., 242, held:

“In favor of the acts of public officers, the law will presume all to have been rightly done, unless the circumstances of the case overturn this presumption; and consequently, as stated by the Supreme Court of Ohio in Bank of the United States v. Dandridge, 12 Wheaton, page 70, ‘acts done which presuppose the existence of other acts to make them legally operative, are presumptive proof of the latter.’ ”

The auditor’s deed was prima facie evidence without any proof of the regularity of the proceedings resulting in the sale of the land. 14 O. R., 208; 27 O. S., 592.

The effect of this rule, as before shown, is to shift the burden of proof by imposing on the party asserting the invalidity of the deed the duty of showing it to be void for want of compliance with the statute in the proceedings leading to the alleged forfeiture. As we have said, the only objection to or defect of the tax deed is that is rendered void because the description is not good; that is, that the words “50 feet off the west half of lot 46” does not describe the property in controversy. • This lot 46 is a lot 99 feet east and west and 198 feet north and south • in the city of Newark, as shown by the plat offered in evidence. If this deed liad described it as the “west half of lot 46” the description would be perfect, but it says “50 feet of the west half of lot number 46.”

“Of” is a preposition meaning “belong to.” “A description in an auditor’s deed need not be of a greater certainty than any other conveyance by deed of individuals, and the same is to be literally construed to carry out the intention of the parties. ’ ’

It is held in 29 O. S., 150, that “extraneous testimony is admissible to identify land conveyed by the following description, to-wit, ‘a tract or lot of land known as the east half of the southwest division of Section 17,’ although such testimony shows that the land so conveyed is less in quantity than a mathematical half of the division.”

Without pursuing the discussion further as to the validity of the tax deed, how can the former owners have any interest in these forfeited lands to the -state for non-payment of taxes ? The state owns the fee simple title to the property and can make a sale of the same under the law. To attack"a title of this kind the former owner must show some irregularity that will invalidate the forfeiture. The only alleged irregularity in this deed is as to the description, and we do not think it such a defect as to invalidate the title conveyed by the auditor in his deed made August 15,- 1846. Under these deeds the plaintiff in error and its predecessors in title, from whom it claimed, have been in possession for over fifty years. We think it too late to attack the validity of this conveyance, and if the conveyance is legal it passes all the title, legal and equitable, owned by the prior owners of said premises, and vests in the plaintiff in error by succession an absolute estate in free simple; and being of this opinion, we must hold there was error in the court below in finding that the title to this property, or any part of it, is in the defendants, and for these reasons the judgment of the court below is reversed and the cause is remanded to the common pleas for new trial and further proceedings according to law.


source: Caselaw Access Project

license: Public Domain

text:
    RIGHTS IN A PARTIALLY VACATED STREET.
    Circuit Court of Cuyahoga County.
    Elizabeth S. Campbell v. Chas. F. M. Mitchell and Harry Crabtree.
    Decided, November 13, 1911.

      Vacation of Street — Abutter’s Rights.

    When the easterly 25 feet of a 40 foot street is vacated, 20 feet only of the* vacated portion accrues to the owner abutting upon the easterly side of the street and such owner has-no further rights in the westerly, unvacated, 15 feet of the street.

      B. B. Mooli, for plaintiff in error.'

      G. G. Reynolds, contra.
    ITenry, J.; Winch, J., and Marvin, J., concur.
   Opening into the north side of Superior avenue in the city of ■ Cleveland, and lying parallel to and between East 80th street and East 81st street, there formerly existed a dead end street, forty feet wide, called Grafton avenue, which was dedicated and accepted as such when L. Breckenridge allotted this territory in 1872. The plaintiff owns a lot extending from Grafton avenue west to East 80th street, and the defendants own lots further north which extended from Grafton avenue east to East 81st street.

' In 1900, the city council vacated the easterly twenty-five feet of Grafton avenue, and the lot owners on that side fenced into their own lots the land so vacated opposite thereto; but erected no buildings west of the original meridian line of the street.

In 1905 the council, vacated the remainder of Grafton avenue, and plaintiff thereupon fenced into her lot the land so vacated opposite the same. This fence the defendants have torn down, and they threaten and claim the right to continue tearing it down as an obstruction to their right-of-way over what was Grafton avenue to Superior avenue. They claim this right -as abutters on that part of Grafton avenue which remained a public street after more than half of it had been vacated on their side. But inasmuch as the accretion to their abutting lots from the first vacation could embrace no more than half the width of the original street, and since their lots, including such accretion, no longer abutted on Grafton avenue, it follows that after said first vacation, they ceased to have any abutters ’ rights in the westerly fifteen feet thereof, and hence they have no right to interfere with plaintiff’s fence. Whatever way of necessity or right remained to the easterly lot owners might have been amply and equitably satisfied out of the middle ten feet of the original street, and for aught we know, may yet be. The defendants are, and the plaintiff is not, inclosing or claiming the right to inclose said middle ten feet.

The defendants’ further claim of right to prevent plaintiff from inclosing the westerly fifteen feet, finds no support in either the law or the equity of the matter. An injunction will be allowed plaintiff as prayed for.


text:
    NATURE OF ACTION FOR. RECOVERY OF MONEY FRAUDULENTLY WITHHELD.
    Circuit Court of Cuyahoga County.
    Henry Harlow, as Guardian, v. John Hoehn et al; and Henry Harlow, as Administrator, v. Susie E. Clampitt et al.
    Decided, November 21, 1911.

      Appeals.

    An action for an accounting and recovery of money alleged to have been fraudulently withheld on certain mortgage loan investments, made by plaintiff through defendant, and collected by the latter, is an action for money only and not appealable.

      B. Pearce, for plaintiffs.

      McGraw & Messick and N. 8. Good, contra.
    Henry, J.; Winch, J., and Marvin, J., concur.
   The issues whereon these eases were tried below were raised by the fourth amended petition and the subsequent pleadings addressed thereto. All the original defendants except Southern, had been eliminated on its becoming apparent that they were innocent purchasers of the lands sought to be recovered from them. Furthermore, the death of the original plaintiff’s ward, Mrs. Abbie Iiarlow, pending the action below, was followed by a revivor of the action in the name of Henry Harlow as administrator of her estate. In its final aspect, the cause reduced itself, therefore, merely to a controversy between said administrator, as plaintiff, and said Southern, as defendant. In each case the plaintiff seeks an accounting and recovery of the moneys alleged to have been fraudulently withheld from his decedent by said Southern on certain mortgage loan investments made by her. She bought mortgages from Southern. He claims to have later re-purchased them from her, and having foreclosed the same for his- own account, he bought in the mortgaged property on the foreclosure sales, and subsequently sold the same to the other defendants who are now out of the case, as aforesaid. Plaintiff claims that his decedent, being of weak mind by reason of advanced age, and confiding in Southern as her advisor in matters of investment, and as her agent to make collections for her, was deceived and defrauded by him, in that, without her knowledge, he retained and foreclosed said mortgages in his own name, and converted the proceeds to his own use, paying her nothing except fictitious interest collections after the mortgages were in default.

The question now presented to us is whether these actions are appealable. Their final, and not their original, aspect must control the question whether or not they were triable to a jury and hence non-appealable. In Raymond v. Railroad Company, 57 Ohio State, 271, it was held:

“Under our system of pleading, a plaintiff may be permitted to substitute an amended petition in place of the original which may have the effect to change the form of action from an equitable to a legal action, the basis and the ultimate object of the action remaining the same. And if such change is made, the court, in determining the issues to be tried, will look wholly to the amanded pleadings, disregarding the original and the cause will thereafter be treated as a suit at law, and will proceed to trial and judgment as though it had been commenced as a legal action. ’ ’ *

i.

Some countenance is given to the appealability of eases like those before us,.in Black, Receiver, v. Boyd, 50 Ohio State, 46, where it was held:

“The equity jurisdiction of a court of common pleas, in matters of mutual and complicated accounts, is not abrogated by Section 5130, Revised Statutes, which provides that either party may demand a jury trial of ‘issues of fact arising in actions for 'recovery of money only. ’ An action is not one for the recovery of money only within the purview of the statute, where, to administer full and complete relief therein, it is necessary to invoke the equity powers of the court to adjust the accounts between the parties and in such case either party may, by virtue of Section 5226 of the Revised Statutes, appeal to the circuit court from the judgment of the court of common pleas.”

But this decision was overruled in Wilson Improvement Co. v. Malone, 72 Ohio State, where it was held:

‘ ‘ In view of the comprehensive terms of Section 5130, Revised Statutes, issues of fact in all actions ‘for the recovery of money only, are triable to a jury and no exception is admitted because of the number of the items in an account which is the basis of the action, unless there is such relation of parties as will authorize a court of equity to decree an accounting by one for the information of the court and his adversary.
“Within the meaning of the section an action for money is an action for money only, unless there is sought some form of relief peculiar to courts of equity, and the action can not be appealed from the common pleas to the circuit court. {Black, Receiver, v. Boyd, 50 Ohio St., 46, overruled.)”

It might perhaps be argued that the appealability of the cases before us is sustained by Bricker v. Elliott, Admr., 55 Ohio State, 577 where it was held:

“A suit to compel a trustee to account to the beneficiaries of his trust and for a judgment for the amount which, upon such accounting, may be found in his hands, is not an action for the recovery of money only, and from the judgment of the court of common pleas in such action either party may appeal to the circuit court.”

In that ease Shauck, J., said, at pp. 579 and 580:

' ‘ The adjudications of this court determine that, if the ac-. tion is for that purpose only, it is triable by jury, even though the principles upon which a recovery is sought are equitable in their nature and origin. They also determine that cases are so triable if the remedy of accounting in equity is not necessary to full and adequate relief even though disclosures' from the defendant may be desired.
“In the original petition the plaintiff did not allege an indebtedness for a definite amount due from the defendant. He alleged facts which excused him from doing so, by showing that, although the parties were adversary in the suit, they had not been so in the transactions out of which it arose.
“The case alleged showed that the defendant was a trustee; that in consequence of the trust and confidence reposed in him by his mother, he was in possession of funds belonging to her, whose amount he knew, and she did not. The case was not for money only. It invoked the exercise of equitable jurisdiction to compel the trustee to render an account necessary to the ascertainment of the amount due, and for a judgment for that amount when ascertained.”

It will be observed, however, that in the eases before us, no trust or other relationship between Southern and Mrs. Harlow is set up, that would justify or require final relief of an equitable nature. The ultimate relief sought, notwithstanding that no specific amount is prayed for, and that a discovery is asked to ascertain the amount recoverable, is money only. No lien is sought to be declared; no fund is to be traced; no equitable accounting, as between fiduciaries, is appropriate. All that is sought is to ascertain the amount due and recover judgment therefor. We think that the cases here are governed by Gunsaulus, Admr., v. Pettit, Admr., 46 Ohio State, 27, where it was held:

“The right to trial by jury does not depend upon the principles upon which relief is asked, but upon the nature and character of the relief sought. If the relief sought is a judgment for money only, the fact that before the adoption of our reformed system of procedure, the proper remedy would have been by a suit in equity, does not affect the right of either party to a trial by jury upon any issue of fact made by the pleadings.”

Also in point is Lange v. Lange, 69 Ohio State, 347, where it was held:

“In an action for money, not requiring a decree granting some mode of equitable relief, an appeal can not, under Section 5226, Revised Statutes, be taken from the court of common pleas to the circuit court, although the determination of the rights of the parties may involve the application of principles which are of equitable origin and nature.

In that case Shauck, J., said at p. 349:

“However uniformly it may appear that appealable actions are equitable, the Legislature has not used appropriate terms to make all equitable actions appealable. While the constitutional requirement that the right of trial by jury shall remain inviolate has been effective to continue that right in all cases which were triable to a jury at the time of the adoption of the Constitution, it has not prevented, nor was it intended to prevent, the extension of the right of trial by jury to cases which were not ■ so triable at the time of the adoption of the Constitution; and every ease included in such extension of the right of trial by jury is thereby excluded from the category of cases appealable, however clearly it may appear that the rights of the parties depend upon the application of principles which are of equitable origin and nature. ’ ’

We hold, therefore, that the eases before us, in their final aspect, are “actions for money only”; that they were therefore “triable to a jury” below; and hence that no appeal lies. The appeals will be dismissed.


text:
    GARNISHEE OF AN ASSIGNEE.
    Circuit Court of Cuyahoga County.
    The National Radiator Company v. E. J. Hobday et al.
    Decided, November 21, 1911.

      Garnishee Process — Good Against Assignee of Insolvent Estate, When.

    An assignee or trustee in insolvency may be garnisheed by a creditor of a distributee of the insolvent estate, after order of distribution is made.

      Thompson & Mine, for plaintiff in error.

      Hobday c§ Quigley, contra.
    Henry, J.; Winch, J., and Marvin, J., concur.
   The sole question in this case is whether or not an assignee or trustee in insolvency may be garnisheed by the creditor of a distributee of the insolvent estate after order of distribution made.

In Orlopp v. Schueller, 72 O. S., 41, it was held that property or money held by the executor or administrator of an estate in his representative capacity, can not be reached by attachment or garnishee process in an action against the heir or legatee before •an order of distribution has been made, and that the provisions of Section 5531, Revised Statutes, now .G-eneral Code, Section 11829, neither apply to nor authorize the service of garnishment' on an executor or administrator. It was there held that executors and administrators are not public officers within the meaning of the phrase “other officers,” as contained in the statute as follows;

“The service of process of garnishment upon the sheriff, coroner, clerk, constable, master commissioner, marshal of the municipal corporation, or other officer having in his possession any money, claim, or other property of the defendant, or in which the defendant has an interest, shall bind it from the time of service,” etc. ,

As the Supreme Court points out, this statute does not undertake to “provide or prescribe who may be served with garnishee process,” but only “to define the effect of service of the process of garnishment upon public officers.”

As said, however, in Sampsell v. Sanvpsell, 17 C. C., 455, at page 460, a writ of garnishment, under favor of the preceding section, may be issued against “any person, partnership or corporation” that is possessed of property of the defendant. But this provision has been generally construed as not applying to public officials, and .this is upon a theory of public policy requiring that the course of legal proceedings, and the duties of public officers, shall not be interfered with so as to protract litigation, produce conflict of jurisdiction, or otherwise embarrass the public business, unless the General Assembly, by law, unequivocally provides'that it may be done.

But, inasmuch as the General Assembly has provided for the effect of the service of the writ of garnishment upon certain named officials, it must be held as against these, at least, that the issuance of the writ is authorized by the general language of General Code, Section 11828. So, also, with respect to any officer, public or private, who is not strictly an “other officer”, within the meaning of General Code, Section 11829, it must be held that the language of the preceding section is sufficiently broad to authorize the issuance against him of the writ of attachment, unless it shall appear that such issuance is in conflict with the rule of public policy above stated, and not within the legislative waiver or modification thereof.

Where an order of distribution has been made, an assignee, administrator, executor or guardian may be sued by any distributee, or his assigns, for his or their distributive share. Braden v. Mercer, 44 O. S., 339; Garver v. Tisinger, 46 O. S., 56; Webster v. Bible Society, 50 O. S., 1.

If public policy under such circumstances does not forbid the creditors of such officers to sue them for the recovery of distributive shares, there would seem to be no reason why, under like circumstances, a creditor of such creditor may not have the remedy of attachment or garnishment. If we are right in thus thinking, this case is not governed by either branch of the syllabus of Orlopp v. Schueller, supra. The first branch does not apply, because here an order of distribution was made, whereas in that ease none had. been made. The second branch does not apply because the right to have the writ issued against Crosser, trustee, in the ease at bar, does not depend upon Revised Statutes,’Section 5531 (General Code, Section 11829), but is allowable under the general language of the preceding section.

It may be added that Crosser, trustee, is not here objecting. On the contrary, he filed an answer alleging that he held money of the defendant in'attachment subject to an order of distribution made by the insolvency court of this county, and subject to such order as might be, made by the court which issued the writ of garnishment.

The'judgment is affirmed.


text:
    FAILURE OF ASSENT TO CONTRACT FOR. SALE AND PURCHASE.
    Circuit Court of Cuyahoga County.
    The Arthur Coal & Coke Company v. Pittsburg Coal Company.
    Decided, November 27, 1911.

      Mistake in Identity — Right of Bét-off — Contract Not Created.

    When a purchaser buys from one whom he supposes to be his debtor and against whom he would have a right of set-off, a mistake as to the identity of the vendor prevents the contract from coming into existence for want of assent.

      Lang, Cassidy & Copeland, for plaintiff in error.

      Holding, Masten, Duncan c§ Leckie, contra.
    Henry, J.; Winch, J., and Marvin, J., concur.
   The Arthur Coal & Coke Company, which was plaintiff below, and is plaintiff in error here, sued as assignee of the Phillips Coal & Coke Company, an Ohio corporation, upon an amount for coal sold to defendant under a contract evidenced by a letter written by defendant to “the Phillips Coal & Coke Company,” and by a letter of acknowledgment of the same' date from the recipient of the order. The defendant contends that its contract was not with plaintiff’s assignor, but with an older concern of the same name, not an Ohio corporation, against which it had an account, and that it is therefore entitled to set off its account against said older concern, it being stipulated that the mutual accounts are identical in amount, so that the set-off, if allowed, constitutes a complete defense.

There is some dispute in the evidence as to whether the. defendant was not seasonably apprised of the distinction between the two companies bearing the name “the Phillips Coal & Coke Company.” The jury’s verdict implies a finding that the defendant had no notice of the distinction, and there is sufficient evidence to support this finding.

C. L. Arthur dealt with the defendants agent of both companies in succession. Both companies occupied the same office, conducted the same kind of business, used the same stationery, and in other ways, disclosed by the evidence, afforded abundant warrant for the jury’s finding in this behalf. As regards the identity of the vendor, it may be assumed, therefore, that the defendant was deceived, and also that it (was prejudiced, unless it can avail itself of its set-off. With respect to the identity of the parties to the alleged contract, their minds failed to meet. The action here is upon an express contract, the plaintiff having disavowed any reliance whatever upon an implied contract. Nor would this make any difference, for, in The Columbus, Hocking Valley & Toledo R. R. Co. v. Gaffney, 65 O. S., 104, it was expressly held that “The meeting of the minds of parties upon its terms is necessary to the making of a contract; and this is so whether it be an express contract or an implied one, if, in the latter case, the contract to be proved is an actual one as distinguished from a constructive contract.”

The charge to the jury presents, therefore, the sole grounds of error complained of here.

The court charged, that notwithstanding the selling agent, Mr. Arthur, may have been in fact acting for plaintiff’s assignor in making the contract, yet, if he did not so inform the defendant, and if the defendant in good faith supposed and believed it was contracting with a company with which it had previously dealt, and which was indebted to it, the situation would be that the minds of the parties never met in respect to a material part of the contract.

And again, the court charged that the burden of proof is upon the plaintiff to show that the contract was made between the defendant and plaintiff’s assignor, or, in other words, that defendant was informed or knew that it was contracting for the purchase of said coal with plaintiff’s assignor, and not with the company with which it had previously dealt under that name.

It is, no doubt, ordinarily true that the identity of the vendor in an executed contract for sale is of no moment to the vendee who has negotiated with one person, believing him to be another, and has received and retained the goods bargained for. Ordinarily, too, the burden of proof with regard to the identity of parties is fully satisfied by showing mere identity of names of persons. Where, however, the vendee’s right of set-off is involved, and where there is, as in this" case, a confusion of identity, an occasion for the application of the rules laid down by the trial court may well arise. Cases of this sort, though unusual, except where deliberate fraud is perpetrated, are nevertheless treated of in the books. In Benjamin on Sales, 7th Edition, Section 58, the distinction is laid down as follows: '

“A mistake as to the person with whom the contract is made may or may not avoid the sale, according to circumstances. In the common case of a trader who sells’ for cash, it can make no possible difference to him whether the buyer be Smith or Jones, and mistake of identity would not prevent the formation of the contract. But when the identity of the person is an important element in the sale, as if it be on credit, where the insolvency of the buyer is the chief motive which influences the assent of the vendor, or when the purchaser buys from one whom he supposes to be his debtor and against whom he would have the right to set off the price, a mistake as to the person dealt with prevents the contract from coming into existence for want of assent.”

See also: Parsons on Contracts, 9th Ed., p. 565; Mechem on Sales, Section 267; Walds Pollock on Contracts, 5th Ed., p. 591.

We have examined the eases cited by the plaintiff in-error without discerning any sufficient reason for refusing to recognize the rule laid down by Benjamin, and the judgment is affirmed.


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    REFUSAL TO PUNISH FOR CONTEMPT IN FAILING TO PAY ALIMONY.
    Circuit Court of Cuyahoga County.
    Lulu S. Mackenzie v. Peter Mackenzie.
    Decided, November 27, 1911.

      Contempt Proceedings — Refusal to Punish Discretionary.

    1. Though judgments in contempt proceedings are reviewable on error, a refusal to punish for contempt is, in general, a matter wholly within the discretion of the court.
    2. Such discretion is not abused where • the trial court refuses to punish a defendant t,or failure to pay alimony, the plaintiff herself, having removed a child of the parties beyond the jurisdiction of the court so as to prevent the defendant from visiting it, as allowed by the court.

      P. G. Kassulker, for plaintiff in error.

      B. E. McKisson, contra.
    Henry, J.; Winch, J., and Marvin, J., concur.
   Though judgments in contempt proceedings are reviewable on error by General Code, 12146, a refusal to punish for contempt is, in general, a matter wholly within the discretion of the trial court. Such a proceeding is gwsi-criminal, and though jurisdiction therein may be invoked by persons aggrieved, by disobedience of the court’s orders, it is primarily for the vindication of the dignity and sovereignty of the state in the exercise of its judicial power, rather than for the redress of private wrongs, that such jurisdiction is exercised. One who is punished for contempt may have his review. But one who unavailingly invokes such punishment for another, can complain only, if at all, of the abuse of the court’s’-discretion in refusing so to punish. Here the plaintiff, having taken her child beyond the jurisdiction of the court that had awarded her alimony, and also the custody of said infant, subject, however, to the defendant’s right to see and visit it, can not complain of abuse of discretion by said court in refusing to punish the defendant for contempt for discontinuing payment of such alimony.

The judgment is affirmed.


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    PROSECUTION UNDER. THE CIVIL RIGHTS STATUTE.
    Circuit Court of Cuyahoga County.
    Harry E. Davis v. Euclid Avenue Garden Theatre Company.
    Decided, November 27, 1911.

      Civil Rights — Aiding and Inciting Denial, a Separate Offense — Refusal to Sell Theatre Tickets.

    1. Two refusals at different times to sell tickets to one performance at a theatre, constitute but one violation of the civil rights act.
    2. Aiding or inciting a denial of civil rights under General Code, Section 12940, is a distinct and separate offense, and one guilty of it is punishable, notwithstanding he whom he aided or incited has been convicted of the concomitant offense.

      Pattison & Austin, for plaintiff in error.

      White, Johnson A; Gannon, contra.
    Henry, J.Winch, J., and Marvin, J., concur.
   The parties to this proceeding in error stand here as they stood below. There the plaintiff, who is of African descent, sued for damages under the Civil Rights Act, Bates’ Statutes (4426-1) and (4426-2), now General Code, Section 12940, for defendant’s refusal, on August 3, 1909, to accord him “the full and equal enjoyment of the accommodations, advantages, facilities and privileges,” of its theatre, “subject only to the conditions and limitations established by law, and applicable alike to all the.'citizens, ” in that on the afternoon of said day, by and through its agent Max Davis at its down-town ticket office in Burrows Brothers’ bookstore iu Cleveland, it twice declined to sell plaintiff tickets for its matinee performance on the following day, though it then and there had tickets for sale, and plaintiff tendered the usual price therefor.

In his original petition, plaintiff complained of these two refusals in two separately stated and numbered causes of action. On motion he was thereupon required to elect on which cause of action he would rely. To this ruling he excepted, and made his election to rely on the second refusal, as set forth in his second cause of action. We hold that the court did not err in thus ruling. The reiterated refusal to sell plaintiff tickets to one and the same performance constituted but one cause of action, and his attempt to assert two causes of action in his petition was properly challenged and prevented.

The defendant thereupon filed its answer to the amended petition, pleading a general denial and also alleging as a bar to the action that the said agent, Max Davis, had, upon the same state -of facts, been convicted and punished by the police court of said city. This defense is based upon the concluding clause of the second section of said act, which reads as follows:

“That any person who shall violate any of the provisions of the foregoing section by denying to any citizen, except for reasons applicable alike to all citizens of every race and color, and regardless of color or race, the full enjoyment of any of the accommodations, advantages, facilities or privileges in said section enumerated, or by aiding or inciting such denial, shall, for every such offense forfeit and pay a sum not less than fifty ($50) dollars nor more than five hundred ($500) dollars to the person aggrieved thereby, to be recovered in any court of competent jurisdiction in the county where said offense was committed; and shall also, for every such offense, be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined not less than fifty ($50) dollars nor more than five hundred ($500) dollars or shall be imprisoned not less than thirty days nor more than ninety days or both; and provided further, that a judgment in favor of the party aggrieved, or punishment upon an indictment, shall be a bar to either prosecution respectively. ’ ’

A demurrer to this defense, as embodied in an answer to the original petition, had been overruled, and exception taken. But no such demurrer was interposed to the last answer, and said exception was therefore waived. .

The bill of exceptions does not contain all the evidence; •hence the weight of the evidence is not before us. Neither is the propriety of the court’s ruling in directing a verdict for the defendant, though that ruling was apparently based upon the plaintiff’s admission of the truth of the facts pleaded in bar as aforesaid.

It is complained, however, that the court erred in excluding plaintiff’s testimony that, at the time he repeated his attempt to buy the tickets, the agent said, “What are you doing this'to me for? I am only doing what I was told to do.” This was a part of the res gestae. It tended to prove that the defendant, aside from any application of the rule of respondeat superior, had aided or incited the ticket agent to commit the offense of which the latter was convicted.

The act makes this a distinct and separate offense, and the one guilty of it is of course punishable, notwithstanding that he whom he aided or incited has1 been convicted of the concomitant offense. The conviction of the agent would not bar prosecution of the aider or inciter; nor vice versa. Facts tending to show a separate criminal liability, tend also to show that the inciting principal’s civil liability is not barred by the agent’s conviction for his own misdemeanor. The principal may be civilly liable either because he has specially authorized or commanded the act complained of, or because his agent within the scope of the agency has done it even against his orders. In the former ease, both are criminally liable. They may not be jointly liable in a civil suit; but the conviction of the agent is certainly no bar to the civil liability of the principal, where the latter might also have been convicted.

For error in excluding this evidence, the judgment is reversed and the cause remanded.


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    ACTION ON CLAIM IRREGULARLY CONTRACTED BY VILLAGE.
    Court of Appeals for Hamilton County.
    The Village of Pleasant Ridge v. The Dayton Limestone Company.
    Decided, July 12, 1913.

      Municipal Corporations — Obligation Incurred Without Complying With Statutory Provisions — Failure of Action on Claim so Incurred — ■ Sections 3806 and 4221.

      a. cause of action is not stated against a village on an account for material used in improving its streets, where there is no allegation that a certificate issued as to there being sufficient money, in the treasury and unappropriated to meet the proposed obligation, or advertisement was made for bids for the work, or that the obligation was to be met by the proceeds from an issue of bonds; nor can the argument prevail that because the material so furnished was actually used by the village it became morally bound to pay the claim.

      Stanley W. M err ell, Assistant City Solicitor, for plaintiff in error.

      Paxton, Warrington -c§ Seasongood, contra.
    Jones, O. B., -J.; Swing, J., and Jones, E. H., J., concur.
   Plaintiff in error seeks to set aside a judgment by defendant in error in tbe court of common pleas for $1,500 and interest for stone furnished and delivered for the improvement of fits streets.

The record shows that the stone was furnished on four written ordered addressed to the Lewis & Talbott Stone Co., three of them for 369 cubic yards of stone at $1.35 per cubic yard, signed by “John Petzer and "William B. Thesing. S.S.G-. Committee,” and the other for 389 cubic yards signed by “John Petzer, S.S.Gr. Committee.” No written contract was entered into and signed by the proper village officers, no advertisement for bids was made and no certificate from the village clerk was filed showing that money was in the treasury set apart to meet the proposed expenditure. The stone was delivered and used on the village streets. A partial payment was made on the account, and a question being raised as to payment for the balance claimed, an ordinance was passed by the village council February 18, 1907, “to allow the claim of the Lewis & Talbott Stone Company for material furnished for use on the streets of Pleasant Ridge,” and the clerk was directed to issue a warrant against the ‘first available funds,” and the treasurer was directed to pay over such amount to the Lewis & Talbott Stone Company or their attorneys or agents the sum of $1,500 in full settlement of said claim of the Lewis & Talbott Stone Company. No certificate was attached to such ordinance that there was money in the treasury to meet such expenditure.

The petition below does not state a cause of action. It fails to set out a valid contract, as it does not comply with the municipal code, under G. C., 3806, there being no certificate that there is money in the treasury set apart to meet the expenditure; or under G. C., 4221, which requires an advertisement when the expenditure is in excess of $500; nor does the evidence show that these provisions were complied with, and defendant therefore can not be held. City of Lancaster v. Miller, 58 O. S., 558; Buchanan Bridge Co. v. Campbell, 60 O. S., 406; Comstock v. Nelsonville, 61 O. S., 288; Wellston v. Morgan, 65 O. S., 219.

Plaintiff below however relied' upon the case of Emmert v. Elyria, 74 O. S., 185, claiming that bonds were to be issued to raise money to pay for resurfacing the streets and that the stone furnished by plaintiff was used as part of such work. The record fails to support that claim.

Nor can the argument prevail that because the material furnished was actually used by the village it thus became morally bound to pay the claim. Such an argument might be heard in a suit to prevent the village from making such payment if it so desired, but it can not be used in a' suit like this at bar where the village is resisting payment in a suit filed to recover the value of the materials. This argument was used unsuccessfully however in the case brought by Castner, a tax-payer, against the village of Pleasant Ridge, to enjoin the payment of the same claim involved in this case. The opinion of the common pleas court in granting a perpetual injunction is reported in 7 N.P.(N.S-), 174, and it does not appear but that the decree entered therein is still in full force. The village set up this decree as a defense to this action. While the plaintiff here was not a party to the record in that case, and is therefore not concluded by that decree, yet it seems inconsistent that the same court should enter that decree enjoining the village from paying the claim, and then in this suit brought to enforce the same claim, enter a judgment compelling payment by the village.

The record also fails to show how the plaintiff here became the owner of a claim for materials furnished by the Lewis & Talbott Company.

The judgment below is therefore set aside and judgment will be entered for plaintiff in error.


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    MISNOMER. IN A HOMICIDE CASE.
    Court of Appeals for Hamilton County.
    Abraham Smile, Correct Name Abraham Smiley, v. State of Ohio.

    Decided, July 5, 1913.

      Criminal Law — Defendant Charged with Murder Misnamed in Indictment — Motion for Arrest of Judgment — Bad Practice in Indicating Degree of Crime 6y a Figure — Section 13748.
    1. The misspelling of the name of the defendant in the indictment under which he was tried does not present a question which can be raised on a motion for arrest of judgment.
    2. The use in a verdict in a case of homicide of a figure to designate the degree of murder of which the defendant has been convicted, while to be reprobated as bad practice, does not prejudice the defendant nor afford ground for a reversal of the judgment.

      Charles O. Bose, for plaintiff in error.

      Thomas L. Pogue and Walter M. Loche, contra.

      Jones, O. B., J.; Swing, J., and Jones, E. H., J., concur.

      Leave to file petition in error refused by Supreme Court.

   Abraham Smile was placed on trial under an indictment charging murder in the first degree in the killing of one Lucy Smile, otherwise known as Lucy MeDyer, on the 21st day of June, 1912, after defendant had filed a motion to quash and a demurrer to the indictment, both of which were overruled, and had entered a plea of “not guilty” to the indictment against him as Abraham Smile, and after the jury had been impanneled and sworn and all of the evidence heard, at the request of the defendant the suggestion was made that the real name of the defendant was Abrabam “Smiley,” and at his request the clerk was directed to make the change accordingly in the proceedings. Defendant was found not guilty of murder in the first degree but was found guilty of murder in the second degree. No motion was filed for a new trial, but within three days after the return of the verdict the defendant filed his motion in arrest of judgment and for the discharge of the defendant. Proceedings in error are predicated upon the overruling of this motion.

Two errors are relied upon by plaintiff in error :

First. A failure of proof as to the name of the deceased;

Second. The verdict does not find defendant guilty of any offense under the laws of Ohio but amounts to a verdict of not guilty.

It is claimed that each of these errors entitled the defendant to his discharge.

1. Considerable argument is made by counsel for plaintiff in error based upon the question of the name of the plaintiff in error, claiming that the name “Smile” was essentially different from the name “Smiley.” If, as is the ease with the names of most foreigners the name written “S-m-i-l-e” were pronounced in two .syllables, having a syllable for each.vowel, it would receive the same sound as if written “ S-m-i-l-e-y. ” The evidence shows without question the identity of the woman who was killed, and there is no question that her first name was Lucy. She was known as the wife of the defendant and had lived with him as such, which would be sufficient proof that her proper name might be Lucy Smile; and the testimony shows that she was also known' as “Lucy MeDyer.” The case therefore does not come within the case relied upon the plaintiff in error of Goodlove v. State, 82 O. S., 365. In that case it should also be noted that a motion for new trial had been interposed. Such a motion is necessary in order to review the question of evidence. Everett v. Summer, 32 O. S., 562.

The only questions that can be raised on motion for arrest of judgment are those set forth under G. C., 13748; Meyer v. State, 4 C. C., 570; Carper v. State, 27 O. S., 572.

2. The form of the verdict which was criticized is as follows:

“We, the jury, in issue joined find defendant Abraham Smile, right name Abraham Smiley, is not guilty of murden in the 1st degree as he stands charged in the indictment, and guilty of murder in the 2nd degree.”

Objection .is made by counsel to the use of the numerals in describing the degrees of the crime of murder. If the form of this verdict was drawn by the clerk, as,was stated in argument, it certainly is to be reprobated, as the words “first” and “second” should have been written out in full in any form so prepared; and we observe that the transcript of the record shows an indiscriminate use by the clerk, in making up such record, of numerals and words, which is not to be commended. In view, however, of the provisions of Section 13581 of the General Code, that an “indictment shall- not be invalid” * * * because “dates and numbers are represented by figures”; ,>:= * * we think that the use of figures in the verdict as in this case can not be prejudicial to the defendant, as there is no uncertainty as to what these figures mean, the Arabic figures in combination with the letters being as clear in their meaning as the words would be if fully written out in letters alone.

Judgment below will therefore be affirmed.


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    APPROPRIATION PROCEEDING TREATED AS AN ACTION IN EJECTMENT.
    Circuit Court of Cuyahoga County.
    Viola M. Nichols v. City of Cleveland.
    Decided, December 4, 1911.

      Appeal — Injunction Against Municipality in Appropriation Proceeding.

    1. An appellate court may of its own motion dismiss an appeal .for want of jurisdiction, when it is discovered before tr.ial and judgment that the cause is not appealable.
    2. An action to restrain a municipal corporation from proceeding with an appropriation case, where it appears that the municipality, under a former order, which had been reversed, deposited the amount found by the jury, gave bond and took possession of the' land and improved it, is in reality an action in ejectment, and is not appealable.

      Squire, Sanders & Dempsey, for plaintiff in error.

      Newton D. Balter, contra.
    Henry, J.'; Winch, J., and Marvin, J., concur.
   Upon the hearing of this cause, the court, sua sponte, raised the question of its appealability. That an appellate Court will of its own motion dismiss an appeal for want of jurisdiction, when it is discovered before trial and judgment that the. cause is not appealable, was held in Jordan v. Jordan, 8 C. C., 431; see, also, Hulbert et al v. Mason, 29 Ohio State, 562, 565.

This action was commenced in the court of common pleas to enjoin the further prosecution of an appropriation proceeding in the probate court, upon the ground that the resolution to appropriate, on which the city assumes to found said proceeding, was passed by a city park board organized under an unconstitutional act.

The plaintiff does not deny, but impliedly admits, that the city, having prosecuted said proceeding to judgment, and having made the deposit and given the bond provided for by law, thereupon took and has ever since retained possession of said property, and has greatly improved and enhanced the value thereof. She further alleges that said judgment having been reversed, and various subsequent proceedings had therein, the case now stands for trial again in said probate court, where the city will again prosecute it to judgment unless enjoined from so doing. The petition also sets out the» grounds' on which said proceeding is claimed to be void, and prays that the city be enjoined from further prosecuting the same and from interfering with plaintiff’s peaceable' possession and enjoyment of said premises.

The city’s answer pleads various matters of defense, but neither prays nor alleges grounds' for affirmative relief. No reply was filed. The first question before us then is whether this cause on the face of the pleadings is not in substance and effect an action for the recovery of the possession of real estate, or in other words, ejectment. If so, it is not appealable.

In The Atlantic & Great Western Railroad Company v. Robbins, 35 Ohio State, 531, it was held that:

“The owner of land which has been unlawfully and wrongfully taken and appropriated to its use by a corporation authorized by law to appropriate land, can not maintain any action for the value of the land so taken and appropriated, and also damages accruing by reason of such taking and appropriation, if the circumstances are such that he may recover compensation and damages, by special proceedings under Section 21 (69 Ohio L., 88, 95, Rev. Stat., 6448-6450), or the land itself, as in other cases of unlawful entry.”

In other words, as Johnson, J., says at page 540, “the owner has his election. ’ ’ He may seek his remedy against the intruding corporation either by acquiescing in the wrongful appropriation and claiming compensation for the land taken; or by asserting his own title thereto, maintain, unless estopped, his action to recover possession of the same. In Bothe v. Dayton & Michigan Railroad Company, 37 Ohio State, 147, it was held, in the circumstances of that case, that he could maintain his action.

As against a municipal corporation an analogous alternative is open to any one similarly aggrieved, though in such case the

action for compensation is not statutory (Longworth v. Cincinnati, 48 Ohio State, 637). There Speár, J., at page 640, says:

"It would appear to be common sense to say that where an owner discovers that a municipal corporation has seized his land and appropriated it to the use of a street, without process or payment, he may have his option either to repudiate the unlawful act and reclaim the land, or assent to the seizure, ratify the act, and demand compensation, yielding to the corporation title to the land so taken. And we know of no rule of law which prevents the esercise of such option.”

In that ease the plaintiff was permitted to have his action for compensation. And it is now held that the same kind of an action may be maintained against any corporation, publie or private, which has wrongfully taken lands that it might have appropriated. Says Spear, J., in Fries v. Railway Co., 56 Ohio State, 135, at page 138:

"Under these circumstances, what remedy, or remedies, after the company had neglected and refused to pay, were open to plaintiff? Might he (1) resort to ejectment? Or (2) could he compel an appropriation under the statute? Or (3) was he confined to a suit to recover compensation ’ ’ ?

The plaintiff in that case having rightly considered that finder the circumstances he was estopped to maintain ejectment, he elected the third course, and the court upheld his choice of remedy, saying at page 144, that he "had an election to proceed under the statute and compel an appropriation, or affirm the appropriation in fact made by the company, and tendering conveyance, recover compensation.”

It is clear that injunction will not lie to prevent an unlawful appropriation of land by a public corporation to its publie use, after the land has in fact been taken, used and improved (Goodin v. Canal Co., 18 Ohio State, 169, 179). "It is'a question,” says Welch, J., "which the plaintiffs are not in a position to raise.”

These precedents clearly define the range of relief which a plaintiff in such circumstances may have. We can not escape the conclusion that the case at bar falls within the rule of Raymond v. The T., St. L. & K. C. R. R. Co., 57 Ohio State, 271.

The fourth paragraph of the syllabus in that case is as follows :

“A petition against a railroad company by one out of possession of real estate, which alleges title and right to entry and possession by defendant, and prays that the defendant may show his interest therein, that it may be adjudged null and void, and that judgment for the possession of the property may be awarded plaintiff, and defendant enjoined from interfering therewith until compensation is made, states a case for the recovery of specific real property, notwithstanding the petition also contains allegations of threatened irreparable damage, as a ground for relief by perpetual injunction, and of a dispute as to boundary lines, as a ground for action by the court in settlement of such dispute, and of a dispute as to title as a ground for asking that plaintiff’s title'be quieted. Such action, being one in which either party may demand a jury, is not appealable. ’ ’

The plaintiff here, it is true, does not in terms ask to be restored to possession of her land; but her prayer to be protected in the possession thereof is tantamount to ■ praying that she be put into possession. And since an action either of ejectment or for compensation is her only alternative in seeking relief under the facts of this case, it must be presumed that she has pursued one or the other. As between the two, this is plainly ejectment. The plaintiff might, indeed, have had an injunction by way of primary, instead of ancillary, relief, if she had seasonably sought that remedy to protect her possession from an unlawful exercise of the right of eminent domain. But the possession of her land having fully passed to the city, under color of right, she can no longer regain it by such means. To recover possession she must maintain ejectment; and that, we hold, is what she has sought to do. But ejectment is a jury action; and having unavailingly pursued that remedy in the court of common pleas, her sole means of review is through a proper proceeding in error and not by way of appeal.

For want of jurisdiction, the appeal is therefore dismissed.


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    CONSTRUCTION OF EMPLOYERS’ LIABILITY ACT.
    Circuit Court of Mahoning County.
    Elvira A. Nystrom, Administratrix of the Estate of August Nystrom, Deceased, v. The Lake Shore & Michigan Southern Railway Company.
    Decided, October Term, 1912.

      Master and Servant — Limitation on Relief of Employer from Assumption of Risk Toy Employe Under the Act of 1908.
    Section 1 of the employers’ liability act of April 22, 1908, must be construed in connection with Section 4 of the act, and under the provisions of that section the relief of the employer from the assumption of the risk of Ms employment does not extend to any case where injury or death was not contributed to by the violation by the common carrier of some statute enacted for the safety of employes.

      Anderson, Cook, Mathews c6 Cook, for plaintiff in error.

      Arrel, Wilson, Harrington & Deford, contra.
    Norris, P. J.; Metcalpe, J., and Pollock, J., concur.
   Plaintiff in error was plaintiff below, and sued by her petition in the court of common pleas, to recover damages for the alleged wrongful death of the decedent while in the employ of the defendant. She alleges in her petition that the defendant is a railroad .company engaged in maintaining a line of railroad from the city of Buffalo, New York, to the city of Youngstown, Mahoning county, Ohio, passing through the city of Ashtabula, Ashtabula county, Ohio, and engaged in commerce between said places. That the city of Ashtabula has certain repairing shops where railroad cars used in such service were being overhauled. That the decedent on the 7th day of July, 1910, was in the employ of defendant as a laborer in said shops; that a certain car used in and about its said commerce was then and there being overhauled preparatory to going out on defendant’s railroad. That it became* and was the duty of plaintiff’s decedent to raise the body of said ears by means of a certain appliance known as a jack; that defendant had caused and permitted said jack to become and remain defective, out of repair and dangerous to the lives and limbs of employes there at work, in that it was broken and worn to such an extent that it would slip and cause the handle thereof to suddenly fly upward and outward, all of which the said company well knew, or by the exercise of ordinary care on its part ought to have known. She further says that while the decedent was using said jack, raising said car, by reason of its defective condition aforesaid, the handle thereof suddenly violently struck the plaintiff’s decedent, causing him injuries which resulted in his death.

The negligence charged is: First, in having and using said jack when the same was defective as aforesaid; secondly, in failing and neglecting to keep said jack in proper repair as aforesaid. It is nowhere alleged in the petition that plaintiff’s decedent did not have knowledge of the defective condition of said jack at the time he used the same, nor is it alleged that he did not have equal means of knowing of its defective condition at the time.

The court of common pleas sustained a demurrer to the petition on the ground that the same did not state facts sufficient to constitute a cause o'f action. Plaintiff not desiring to plead further, the petition was dismissed and judgment rendered in favor of the defendant. The action of the court in thus sustaining the demurrer is the error assigned by the plaintiff in error; and the question is, was it necessary for the plaintiff to allege want of knowledge or means of knowledge on the part of the decedent in order to relieve him from the assumption of risk in using the defective jack ?

It seems to be conceded by counsel in their briefs that the case is controlled by the federal employer’s liability act of April 22d, 1908. We think the case is controlled by that act; we think the petition clearly states the case coming within the purview of the federal act. It was not necessary to refer to the act in the petition (Smith v. Railway Company, 175 Fed., 510; Clark v. Railway Company, 175 Fed., 122), and that such act is exclusive in all eases coming within its provisions was held in Mondu v. Railway Company, 233 U. S., 1. Speaking of the federal act, one of the syllabi is:

“These regulations have superseded the laws of the several states in so far as the latter cover the same field.”

The plaintiff’s decedent was employed in interstate commerce as held in Johnson v. Railroad Company, 178 Fed., 643. Plaintiff in error claims the right to recover under the first section of the act wherein it says:

“Any common carrier by railroad while engaging in commerce between the states shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce for any injury resulting in whole or in part by reason of any defect due to its negligence in its appliances. ’ ’

But this section must be construed in connection with Section 4 of the act, which'says:

‘ ‘ That in any action brought against any common carrier under and by virtue of any of the provisions of this act to recover damages for injuries to, or the death of, any of its employes, such employes shall not be held to have assumed the risks of his employment in any case where the violation by such common carrier of any statute enacted for the safety of employes contributed to the injury or death of such employe. ’ ’

This section seems clearly to define the eases in which the employe shall be relieved of the assumption of the risks of his employment and to limit it to those cases where the carrier has violated some statute enacted for the safety of employes. In all other cases the common law rule is not changed.

- Now, we have not been referred to any statute violated by the defendant in this case in permitting the jack to be and remain in-the condition charged in the petition. There being no such statute it would seem to clearly follow that the common law rule of assumption of risk must prevail. If the Congress had intended to relieve employes of such common carriers from the assumptions of risk in all classes of cases, it could easily have said so by apt language. It has seemed fit in this act to relieve employes from the assumption of risk only in cases where some statute enacted for their safety has been violated and courts can not extend the provisions of the statute. This limitation of the statute is sustained in Thornton on Employer’s Liability, page 139, Section 85. It follows, from this, that there was no error committed by the court of common pleas in sustaining the demurrer to the petition, and the judgment will be affirmed.


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    MINISTERIAL ACTS PERFORMED BY THE COURT.
    Court of Appeals for Holmes County.
    In the Matter of the Appointment of Grace E. Etter as Official Court Stenographer of Holmes County, Ohio.
    Decided, October Term, 1913.

      Official Court Stenographers — Appointment of and Duration of Term— Control of a Court Over Its Own Orders During Term Limited to Judgments Rendered in Judicial Proceedings — Section 1546.
    1. The common pleas court has full authority to appoint an official stenographer for the court.
    2. The term for which an appointment is made is fixed by statute at three years and can be for no other period, and the appointment becomes final the moment the appointee qualifies.
    3. The rule which gives to a court control over its own orders and judgments during the term in which they are made is limited to orders and judgments in judicial proceedings, and does not extend to ministerial acts performed by the court as the agent of the state or county.
    Meals, J. (sitting in place of Powell, J.) ; Voorhees, J., and Shields, J., concur.
   Section 1546 of the General Code provides:

“When in its opinion the business requires it, the court of common pleas of a county may appoint a stenographic reporter as official stenographer of such court, who shall hold the appointment for a term of three years from the date thereof and until a successor is appointed and qualified, unless removed by the court, after good cause shown, for neglect of duty, misconduct in office or ineompetency. ”

In pursuance of the authority given by this act, Grace E. Etter was, on January. 14th, 1913, appointed official court stenographer by the Court of Common Pleas of Holmes County.

Was her appointment legally made? And if so, what is the duration of her term? An answer to these questions will, in our opinion, determine this controversy.

On January 14th, 1913, Miss Etter, who had been the official court stenographer of Holmes county for a number of years, resigned her position to take effect immediately, which resignation was on the same day duly accepted by the court. The resignation of Miss Etter having been accepted, the position became vacant. The court thereupon undertook to fill the position by making a new appointment to it. This it did on the same day by appointing Miss Etter, at a salary of $600 a year, whereas she had previously received $500 a year for her services.

Can there be any reasonable doubt as to the court’s authority in the premises?

That the court had the power to make an appointment to the position, it being vacant, can not possibly be questioned.

Section 1546 of the General Code amply clothes the court with such power. That the court had the power to appoint Miss Etter seems equally certain. From anything that appears in the record, she was not disqualified to hold the position. That she had previously held it at a smaller salary and had resigned, probably because she was dissatisfied with the salary which she was receiving, did not disqualify her. In contemplation of law her right to the position and its emoluments was equal to that of any other person; and the court had full power to appoint her to the position. In our opinion, therefore, her appointment was legal.

Miss Etter having been legally appointed to the position, what is the duration of her term?'

The appointment purports to be for a term of three years, but this fact is of no avail, as the court had not the power to fix the duration of such term; that is fixed by the statute itself. The only power given the court by the statute is the power to appoint; the statute fixes the length of the term at three years from the date of the appointment and until a successor is appointed and qualified. This, therefore, must necessarily be the term for which Miss Etter was appointed, unless, as claimed, the power of the court to appoint was limited to the unexpired portion of the term from which she resigned, in which event her term under the appointment of January 14th, 1913, expired June 14th, last.

This contention is founded on the assumption that the Legislature intended to divide time into terms so far as it related to the operation of Section 1546 of the General Code, and that the first term commenced immediately upon the first appointment being made under the statute, and that subsequent terms were reckoned accordingly. If the Legislature intended that this construction should be given the act, we should think that it would have said so in the act and not have left it to the uncertainties of interpretation and construction. Moreover, the act seemingly contemplates that a person appointed in pursuance of its authority should hold the appointment for a term of three years and until a successor was appointed and qualified. Nothing is said in the act about terms or parts of terms in the sense in which these words are usually employed. It states that when the “business requires it, the court of common pleas of a county may appoint a stenographic reporter as official stenographer of such county, who' shall hold the appointment for a term of three years from the date thereof 'and until a successor is appointed and qualified, unless removed by the court, after good cause shown, for neglect of duty, misconduct in office or ineompetency. ’ ’

The word “term” is obviously used in the statute in the sense of “period of time,” and doubtless it was the intention of the Legislature to empower the court, when in its opinion the business of the court required it, and the position was vacant, to make a contract on behalf of the county with a stenographic reporter to serve as official stenographer of such court for the period of three years and for the convenience of the court, until a successor was appointed and qualified. The duration of such appointment would not be affected by any previous appointment under the act or be determined by it, but would continue for the time prescribed by the act.

We conclude, therefore, that by virtue of her appointment as stated, Miss Etter holds a contract with Holmes county as official court stenographer for the period of three years from the date of her appointment and until a successor to her is appointed and qualified.

But it is, said that the court, within the term, to-wit, on April 5th, 1913, made an order modifying the order of appointment of January 14th, 1913, so that Miss Etter’s term would expire on June 14th,' 1913.

As we have pointed out, the statute fixes the duration of the term and not the court. The Legislature did not see fit to give to the court the power to fix and determine the length of the term. It simply designated the court of common pleas as the appointing power, as the agent of the county, in making a con-, tract with a stenographic reporter as the official stenographer of such court. So it makes no difference whether the order of April 5th, 1913, modifying the order of appointment was made within the term or not. It could not legally have been made at any time after Miss Etter had accepted the appointment by qualifying in conformity with the statute.

The question resolves itself wholly into one of power in the court of common pleas to make the appointment. There being a vacancy in the position, and the business of the court requiring it, the court is clothed with power to make the appointment, and, in the absence of fraud, having made the appointment, its action is final and conclusive upon everybody, at least so soon as •the person so appointed qualifies. A contract is then made between the county and the person so appointed which the court is powerless to destroy or impair by order made in term or otherwise.

It is said further in this action that the court of common pleas has control over its own orders and judgments during the term at which they are rendered, and the power to vacate or modify them in its discretion.

This is true as a general proposition within certain limitations, but it is equally true that the court may not, with impunity, commit haralciri upon the records of the court in term or at any other time. The court, we think, may not properly upon its own motion and without cause, unreasonably and unnecessarily disturb its orders and judgments even in term. Besides, the control of the court over its own orders and judgments in term is limited to orders and judgments rendered in judicial proceedings, and does not extend to ministerial acts performed by it as an agent of the state or county in making contracts on their behalf. The court having acted under such authority, its power is exhausted, and in the absence of fraud, its action is final.

The appointment of an official stenographer having been legally made, the person holding süeh appointment can not be removed except for neglect of duty, misconduct in office or incompeteney. Before such person can be removed the existence of one or the other of these grounds must be established. We will not, however, consume time in a discussion of this matter, as it is not claimed that the order of April 5th, was made in pursu- . anee of the power of the court to remove, nor under the record could any such claim be made with any reasonable expectation that it would receive favorable consideration at our hands.

In our opinion the judgment of the court of common Dleas should be and is affirmed.


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    PROTECTION OF OPERATIVES FROM MACHINERY.
    Circuit Court of Cuyahoga County.
    The Marble & Shattuck Chair Company v. Frances Dubroy, Administratrix.

    Decided, December 4. 1911.

      'Wood-Working Machinery — Guards—Negligence.
    Section 4364-89c, Revised Statutes, requires wood-working machinery to be protected by a guard to prevent the operator coming in contact with it, and not to prevent parts of the machine from flying off and injuring the operator.

      L. B. Bacon, for plaintiff in error.

      Hart, Canfield & Croke, contra.
    Henry, J.; Winch, J., and Marvin, J., concur.

      Afflrmecl without opinion, 88 Ohio State.

   . The defendant in error’s decedent was fatally injured by a knife which flew from a wood working machine, known as a Whitney double spindled shaper, and struck him while he was at work at the machine. He had himself adjusted the knife into its proper place in the machine. It is admitted that unless the case falls under Revised Statutes, 4364-89c the judgment must be reversed. It is also admitted that unless the case is distinguishable from that of Kulp v. Kilby Manufacturing Company, decided by this court March 24, 1911, we must hold that it does not fall within the statute.

The danger of coming into contact with a machine, or with any moving part thereof, which the statute seeks to provide against, clearly does not include the danger of something flying from a machine. Had this machine been so guarded as to prevent the operator from accidently coming into contact with the moving parts thereof, the law would have been fully complied with according to its letter and spirit. But it is impossible to conceive of its being so guarded that this particular accident would or might not have happened. The knife flew along the plane of the table. If no aperture were left there, the work could not have been inserted, and the machine could not have been operated. Moreover, when the knife became detached, it was no longer an integral part of the machine. It was like a piece of wood detached by the knives from the material to be shaped and by them hurled back across the table or into the air. That was the Kulp case, and this is like it.

Because the judgment is contrary to law, it is reversed.


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    LI ABILITY. FOR. MISTAKE IN PAYMENT OF WAGES.
    Circuit Court oí Cuyahoga County.
    Erie Railroad Company v. Nicola Gugliotta.
    Decided, December 4. 1911.

      Wages — Payment to Wrong Person.

    It is no defense to a claim for wages that they have been paid to a third person, unless such third person received payment with the knowledge and consent of the plaintiff.

      Gushing, 8idda.il Palmer, for plaintiff in error.

      B. D. Nicola, contra.
    I-Ibnry, J.; Winch, J., and Marvin, J., concur.
   This proceeding in error should never- have been brought. The defendant in error recovered a judgment of $24.30 in the court of common pleas in an action for wages which was appealed from a justice court. The bill of exceptions contains 122 pages; and the cost of preparing it must have exceeded the amount off the judgment.

The Erie Railroad Company pays its men regularly on or about the fifteenth day of each month for the work done the preceding month. When an employee quits or is discharged before the regular pay day arrives, he is given a “D. Or.” or discharge credit slip, by means of which he may get his pay at once.

Nunzio Laseta, No. 478, assignor of the plaintiff below, and Nunzio Destro, No. 490, worked for the company in November. A laborer, supposed to be one or the other of these Nunzios, quit on the twenty-third of that month, and was given a D.' Cr. bearing the name of one Nunzio and the number of the other. Someone cashed it. The company claims it was Nunzio Laseta. The plaintiff below denies this,' insists that he did not quit work in November, and declares that if either Nunzio cashed it, Nunzio Destro must have been the one. To complicate the matter further, some clerk in the office of the company sought to reconcile the name and number on the pay roll. He thought proper to do so by changing the name instead of the number. The facts thus present a veritable comedy of errors. Not so, the record. The two Nunzios may have eoncertedly played the roles of the two Dromios from Ephesus and Syracuse in order to obtain double payment of a single wage claim; but the jury has vindicated the plaintiff’s Nunzio, and we could not have done better upon all the evidence.

The company complains of the following paragraph in the charge:

‘ ‘ I am inclined to think, gentlemen, that inasmuch as the averment in the answer is that this claim was paid to No. 478, or as ordered by him, if it was in fact paid to somebody else -it could only operate to extinguish the debt if a person other than Laseta actually collected it, or did it upon the order or with the permission of and consent of Laseta himself. That is to say, if the slip was given to Laseta, and if he lost it, and if a person found it, and collected the money upon it, it would not, in my judgment, operate as a valid defense; it would only be in case it was presented by some person with the. knowledge and consent and permission of Laseta himself. If, of course, it was presented by himself, it would constitute a valid defense. ’ ’

If the word “or,” which I have underscored, had been “and” the instruction would have been correct. As given, it was less favorable to defendant in error. But the jury could not on any event have been prejudiced.

The.judgment is affirmed.


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    PROCEDURE ON APPEAL FROM JUSTICE’S COURT.
    Circuit Court of Cuyahoga County.
    Abraham B. Katz v. Ike H. Linder.
    Decided, December 4, 1911.

      Appeal from. Justice Court — Transcript Too Late — Pleadings Filed.— Appeal Dismissed.

    Transcript for appeal from a magistrate’s judgment was filed in the common pleas court more than thirty days after its rendition; thereupon plaintiff filed his petition and defendant an answer and cross-petition; thereafter plaintiff filed his motion to strike the 'answer and cross-petition from the files and dismiss the appeal - for want of jurisdiction; this motion was granted; Held: No error.

      J. G. Block, for plaintiff in error.

      J. L. Stern, contra.
    Henry, J.; Marvin, J., concurs; Winch, J., dissents.
   Linder recovered a judgment for about $256.in justice court on November 18, 1910, and Katz filed bis transcript for appeal on December 20, 1910, or more than thirty days after judgment. Linder then filed his petition and Katz his answer and cross-petition. Thereupon Linder filed a motion to strike the answer and cross-petition from the files and to dismiss the appeal from the court for want of jurisdiction. The motion was granted, and Katz now prosecutes error, alleging that Linder, after filing his petition, was estopped to challenge the jurisdiction.

We hold that there was no -error in granting the motion to dismiss, since the judgment of the justice was valid until properly appealed from; the petition discloses that the appellate and not the original jurisdiction of the court, of common pleas was invoked; and the cause had not yet gone to trial or judgment in the common pleas when the jurisdiction was challenged.

In all cases of estoppel or waiver cited to us, some one of these elements is lacking. We find no case precisely in point; but we see no reason to doubt that the valid judgment of the justice has remained in full force ever since it was rendered. If so, it might have been pleaded in bar of any attempt to relitigate the same matter under the original jurisdiction of the common pleas court. The appellate jurisdiction of the latter was clearly not adequately invoked; nor could it be by mere consent after the time for invoking it had expired.

The judgment is affirmed.


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    DISCRETION ON THE PART OF MUNICIPAL AUTHORITIES IN THE AWARDING OF BIDS.
    Circuit Court of Cuyahoga County.
    Walter L. Robinson, a Tax-payer, v. City of Cleveland et al.
    Decided, December 8, 1911.

      Municipal Corporations — Letting Contracts to Lowest and Best Bidder— Discretion Not Interfered With — Furnishing Sample.

    1. Unless the requirements of ordinance or statute have been violated, or fraud or its equivalent has been practiced, the discretion of municipal authorities in the letting of contracts to the lowest and best bidder, will not be controlled by the courts.
    2. A provision in an advertisement for bids for coal that the successful bidder shall furnish a sample and fulfill his contract in conformity to it, does not invalidate the bidding or vitiate the letting pursuant to it.

      G. F. Taplin, for plaintiff in error.

      N. D. Baker, and F. Desberg, contra.
    Henry, J.; Marvin, J., and Pollock, J. (sitting in place of Winch, J.), concur.
   On this appeal of a tax-payer’s suit to enjoin the execution of a contract for the purchase of coal for the city water works, the question presented for our decision is whether the discretion of the city officials may be controlled by injunction in the letting of contracts, after the competitive bidding prescribed by law, where the statute authorizes an award to the lowest and best bidder. This is no longer an open question in this state. Unless the requirements of ordinance or statute in the submission have been violated, or fraud or its equivalent has been practiced in the award, the exercise' of such discretion in any particular way can neither be commanded nor enjoined. State, ex rel, v. Hermann et al, 63 O. S., 440; State, ex rel, v. Commissioners, 36 O. S., 26; Scott v. Hamilton, 7 C.C.(N.S.), 493 (29 C. C., 652); Yaryan v. Toledo, 8 C.C.(N.S.), 1 (28 C. C., 259); affirmed in 76 O. S., 584.

The specifications in this case do not, as we view them, call for samples. They provide merely that samples may be called for before awarding the contract; and if a sample is furnished by the successful bidder, he must fulfill his contract in conformity with both his bid and his sample. We see no reason why the city officials may not seek all the light for themselves and all the legitimate advantage for the city that they can get from any bidder in exercising their discretion to make their award to the lowest and best of the competitors. The statutory competition is not final. It does not conclude the matter. The award is still discretionary when the competition.is ended. All that the law requires is that it be exercised in good faith, and without violence to the principle of competition. State v. Board of Public Affairs, 4 C. C., 76.

It is argued that further negotiation with bidders after the bids are submitted and opened, makes it possible for one who finds that he is the lowest bidder by quite a margin to deal less generously with the city than he otherwise would. It may be presumed, however, that the lowest bidder, if an award were made to him without further negotiation, would do this anyway in so far as the limitations of his contract permit. We are not to be understood as holding that by negotiation a bidder may obtain any abatement of the requirements fixed by the terms of the submission and of his bid addressed thereto, nor are we to be understood as holding that the foregoing observations in regard to discretion have any application where the statute requires the award to be made to the lowest bidder, instead of to the lowest and best bidder.

The petition is dismissed.


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    AS TO WHETHER. PLAINTIFF WAS IN POSSESSION OF THE REAL ESTATE CLAIMED.
    Circuit Court of Cuyahoga County.
    Albert Barnitz v. Martin F. Sebelin et al.
    Decided, December 11, 1911.

      Action to Quiet Title — Possession Necessary.

    An action to quiet title will be dismissed where it appears that the plaintiff is not in possession of the premises.

      M. L. Thompson and Bentley, McCrystal, Biggs & Staiger, lor plaintiff in error.

      E. P. Eirich amd William Hoiuell, contra.
    Henry, J.; Winch, J., and Marvin, J., concur.
   This is an action to quiet title, appealed to this court by the defendants, Louise and Julia L. Sebelin. The action can only be maintained by one in possession, and the plaintiff alleges that at the time of the commencement of this suit he was in possession.

In brief outline, the facts are that plaintiff bought a comer lot on Cedar avenue and East 105th street, in Cleveland, which by description included not only the whole of sub-lot No. 1 in an allotment previously made there, but also two feet front on Cedar avenue west of said sub-lot No. 1. The land purchased thus he leased to the defendant Martin F. Sebelin, who had the same surveyed, and built a fence on what, by the report of said survey and by his own supposition, was his west boúndary line. In fact it was the west boundary line of sub-lot No. 1 in said allotment. Soon afterwards Sebelin called the plaintiff’s attention to the apparent discrepancy between the Cedar avenue frontage called for by his lease and the frontage actually enclosed by him in the manner aforesaid. Barnitz said that the discrepancy might be due to the fact that two feet had been taken off in the widening of 105th street. He did not in terms affirm this to be true, and no one took any steps to verify it and, in fact, the suggestion seems to have been unfounded. Some years later, and while Sebelin was still enjoying his said leasehold, he bought the adjacent lot west thereof, and entered into possession of the same. The parties from whom he bought it had a precarious title, but they had been in possession clear up to the line of the said fence which Sebelin had built upon the line of a pre-existing fence. Sebelin conveyed the property which he thus purchased, by deed of gift, to his wife, and she in turn devised it to her daughters, the defendants, Louise and Julia L. Sebelin, who are today in possession of the same.

It thus appears that Martin Sebelin had no intention of procuring title in derogation of his landlord’s title; that he never toot possession of the two feet in dispute; that neither he nor Barnitz had any other possession of said two feet than such as the law annexes by implication to a valid title, and that an actual possession by cultivation was had by plaintiff’s neighbor on the west, who subsequently sold to the defendant Martin Sebelin.

We conclude, therefore, that plaintiff has not the possession necessary to enable him to maintain his action to quiet title; and there is nothing in the facts of the case to raise an estoppel on the part of Martin Sebelin or his daughters to deny plaintiff’s right to possession. They can in no proper sense be said to be holding for or under the plaintiff. Whether or not, therefore, plaintiff’s title is a valid one, he can not here quiet it, because he has not the possession on which such an action must be founded, and the petition must be dismissed.