text:
    WILLS.
    [Circuit Court of Auglaize County.]
    Lydia M. West, as Executrix, etc., v. Lillian Knoppenberger.
    Decided, November 25, 1903.

      Testamentary Capacity, although Body and Mind are Enfeebled — To Show Lack of the Burden of Proof is upon the Contestants — Defendants not Required to Affirmatively Show Testamentary Capacity — Jury Must Find that Testator did not Exercise his Own Free Will — Hypothetical Question Containing Indicia of Lack of Testamentary Capacity Competent — Expert’s Opinion of Yalue, when — Materiality of Facts in Hypothetical Question not for the Jury — Questions to Jury Heed be Answered only in Case of a General Yerdict.

    1. A person may possess testamentary capacity even though enfeebled in body and mind by age and disease; though his memory may be impaired in a degree, and his mind disturbed by hallucinations or delusions (not necessarily influencing the mind in making testamentary disposition of property); though his mind may suffer discomposure and derangement in consequence of melancholy, grief, misfortune, sickness or disease (not of a nature to deprive him of the rational faculties common to men); and although he lacks contractual capacity or capacity to transact the ordinary business of life. Hence, it is improper to charge the jury in a will contest that “in order to be able to make a will it is necessary that a man shall have mental capacity sufficient for the transaction of the ordinary business of life; such an instruction is not cured by giving elsewhere in the charge proper rules and criteria for determining testamentary capacity, but which do not qualify such improper charge.
    2. The order of probate is prima facie evidence of the due execution, attestation, and validity of a will, and when such order is offered in evidence in an action to set the will aside, the burden of proof is upon the contestants to prove by a preponderance of evidence that testator was of unsound mind and memory at the time of executing his will, or was under restraint or control of undue influence.
    S. A charge from which the jury may assume that the burden of proof is upon the defendants in a will contest to show affirmatively the testamentary capacity of testator, is improper; the charge should require contestants to show affirmatively lack of testamentary capacity before the will could be set aside.

      4. An. instruction that there is no valid will unless the jury believe from the evidence that testator, of his own free will, not only intended to make such disposition of his property as made in the alleged will, but was also capable of knowing what he was doing, understanding to whom he was giving his property and in what proportions, and of whom he was depriving it as his heir and who would otherwise have inherited it, and was also capable of understanding the reasons for giving or withholding his bounty to them, is improper; the charge should have been to the effect that the will was valid unless the jury find from the evidence that testator did not malee such disposition purposely and of his own free will.
    5. A hypothetical question propounded to an expert by the contestant in an action to set aside a will which indicates what contestant claims to be the physical and mental condition of testator at the time of making of his alleged will, and that as a consequence of
    ' such condition he was of unsound mind, which indicia of lack of testamentary capacity are controverted in the case, is competent where there is evidence tending to establish the facts assumed in the question; and while an answer directly responsive to such ques-; tion to the effect that testator was mentally unsound would be insufficient to set the will aside, yet it is competent as tending to establish lack of testamentary capacity.
    6. The opinion of an expert based upon facts assumed in a hypothetical question is of no value unless all the assumed facts forming the basis of such opinion are found by the jury to be true; and where such hypothetical question assumed the existence of various facts not apparently immaterial, which the jury may have found to be not established by the evidence, and there is nothing in the evidence to indicate that the expert deemed such assumed but unproved facts immaterial or unessential to the basis of the opinion testified to, it was improper to charge the jury to the effect that such opinion may be entitled to some weight or value though the facts assumed in the question upon which the opinion was based may not be true, provided the jury should find that the facts were substantially as assumed. Therefore, a charge that “the weight to be given to such opinion depends largely upon * * * whether or not the question and statement of facts contained in it, upon which the opinion was expressed or based, was a true statement of the facts as to testator’s condition, as you find it to exist from the testimony,” and that “if the question or the statement of facts put to the witnesses upon which they have expressed an opinion, do not embody the facts as you find them, to have been established by the testimony, then the opinion of said experts is of little, if any value in determining the question in the case.” “If, however, the questions embody substantially the facts as you find them to have existed,” then the opinions are to be given such weight as the jury think them entitled to, is held to be erroneous.
    7. It is not within the province of the jury to determine what facts assumed in a hypothetical question propounded to an expert are material or immaterial. The questions should be so framed as to include only such facts as the evidence may warrant the jury, in finding to exist, and not so as to allow the jury to speculate upon what is material and what immaterial. A fortiori, is this, true where the question assumes but two main facts both of which seem to have been regarded as material by the experts.
    8. The court may properly refuse to submit questions to the jury for. answer under Section 5201, Revised Statutes, when the request therefor fails to contain the condition that such questions need only be answered in case a general verdict is rendered.
    Parker, J., (sitting in place of Mooney, J.); Day, J., and Norris, J., concur.
   The proceeding in the court below was by Lillian Knoppenberger, defendant in error herein, against Lydia M. West, as executrix of the last will and testament of James Knoppenberger, deceased, and as sole devisee and principal legatee of said decedent, to contest said last will and testament on the grounds:

First. That at the time of the making of said will said decedent was mentally incapacitated from making a testamentary disposition of his property; and

Second. Because said Lydia M. West had exercised an undue influence over his mind causing him, to devise and bequeath his property to her.

The verdict of the jury was in favor of the contestant generally, finding that the paper writing is not the last will and testament of James Knoppenberger, deceased. A motion for a new trial was made on various grounds, involving among other questions those which we shall discuss, which motion was overruled and judgment was entered upon the verdict.

The principle grounds urged in this court against said verdict and judgment are:

First. That the verdict is against the weight of the evidence.

Second. That.certain hypothetical questions asked by counsel for defendant in error of expert, witnesses were improper in form, not being authorized or justified by any evidence adduced.

Third. That the court erred in failing to charge certain propositions submitted by counsel for plaintiff in error.

Fourth. That the court erred in refusing to submit certain interrogatories to be answered by the jury at the request of counsel for plaintiff in error; and

Fifth. That the court erred in its charge on the subject of testamentary capacity; also on the subject of expert testimony adduced in response to hypothetical questions, and also with respect to the burden of proof. Our conclusions upon other questions seem to us to make it unnecessary and inadvisable to consider and pass upon the weight of the evidence, and we shall not do so. For the same reasons we shall not pass upon the question whether the court should have charged the jury that there was no evidence tending to show undue influence, and that therefore they should find on that question in favor of the defendant below. . The hypothetical question to which objection is urged, submitted to several physicians who were witnesses in the case, was as follows:

“What in your opinion would be the condition of a man’s mind as to being sound or otherwise, if in 1889 or 1890 he had contracted the disease of syphillis, and in July, 1898, was found in the last stage of syphillis, with pains in his head about the base of the brain and throughout the head, with the scars of syphillitic ulcers on his lower limbs, and was on the 2d of November, 1898, suffering in the last stage of cancer of the lower bowel, not having had an operation of the bowels for seven days?”

The question indicates what the contestant claimed was the physical and mental condition of the testator at the time he executed the alleged will, i. e., that in consequence of the physical infirmities described his mind was unsound. That the testator was afflicted with syphillis was denied, and that he had not had a movement of the bowels for so long a time as supposed in the question was also controverted, but it can not be said that there was no evidence adduced tending to show that this was the physical and mental condition of James Knoppenberger at that time; and while it is true that an answer directly responsive, such as was given by certain of the witnesses to the effect that he was then mentally unsound, would not be sufficient to warrant the setting aside of the will since one need not be in all respects mentally sound to possess testamentary capacity, yet such evidence would be competent and would tend to establish, or would be a step towards establishing such mental condition as would render one incapable in law of making a valid will. We therefore hold that the court did not err in allowing this question to be asked and answered.

Prom the record it is uncertain to our minds whether the four propositions submitted on behalf of the plaintiff in error to be charged to the jury should be regarded as a series, a defect in any one of which would justify the refusal of all,-or whether they should be regarded as separate, complete and independent propositions.

The court was asked to charge these propositions, and we are of the opinion that the subsequent waiver of the request to charge the same before argument did not excuse the court from giving them at all, and it is apparent from the record that the court so understood the matter. We are agreed that in the main, these four propositions are correct; also that the substance of most of them was given in the charge to the jury; we are not quite agreed as to whether they should be regarded as a series or independent propositions, nor as to whether the third proposition to the effect that there was no evidence tending to show that James Knoppenberger was under undue influence or restraint in attempting to make his last will and testament should have been given, and since the substantial question involved in the alleged error of the court in its charge may be discussed and disposed of without special reference to these propositions which he was requested to charge, we will not pass upon the question whether the court erred in failing to charge as requested.

The request to the court to submit certain questions of fact to the jury appears in the record as follows:

“Thereupon the defendant, Lydia M. West, requested the court to submit the following questions of fact to the jury with the direction that they answer the same.”

Then follows a series of seven questions, all of which the court refused to submit to the jury. In view of the form of the request it seems clear that the court did not err in refusing to submit these questions, since the Supreme Court has held in the case of Gale v. Priddy, 66 O. St., 400, reading from the second paragraph of the syllabus:

“Revised Statutes, Section 5201, so far as it relates to special findings upon particular questions of fact, is mandatory only when the request therefor contains the condition that the questions which are submitted shall be answered in case a general verdict shall be returned.”

It will be observed that this request did not contain the requisite condition.

Coming how to the charge of the court, and taking up first the part relating to testamentary capacity, we find that the court charged as follows in the very introduction of this question to the jury:

“In order to be able to make a will it is necessary that a man shall have mental capacity sufficient for the transaction of the ordinary business of life,” etc.

This, we think, is clearly erroneous. Under the authorities one may be lacking in capacity for the transaction of the ordinary business of life, and lacking in contractual capacity, and yet he may have testamentary capacity. See Paige on Wills, Section 96; Underhill on Wills, Sections 87-88-89 and 139; Guild v. Hull, 127 Ill., 523 (20 N. E. Rep., 665); Campbell v. Campbell, 22 N. E. Rep., 620; 6 L. R. A., page 168. See also Beach on Wills, Section 101; 1st Jarmin on Wills, 5th American, from 4th London edition, notes by Randolph Talcott at page 96.

In the text books referred to, many eases are cited in support of the proposition that the same degree of capacity is not requisite to the making of a valid will that is requisite to the making of a contract or the management of the ordinary business of life. The authorities seem to be quite uniform in support of this proposition.

Elsewhere in the charge proper rules and criteria for determining whether testamentary capacity existed are well stated by the trial judge, but this erroneous rule is nowhere qualified and serves itself as a qualification of and addition to all other rules stated. We regard this as serious, prejudicial and fatal error in the charge.

As to the burden of proof, the rule was correctly stated by the learned judge, when he said “that the order of probate being prima facie evidence of the due execution, attestation and validity of the will, it devolves upon the plaintiff to prove by a preponderance of the evidence that at the time said will was executed, the said James Knoppenberger was not of sound mind and memory, or that at that time he was under restraint or control by some undue influence,” and in other parts of the charge statements are made consistent with this, bearing upon the question of the burden of proof; but on the other hand, in various places statements are made as to results that should flow from finding or not finding certain facts that in effect shift the burden of proof upon the defendant; for instance, it is said:

“I say to you that the will in this case is not a valid will unless the jury believe from the evidence under the rules I will hereafter give you, that the testator, James Knoppenberger, deceased, not only intended to make such disposition of his property as is therein made, of his own free will, but was also capable of knowing what he was doing, of understanding to whom he was giving his property, and in what proportions, and of whom he was depriving it, as his heir, who would otherwise have inherited it, and was also capable of understanding the reasons for giving or withholding his bounty to them.”

Manifestly this is wrong, and should have been stated in this way:

“I say to you that the will in this case is a valid will, unless the jury find from the evidence that the testator, James Knoppenberger, did not intend to make such disposition of his own free will,” etc.

Reading again from the charge:

“If you find from all the evidence, facts and circumstances in this ease, that at the time this paper writing was executed the testator had sufficient mental capacity to understand, unaided, the nature, the amount, the kind of his property and the claims and the names of those entitled to his bounty, then you may pass to the second proposition,” etc.

Again:

“If you find from the evidence that the paper writing purporting to be the last will and testament of James Knoppenberger is the product of a sound and disposing mind as I have described to you, that it was executed by him, that he understood it, that he knew of what property he was possessed and the persons that would naturally be entitled to his bounty, if he comprehended and understood his true relations to this plaintiff and other members of his family, and that at the time he was not under any restraint or coercion as I have described to you, you will find that this paper does constitute the last will and testament of James Knoppenberger, deceased.”

As legal propositions applicable to the facts in issue, these statements are unassailable; clearly such a state of facts as is stated provisionally would support the will, but the trouble with these statements is that they naturally give the jury to understand that they are to find affirmatively that such a state of facts exist before they could rightfully return a verdict sustaining the will, whereas the matter should have been set before them so they would have understood that unless they found affirmatively the antitheses of the state of facts recited, or some of them, they must sustain the will. In this also we find that the court erred to the prejudice of plaintiff in error.

On the subject of the hypothetical question before referred to and the evidence adduced in response thereto, the court charged the jury as follows:

“As bearing upon the question in the case, both plaintiff and defendants have called medical experts, to whom hpyothetical questions have been put for the purpose of enlightening you upon the issue between the parties in this case; that is, persons of experience in the medical profession have been called to whom questions embodying certain statements as facts in the case have been put, and upon which statements of facts the witnesses have giyen their opinions. This is testimony that should be considered by you in determining this question between the parties; the weight to be given to it depends largely upon the skill and the experience and the knowledge of the experts, their learning, their capacity, and whether or not the question and statement of facts contained in it, upon which the opinion was expressed or based, was a true statement of the facts as to the testator’s condition, as you find it to exist from the testimony in this case. If the questions or the statement of facts put to the witnesses upon which they expressed an opinion do not embody the facts as you find them to have been established by the testimony, then the opinion of said experts is of little, if any, value in determining the question in this case. If, however, the questions embody substantially the facts as you find them to have existed, and from the testimony, then you should give to them such weight, as, in your judgment, in the light of all the testimony and the surrounding circumstances in this case, they would be entitled to in the determination of these questions.”

This charge seems to have been copied almost literally from Section 171 of Kincaid’s Instructions and Entries, and is said to have been given in a charge in some case. It does not appear to have received the approval of any court of last resort, and so far as, we know it has never been questioned or tested. In our opinion it is faulty in several particulars. It implies that the answers of the expert may be entitled to some weight, though the statement of facts assumed in the hypothetical question should be found by the jury to be untrue. Observe the language:

“This is testimony that should be considered by you in determining this question between the parties; the weight to be given to it depends largely upon * * * whether or not the question and statement of facts contained in it, upon which the opinion was expressed or based was a true statement of the facts as to the testator’s condition as you find it to exist from the testimony in this case.”

It also implies that the testimony may be regarded as having some value though the hypothetical question did not embody the facts as the jury might find them to have existed. Note this language:

“If the questions or statments of facts put to the witnesses upon which they expressed an opinion do not embody the facts as you find them to have been .established by the testimony, then the opinion of said experts is of little if any, value in determining the question in this ease.”

The paragraph immediately following may have corrected this fault in a measure if regarded by the jury as a modification of the paragraph just quoted, but it is not clear that it was so intended or should have been so regarded, and even if so intended and regarded the charge would not be quite right, but would still involve the grave fault that it left it to the jury to say what was a .substantial compliance of the requirements of the hypothetical question in the way of proving facts assumed; or, in other words, what facts assumed were material and what were immaterial. In this particular case we regard this as a grave fault and error for the reason that the hypothetical question is brief and embodies but few assumed facts — in fact, but two main facts both of which seem to have been regarded by the experts as material, to-wit: First, that the testator at the time he made his will was in the last stages of syphillis with consequent pains and disabilities; and, secondly, that at that time he was suffering in the last stage of a cancer of the lower bowels and had not a movement of the bowels for seven days. Usually hypothetical questions include many facts, some of which may properly be deemed material, and others immaterial, and it is never safe to leave a jury to speculate upon what is material and what is immaterial of the assumed facts of a hypothetical question. The examiner should so frame his questions and vary their forms as to include in some of them, at least, only such facts as the evidence may warrant the jury in finding he had established. If he should fail to do this, the legitimate result would be a disregard by the jury of the answers given to such question. But even if a jury could be warranted in any case in speculating upon what was material and immaterial in' a hypothetical question, or, in other words, whether the facts assumed had been substantially proven, it is clear to us that no such latitude should be given to a jury in this case where the hypothetical question assumes but two main facts, both of which seem to have been regarded by the experts testifying as material facts.

As has been stated though the answer called for by the hypothetical. question before mentioned would not, if relied upon, determine whether the testator was possessed of testamentary capacity, yet it tended to throw light upon the question and therefore was admissible. Though the jury should believe and rely upon an answer to the effect that the testator was not sound mentally at the time he made his will, that alone would not justify it in setting the will aside. However it would be a fact competent to be proved because tending with other evidence to show testamentary incapacity, and because of such answer to the hypothetical question it was proper for the court to charge upon that head. The charge however should have set forth clearly that the jury must find the facts to have existed as as-Rogers, Expert Testimony, Section 32, and cases there cited).

In a case in the Supreme Court of Michigan, Mr. Justice Morse says:

“The answer of an expert witness to a hypothetical question must be supposed to rest on all the facts stated in such question ; and if one of these facts is not found in the case, the jury must discard the answer to the question, under all the authorities. And the reason of the rule is founded on principle, and is clearly apparent without argument.”

So in another case before the same court, the trial court charged the jury that it was important for them just as far as they could, to look into the evidence and determine whether the facts assumed in the hypothetical question actually existed, adding “because if one fact supposed to be true, included in the question, is untrue, not supported by the evidence, the opinion of the doctor would be valueless. He gives his opinion upon a certain state of facts supposed to be true, and we don’t know what his opinion would be if one of these facts were withdrawn. ’ ’

The cases cited from Michigan are Turnbull v. Richardson, 69 Mich., 400, 420; People v. Foley, 64 Mich., 48, 156. See, also, Blashfield, Instructions to Juries, Section 246. I quote a part of the section:

“It is proper to instruct the jury to disregard the evidence (opinions) of expert witnesses based upon hypothetical questions, if the jury should find the hypothesis involved in the question to be not in accordance with the facts.”

And after pointing out exceptional eases where the hypothesis assumed need not be fully sustained by the evidence, the author quotes the following instructions given in Hall v. Rankin, 87 Iowa, 261, and condemned by the Supreme Court of Iowa, to-wit:

“If the facts stated as a basis for the hypothetical question propounded to the medical experts in this case were not substantially correct as shown by the evidence introduced on the trial of the case, then the opinion given by the experts based upon such assumed state of facts is entitled to but little or no weight as may be determined from the evidence. That is to say, the hypothetical facts upon which the question is based must be substantially correct to entitle the conclusion drawn by the expert to have any considerable weight. ’ ’

The reviewing court said of this instruction that it is erroneous as conveying the impression “that the opinion of the expert might have some weight even though the jury should find the facts assumed as a basis for the opinion were incorrect. * * * The sole value of the opinion must of necessity depend upon the correctness of the statement of facts upon which it is based. If that is incorrect, then the opinion can have no weight or value therefor. ’ ’

In the case of The General Convention of the New Jerusalem Church et al v. Lucinda Crocker et al heard before Judges Smith and Swing of the First Circuit, and Shauck of the Second Circuit (now of the Supreme Court), and reported in 7 C. C. R., 327, in the opinion by Judge Shauck it is. pointed out that with respect to a material fact assumed in a hypothetical question where the evidence was conflicting, and the trial judge charged that :

“The value of that opinion is, therefore, increased or diminished in proportion as the supposed facts included in the hypothetical question tally with the facts proved in the case.”

Of this, Judge Shauck says:

“Logically, if any facts which the evidence does not establish are assumed as a part of the foundation of the expert opinion, the opinion is of no value for the purposes of the case. The theory upon which opinions of experts are admitted is, that the witnesses have knowledge not possessed by the jurors, which forms a foundation for safe conclusions in a particular case. As jurors are not supposed to have knowledge of the value of the several facts assumed as the basis of the opinion of the expert, they should not be set to speculating what his opinion would have been if any fact which the eyidence fails to establish had been omitted from the ease. If it were otherwise, there would be no reason for the rule that a hypothetical question which assumes facts which the evidence does not tend to establish, is incompetent. The portion of the charge quoted refers to the facts assumed in the question put to the witness; while the expert’s testimony affirmatively shows that many of those facts were not recognized by him as indicative of either sanity or insanity. The jury should have been instructed that if they were of the opinion that any fact assumed by the witness, as the basis of his opinion, was not established by the evidence, they should regard his opinion as of no value, unless his testimony shows that such fact affected only the confidence with which the opinion was held. While the instruction above quoted might have been intended to convey this meaning to the jury, it might have been understood by them as prescribing a law of mathematical proportion as the rule for ascertaining the value of the opinion, if all the facts were not established. There was nothing in the charge to prevent such misleading result.”

We do not find the rule stated anywhere more clearly, nor the reasons therefor more forcible, than in the opinion by Judge Shauck from which the above quotation is made. And while with respect to the charge in the case at bar, it could not be fairly said that any law of mathematical proportion was prescribed as a rule for ascertaining the value of an opinion if all the facts were not established, yet the jury were at liberty to give weight to the opinion according to any law of proportion they might be pleased to adopt if all the facts were not established, or if certain of the facts assumed were shown to be incorrect, and therefore we regard what is said by Judge Shauck as pertinent in the case at bar.

When we come to read the law on the subject of testamentary capacity, and consider that one may have such capacity even though of extreme old age; even though enfeebled in body and mind by age and disease; even though the memory may be impaired in a degree, and the mind may be disturbed by hallucinations or delusions (not necessarily influencing the mind in making a testamentary disposition of property); even though the mind of the testator may not be sound in the sense of being whole, unbroken, unimpaired, unshattered by disease or otherwise, but it may suffer discomposure and derangement in consequence of melancholy, grief, sorrow, misfortune, sickness or disease, yet, if such discomposure or derangement is not so great as to deprive the testator of the rational faculties common to men, he may still have testamentary capacity.

I say when we come to consider this in the light of the evidence in this case as to the physical and mental condition of the deceased, and the simple character of the will he signed, we feel bound to hold that the charge in the particulars pointed out contained serious errors prejudicial to the plaintiff in error and which may have produced a result different from that which might have been produced by a correct charge.

In this case because of the state of the evidence pro and con as to the testamentary capacity of the deceased, the evidence positive and negative, or, I may say, the paucity of evidence as to his loss of memory, lack of capacity to transact his ordinary business, delusions operating upon his mind so as to influence him in the disposition of his property; unnatural aversion to the natural objects of his bounty in view of their conduct toward and treatment of him; anything complicated or difficult in the problems to be considered and solved in the making of such disposition of his property as was attempted by the will in question, and other elements and subjects of inquiry ordinarily submitted to the jury as tests of testamentary capacity, and especially in view of the general character of the answers of physicians to the hypothetical questions mentioned, that in their opinions his mind was not, or might not have been sound, we think that the court should have given more prominence and emphasis to the phase of the law that sustains testamentary dispositions though the mind of the testator may not have been in all respects sound or the memory perfect, or the mind entirely clear or free from prejudice or even delusions (ideas not sufficiently elucidated in the charge) ; and the court should have avoided so charging as to in effect shift the burden of proof and impose it upon the defendant, a fault quite apparent in the charge.

Because of these errors the judgment of the court below is reversed and the verdict is set aside and the ease will be remanded to the court of common pleas, to be there proceeded with according to law.

Stueve & Connaughton, Jesse Stephens and Sumner & Tucker, for plaintiff in error.

Goeke & Hoskins, Layton & Son and D. F. Mooney, for defendant in error.


source: Caselaw Access Project

license: Public Domain

text:
    PLEADING—SPECIFIC PERFORMANCE.
    [Circuit Court of Hamilton County.]
    Frank J. Schnitzer v. Robert S. Cole.
    Decided, March, 1904.

      Pleading — Failure of Averment to Present an Issue — But Case is Tried as though Issue was Made — Assertion as to Purchase Received in Silence 6y Defendant — Pot an Admission upon which Specific Performance can he Based.

    1. Where a case is tried upon the theory that the pleadings present a certain issue, a reviewing court will consider it from that point of view, notwithstanding the failure of the averment relating to that issue.
    2. The hearing in silence by the defendant in a saloon of a declaration by the plaintiff, that he had purchased a lot from defendant upon certain terms, is not sufficient to establish a claim for specific performance against positive testimony denying the existence of an agreement to sell, by defendant and his wife, the only persons present with plaintiff when the agreement is alleged to have been made.
    Giffen, J.; Swing, J., and Jelke, J., concur.
   The answer of the defendant to the amended petition contains no general or other denial of the agreement set up, and the averment that “said verbal agreement was an option upon said lot for two weeks from the said 12th day of May, 1903,” is a mere conclusion of law, and presents no issue of fact. But inasmuch as the parties tried the case upon the theory that the pleadings presented an issue,. whether the contract of sale was upon consideration that plaintiff pay the purchase money within two weeks from the date of the sale, we will so consider it.

Renner & Renner, for plaintiff.

H. E. Engelhardt, W. W. Bellew, for defendant.

At the time of the alleged sale the only persons present were the plaintiff, the defendant and his wife. The latter two both testify that the plaintiff first offered $225; that the defendant asked $275, and finally offered the lot to plaintiff for $250 if he would pay the same within two weeks from that time, and that plaintiff accepted. The plaintiff testifies that the time of payment was two or three weeks from date of sale.

The testimony of the witness, Breitfelder, is a recital of a conversation between witness, plaintiff, and defendant, had in a saloon soon after the contract had been made and the receipt for five dollars given, in which plaintiff said that he had bought a lot of defendant and was to have two or three weeks to close up the trade, to which statement the defendant assented. It is not claimed by the plaintiff that the contract was made or its terms altered at this time, but only that the defendant admitted the terms of the contract to be as the plaintiff testifies they were originally understood by him.

Without intending to discredit the witness Breitfelder, we can only say that such an alleged admission, made under such circumstances, ought not to be considered as outweighing the positive statements of both the defendant and his wife of what took place at the time the contract was made. The receipt offered in evidence is in no sense a memorandum of the agreement, but only evidence of part payment in pursuance of that agreement. The parties elected to make a parol agreement, and the burden of proof being upon the plaintiff, we think he has failed to establish his claim for specific performance. It will be necessary however for the defendant to amend his answer in conformity with the proof made at the trial, when he will be entitled to a judgment.


text:
    A DIVORCE DECREE CAN NOT BE REOPENED AT A SUBSEQUENT TERM.
    [Circuit Court of Cuyahoga County.]
    Walter B. Solomon v. Anna A. Solomon.

    Decided, May 16, 1904.

      Divorce — Publication for Defendant — Plaintiff a Non-resident — Decree Granted — Defendant Moves at a Subsequent Term, — To Reopen the Case for Fraud — Section 5355 and Its Scope — Does not Reach the Question of Original Jurisdiction, and not Applicable to a Divorce Proceeding — Public Policy as to Divorce.

    1. Section 5355, Revised Statutes, relating to the reopening of cases within five years in which there was no other service than hy publication and the defendant had no actual notice of the pend-ency of the action, does not authorize the reopening of a divorce suit at a term subsequent to that in which the decree was entered.
    2. Owing to the effect upon innocent parties which may result from the opening up of decrees for divorce, public policy requires that they he treated as a peculiar class in themselves to he governed hy principles especially applicable to such eases.
    3. Section 5355 would authorize the personal representative of a party who had died after judgment to have the judgment opened up in the same manner as the party if living might have done himself, and conversely that in a proper case a judgment might he opened up against the personal representative, for the purpose of being let in to defend. But in a divorce proceeding there is nothing to defend, for the case has abated and passed beyond the limits of revivor.
    Marvin, J.; Hale, J., and Winch, J., concur.
    Error to the court of common pleas.

      Reversing 1 N. P.—N. S., 113.

   The parties here are as they were in the court below.

Prior to the 13th day of April, 1901, the plaintiff and defendant were husband and wife. On said date the plaintiff filed his petition in the court of common pleas of this county, praying to be divorced from the defendant. Among the allegations of the petition was the following:

The plaintiff says he has been a resident of the state of Ohio for the year last past, and is at present a tona jide resident of the said county of Cuyahoga.”

The defendant was a non-resident of the state of Ohio at the time the action was brought, and, on the 8th day of May, 1901, the plaintiff filed his affidavit with the clerk of said court, setting np that the defendant was not in the state of Ohio, and that her whereabouts were unknown to the plaintiff, and that service could not be made upon her other than by publication of notice to her. Thereupon notice was published to her of the filing and pendency of the petition, in a newspaper published and of general circulation in said Cuyahoga county, and such proceedings were thereafter had in the cause that on the 29th day of October, 1901, an order was made in said court, in these words:

‘ ‘ This cause having been duly advanced, came on to be heard October 29, 1901, upon the petition and evidence, the defendant being in default of answer or demurrer, although duly served with process according to law, and upon due consideration thereof the court finds that the allegations of the petition are true; that the plaintiff was a resident of the state of Ohio for one year next preceding the filing of his petition, and at that time was a bona, fide resident of this county of Cuyahoga, and that the parties were duly married as stated in the petition. The court further finds that the defendant has been guilty of gross neglect of duty to said plaintiff as charged in the petition, and by reason thereof the plaintiff is entitled to a divorce as prayed for. It is therefore ordered, adjudged and decreed that the marriage contract heretofore existing between the parties hereto, to-wit, said Walter B. Solomon and Anna A. Solomon, be and the same is hereby dissolved and both parties are released therefrom.”

At a subsequent term of said court, to-wit, on the 15th day of March, 1902, the defendant filed in said court a motion asking that the order and judgment heretofore quoted be opened and that she be let in to defend, and as cause for the granting of such motion it is stated therein:

“That she had no actual notice of the pendency of this case in time to appear in court and make a defense; that the plaintiff was not a resident of the state of Ohio during the year prior to the filing of the petition herein, and was not at the time of the filing of the petition a bona fide resident of Cuyahoga county, Ohio; that the allegations contained in the affidavit for publication herein, namely, ‘that the said defendant’s whereabouts is absolutely unknown to him’ (meaning thereby the said plaintiff) was absolutely false and untrue.”

With this motion the defendant filed an answer, which admits the marriage of the parties as stated in the petition, and denies each and every other allegation and averment in said petition contained. She also filed a large number of affidavits tending to establish the averment in her said motion, that the plaintiff was not a resident of Ohio for the year next preceding the filing of his petition and that he was not a tona fide resident of the county of Cuyahoga at the time of the filing of such petition. The plaintiff was duly notified of the filing of the defendant’s said motion, and, on the 17th day of April, 1903, the plaintiff filed his motion to strike from the files the motions and affidavits of the defendant, hereinbefore mentioned. This last motion was overruled by the court, and the motion of the defendant for the opening up of the original judgment and order was granted.

To the order of the court overruling the plaintiff’s motion to strike the defendant’s motion from the files exception was taken, as also to the order of the court opening up the original judgment in the case. If error was committed by the court in its ruling upon either of these motions, then whatever was done thereafter is without avail. We are brought, then, to a consideration of the question whether there was any authority in the court to hear and determine the motion made by the defendant.

On the part of the plaintiff it is urged that after the term of court at which the decree of divorce was entered the court was without authority of law, upon the defendant’s motion to open up that decree. On the other hand, it is urged that such authority is vested in the court under Revised Statutes, Section 5355, which reads:

“A party against whom a judgment or order has been rendered without other service than by publication in a newspaper, may, at any time within five years after the date of the judgment or order have the same opened and be let in to defend; but before the judgment or order can be opened, the applicant shall give notice to the adverse party of his intention to make the application, and shall file a full answer to the petition, pay all costs, if the court require them to be paid, and make it appear, to the satisfaction of the court, that during the pend-ency of the action he had no actual notice thereof in time to appear in court and make his defense; and each party may present affidavits.”

If this section of the statutes applies to actions for divorce, the motion of the plaintiff to strike off the defendant’s motion was properly overruled. The learned judge by whom this motion was heard was of the opinion that the section applies as well to judgments for divorce as to other judgments, and, in an opinion evidencing great care and careful consideration, he gives the reasons for so holding, premising such opinion by saying:

“The authorities are not at one upon the question whether a decree of divorce may be opened or reviewed after the term at which it was entered.”

All courts and text-writers have recognized that in cases of divorce questions of .public policy of the gravest importance are involved, and hence courts have universally refused to interfere to set aside decrees of divorce once obtained without the clearest authority of law. Our own Supreme Court, in the well-known case of Parish v. Parish, 9 O. S., 535, uses this language in the syllabus:

“A decree from the bonds of matrimony, although obtained by fraud and false testimony, can not be set aside on an original bill filed at a subsequent term.”

In the opinion in this case, at page 538, Judge Peck calls attention to a provision of the statute then, but not now in force, reading:

“No appeal shall be obtained from the decree, but the same shall be final and conclusive.”

In commenting upon this, Judge Peck says:

“This statutory provision is nothing more than a legislative recognition of the principle of public policy, which had been repeatedly affirmed by the courts, that a judgment or decree which affects directly the status of married persons by sundering the matrimonial tie, and thereby enabling them to contract new matrimonial relations with other and innocent persons, should never be reopened. Such a course would endanger the peace and good order of society, and the happiness and well being of those who, innocently relying upon the stability of a decree of a court of competent jurisdiction, have formed a connection with the person who, wrongfully perhaps, procured its promulgation. ’ ’

As to this case, it is said that no question of jurisdiction such (as arises in the case under consideration was involved. It does not appear from a report of the case whether either of the parties resided in Ohio at any time. It only appears that the plaintiff was not a resident of Brown county, in which county the decree was obtained. As we view the present case, however, we do not understand that the same question of jurisdiction was involved in that as is involved here, because the ques^ tion here is, whether the court had jurisdiction, that is, authority of law, to hear and determine the rights of the parties under the motion filed' by the defendant. If the court was without jurisdiction to hear that motion, then it should have been stricken from the files upon the motion of the plaintiff. As has already been said, if such jurisdiction existed, it existed by virtue of Section 5355, Revised Statutes. If that section applies, then the court was authorized by law to open up a decree and let in any defense which the defendant might have made upon the original trial. There is nothing in this section which authorizes the court upon such a motion to inquire into the jurisdiction in the original ease rather than to inquire into the validity of any other' defense. No question, whether jurisdictional or something else, could be inquired into by the court upon this motion without the court taking upon itself the determination of questions of fact. It would seem without doubt that the section of the statute under consideration would authorize the personal representative of a party who had died after the judgment to have the same opened up in the same manner as the party if living might himself have done, and conversely, that in a proper case a judgment might be opened up against the personal representative of one against whom such judgment had been granted. Clearly, in a divorce case this could not be done. A party is to be let in tcj defend. “Defend what?” as is said in the case of Owens v. Sims, Ex’r, 43 Tenn. Reports, 549. “Surely not a suit for divorce, for that had abated and passed beyond the limits of revivor.” In this latter ease the court had under consideration Section 4379 of the statutes of the state, which, after excepting certain cases, among which is not the action for divorce, this language is used:

‘£ In all other cases, a decree against a defendant without personal service of process, who does not contest, is not absolute for three years from the decree, unless a copy of the decree is served upon the defendant; in which case it becomes absolute, if the defendant fails to come forward and make defense within six months after service.”

As to this the court says, at page 548:

“It has no application to eases of divorce. * * * The legal consequence of such a construction of the statute will lead to results so anomalous and absurd, that it is clear the Legislature never intended it to be applied to divorce eases. They rest, in onr state, upon the peculiar provisions of the statutes enacted for their government; and the construction of this section of the Code contended for, is at war with the spirit, if not the letter, of the statutes of divorce in Tennessee.”

In the case of Smith v. Smith, 20 Mo. Reports, 166, the court holds that the statutes of Missouri authorize the setting aside of a decree of divorce in the same manner as other decrees in chancery might be set aside. The language of the statute under which this decision was held is this:

“That the circuit court, sitting as a court of chancery, shall have jurisdiction in all cases of divorce and alimony or maintenance, and the like process and proceedings shall be had in said causes as are had in other causes on the equity side of the court. The act regulating practice in chancery provides that, when a decree has been rendered in a chancery cause against a defendant who has not been summoned and has not appeared, such final decree may be set saide, if the defendant shall appear, and by bill of review, verified by affidavit, show cause for setting it aside as against equity.”

Taking these two provisions of the statutes of Missouri together — and a much stronger case for the setting aside of the decree is made than is made by the statutes of Ohio — and yet in this case a very vigorous dissenting opinion was handed down by Judge Scott, as found at page 169, et seq., of the report.

In the case of O’Connell v. O’Connell, 10 Neb., 390, the court had under consideration Section 5674 of the statutes of that state, being Section 82 of the Code of Civil Procedure, which reads:

“A party against whom a judgment or order has been rendered without other service than by publication in a newspaper, may, at any time within five years after the date of the judgment or order, have the same opened and be let in to defend; before the judgment or order shall be opened, the applicant shall give notice to the adverse party of his intention to make such an application, and shall file a full answer to the petition,” etc.

And, in commenting upon this section, this is said, on page 392:

“Do the provisions of Section 82 of the Code apply to actions for divorce? * # *
“It is very clear, from an examination of Section 82 of the Code, that the Legislature intended to limit its application to the cases mentioned in Section 77, and that it has no application to divorce suits.”

The Section 77 referred to enumerates causes in which service may be made by publication, and does not include actions for divorce, but Section 2865 of the same statutes provides as follows :

“A petition or bill of divorce, alimony and maintenance may be exhibited by a wife in her own name, as well as a husband; and in all cases the respondent may answer such petition or bill without oath; and in all cases of divorce, alimony and maintenance, when personal service can not be had, service by publication may be made, as is provided by law in other civil cases under the Code of Civil Procedure.”

From these sections it will be seen that the service by publication provided for in divorce cases is.exactly that provided for in other eases, and that a literal construction of Section 82 would make it apply as well to divorce as to other cases. The authorities cited in support of the opinion of the court in this case are: Lewis v. Lewis, 15 Kan., 181; McJunkin v. McJunkin, 3 Ind., 30; Gilruth v. Gilruth, 20 Ia., 225; Bingham v. Miller, 17 Ohio, 445.

In all these cases, though the exact question here presented is not raised in all, the reasoning is to the effect that divorce eases constitute a peculiar class in themselves and are governed by principles especially applicable to such cases, a very weighty consideration being the effect upon innocent parties which may result from the opening up of decrees of divorce.

In the case of McJunkin v. McJunkin, supra, attention is called to the provision of the statute that the practice and proceedings in suits to obtain divorce shall be the same as the other cases in chancery, with certain specific exceptions. Attention is further called to the fact that under the statutes of the state it is provided that “Parties against whom a decree has been rendered without other notice than publication in a newspaper, may, at any time within five years, have such decree opened up and be let in to a hearing, by giving notice to the original complainant, or his heirs, devisees, executors or administrators,” etc. This provision differs from the provision of our statute in that it in terms provides that the judgment may be opened up as against heirs, devisees, executors, etc.; but if what was said earlier in this opinion as to the rights of personal representatives under our own statute is correct, then this statute in effect is what our statute is on the same subject.

E. B. Bauder, W. C. Rogers, for plaintiff in error.

Emil Joseph, for defendant in error.

In noticing the distinction to be made between divorce and other cases, the court, in this McJunkin case, calls attention to the fact that in divorce cases the defendant is not required to make a full answer, and that a general denial made in answer in a divorce case need not be verified by the oath of the defendant. This is equally true under our statutes; indeed, without any answer whatever under our statutes, the court is authorized to grant a divorce without full proof of the facts upon which the party obtaining it is entitled to obtain it, even though no objection is made.

The court, further, in the McJunkin case, uses this language:

“The rights of bona fide purchasers of property, sold under the decree sought to be opened, are protected by another section, but no provision is made that children born of a second marriage, before the opening of the decree, shall be legitimate; and upon the whole, taking all the provisions of both chapters and the consequences which would follow a different decision into consideration, we think the judgment of the circuit court should be affirmed” [which judgment was to deny the right to have the decree opened.]

By Section 5356 of our own statutes a like provision is made for the protection of those who have obtained property on the faith of a decree, and there is the same omission in our statute as to children born of a marriage contract on the faith of such decree.

The conclusion reached by us is that the court of common pleas erred in overruling the motion made by the plaintiff to strike the defendant’s motion and affidavits from the files, and that by reason of such error all of the judgments and orders made by the court after overruling such motion of the plaintiff were erroneous. The judgment, therefore, overruling the plaintiff’s said motion is reversed, and the judgments thereafter made in the case are reversed, and, proceeding to enter the judgment which the court of common pleas should have entered, the motion of the plaintiff to strike the defendant’s motion and affidavits from the files s sustained.


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    CROSSINGS OF INTERURBAN AND STEAM RAILWAYS.
    [Circuit Court of Darke County.]
    Dayton & Union Ry. Co. v. Dayton & Muncie Traction Co.

    Decided, November 23, 1903.

      Bill of Exceptions — Final Judgment in Appropriation Proceedings— Bes Judicata — Railway Grossings Statute Construed — Classification of Steam and Interurban Roads — Statutes Applicable to Each — Appropriation of Railway Property by Another Road — Appeal under Sections 3333-1 or 5226 from Application to Define Manner of Grossing Tracks — Eminent Domain.

    1. Time for the taking of a bill of exceptions for tbe review of an order made at tbe preliminary hearing in an appropriation proceeding runs from tbe date of tbe order. But whether error can be prosecuted from an order made at tbe preliminary bearing— Quaere?

      2. A final judgment of tbe probate court in a proceeding brought by an interurban railway company to appropriate a right of way over tbe tracks and property of a steam railway company is res judicata as to all questions respecting tbe rights of both companies with reference to such crossing; and such questions can not be subsequently relitigated in tbe common pleas court to enjoin tbe use of tbe right of way, notwithstanding tbe suit in tbe common pleas was filed before tbe commencement of tbe proceedings in appropriation.
    3. Under the statutes of Ohio steam railways and electric railways are not recognized as belonging to the same class, and statutes regulating and relating to the former are not applicable to the latter, unless an intention clearly appears to the contrary.
    4. Hence, the common pleas court is without jurisdiction under Section 3333-1 to define the manner in which an interurban railway may cross a steam road.
    5. No appeal lies from a judgment by tbe common pleas court dismissing an application made by a railroad company to define tbe manner in which another company may cross its right of way, notwithstanding tbe right of trial by jury deos not exist and tbe judgment of dismissal is a final order.
    6. Tbe acquisition of property by a railroad company for railroad purposes is not a bar to tbe appropriation by another company possessing a like franchise of a right of way across said property.

      Wilson, J.; Sullivan, J., and Summers, J., concur.

       Affirming Dayton & Union Ry. Co. v. Dayton & Muncie Traction Co., 1 N. P.—N. S., 218.

   Three eases have been submitted to the court under the title of The Dayton & Union Railroad Company v. Dayton & Muncie Traction Company, 14 Dee., 17, 22, 143, numbered 489, 495 and 497. Nos. 489 and 495 are on appeal. No. 497 is a proceeding in error.

They arose in this way. On July 11, 1903, The Dayton & Union Railroad Company filed its petition in the court of common pleas to enjoin The Dayton & Muncie Traction Company from constructing a crossing at a designated point over its tracks, for the reason that to permit it to cross would be destructive to the rights and property of the plaintiff and would necessarily endanger the interests of the public as well as the property of the defendant; also that there was no necessity for the crossing at the point designated. A temporary restraining order was issued upon the filing of this petition and served upon the defendant.

On July 13, 1903, The Dayton & Muneie Traction Company filed its petition in the probate court under the statute seeking to appropriate the same crossing. Subsequently on August 15th, The Dayton & Union Railroad Company filed an application under Section 3333-1, Revised Statutes (95 O. L., 530), authorizing the court of common pleas, upon the application of a railroad, to prescribe the mode and manner in which one road may cross another. In the action in the probate court for the appropriation of the property, The Dayton & Union Railroad Company appeared and joined issue by filing an answer therein. The first defense in the answer is a general denial; the second is the pendency of the injunction case in the court of common pleas, relying upon it as ousting the jurisdiction of the probate court over the subject-matter of the suit. Subsequently on August 17, 1903, it filed a supplemental answer setting out the prosecution of the proceeding under the statute, 95 O. L., 530. A motion was made to strike this supplemental answer from the files in the probate court, and sustained.

The case in the probate court went to trial upon the issues joined and resulted in a finding and decree in favor of The Dayton & Muncie Traction Company, on August 10, 1903, that it had the right to prosecute the proceeding, that it was necessary for it to cross, and that it was not destructive of The Dayton & Union Railroad Company’s franchise; and subsequently passing to the inquiry of damages, judgment was entered, fixing the compensation at $75 and damages at $25. Error was prosecuted' from this judgment of the probate court to the court of common pleas and there affirmed; error is now prosecuted here to reverse the judgment of affirmance in the court of common pleas and the judgment of the probate court. This is the error ease.

No. 489, which is the application to the common pleas court to fix and determine the mode and manner of crossing, resulted in that court in a decree in favor of the defendant and the dismissal of the application. The plaintiff gave notice of appeal, and seeks now to have the matter retried in this court. A motion is interposed here to dismiss the appeal.

. An appeal is not specially provided for under this statute. If the right of apeal exists it must be under the general statute, Section 5226, Revised Statutes. In order that a party may be entitled to appeal under that section, three things must concur. The order from which appeal is sought to be prosecuted must be a final order; it must be made in a civil action in which the court has original jurisdiction; and the parties must not be entitled to a jury trial. The order in question here is a final order in the proceedings; the parties are not entitled to a jury trial; but it is not a civil action. So that the three things necessary do not concur and the party is not entitled to prosecute the appeal. The appeal, therefore, will be dismissed.

In the injunction case, being cause No. 495 in this court, The Dayton & Muncie Traction Company, the defendant in that action, filed an answer in which it pleaded the adjudication in the appropriation proceedings in the probate court. The Dayton & Union Railroad Company interposed a demurrer to this defense. The demurrer was overruled, and the plaintiff, not desiring to plead further, a decree was entered in favor of the defendant. The case on appeal is now submitted to this court upon the demurrer to this defense.

We are of the opinion that when The Dayton & Muncie Traction Company instituted the proceeding in the probate court to appropriate the property, The Dayton & Union Railroad Company, appearing and answering in that case, had then a plain and adequate remedy at law to which it was remitted; and when it litigated the questions necessarily involved in the appropriation proceedings to a final judgment in that court, it had adjudicated all of the questions which could arise in the injunction case in the court of common pleas. What was involved in both cases was the private right of the parties in, about, and over, this crossing. They each had a franchise right to use it as a crossing. The Dayton & Union Railroad Company had appropriated and paid for its private right, but it had no peremptory exclusive right that would prevent another road from appropriating a crossing on the same land under a like franchise from the state. What they had to contend about was upon what terms, if at all, coüld The Dayton & Union Railroad Company be deprived of its private property in that crossing by the power of eminent domain. The same subject-matter and the same questions would necessarily arise and be involved in' the litigation in either one of the eases, except that the jurisdiction of the probate court was broader than the jurisdiction of the court of common pleas, in that it could give affirmative relief to The Dayton & Muncie Traction Company as well as to the Dayton & Union Railroad Company. The demurrer to the answer will be overruled.

The preliminary hearing in the condemnation proceeding was had in the probate court on August 10th; at least it resulted in the finding and order of the court on that date in favor of The Dayton & Muncie Traction Company upon all of the questions which were required by the statute to be determined as preliminary to the inquiry of damages. The Dayton & Union Railroad Company filed a bill of exceptions in the probate court on October 9th; that was ten days after the judgment on the inquiry of damages, but more than sixty days after the finding and order of the court upon the preliminary hearing. A motion was made in the court of common pleas to strike the bill of exceptions from the files. The motion was overruled by that court for the reason that the bill, when filed, was a good bill, at least, for the purpose of reviewing the judgment upon the inquiry of damages. A motion was also made to strike out of the bill that part which had reference to the trial on the preliminary questions which resulted in the judgment and order of August 10th. This motion was overruled, the court, in the consideration of the whole record, being of the opinion that the proper proceeding would be to ignore so much of the bill as was not authorized by law. It then found that for the purpose of reviewing the preliminary order made on August 10th, the bill of exceptions was not taken in time; that an appropriation proceeding is in effect two separate proceedings or actions; upon the preliminary hearing The Dayton & Muncie Traction Company is the plaintiff and had the burden of proof; upon the inquiry of damages The Dayton & Union Railroad Company stood in the attitude of plaintiff and had the right to open and close upon the question of damages; that when error is prosecuted from the probate court to the court of common pleas and results in a reversal of the judgment of the probate court, the action is set down for trial upon the inquiry of damages only, and not for a rehearing upon the preliminary questions. All of which being true, the court was of the opinion that in order to review the order made upon the preliminary hearing a bill of exceptions must be taken within the time prescribed by the statute from the date of that order, and this was not done.

This question is very obscure. We are not convinced that there is any right to prosecute error from the order made upon the preliminary hearing. It has been done, however, and has been passed upon by the Supreme Court without raising the question. If it can be done, then we are of the same opinion as the court of common pleas that the preliminary hearing is so far separate from the inquiry of damages, as that, in order to review, a bill of exceptions must be taken from the date of the order, and if not taken within the time prescribed by the statute the bill is not effective to bring the evidence on that question before the court. The common pleas court was right in refusing to look to the bill for the purpose of determining whether or not the order upon the preliminary hearing was made upon sufficient evidence.

But the motion of The Dayton & Muncie Traction Company to strike from the files the answer of The Dayton & Union Railroad Company, pleading its proceeding under the statute to have the common pleas court fix the terms and conditions upon which one road could cross another, was sustained; this raises the question which was sought to be raised by the appeal in case No. 489. Because if The Dayton & Union Railroad Company was entitled under that statute to go into the court of common pleas and have that court fix the terms, modes and conditions upon which The Dayton & Muncie Traction Company could cross its road, and having done that, came into the probate court and pleaded the pendency of that proceeding, it ought to stay the hand of the probate court until the common pleas court had so fixed the mode and manner of crossing, for the reason that it would affect the question of compensation and damages.

We are called upon therefore to construe that statute; the question being whether or not it applies to The Dayton & Muncie Traction Company. The court of common pleas was of the opinion that it does not apply. We are of the same opinion, and might rest our conclusion in that respect upon the reasoning and the authorities found in the opinion of the learned judge of that court which had been filed with the papers in the case. But it is very easy to re-enforce that opinion by other authorities.

In C., L. & A. Elec. St. Ry. Co. v. Lohe, 68 Ohio St., 101, the Supreme Court has held:

“An interurban and electric railroad is classed as a street railroad by the statutes of this state.”

In the case of Massillon Bridge Co. v. Iron Co., 59 Ohio St., 179, it is held:

“The statutes of this state relating to railroads are separate and distinct from those relating to street railroads, and the word ‘railroad’ in Section 3208, Revised Statutes, and in Section 1 of the act of March 20, 1889, 86 O. L., 120, Section 3231-1, Revised Statutes, does not include street railroads.”

Turning to the last section referred to, Section 3231-1, Revised Statutes, we find it reads as follows: “Any person who shall have performed common or mechanical labor upon, or furnished supplies to any railroad, street railroad, or railroad operated wholly or in part by electric motor power,” clearly implying that a railroad is one thing, a street railroad is another, and that a railroad operated wholly or in part by electric motor power may be another. They are not treated by the Legislature as synonymous terms. The statutes generally lead to this same conclusion. When one steam railroad crosses its trains over another steam railroad, if they have not the interlocking switch they must stop at a certain ■ distance and not pass until they get the signal. When an electric railroad car passes over a steam railroad, it must send an employe forward to ascertain whether the track is clear, and the car can not cross until it is signaled by the employe that the road is clear.

On the same day that the special act under which this proceeding is gought to be prosecuted was passed, the Legislature passed another act conferring upon electric roads the power of eminent domain. The railroads had had that power from their inception, and if an electric road is identical that legislation wordd be superfluous. The Legislature clearly understood that they were different roads, and we are driven to the conclusion that the word “railroad” in this statute has a fixed legal signification. It means a steam commercial road and nothing else, and whenever it is used in a statute, that meaning must be given to it unless it clearly appears that some other meaning is intended. It does not appear in this statute that they had such other intention, nor does it appear from the proceedings upon the journals of the Legislature that it had any intention to give to the word any other than the ordinary legal signification.

We find that the direct question was decided by the Superior Court of Cincinnati in the case of Rapid Ry Co. v. Railway Co. The court says:

Nevin & Nevin, J. C. Clark and C. B. Heiserman, for plaintiff in error.

Anderson, Bowman & Anderson and C. P. Matthews, for defendant in error.

“We are of the opinion that House Bill No. 230, 95 O. L., 530, does not refer to the kind of road operated by the plaintiff.”

The road in question was an electric road. So that we hold the statute does not apply to The Dayton & Muneie Traction Company; that The Dayton & Union Railroad Company was not authorized by law to prosecute the proceeding which it did in the court of common pleas invoking the power of that court to fix the mode and manner of crossing, and that the answer setting up that proceeding in the probate court was properly stricken from the files.

We find no error upon the record. The judgment of the court of common pleas is affirmed.


text:
    USURY.
    [Circuit Court of Cuyahoga County.]
    The Brooklyn Building & Loan Association Company v. Damas Desnoyers and Alphonsine Desnoyers.
    Decided, June, 1904.

      Building Associations — Usury—The Paragraph Relating thereto in Section 3836 Constitutional — Corporation Laws.

    The third paragraph of Section 3836, Revised Statutes of Ohio, in so far as it exempts building and loan associations from the operation of the usury laws is not unconstitutional.
    Winch, J.; Hale, J., and Marvin, J., concur.
   This case was heard on appeal from the common pleas court. The petition prays for the foreclosure of a mortgage given to secure the payment of a loan made by plaintiff to defendant, Damas Desnoyers, certain covenants and agreements in said mortgage being as follows:

“The condition of this deed is such, That whereas the said Damas Desnoyers, being the owner of four and one-half shares of stock therein, has, together with Alphonsine Desnoyers, executed and delivered to the said The Brooklyn Building & Loan Association Company a certain written obligation of even date herewith for the sum of nine hundred dollars ($900), being the amount received by him as a loan upon said shares under the terms and conditions prescribed in the constitution and by-laws of said company, and has therein specially agreed to pay to said company for such loan, without demand, on the second Wednesday of each and every month, beginning with the eighth day of May, 1895, until the said loan shall be finally paid, in the manner provided in said constitution and by-laws, the following sums of money, to-wit:
“1st. Dues: The sum of four and fifty one-hundredths dollars ($4.50), being the monthly installment of dues on said shares.
“2d. Interest: The sum of four and fifty one-hundredths dollars ($4.50), being the interest on said sum of nine hundred dollars ($900), at six per cent, per annum, subject to annual rebatement according to the provisions of the constitution and by-laws of said company.
“3d. Premiums: The sum of two and twenty-five one hundredths dollars ($2.25) per month, being the premium on said loan at three per cent, per annum.
“4th. Fines: 'All fines, assessments and penalties which the said Damas Desnoyers shall incur, or which may be levied upon him as a member of said company and in accordance with its constitution and by-laws.
“And it is further agreed that in case of default in making any of the payments stipulated for in the above obligation, when the same shall become due and payable, or to comply with the requirements of the constitution and by-laws of said company as aforesaid, then the amount secured by the within mortgage, with all arrearages, fines, premiums, or other charges thereon of whatever nature, shall become due and payable at once, or at any time thereafter, and whether there be subsequent defaults or not, all at the option of said company, and this mortgage may be foreclosed by due process of law.”

An amended answer filed by the defendants alleges as a defense that prior to the bringing of this action plaintiff agreed to a settlement and liquidation of said loan upon the payment to it by the defendants of the balance due thereon computed as if the loan had originally been made to draw only six per cent, interest; that defendants had tendered to plaintiff the balance so computed and agreed upon, but plaintiff refused to accept it.

A reply denies that any agreement for settlement as alleged was ever made.

Upon the hearing no proof of any such settlement was made, but counsel for defendants contended that the contract sued on by plaintiff is usurious, and being usurious, that plaintiff is entitled to collect thereon only six per cent, interest, which defendants had tendered.

There is no question that the contract is an usurious one, but it must be enforced under the laws governing building and loan associations, unless said laws, so far as they authorize the collection of usurious interest', are invalid.

Thus the sole question for determination in this case is the constitutionality of the third paragraph of Section 3836 of the Revised Statutes, which reads as follows:

“Such, corporations (building and loan associations) shall have power to assess and collect from members and depositors such dues, fines, interest and premium on loans made, or other assessments as may be provided for in the constitution and bylaws. Such dues, fines, premiums or other assessments shall not be deemed usury, although in excess of the legal rate of interest.”

It appears that the Circuit Court of the Fifth Circuit, sitting in Ashland county, in the case of Mykrantz v. Globe Building & Loan Association, 19 C. C., 51, held that the Legislature, by exempting building and loan associations from the operation of the usury laws, had undertaken to grant “special privileges to a certain class of people and to a certain class of corporations” in contravention of Sections 1 and 2 of the Bill of Rights, and that therefore said exemption is invalid.

The Circuit Court of the Sixth Circuit, sitting in Lucas county, in the case of Spies v. Loan & Trust Company, 4 C. C.— N. S., 131, held that the law is not a violation of said Sections 1 and 2 of the Bill of Rights.

There is no decision of the Supreme Court directly in point, but the right of building and loan associations to collect usurious interest has been recognized and enforced by the Supreme Court repeatedly; .

The first building and loan association act in this state was passed May 5, 1868 (65 O. L., 127), and amended three days later (65 O. L., 173). The original act as amended provided as follows:

“Section 2. Such corporation shall be authorized and empowered to levy, assess and collect from its members such sums of money, by rates of stated dues, fines, interest on loans advanced and premiums bid by members or depositors for the right of precedence in taking loans, as the corporation by its by-laws shall adopt; also, to acquire, hold, encumber and convey all such real estate and personal property as may be legitimately pledged to it on such loans, or may otherwise be transferred to it in the due course of its business; provided, that the dues, fines, and premiums so paid by members or depositors, although paid in addition to the legal rate of interest on loans taken by them, shall not be construed to make the loans so taken usurious; and provided also, that no person shall hold more than twenty shares in any such association, in his own right.”

While this act was in force the case of Lucas v. The Greenville Building & Savings Association, 22 O. S., 339, was heard by the Supreme Court.

“This was an action by the association to recover of Lucas money which he had as a loan from it as a member of the company. Interest was reserved and paid upon this loan exceeding eight per cent, per annum, the maximum rate allowed by the general law, but not exceeding the limits allowed by the statute under which the company was organized. This matter of alleged usury was set up as a defense, to the extent of the excess of interest paid over six per cent.”

The court held:

“The interest reserved was no more than the law allowed.” In the case of Ohio, ex rel, v. Greenville Building, etc., Association, 29 O. S., 92, the court recognized the right of the association to charge a premium in addition to the legal rate of interest, but held that “the only mode by which the premium on a loan can be fixed is by the bidding of the members or depositors for the right of precedence. ’ ’

In the case of Licking Co. S. L. & B. Association v. Bebout’s Admr., 29 O. S., 254, it appears that one Bebout had received from the association the sum of $410, bidding $390 premium for precedence in taking the loan and had given the association a mortgage to secure the payment to it of the full sum of $800. He made payment of monthly installments of dues and interest for some time and then died. His administrator elected to return the $410, and tendered the amount, less amounts previously paid in dues and interest, but the association refused to accept it. Thereupon the administrator commenced suit to cancel the mortgage, the common pleas court ruled in his favor and the district court did the same. Judge Gilmore, in deciding the case, said: “If the loan in this case consisted of the cash received on taking it, which was $410, exclusive of the premium bid for precedence, which was $390, the decree of the district court was correct, and must be affirmed. If, on the other hand, the loan consisted of the aggregate of these sums, i. e., $800, the decree was erroneous and must be reversed.” The decree was reversed.

In the case of Bates v. People’s Savings & Loan Co., 42 O. S., 655, the court defined the premium which should not be eonstrued to make the loan usurious as one bid by a member or depositor for the right of precedence in taking a loan, at a competitive sale of such right. This case was decided in 1885, and the following year the law was amended by leaving out the requirement that the premium must be bid, leaving it to the association to provide in its constitution and by-laws regarding the payment of premiums (83 O. L., 116). Again, in 1891, the law was amended and the provision now known as Section 3833-3 and heretofore quoted, was adopted (88 O. L., 462). In the present law such associations are authorized to charge such dues, fines, interest, and premiums on loans made or other assessments, as may be provided for in the constitution and bylaws. Since the passage of this act, the powers of such corporations and the rights and liabilities of their members thereunder, have been reviewed by the Supreme Court, and the following quotations are from an opinion by Chief-Justice Minshall in the case of Eversmann, Receiver, v. Schmitt, 53 O. S., 174, decided in 1895:

“Mutuality is the essential principle of a building association. Its business is confined to its own members; its object being to raise a fund to be loaned among themselves, or such as may desire to avail themselves of the privilege. This is done by the payment, at stated times, of small sums, in the way of dues, interest on loans and premiums for loans. Each shareholder, whether a borrower or non-borrower, participates alike in the earnings of the association, and alike assists in bearing the burthen of losses sustained.
“The borrower before his stock is paid up, receives from the association the par value of his shares, in the nature of an advance loan. For this, he agrees to pay the premium, if any, for the privilege, the interest on the money advanced, subject to abatements to be made at stated times, and the dues on his stock until it matures. In other words, he agrees to keep up and pay out his stock, as if he were a non-borrower, in consideration of the amount being advanced to him before that time. Hence, the borrower remains a stockholder, and participates in all the privileges and benefits of a stockholder; has a voice in the management of the association and participates in its earnings. The latter go toward discharging his obligations arising on the loan, and to shorten the time in which he will be fully discharged therefrom. For, taking all losses into account, whenever the shares of the borrower have reached their par value by the payment of dues and the apportionment of earnings, the loan is liquidated and he ceases to be a member, as he would, if he had not borrowed at all. In other words, with his shares paid up, he discharges his obligations as a borrower. And the exact test of his right to call for a cancellation of the mortgage given to secure his obligations as a borrower, is the inquiry whether he would have been entitled to receive from the association the par value of the shares on which the loan was made had he not become a borrower.
“In this ease Mrs. Schmitt subscribed for twelve shares, and received from the association their par value, $3,000, as an advanced loan, at a premium of $240. She paid the premium, and agreed to pay the dues thereon, $6 per week, and interest at the rate of six per cent., subject to the annual abatement, ‘until such time as the weekly dues paid and dividends declared and unpaid shall amount to the sum of three thousand dollars, ’ and all ‘assessments’ that might be levied upon her as a member of the association. * * *
“It is wholly unlike a savings society where the borrower is not a member or otherwise interested in its business. Having no voice in the management, nor interest in' the earnings of the society, the borrower and it sustain the simple relation of debtor and creditor. Here, as shown, the borrower is also interested as a creditor. The loan is for no definite period of time. It depends upon the management of the association, in which he continues as a member and has a voice.” * * *

In that ease, the court held the defendant to the payment not only of dues, interest and premiums on her loan, but required her to pay in addition thereto an assessment of nearly $1,000 made by a receiver of the association after its insolvency, as her share of the losses of the association.

From the foregoing authorities it appears that the very question here involved, to-wit, the constitutionality of the law authorizing building and loan associations to charge premiums in addition to the legal rate of interest, has been many times incidentally, if not directly, before the Supreme Court, and yet the law has stood upon the statute books of this state and been enforced for more than thirty-six years. Indeed, some of the reported cases were in the nature of quo warranto cases in which the associations pleaded the statute as their warrant for charging premiums, and the Supreme Court refused to oust them from such franchise, though it saw fit to regulate them in its exercise to conform to the strict letter of the law.

Smith & Taft, for plaintiff.

Thos. Robison, for defendants.

Believing the decisions of this state recognize the validity of the law, we have deemed it unnecessary to consider the many authorities cited to us from other states in which the constitutionality of similar statutes has been sustained.

It may be remarked that our usury laws are statutory. Their application may be extended or limited at the pleasure of the Legislature. In recent years many of the states have repealed all laws regulating the rate of interest which may be contracted for.

In the Mykrantz case, the able judge delivering the opinion concedes that the statute here in question does not violate Section 26, Article II of the Constitution, which requires that all laws of a general nature shall be uniform in operation throughout the state, nor Article XIII, which prohibits special acts-granting corporate powers. He says:

“This law, whatever else may be said about it, is a law of a general nature and is uniform throughout the state. It applies to all building and loan associations in whatever corner of the state they may be found. It is not granting, as we view it, a special or corporate power by special act of Legislature.” 19 C. C., 56.

But he says it “gives special privileges to a certain class of people and to a certain class of corporations.” That is true of all corporation laws — they grant special privileges to classes of corporations by which the classes of people who are members thereof benefit.

Railroad corporations enjoy the right to condemn private property; this is a special privilege enjoyed by no individual; and so the special privileges enjoyed by corporations and their stockholders might be enumerated at great length. We are not in harmony with the conclusion reached in the Mykrantz case, and therefore affirm the constitutionality of the law.

Decree for plaintiff.

      This decision is in harmony with Spies v. Loan & Trust Company, 4 C. C.— N. S., 131; Mykranz v. Globe Building & Loan Association, 19 C. C., 51, not followed.


text:
    WIDOW’S EXEMPTION.
    [Circuit Court of Hamilton County.]
    Penny Brown v. William H. Parham.
    Decided, December 16, 1903.

      Exemption — Homestead—Right of a Widow Thereto the Same as of an Unmarried Female — Punctuation of Section 5441.
    A widow not the owner of a homestead is not entitled to hold exempt from levy and sale in lieu thereof $500 worth of real or personal property, unless she has in good faith the care and maintenance of a minor child or children of a deceased relative.

      E. H. Williams, for plaintiff in error.

      A. J. Cunningham and W. H. Parham, for defendant in error.
    Giffen, J.; Jelke, J., and Swing, J., concur.
    Error to court of common pleas.
   The plaintiff in error being a widow, not the owner of a homestead, and not having in good faith the care, maintenance and custody of any minor child or children of a deceased relative, is not entitled to hold property exempt from levy and sale, unless under Section 5441, Revised Statutes, but in this section, as now punctuated, the words “having in good faith the care, maintenance and custody of any minor child or children of a deceased relative” qualify the word “widow” as well as the words “unmarried female,” and a widow not having the care of such child can not hold property exempt under this section. When the case of Wentzel v. Hayes, 16 C. C., 110, was decided, Section 5441, Revised Statutes, as amended in 81 O. L., 148, contained no comma after the words “unmarried female” as it now does, and as found in Whittaker’s code it contained a comma after the word “widow.” This punctuation evidently influenced the court in that decision, as there is no-sound reason why a widow should be entitled to an exemption that an unmarried female is not entitled to.

The judgment will be affirmed.