text:
    DEFENSES UNDER A POLICY OF CASUALTY INSURANCE.
    Circuit Court of Cuyahoga County.
    The Ohio Moulding Manufacturing Company v. The Standard Life and Accident Insurance Company.
    Decided, December, 1903.

      Estoppel — Casualty Insurance — Defending Action Brought Against Insured, Not a Waiver of Conditions in Policy.

    In an action against a casualty insurance company to recover the amount of a judgment for personal injuries secured against the holder of a policy by one of his employees, the fact that the insurance company defended the action in which the judgment was secured against the assured, does not amount to an estoppel, nor is it a waiver of conditions in the policy that it shall not cover loss from liability for any injuries caused by failure of the assured to comply with the requirements of any law respecting the safety of c persons, nor to injuries resulting through the employment of a 'Child.

      Smith & Taft, for plaintiff in error.

      Hoyt, Dustin c& Kelley, contra.
    Hale, J.; WTnch, J., and Marvin, J., concur.
    Error to the court of common pleas.
   On the 12th day of May, 1897, the defendant made and issued to the plaintiff, who was then engaged in the manufacture of mouldings, doors, sash and blinds, in the city of Cleveland, its policy of insurance by the terms of which it insured the plaintiff against damages on account of any injuries to its employees caused by accident for twelve months from said date. A copy of the policy is attached to the petition and made a part thereof. The action was prosecuted by the plaintiff against the defendant in the court of common pleas to enforce the provisions of this policy.

The following facts appear from the record:

On the 13th day of October, 1897, during the life 8f the policy, Martin Uhas, an employee of the plaintiff, was injured while engaged in said employment. His injuries were caused by accident within the terms of the policy. Immediate notice was given to the insurance company by the plaintiff of such injuries. Uhas claims that his injuries were caused by the negligence of the plaintiff, and brought an action against it to recover compensation for such injuries.

The defense in this action was conducted by the insurance company, as, by the terms of its policy, it was bound to do.

The action resulted in a judgment in favor of Uhas against the plaintiff, which, after a review and affirmance in the circuit court, the plaintiff paid. The total amount of the judgment and costs paid by plaintiff to Uhas was $756.56.

The plaintiff sought in this action to recover of the insurance company the amount of the judgment and costs so paid to Uhas, and all allegations are made in the petition necessary to entitle the plaintiff to a judgment for such sum.

The defendant denied any liability under this policy, and alleged that the policy contained these two clauses':

‘ ‘ 1. This policy does not cover loss from liability for any injuries caused by the failure of the assured to comply with the requirements of any law or ordinance respecting the safety of persons.
‘ ‘ 2. This policy does not cover loss from liability for injuries to any child employed contrary to law, nor to any child under fourteen years of age, nor does this policy cover any injury due wholly or in part to the employment of any such child. ’ ’ '

It is then alleged that Uhas was employed by the plaintiff contrary to law, and reference is made to the act of April 8, 1890, wherein it is provided that no child under the age of sixteen years shall be employed by any person, firm or corporation in this state at employment where its life or limb is in danger, or its morals may be depraved by such employment.

It alleged further that Martin Uhas, at the time of his employment and of his injuries, was a child under sixteen years of age, and that the employment was of a dangerous character whereby his life and limbs were in danger, specifying that the employment was about a rapidly-moving circular rip saw.

The reply took issue with this defense, and alleged that the defendant waived all rights it had to such defense and is es-topped from asserting the same by the facts specifically set forth by said reply, the chief of which is that the defendant, with such knowledge as it had of the facts, of the case, by taking the burden of the defense of the original action, is estopped.

1. It is claimed that the court erred in the exclusion of evidence offered by the plaintiff in support-of the claim made by it that the defendant had waived alkrights to insist upon this defense. This evidence consisted mainly of conversations had between the attorney of the insurance company and Philip Decumbe, the general manager of the plaintiff company, and were to the effect that Mr. Wilcox, as attorney for the insurance company, had objected to the plaintiff making any settlement with Mr. Uhas. The policy provides that the assured “Shall not

• settle any claim except at his own costs, nor incur any expense, nor interfere with any negotiations for settlement in any legal proceeding without the consent of the company given in writing, but he may provide at the time of the accident such immediate surgical relief as is imperative. ’ ’ In view of this provision of the policy the plaintiff’s testimony was wholly immaterial. If the insurance company did, by an authorized agent, object to any settlement made by the moulding company, it only did what it had a right to do under the terms of the policy, and such evidence would have no.tendency in support of a waiver of the condition of the policy relied on by the insurance company. We think there was no error in any of the rulnigs upon the exclusion or admission of testimony.

2. It is claimed that the trial court erred in holding as a matter of law that under the evidence submitted on the trial of the case the insurance company had not waived its right to insist upon the defense made in its answer. We think the court correctly ruled upon this proposition. There was no evidence offered either by plaintiff or defendant upon which a finding of the jury in favor of such waiver could be sustained, unless the mere fact that the insurance company took charge of the defense in the original action against the plaintiff by Uhas was in law such waiver; but we hold that the mere fact that that defense-was conducted by the insurance company as by the terms of the policy it was bound to do, was not and could not operate as a waiver of its rights under the policy. It would hardly be claimed, if the insurance company, without any knowledge whatever that the boy Uhas was under sixteen years of age at the time of his employment and injuries, conducted said defense and subsequently learned the facts as to the age of the boy, that it would be estopped from enforcing the provisions- of this policy, or had in any way waived such provisions. The most that can be said of the evidence in this case on behalf of the plaintiff is that Uhas, from the inception of his ease against the plaintiff, was claiming his age to be under sixteen years, but that the plaintiff was at all times'insisting that he was more than sixteen years at the time of his employment and of his injuries. Statements to that effect were made to the attorney for the insurance company, and it can not rightfully be claimed that because the insurance company, under the assurance by the plaintiff that the boy was more than sixteen years of age at the time of his employment, entered upon and conducted said defense, it waived its right to insist upon the terms of the policy. Tt was the duty of the insurance company to conduct said defense. Tt had so contracted in the policy, and it could not be justified in disregarding its contract because Uhas or his guardian claimed him to be less than sixteen years of age, while the assured was insisting that he was of greater age.

The issue was fairly made by the pleadings, whether the employment of Uhas was in violation of the statute above quoted, and therefore any accident to him not within the terms of the policy. The court refused to submit this issue to the jury, but said to the jury that the employment of the boy, if itnder sixteen years of age, to work in the place he was injured was unlawful. In so charging the jury it is claimed that the court erred. It is true that a question of fact was raised by this issue, -and it probably would have been better to have submitted that issue to the jury for determination, but, after a careful consideration of all the testimony bearing -upon that issue it is ■ máde' certain that the jury'must have found the employment to .have.-been unlawful. Any other, conclusion'than that reached by the jury would not have been permitted to stand. We are, therefore, of opinon that this judgment should not be reversed for this alleged error.

There was some conflict in the evidence offered upon the trial as to the age of the boy at the time of his employment and injuries. That issue was properly submitted to the jury and there was a finding by the jury that- the boy was under the age of sixteen years at the time of the injuries.

If we are right in our determination of these several propositions, there is no error for which this judgment should be reversed.

The judgment of the court of common pleas is, therefore, affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    COMPENSATION TO AN ADMINISTRATOR. OF AN ADMINISTRATOR.
    Circuit Court of Cuyahoga County.
    Edward Madden, Administrator, v. Edward M. McGillin, Administrator.
    Decided, February 29, 1904.
    Under circumstances warranting it, the probate court has authority- to allow special compensation and attorney fees to the administrator of the estate of an administrator of another estate, for extra services performed by the last administrator and his attorneys in and about the filing of the final account of the deceased administrator of' the first estate.
    Winch, J.; Hale, J., and Marvin, J., concur.
    Error to the court of common pleas.
   It appears that Sarah McGuire died in this county, leaving an estate of which Mary McGillin was appointed administratrix, and when Mary McGillin died, Edward M. McGillin was appointed her administrator, and filed a final account that should have been filed by Mary McGiliin as administratrix on the estate of Sarah McGuire, claiming special compensation and attorney fees for extra services rendered in and for the filing of that final account, which were allowed by the probate court in the sum of one hundred dollars for extra compensation to the administrator, and seventy-five dollars attorney fees.

The matter went to the common pleas court and the common pleas court allowed the attorney fees, but reversed the probate court on the allowance to the administrator for extra compensation.

We hold, that under circumstances warranting it, the probate court has authority to allow special compensation and attorney fees to the administrator of the estate of an administrator of another estate, for extra services performed by the last administrator and his attorneys in and about the filing of the final account of the deceased administrator of the first estate.

And so, upon the review of this case, we find that attorney fees were properly allowed, and owing to the fact that the account itself is not before us or attached to the record or bill of exceptions, we are unable to determine whether the extra compensation should have been allowed the administrator, or not, and therefore affirm the common pleas court in the reversal of the probate court.

The judgment of the court of common pleas is affirmed in that regard.

Both the petition of the plaintiff in error and the cross-petition of the defendant in error are dismissed.


author: Jones (Oliver B.), J.

text:
    WRIT OF PROHIBITION IN A DIVORCE PROCEEDING.
    Court of Appeals for Hamilton County.
    State of Ohio, on the Relation of Marie Gellner, v. Joseph B. Kelley, Judge of the Insolvency Court.
    Decided, March 20, 1916.

      Prohibition — Action for a Writ of — In a Proceeding for Divorce Where Jurisdiction Was Denied — High Prerogative of a Writ of Prohibition —Gan Not be Made to Serve the Purpose of a Writ of Error — When it May be Invoiced — Power to Create a Court Implies Power to Change its Jurisdiction — Pending Cases Where Jurisdiction is Withdrawn — And no Provision Made for Their Transfer to Another Court — Are Terminated and Should be Held for Naught.

    The amendment of Section 1637, General Code, of February 17, 1914 (104 Ohio Laws, 179), operated to withdraw from the Court of Insolvency of Hamilton County jurisdiction to hear and determine actions for divorce and alimony after December 31, 1914, even though pending at that date.

      J. G. DeFosset, for relator,

      C. W. Baker and Jos. B. Kelley, contra.
   Jones (Oliver B.), J.

This is an action for a writ of prohibition brought by the state, on the relation of Marie Gellner, as relator, against Joseph B. Kelley, judge .of the Insolvency Court of Hamilton County, Ohio, as respondent, to prevent him as such judge from proceeding to hear and determine a certain divorce proceeding in said court in which said relator is the’ defendant.

It is averred in the petition and admitted in the answer that on August 20, 1914, a petition for divorce was filed in said insolvency court by one John Gellner against his wife, Marie Gellner, the relator herein, as defendant; that on August 29th, 1914, said Marie Gellner filed an answer and cross-petition in said cause praying for divorce and alimony; that on February 18, 1915, an amended petition was filed by said plaintiff; and on May 21, 1915, said defendant was granted leave to withdraw her original answer and cross-petition and file an amended answer, which was thereupon done.

It appears that an order was made by said court on September 19, 1914, requiring the plaintiff in said cause to pay the defendant, as alimony, for the support of herself and minor children, the sum of $4.50 every week, and that on February 5, 1915, charges in contempt were filed against said plaintiff for the failure to pay said alimony; and that said cause was on September 15, 1915, heard in part by said insolvency court. It is averred by plaintiff that at such hearing testimony was offered by plaintiff to show that he lived in the village of Dakota, state of 'West Virginia, with his wife and children and the family of defendant’s father and mother, from about November, 1912, to March, 1914, and that he had not been a resident of the state of Ohio for a year prior to the filing of his petition on August 20, 1914. Said relator avers that at the conclusion of plaintiff’s testimony in said divorce trial defendant moved for a dismissal of plaintiff’s petition, which motion was overruled, and defendant then offered testimony as to the residence of plaintiff and at the conclusion of all the testimony again moved the court to dismiss the plaintiff’s petition, for want of jurisdiction, which said motion was overruled, to which ruling defendant then excepted, and the cause was thereupon continued by the court, for further hearing, to January 15, 1916.

Under Section 1637, General Code, courts of insolvency were given jurisdiction concurrent with the court of common pleas in certain matters, and among others in “actions for divorce and alimony.” On February 6, 1914, an act was passed by the General Assembly entitled:

“An act to amend Section 1637 of the General Code to take away the jurisdiction of the Insolvency Court of Hamilton County in divorce and alimony cases.”

By this act Section 1637 was re-enacted in its original form, except that in paragraph 9 thereof where certain matters were enumerated in which said court of insolvency was given jurisdiction, after the words “and actions for divorce and alimony” were added the words:

“except the court of insolvency in Hamilton county shall not have jurisdiction in actions for divorce and alimony after December 31st, 1914.”

Relator prays for a writ of prohibition against proceeding in said divorce action upon two grounds:

1. The Court of Insolvency in Hamilton County has had ao jurisdiction in the subject-matter of the action since December 31, 1914.
2. The said court has no jurisdiction of the action for the reason that the plaintiff was not a resident of Ohio for at least one year before fling his petition. (General Code, 11980.)

The writ of prohibition is a remedy brought into the jurisprudence of Ohio by amendments to the Constitution which became effective January 1, 1913. Original jurisdiction in prohibition is vested in courts of appeals by Section 6, Article IV of the Constitution. No statutory provisions have as yet been enacted laying down rules of procedure for the exercise of this jurisdiction.

Cases of prohibition have, however, been entertained both in courts of appeals and in the Supreme Court. The ease of Ex Parte Oldham, 19 C.C. (N.S.), 270, was one in which it was sought to restrain the judges of the courts of common pleas from acting as a conservancy court. The case of State, ex rel Berry, v. Cushing, Judge, decided by this court, post, was an action in which it was sought to prohibit a .judge of the common pleas court from proceeding to hear a motion to dissolve an attachment on appeal from the Municipal Court of Cincinnati.

Two cases in prohibition have recently been decided by the Supreme Court. The syllabus of each of these cases is to be found in No. 49, Ohio Law Reporter for March 6, 1916, Vol. 13, pages 43 and 44 — being State, ex rel Garrison, v. Brough et al, and State, ex rel Nolan, v. ClenDening. In these cases, in which we have seen .advanced copies of the opinion of the court not yet published, the object and use of the writ of prohibition is clearly stated. Paragraph 1 of the syllabus of the first named case is as follows:

“The writ of prohibition is an extraordinary legal remedy, whose object is to prevent a court or tribunal of peculiar, limited or inferior power, from assuming jurisdiction of a matter beyond its cognizance. The writ can not be made to serve the purpose of a writ of error to correct mistakes of the lower court in deciding questions of law within its jurisdiction.”

Paragraphs 2, 3 and 4 of the syllabus of the second case are:

“2. The writ of prohibition is a high prerogative writ to be used with great caution in the furtherance of justice and only where there is no other regular, ordinary and adequate remedy.
“3. The writ may be invoked against any inferior court or inferior tribunal, ministerial or otherwise, that possesses incidentally judicial or quasi judicial powers, to keep such courts and tribunals within the limits of their own jurisdiction.
“4. If such inferior courts or tribunals in attempting to exercise judicial or quasi judicial power are proceeding in a matter wholly or partly outside of their jurisdiction, such inferior courts or tribunals are amenable to the writ of prohibition as to such ultra vires jurisdiction.”

If, therefore, the court of insolvency is now wholly without jurisdiction to hear and determine a case for divorce and alimony, it would become the duty of this court to allow the issue of the writ to prevent it from undertaking to exercise such jurisdiction.

The main question to be determined is whether the Court of Insolvency of Hamilton County has jurisdiction to try an action for divorce and alimony after December 31, 1914.

The Court of Insolvency of Hamilton County is a local court established by act of the General Assembly under authority granted by Section 1, Article IV of the Constitution. The constitutionality of the law creating it was upheld in State, ex rel, v. Archibald, 52 O. S., 1. An amendment to the act conferring certain jurisdiction upon it (93 O. L., 669) was held invalid as being obnoxious to Section 26, Article II, in so far as it attempted to confer exclusive jurisdiction on that court of various matters within the jurisdiction of the court of common pleas.

The, constitutionality of the law establishing the Insolvency Court of Cuyahoga County, which is similar to that of Hamilton county, was directly sustained in State, ex rel, v. Bloch, 65 O. S., 370. In discussing the power of the Legislature in respect to the establishment of such courts and fixing their jurisdiction, the court uses the following language in the opinion in that case, at page 391:

“The power is here undoubtedly granted to the General Assembly to create courts other than those enumerated in the section; and the material inquiry is, what other courts may be so created ? The answer is found in the language of the section, which is, ‘such’ other courts ‘as the General Assembly may from time to time establish. ’ That language- vests in that body full power to determine what other courts it will establish, local, if deemed proper, either for separate counties or districts, and to define their jurisdiction and powers. The only limitation placed upon the exercise of that power is that the courts so established shall be inferior to the Supreme Court, subject, of course, to the further qualification that no legislation can alter the judicial system established by the Constitution, nor interfere with the courts designated by that instrument as the recipients of the judicial power. Apparently there could have been but one purpose in making this special grant of legislative potyer, and that was to enable the General Assembly to meet the public needs for additional courts, as they might arise in different parts of the state. It is hardly probable that it was considered or contemplated that the same necessities in that respect would arise at the same time in all parts of the state. Hence, the power was given to establish these additional courts from time to time, as in the opinion of the legislative body the public exigencies should appear to render necessary or proper.”

There is, therefore, no question as to the power of the General Assembly to create or to abolish such a court as it may deem best. Its right to abolish such a statutory court at any time was sustained in State, ex rel, v. Wright, 7 O. S., 333.

The entire jurisdiction of such a court must be derived from the statutes. The power to create the court necessarily implies the duty to define the jurisdiction, and this jurisdiction can be changed by proper, laws from time to time as the General Assembly may determine.

The power to grant a divorce is a statutory and not a common law power. 14 Cyc., 581; Olin v. Hungerford, 10 O. S., 268, 270. It is a judicial power, not legislative. Bingham v. Miller, 17 Ohio, 445.

Under Section 1637, General Code, prior to its last amendment, the court of insolvency in Hamilton county had jurisdiction in actions of divorce and alimony concurrent with that of the court of common pleas. When Section 1637 was amended February 17, 1914 (104 O. L., 179), becoming effective May 17, 1914, that jurisdiction was distinctly taken away after December 31, 1914. The language is so explicit that there can be no doubt as to the intention of the Legislature; and this is made more apparent, if that were possible, by the fact that on the same day Section 1639, General Code, was amended to provide for a division of “domestic relations” in the court of common pleas in Hamilton county, in which one of the judges of that court should sit, to whom should be assigned all juvenile court work and all divorce and alimony cases (104 O. L., 176). Under this act the common pleas judge to be elected to fill the division of domestic relations would become vested with the power to try such eases at the same time that such power was withdrawn from the insolvency court.

It is argued, however, that no provision was made for the transfer of pending and undisposed of cases, from the insolvency to the common pleas, court. That there should be on December 31, 1914, any such pending cases with no provision for transfer, is to be deplored. But it must be noted that this amendment w as passed more than ten months before the date fixed for the withdrawal of this jurisdiction. The divorce suit in question here was filed more than six months after its passage and over three months after it became effective. The common pleas court then had concurrent jurisdiction, and the passage of this act must be considered as notice to the members of the bar and the public that a time limit had been fixed for the trial of such actions in the insolvency court. Where parties desired to run no risk of having their proceedings prove abortive because of inability to secure a final decree during the year 1914, they were at liberty to institute such proceedings in the common pleas court where there was a continuing jurisdiction. Such a course was probably anticipated by the General Assembly in providing what it doubtless deemed a sufficient time, before the withdrawal of its jurisdiction, for the disposition by it of divorce cases then pending in the insolvency court.

If the court had been abolished without any provision for transfer of eases to another court, there could have been no contention that it should persist after that time to hear and determine eases until all its pending cases had been tried and adjudged. There is no question but that all of its pending cases would have been terminated and held for naught. The same result would follow the withdrawal of its jurisdiction to hear and determine any particular class of cases, as to such cases.

"Whenever a statute from which a court derives its jurisdiction in particular cases is repealed, the court can not proceed under the repealed statute, even in suits pending at the time of the repeal, unless they are saved by a clause in the repealing statute. For the effect of the repeal of a statute is to obliterate the statute repealed as completely as if it had never been passed, and it must be considered as a law that never existed, except for the purposes of those actions or suits which were commenced, prosecuted and concluded while it was an existing law. This rule holds true until the proceedings have reached a final judgment in the court of last resort, for this court, when it comes to pronounce its decision, conforms to the law then existing, and may,- therefore, reverse a - judgment which was correct when pronounced in the subordinate tribunal whence the appeal was taken, if it appears that pending the appeal a statute which was necessary to support the judgment of the lower court has been withdrawn by an absolute repeal. If the only law purporting to confer jurisdiction upon the court to try the case is void, then all the acts of the court are without authority and also void. In such case no intendment of the law, or presumption of fact, can be made in favor of its jurisdiction.” (7 R. C. L., 1031.) Ball v. Tollman, 135 Cal., 375; Hunt v. Jennings, 5 Blackf. (Ind.), 195; Todd v. Landry, 12 Am. Dec. (La.), 479, and see note on page 480 and cases there cited.

“The repeal of all statutes relating to divorce deprives the courts of their jurisdiction in divorce actions and terminates their jurisdiction even in pending actions unless the repealing act contains a saving clause.” (14 Cyc., 583.) Grant v. Grant, 12 S. C., 29.

If the law purporting to confer jurisdiction on the court to try a case is void, no intendment of law or presumption of fact can be made in favor of its jurisdiction. A decree.of divorce granted without jurisdiction of the subject-matter is void. In re Christiansen, 17 Utah, 412.

It is contended, however, that the general saving clause found in Section 26, General Code, must be considered as applying to all cases for divorce and alimony pending in the insolvency court January 1,1915, and by reason of that provision it became the duty of that court to hear and determine such pending cases after that date.

Section 26 is as follows:

“Whenever a statute is repealed or amended, such repeal or amendment shall in no manner affect pending actions, prosecutions or proceedings, civil or criminal, and when the repeal or amendment relates to the remedy, it shall not affect pending actions, prosecutions or proceedings, unless so expressed, nor shall any repeal or amendment affect causes of such action, prosecution or proceeding, existing at the time of such amendment or repeal, unless otherwise expressly provided in the amending or repealing act.”

Many cases are cited by respondent to show the wide application of this act, and there is no doubt that it is applicable to repeals and amendments “unless otherwise expressly provided in the amending or repealing act.”

In the instant case can it be said that it is not expressly provided in the amending act that this jurisdiction shall not exist after a date certain? It is not a mere elimination of the words describing the particular subject-matter in which jurisdiction had been previously given, as might have been accomplished by omitting the words “and actions for divorce and alimony” from clause 9, instead of allowing them to remain and adding the exception in which the jurisdiction is wholly withdrawn after a certain date.

In the opinion of the court there is an express provision which shows that Section 26 was not intended to apply.

The case of Friend v. Levy, 76 O. S., 26, is directly in point. The second clause of the syllabus is as follows:

“A general rule of interpretation of statutes is, that when an act of the Legislature is repealed without a saving clause, it is considered, except as to transactions passed and closed, as though it had never existed. This rule is largely superseded by Section 79, Revised Statutes, which provides that: (quoting section) ; but one Legislature can not prescribe binding rules for the interpretation of the statutes passed by a subsequent Legislature and while in the absence of anything in the statute indicating a different intent the legal presumption is that the Legis-. lature intended the statutory rule to apply, yet when it clearly manifests a different intention the statutory rule does not apply.”

Dabney v. Dabney, 20 App. Cases (Dist. Columbia), 440, is relied upon by respondent as directly in point. In that case an action was brought for divorce on the grounds of wilful desertion and abandonment, the statute then providing for divorce on such grounds, but before the trial the statute was amended to provide for divorce only on the grounds of adultery, after which the trial court sustained a demurrer to the petition and held that it had no jurisdiction to try the case on the charge made because of the change in the law. The case was appealed, and before trial on appeal Congress passed an act providing that all actions for divorce pending at the time the change in the divorce law went into effect might be proceeded with and disposed of under the provisions of the statutes in force previous to that amendment. The majority of the court, acting under this new enabling law, reversed the trial court, while the chief justice, as the minority of the court, held that in his opinion the general saving clause which was similar in terms to our Section 26, General Code, would have applied to permit the trial court to proceed to hear and dispose of the case. "We can not regard this minority opinion as authority, but must regard that case as decided by the majority of the court by virtue of the later statute. It must also be observed that divorce jurisdiction had not there been wholly withdrawn from that court, but there had only been a change made in what would constitute legal grounds.

Finding, as we do, that the court of insolvency" in Hamilton county is without jurisdiction in actions for divorce and alimony after December 31, 1914, it becomes unnecessary to consider the other ground urged- — that it was without jurisdiction in this particular action because the plaintiff had not been a resident of Ohio for the year before the filing of his action.

It might be said, however, that the question raised involves the determination of fact and law which would depend upon the evidence. As already stated, this writ can not be made to serve the purpose of a writ of error to correct in advance possible mistakes of the lower court in deciding questions of law within its jurisdiction. It might, however, be possible in a divorce proceeding, where a decree once entered may be claimed to be final notwithstanding error had intervened in the trial, that a case might arise where the facts were so clear and the intention to commit error so avowed that a court of superior jurisdiction might intervene-by prohibition. In this ease, however, such a situation is not presented. The evidence submitted to this court is not absolutely conclusive as to the plaintiff’s residence, nor is it claimed to be identical in every respect with that heard by the court of insolvency. This court would therefore not anticipate in advance of a decision by the trial court, that such decision would not be' in accordance with the law and the evidence.

Because of want of jurisdiction of the subject-matter of the action, a writ of prohibition is allowed.

Jones (E. H.), J., and Gorman, J., concur.


text:
    THE WRIT OE PROHIBITION AND ITS PURPOSE.
    Court of Appeals for Hamilton County.
    State of Ohio, on the Relation of George T. Berry, v. Wade Cushing, Judge of the Court of Common Pleas, Hamilton County, Ohio.
    Decided, March, 1915.

      Writ of Prohibition — Nature of the Remedy — When it May be Invoked —Does Not Lie Against a Common Pleas Judge About to Take Jurisdiction of an Appeal from the Municipal Court.

    1. The remedy provided by writ of prohibition is for the purpose of restraining the exercise of unlawful judicial power. Resort may be had to this remedy only when there is some officer or person who is about to exercise judicial or quasi judicial power, which is unauthorized, and will result in injury, and against which action no other adequate remedy exists.
    2. But inasmuch as the common pleas court has jurisdiction to entertain an appeal from an order by the municipal court overruling a motion to dissolve an attachment, a writ of prohibition does not lie against a judge about to exercise such jurisdiction.

      Burch, Peters & Connolly and Walter D. Murphy, for plaintiffs.

      Ralph E. Cla/rlz, contra.
   Jones (Oliver B.), J.

This is an action praying for a writ of prohition against one of the judges of the court of common pleas to restrain him from proceeding in a ease wherein it is claimed the court of common pleas has no jurisdiction.

In the provision for the court of appeals, made by Section 6, Article IV of the Constitution as amended at the election held September 3, 1912, it was vested, among other powers, with original jurisdiction in prohibition. The Supreme Court is likewise, by Section 2, Article IV of the Constitution as amended, vested with original jurisdiction in prohibition.

It is provided in Section 1475 of the General Code as amended, in cases in the Supreme Court, and in Section 1523 of the General Code as amended, in cases in the court of appeals, that cases in prohibition may be disposed of by the court in advance of their assignment or order on the docket. No provision has been made by statute, by the General Assembly, for actions of prohibition nor, so far as we have been advised, has any other legislation been had with reference thereto.

The office and purpose of a writ of prohibition is well defined and stated in High’s Extraordinary Legal Remedies, in Section 762, as follows:

“The writ of prohibition may be defined as an extraordinary writ, issuing out of a court of superior jurisdiction and directed to an inferior court, for the purpose of preventing the inferior tribunal from usurping a jurisdiction with which it is not legally vested. It is an original remedial writ, and is the remedy afforded by the common law to correct encroachments of jurisdiction by inferior courts and is used to keep such courts within the limits and bounds prescribed for them by law. The object of the writ being to restrain subordinate judicial tribunals of every kind from exceeding their jurisdiction, its use in all proper cases should be upheld and encouraged since it is of vital importance to the due administration of justice that every tribunal vested with judicial functious should be confined strictly to the exercise of those powers with which it has been by law entrusted.”

The appropriate function of the remedy is to restrain the exercise of unauthorized judicial power.

Three conditions are necessary to warrant the granting of the relief:

1. That the officer or person against whom it is sought is about to exercise judicial or quasi judicial power.
2. That the exercise of such power is unauthorized by law.
3. That it will result in injury for which no other adequate remedy exists. (High, Section 764a.)

This proceeding arises out of a suit in the Municipal Court of Cincinnati wherein George T. Berry, a resident of Kansas City, Missouri, brought suit against Norman R. O’Neal, a resident of Mena, Arkansas, on an account for professional services rendered to himself and his family. Without any service on the defendant, constructive or otherwise, an order of attachment was issued against the John Shillito Company of Cincinnati, which company answered on the same day stating that it had in its possession money ($56.25) owing to the defendant. An entry was made August 17, 1914, ordering the John Shillito Company to pay said amount into court, and the case was continued for the purpose of securing constructive notice upon the non-resident defendant, O’Neal, by publication. On August 28, 1914, the defendant appeared in the municipal court, solely for that purpose and moved to discharge the attachment, which motion was granted only as to 90 per cent, of the amount less $2 for costs of suit. Whereupon the defendant, O’Neal, appearing solely for that purpose, moved to discharge the balance of the money attached and the court overruled said motion. Thereupon the defendant, under Sections 10259 and 10260, General Code, gave notice to the judge of the Municipal Court of Cincinnati that he appealed to the court of common pleas. The judge, or his clerk, immediately transmitted to the clerk of the Court of Common Pleas of Hamilton County all of the original papers in said case, where it was regularly docketed by the clerk. A motion was then filed by the plaintiff in the common pleas court to dismiss said appeal on the ground that said common pleas court did not have jurisdiction to hear the same. This motion was heard by Wade Cushing, judge of that court .and defendant herein, and was overruled, plaintiff excepting. Whereupon plaintiff came to this court praying for a writ of prohibition in this case prohibiting said Wade Cushing as judge of the court of common pleas from proceeding to hear said appeal upon said motion to dissolve the attachment.

It appears, therefore, that the judge against whom the writ of application is sought, has indicated by his refusal to grant, the motion to dismiss said appeal, that he is about to exercise judicial power in entertaining such appeal. It is also clear from the consideration of the Cincinnati municipal court act, that his action when taken will not be subject to review and that it therefore might result in injury for which no other adequate remedy than that of prohibition exists. So two of the three conditions necessary to warrant the granting relief as stated above are found to exist — the first and third.

It is therefore necessary to determine whether or not the second condition is also present, that is, whether the exercise of such power is unauthorized by law.

This brings us to the question as to whether there is a writ of appeal under the statutes, in the matter of overruling a motion to dissolve an attachment, from the municipal court to the court of common pleas.

The municipal court, by Section 6 (103 O. L., 280) is given jurisdiction within the limits of the city of Cincinnati:

1. “In all actions and proceedings of which justices of the peace have or may be given jurisdiction.”

And by Section 7:

“In all actions or proceedings the municipal court shall have jurisdiction in every ancillary and supplemental proceeding, before and after judgment, including attachment of person or property, arrest before judgment, interpleader, aid of execution, and the appointment of a receiver, for which authority is now, or may hereafter be conferred upon the court of common pleas, or a judge thereof, o,r upon justices of the peace.”

The municipal court, therefore,’ has jurisdiction of such an action as that from which this proceeding arises. Sections 10259 and 10260 are as follows:

“The defendant may make a motion before the justice to dissolve the attachment, or to release the property, money, or credits attached or garnisheed, either or both. If overruled, it can be appealed by the defendant to the court of common pleas, if in session, or to a judge thereof in vacation, by giving notice to that effect to the justice, but no bond shall-be required.
“Upon such notice of appeal being given, the justice shall forthwith transmit to the clerk of the court of common pleas all the original papers. Thereupon within three days from such notice of appeal, or upon such further time as may be' for good cause allowed, the court or judge shall hear and determine the motion as though it was originally brought in such court. Upon the final hearing the court or judge shall forthwith transmit the judgment with the original papers to the justice of the peace, which judgment must be entered upon his docket as the final determination of the motion. Such attachment, property, moneys and credits shall be disposed of as directed in the judgment.”

Under Section 10259 the judge of the municipal court had jurisdiction of defendant’s motion to dissolve the attachment. This motion was overruled, and by the express terms of this section if overruled it can be appealed by the defendant to the court of common pleas.

Section 10260 confers jurisdiction upon the court of common pleas to hear and determine that motion on appeal and provides what action shall be taken.

The office of justice of the peace is not always filled by a lawyer or one learned in the law, and the purpose of these sections was to provide a speedy review of the question of attachment in a court of record. The Cincinnati municipal court act provides that the judges of that court shall have been admitted to the practice of the law not less than four years before their election. No doubt, if the act providing for the review of this motion to dissolve the attachment were being framed with reference to the municipal court rather than to the justice of the peace court, it would not have been deemed necessary to provide for a review by the court of common pleas. But the act being general in its terms, and providing for a review upon the overruling of the motion, it must be held from its language to apply to a case in a municipal court as well as to one before a justice of the peace.

In the opinion of this court, therefore, Section 10259 authorizes an appeal to the common pleas court, where the motion to dissolve the attachment made before the municipal court has been overruled, and the judge of the court of common pleas in entering such an appeal is in the exercise of judicial power authorized by law.

The application for a writ of prohibition is therefore denied.

Swing, J., and Jones (E. H,), J., concurs.


author: Metcalee, J.

text:
    NEGLIGENCE IN PASSING A STANDING STREET CAR. WITH AN AUTOMOBILE.
    Court of Appeals for Belmont County.
    D. D. DuBois, Administrator of the Estate of William Gitchell v. John H. Schell.

    Decided, May 7, 1915.

      Negligence Per Be — By Driver of Vehicle in Passing Gar Discharging or Receiving Passengers — Contrary to the Provisions of a Prohibitory Ordinance — Duty of Ordinary Care on the Part of Driver and of Alighting Passenger Who Was BtrucJc — Charge of Court.

    1. Where a municipal ordinance prohibits drivers of vehicles on a public street from passing a street car while such car is standing, for the purpose of taking on and discharging passengers, it is negligence per se for the driver of an automobile to pass such car in disobedience of the provisions of the ordinance.
    2. While a passenger alighting from such car is not relieved from the duty of using ordinary care, he has the right to act upon the presumption that drivers of vehicles approaching the car from which he is alighting will obey the law, and if, while using ordinary care himself he is injured by a collision, with a vehicle driven past such car in violation of the provisions of the ordinance he can recover.

      Affirmed by the Supreme Court, February 29, 1916.

   Metcalee, J.

Briefly stated, the allegations of tbe petition in tbis case are that William Gitchell was a passenger upon a street car in the city of Bellaire; that the car had stopped for the purpose of taking on and discharging passengers; that Gitchell alighted from the car; that he passed to the rear of the car intending to cross the tracks and the street to the sidewalk on the other side; that as he passed from the rear of the car onto the driveway he was struck by an automobile driven by the defendant, John H. Schell, and was killed. It is alleged also that there was in force at the time an ordinance of the city of Bellaire prohibiting the drivers of vehicles upon the streets of said city from driving past a street ear which was standing for the purpose of receiving and -discharging passengers. The case was tried to a jury and a verdict rendered for the defendant.

The three principal grounds of error relied upon in argument and the brief of counsel are:

First. That the verdict is against the weight of the evidence.
Second. Errors in the charge of the court, and
Third■ That the trial judge erred in refusing to charge the jury as requested by the plaintiff in error.

Considering these in their order: As to the first proposition, it is sufficient for us to say that witnesses were called on the part of the plaintiff who testified to the fact that they saw Mr. Gitchell alight from the car, pass to the car’s rear, and out upon the street upon the other side of the car, and that he was struck by the automobile when the car was standing; and, upon the other hand, witnesses called by the defendant state that the car had started and had gone on some distance when Gitchell was struck. We think the conflict of testimony is such that the questions of negligence and contributory negligence were purely questions for the jury, and we would not be authorized to set this verdict aside on .the ground that it is against the weight of the evidence.

Second. Did the court properly charge the jury? The definition of ordinary care as applied to this ease by the trial judge is excepted to. We quote from the charge:

‘ ‘ Ordinary care is that degree of care which persons of ordinary care and prudence are accustomed to observe under similar circumstances. That is, ordinary care as applied to the conduct of the defendant in this case is such care as persons of ordinary care and prudence in driving and managing automobiles in the streets of a city are accustomed to exercise and observe for the protection of persons traveling in the streets; and ordinary care, as applied to the deceased, William Gitchell, in this case is such care as persons of ordinary care and prudence observe in crossing streets at street crossings, to avoid danger and injury to themselves arising from the driving of automobiles through the streets.”

That is to say, the degree of care required of the defendant is such only as would be required of an automobile driver approaching a street crossing, regardless of the fact that a street ear might be standing at the crossing receiving and discharging passengers, and also regardless of the fact that a municipal ordinance prohibited him from driving past the ear while so standing. With regard to the ordinance, the trial judge said to the jury:

“While this ordinance has been introduced in evidence, and while the plaintiff claims that the same was violated by the defendant, which he denies, neither the ordinance itself nor its violation, if the same has been proven, is sufficient, in and of itself to establish the claim of the plaintiff that the defendant was guilty of negligence, but such ordinance, and the testimony tending to show its violation, if any, may be considered by you as circumstances tending to prove negligence.”

And again, in another part of the charge this:

“You are instructed that, under the law, if a person goes unexpectedly in front of a moving automobile which is being prudently managed and controlled by the driver, that, is, that ordinary care is being used by the driver who is unable by the exercise of ordinary care and prudence to avoid injuring or killing such person, the driver is not liable. He is only liable in such circumstances if he fails to observe ordinary care and prudence in the management and control of his car, and by reason of such failure causes a collision.”

The last quoted part of the charge may be correct as applied purely to the defendant’s contention, but viewed in the light of other parts of the charge we think it is very misleading.

The plaintiff claims that the defendant, at the time his automobile struck the decedent, was violating an ordinance of the city of Bellaire, and that by reason of the violation of that ordinance the defendant was killed. Upon that question the trial judge said to the jury that they might consider the ordinance and any evidénee tending to show its violation as evidence tending to prove negligence, and in effect stated that the violation of the ordinance was not negligence of itself. That is to say an automobile driver, under the circumstances of this case, is charged only with the duty of ordinary care, and ordinary care is all that is required of him in passing a street car at a stop for the purpose of discharging passengers. No distinction is made as to where that ordinary care should be exercised, or whether the degree of care would be higher in one place than another. This, it seems to us, ignores the provisions of the ordinance and would allow the defendant to drive his automobile past the standing ear in contravention of its provisions, with only the duty resting upon him of using ordinary care, and relieve him entirely from obedience to its provisions. We can not think that this is the law. The ordinance means what it says, and the safety of the public requires an obedience to its provisions. The decedent had a right to suppose that the defendant would obey the law, and using ordinary care himself to act upon that supposition; and the plaintiff had a right to have his theory of the case correctly stated to the jury, and if the .jury found that the defendant did drive past the car in violation of the ordinance that such action was negligence on his part. And if, in consequence of that fact the plaintiff’s decedent was injured while using ordinary care- himself, the plaintiff would have a right to recover.

The jury under this charge had a right to understand that the trial judge’s definition of ordinary care was as applicable to the claim of the plaintiff as to that of the defendant, and that the defendant might pass tbe standing car .disregarding the ordinance entirely, and that when the decedent got off the ear it was his duty to look for an approaching automobile, and if he did not do so he would be guilty of contributory negligence.

There could be no error in this case for the refusal of the trial judge to give the requests numbers one and two preferred by the plaintiff. The fact that the plaintiff’s decedent was struck while the car was standing was disputed. While they state the law correctly, as applied solely to the plaintiff’s contention, they, in effect, assume that that contention was undisputed, and for that reason we think there was no error in a refusal to give them. ,

Probably the trial judge was misled in this case by a misconception of the case of Meek v. Pennsylvania Company, 38 O. S., 632. In that ease the city ordinance was not plead as a ground of negligence, but the court held that the plaintiff had a right to introduce it in evidence in support, of the allegation of negligence in the petition, not as a foundation for recovery, but as a circumstance tending to show negligence. We think the case of Baker v. Pendergast, 32 O. S., 494, correctly states the law as applied to this case:

“A person about to cross the street of a city in which there is an ordinance against fast driving has a right to presume in the absence of knowledge to the contrary that others will respect and conform to such ordinance. And it is not negligence on his part to act on the presumption that he is not exposed to a danger which can only arise through a disregard of the ordinance by other persons.”

A good statement of the law also is found in 8 Thompson on Negligence, Section 10:

1 ‘ When any specific act or dereliction is so universally wrongful as to attract the attention of the law-making power, and this concrete wrong is expressly prohibited by law or by ordinance, a violation of this law, a commission of the specific act forbidden is for civil purposes correctly called negligence per se.”

For errors in the charge of the court as above pointed out, the judgment in this case is reversed.

Spence, J., and Pollock, J., concur.


author: Gorman, J. Jones (Oliver B.), J.,

text:
    DETERMINATION AS TO WHEN A CASE FAILED OTHERWISE THAN ON THE MERITS.
    Court of Appeals for Hamilton County.
    William E. Hutton et al v. William S. Curry.

    Decided, March 22, 1915.

      Res Adjudicata — Relitigation of Question as to When a Case Failed Otherwise than on the Merits Can Not he Had, When.

    When a court of last resort has decided that an action has failed otherwise than on its merits on a certain date, and it is sought by averments in an answer to the action to show that the former action failed otherwise than on its merits on a different date from that found by the court of last resort, the fact as to when the action failed otherwise than on its merits can not be relitigated under the averments of the answer, as that' question is res adjudicata, and the averments of the answer which seek to raise that question again, are'-properly stricken from the pleading on motion.

      Ernst, Cassatt <& Cottle, for plaintiffs in error.

      Thos. L. Michie, contra.

      Judgment modified by the Supreme Court, January 25, 1916, but not on this point decided.

   Gorman, J.

The first assignment of error alleged by counsel for plaintiff in error is that the court below erred in granting the motion to strike from the answer the averments of the second defense.

The record shows that in February, 1904, the plaintiff’s action In the former case was dismissed, and in April, 1904, this entry of dismissal was set aside because, as set out in the entry,, the entry of dismissal was made by inadvertence and mistake. Then on April 21, 1906, the court found that the entry of April, 1904, setting aside the entry of dismissal, was made without notice to or knowledge of defendants after term, and was irregular and void, and set aside said entry of April 29, 1904.

Upon this state of facts on a demurrer to the petition the general term of the superior court and the Supreme Court, by an equally divided court, held that within the meaning of Section 11233 of the General Code the plaintiff in the former case failed otherwise than on the merits at the date of the last entry made by the superior court in special term, to-wit, on April 21, 1906.

This ruling we believe is final and conclusive in this case, and binds this court as to the time when plaintiff failed in the former action otherwise than upon the merits; and this present action having been commenced within one year from April 21, 1906, was brought within time and is not barred.

The theory upon which the general term of the superior court so held is that when the entry of April, 1904, setting aside the entry of dismissal, was made, the former action was then and thereby reinstated as a pending untried ease and so continued until April 21, 1906, when the superior court in special term set aside the entry of April, 1904, because the same was made without notice and was therefore irregular and void, at which time the plaintiff’s cause failed otherwise than upon the merits. It failed because of the last action taken by the special term of the superior court on April 21, 1906, and not by reason of the dismissal in February, 1904. If this last entry of April 21,1906, had not been made, then manifestly the plaintiff would have been enabled to proceed with his former ease and prosecute it to a final judgment on the merits; but by reason of the court’s entry of April 21, 1906, he was then and thereby precluded from prosecuting his action to a final determination on the merits, and we are of the opinion that the general term of the superior court did not err in finding that this date, April 21, 1906, was the time when the plaintiff failed otherwise than on the merits of his case.

Now after the case had been taken to the general term and to the Supreme Court, and this point decided adversely to the contention of plaintiffs, they set up in a second defense of an answer, certain averments to the effect that the superior court in special term, in the usual course of business after due and regular notice in the Court Index, a daily law journal of general circulation especially among the lawyers, and upon a call of the former ease for trial regularly and plaintiff having failed to appear, dismissed the cause without record and without prejudice, and held that the entry of April, 1904, was made without notice to counsel for defendants and was therefore null and void because so made after the term. Upon motion all the averments of this second defense were stricken from the answer by the court below on the grounds that the matters therein set up had been adjudicated in the rulings on the demurrer to the petition by the general term of the superior court and the Supreme Court.

Now the power of the special term of the superior court to dismiss the plaintiff’s former action in February, 1904, for want of prosecution was not drawn in question. It was only claimed that it was made inadvertently and by mistake. Whether this entry was made inadvertently and by mistake, or not, there is no doubt of the court’s power and right to set it aside during the term at which it was made (Section 11586). Therefore it was not material under what circumstances this entry was made in the former ease. The sole question is as to the jurisdiction or power of the court below to make the entry of April 29, 1904, setting aside the entry of dismissal of February, 1904, after the term at which the entry of dismissal was made, the superior court of Cincinnati having a term every month.

By the provisions of Section 11631, General Code, Sub. 3, the court had power to set aside the judgment of dismissal after the term, for mistake, neglect or omission of the clerk, or irregularity in obtaining the judgment. Proceedings to correct mistakes shall be by motion, upon reasonable notice to the adverse party or his attorney (Section 11634). Now it appears by the record of the case, in the last entry, made April 21, 1906, that this entry of April, 1904, was made without notice and therefore was irregular and void. The effect of proving all the allegations in the second defense of defendants’ answer would be to establish the fact that the second entry was made without notice and was therefore null and void. Nothing more than the establishment of these facts could be of any benefit to defendants. But these facts are already found in the entry of April' 21, 1906. So that it would appear that all these averments in the answer relate to and touch a matter already adjudicated, and therefore these matters were res adjudieata. Evidently the learned judge who granted the motion to strike out these averments of the second defense was of the opinion that the proof of all the facts set out in this defense of the answer would not avail the defendants or affect the issues then left in the case.

The fact remained that the former action failed otherwise than upon the merits on April 21, 1906. This does not mean that the action was then dismissed, but by this entry plaintiff was precluded from proceeding with his action.

We are of the opinion, in view of what was settled by the ruling on the demurrer to the petition, that the matters contained in the second defense of the answer were adjudicated and the court did not err in striking from the answer these averments.

We find no error in the admission or exclusion of evidence, m: in the charge of the court, and no errors which would justify a reversal of the judgment. We think the verdict is sustained by the evidence, and the judgment will therefore be affirmed.

Jones (E. H.), P. J., concurs; Jones (Oliver B.), J., dissents.

Jones (Oliver B.), J.,

dissenting.

In my opinion, the first ease of the plaintiff failed when it was dismissed February 17, 1904. The defendants had no notice of subsequent proceedings and were never in court in that case after the February term in which that dismissal was entered. The entry of April 19, 1904, was void and therefore of no effect in continuing the case, and was so held by the entry of April 21, 1906, which did not itself terminate the case, but simply expunged the previous entry and found that the case had been finally dismissed-February 17, 1904. Tbe last entry was not tbe final failure of the ease, but declared when it had failed.

The demurrer to the petition was overruled by the general term of the superior court in a majority opinion, which found that sufficient facts were not set out to show the validity of the original entry of dismissal. Defendants sought to bring these facts before the court by the allegations in the second defense of its answer. In my opinion the trial court erred in striking out this second defense, and the petition in this ease was filed too late.


author: (Shields, Powell and Houck, JJ.).

text:
    APPEAL BY A GUARDIAN.
    Court of Appeals for Knox County.
    In the Matter of the Guardianship of Charity Ann Robinson.

    Decided, October Term, 1915.

      Guardian and Ward — Right of Guardian to Appeal from Order Terminating Guardianship — Bond Not Required of Guardian.

    1. A guardian has the right of appeal from an order by the probate court terminating the guardianship.
    2. Such an order does not terminate the guardianship absolutely, until the right of appeal or any other statutory rights have lapsed; and inasmuch as it must be assumed that the guardian has no personal interest in the appeal, it will be regarded as taken in the interest of the trust and an appeal bond can not be required.

      Robert L. Carr and L. C. Stillwell, for guardian.

      F. 0. Levering, T). B. Rawlins and S. M. Crouch, contra.

      Motion to require the Court of Appeals to certify its record in this case overruled December 7, 1915. The opinion below, which is here reversed, appears in 18 N.P.(N.S.), 286, with the action of the Supreme Court stated but with the action of the Court of Appeals omitted through an oversight.

   By the Court

(Shields, Powell and Houck, JJ.).

The question presented in this ease lor adjudication arises as follows:

Charity Ann Robinson was adjudged an imbecile in' the probate court of this county, and a guardian was appointed for her some time in the year 1913. After various motions had been filed and disposed of the said Charity Ann Robinson filed a motion in the probate court, on the 9th day of February, 1915, for the termination of the guardianship, which motion was finally heard and disposed of March 15th, 1915, and on that date the judge of the probate court entered an order in which he declared the guardianship of said Charity Ann Robinson terminated, and ordered her guardian to file an account, as required by Section 11010 of the General Code. Afterward, within the time prescribed by law for that purpose, the guardian filed a notice of his intention to appeal from the order of the probate court to the court of common pleas. No bond was filed by the guardian to perfect such appeal.

A motion was then filed by Charity Ann Robinson, in the court of common pleas, to dismiss the appeal upon two principal grounds: first, that the order from which an appeal was attempted to be taken was not appealable; second, that if the same was appealable the gardian in attempting to appeal should have filed a bond, as it was not an appeal in the interest of his trust as such guardian. This motion was heard in the court of common pleas and sustained, and the appeal was dismissed; whereupon this proceeding in error was commenced in this court to reverse the judgment of the court of common pleas.

It is insisted in argument upon the part of Charity Ann Robinson that the probate court has final jurisdiction in the matter of terminating guardianship, and having such final jurisdiction the case was not appealable. The court is of the opinion, under the authority of the 45th Ohio State, at page 702, that the cause is appealable. In the case cited application was made by a ward who had been adjudged an imbecile that an order be entered terminating such guardianship, on the ground mentioned in the statute, namely: that the order was improperly made in the first instance; or, if not so, then that the ward had been restored to reason. The motion in that case was overruled, and an appeal taken by the ward, and the court sustained the right of appeal; and it is difficult for this court to see how, if the ease was appealable as to one party, it would not also be appeal-able by another party who might be affected by such order. In other words, the ward alone is not the only party to a proceeding of that kind, although no provision is made for notice to any other parties; but as the effect of such an order is to remove and discharge the guardian he would be a party affected thereby, and therefore would have the right of appeal.

More difficulty has been experienced by the court as to whether or not an appeal taken by the guardian upon a notice in writing merely, as provided by the statute for the appeal of parties who appeal in the interest of their trust, would apply in cases of this kind, or whether the guardian or other person attempting to appeal should give a bond. Upon consideration of the matter the court has arrived at the conclusion that a -guardian has no personal interest in the matter of the guardianship, or at least ought not to have, and that if an appeal is taken it is taken only in the interest of the trust. It is contended, however, that the trust terminates with the order, and therefore no appeal can be taken in the interest of the trust. But we think that an order terminating the guardianship does not terminate it absolutely until the right of appeal or any other statutory rights that might attach thereto have terminated, and that such right would exist without regard to the absolute character of the order terminating the guardianship made in the probate court.

Viewing this ease as we do, the court thinks that the judgment of the court of common pleas dismissing the appeal was erroneous and should be reversed, and the cause should be remanded to the court of common pleas for hearing upon the merits of the motion to terminate such guardianship.

Exceptions may be noted.


author: Jones (E. H.), J.

text:
    DAMAGES FOR. DEATH OF A CHILD STRUCK BY AN AUTOMOBILE.
    Court of Appeals for Hamilton County.
    Charles Eisen v. Bertha Halloran, Administratrix of the Estate of Ruth Halloran, Deceased.
    Decided, January 16, 1915.

      Negligence — Child, Killed by Automobile — Responsibility of Mother for Negligence of Those in Whose Custody the Child Had Been Placed —Charge of Court — Errors Rendered Unprejudicial by the Facts of the Case.

    In an action by a mother for damages on account of the death of her four year old child, for which she sues as administratrix, it is error to refuse to give a special charge, requested by the defendant before argument, to the effect that the said mother was responsible for the act of those in whose custody she had placed the child; and if it appear from the evidence that they failed to exercise ordinary care for the safety of the child under the circumstances, damages can not be recovered by the mother for her own benefit; but such an error is not prejudicial where the same principle of law was incorporated in the general charge and the evidence fails to show any negligence on the part of the mother or those in whose custody she had left the child.

      Waite & Schindel, for plaintiff in error.

      Galvin & Bauer, contra.
   Jones (E. H.), J.

In the court below a judgment was recovered for $4,000 for the death of Ruth Halloran, four years of age, caused by being struck by an automobile owned and driven by the plaintiff in error.

Elaborate briefs have been filed by counsel for the parties, and the arguments there advanced have been carefully considered. Some of the errors complained of arise from a mistake or misunderstanding on the part of counsel for plaintiff in error as to the contents or import of the pleadings. The language of the petition justifies the action of the trial court in charging the jury upon the doctrine of “last chance;” and the answer to the petition, in the second defense stated therein, charges the mother of the child, Bertha Halloran, with negligence. So that the alleged errors pointed' out by counsel for plaintiff in error in his brief, relating to the action of the court in charging the jury upon these issues, are not well taken.

In three instances however, to which our attention is called, the trial court erred, although after much discussion we have reached the conclusion that the errors were not prejudicial.

The court erred, first, in refusing to give special charge No. 5, requested by defendant, as follows:

“I charge you that the mother, Bertha Halloran, was responsible for the acts of Herbert and Irene Becker, in whose custody the deceased Ruth Halloran was left, and if you find from the evidence that they failed to exercise ordinary care under the circumstances for Ruth’s safety, the plaintiff can not recover any damages for the benefit of said Bertha Plalloran.”

Second, the court erred in failing to charge (quoting from the brief):

“That if the evidence of plaintiff raises a presumption of contributory negligence the burden rests upon her to remove that presumption, and it is only after that presumption is removed that the burden of proving contributory negligence rests upon the defendant.”

Third, it was error for the court to admit in evidence statements of witnesses that a few hours after the death of the child, while at the home of the mother, a statement was made by Mr. Neuzel in the presence of Mr. Eisen, plaintiff in error, as follows: “I will admit that we were running awfully fast;” and the further statement of said witnesses, “Mr. Eisen stood silently and made no response to said statement.”

• With reference to the first error, we have to say that the court included the proposition of law therein contained in its general charge; and although the party requesting the charge was entitled to have it given before argument, we can not see that the failure to do so was prejudicial, in view of the subsequent action of the court in incorporating it in the general charge. "Were this a case where the question of the negligence of the custodians was by the record placed in doubt, a different question would be presented, but a careful scrutiny of the transcript of the evidence before us in this case fails to show proof of any act of negligence on the part of the mother or those in whose custody the child was at the time. The word “negligence” is here used in its legal sense. We do not mean to find, as a matter of law, that the custodians exercised at the time the highest possible degree of care. It is not necessary to so find. The right of recovery depended only upon the exercise of ordinary care on their part. The jury could not have justly found in this case that there was any lack of ordinary care on the part of either the mother or Mr. and Mrs. Becker, aunt and uncle of the child, with whom she had temporarily left the child.

. Again, the purpose of a special charge given at the request of counsel before argument is to acquaint counsel with the view entertained by the court upon the law of the ease so that he may be guided in the presentation of the ease to the jury. The principle covered by the charge requested is so interwoven into this case, and necessarily involved, that we can not conceive how the refusal of the court to give the charge when requested would have any effect upon the argument.

The second error committed by the court, as before found, is held to be not prejudicial for the reason first assigned above with reference to special charge No. 5. There was no want of ordinary care on the part of the mother or her agents shown by the record in this case, much less is there any presumption of negligence, on the part of them, raised by the evidence of plaintiff’s witnesses. In this view of the record, we are of the opinion that this error would not justify a reversal of the judgment below.

As to the third error, relating to the admission of evidence, we make the same finding, viz., that it was not prejudicial. Tndependently of this evidence we are convinced that it is sufficiently shown that the accident was in no wise due to the negligence of the mother or her agents, but was caused by failure to exercise the proper degree of care required on the part of the driver of the machine.

It is argued that the judgment of $4,000 is excessive. Many cases are referred to in the briefs on both sides showing acts of courts in passing upon the amounts of verdicts in similar eases. We are satisfied that the verdict is larger than is generally awarded for the death of a child of such tender years. The many cases cited show it to be above the average in amount, but we can not say that it is so much so as to warrant a reduction or reversal.

Upon an examination of the entire ease including the facts and the law, it appears that substantial justice has been done and the judgment will be affirmed.

Jones (Oliver B.), J., concurs; Swing, P. J., dissents as to the amount of the judgment, deeming it excessive beyond reason.


author: Gorman, J. Jones (E. H.), P. J.:

text:
    RIGHT TO DISMISS WITHOUT PREJUDICE EXISTS UP TO FINAL SUBMISSION.
    Court of Appeals for Hamilton County.
    The Cincinnati Car Company v. Chris Snyder.
    Decided, May 3, 1915.

      Trial — Argument on Motion for an Instructed Verdict — Follotoed try Motion for Withdrawal of a Juror and a Continuance— And Still Later tty the Granting of a Motion to Dismiss Without Prejudice— Final Order — Discretion of Court.

    1. Tide withdrawal of a juror and granting of a motion to continue the cause, after a motion to instruct the jury to return a verdict for the defendant had been argued in part but before it had been submitted to the court or any intimation had been given as to what its decision would be, is not an order affecting a substantial right, and a proceeding in error based thereon does not lie.
    2. The right to dismiss without prejudice exists up to final submission of the cause to the court or jury, and dismissal at the time it was granted in the present case was within the discretion of the court, and was not prejudicial to the rights of the defendant whose motion for aa.instructed verdict was as yet undetermined.

      George H. Warrington and Robert S. Marx, for plaintiff in error.

      Littleford, James, Ballard & Frost, contra.
   Gorman, J.

This was an action to recover damages for personal injuries claimed by defendant in error to have been sustained by reason of the negligent acts of his employer, the plaintiff in error.. On the trial in the court of common pleas, at the close of plaintiff’s evidence and when he had rested his case, the defendant moved the court to instruct the jury to return a verdict for defendant; and after the motion had been partly argued and before the court had announced any decision thereon, plaintiff moved that a juror be withdrawn and the cause be continued, which motion was granted, to which action of the court defendant excepted.

Thereupon an entry was made upon the journal ordering a juror to be withdrawn and the cause continued at the cost of the plaintiff. To all of which the defendant excepted. The jury was discharged from further consideration of the cause. The motion to instruct the jury to return a verdict for defendant was never disposed of. Within three days a motion was filed by the defendant to set aside this continuance and for a judgment oh the pleadings and the evidence. This motion, so far as appears from the,record, has never been passed upon.

A bill of. exceptions was taken and filed, embodying all the evidence adduced; and it appears from statements in the bill of exceptions that all the jurors, the parties and their'counsel, were present and able to proceed with the hearing of the cause when the court withdrew a juror and continued the case; that defendant did not consent to this action of the court, but objected and excepted thereto, and insisted upon the court passing upon the motion to instruct the jury to return a verdict in its favor, and that it was ready, and willing, and .anxious to proceed with the hearing of the cause if the motion should be overruled.

On- April 3, 1914, four and one-half months after the date of the entry withdrawing a juror and continuing the case, plaintiff on his own motion and by leave of court voluntarily dismissed his action, without prejudice, at his own costs. To all of whieh the defendant excepted.

This is the last entry on the journal.

The bill of exceptions, original papers and a transcript of the docket and journal entries are filed in this court with a petition in error, and this court is now asked to reverse said judgment of dismissal without prejudice, and that a judgment dismissing plaintiff’s action be entered in this court.

Numerous grounds or error are set out in the petition in error, but the chief errors relied upon are: the failure of the trial court to grant defendant’s motion to instruct a verdict for defendant; the granting of plaintiff’s motion to withdraw a juror and continue the ease; the refusal of the court to grant defendant’s motion to set aside the entry withdrawing a juror; and the granting of permission to plaintiff to dismiss his action without prejudice.

The error is prosecuted to the entry dismissing the action without prejudice. This, it is claimed, is a final order and error may be prosecuted thereto. Ordinarily plaintiff has the right, under favor of Section 11586, General Code, to dismiss his action without prejudice to a future action, provided he does so before its final submission to the jury or to the court when the trial is by the court. In such a case, although the entry of dismissal be considered a final order, no error lies to the dismissal because no prejudice results to the defendant from such a judgment, but it is only when the final order or judgment is prejudicial to the complaining party will a reviewing court reverse the judgment or order however erroneous it may be.

The majority of the court are of the opinion that the entry of dismissal in this case is not a final order entitling the defendant below to prosecute error therefrom, for the reason that the dismissal of the cause "without the court passing upon its motion to instruct the jury to return a verdict in its favor was not prejudicial to it.

A final order, as defined in Section 12258, General Code, which may be vacated, modified or reversed, is:

“An order affecting a substantial right in an action, when in effect it determines the action and prevents a j udgment, ’ ’ etc.

This entry of dismissal undoubtedly determined this action below; and it is claimed by plaintiff in error that it prevented a judgment in its favor.

This contention of the plaintiff in error that the dismissal prevented a judgment in its favor, we think is an unwarranted assumption on its part; non constat but that the trial court would have overruled the motion of defendant for an instructed verdict, and on the final submission of the case to the jury a verdict might have been retured in favor of plaintiff and a judgment entered thereon. The record does not disclose how the trial court would have ruled. Reference is made to an opinion of the trial court announced some time after the case was dismissed by plaintiff -without prejudice, and what purports to be a copy of this opinion is attached to a supplemental petition in error filed by plaintiff in error, but this opinion is no part of the record, nor is the language of the court found embodied any place in the record. We can not consider this opinion as a part of the record. It purports to be a decision on the motion to' set aside the entry withdrawing a juror and for judgment in favor of defendant and granting leave to plaintiff to dismiss his action without prejudice. There are no journal entries as to any matters passed upon in this opinion except the entry of dismissal without prejudice. We are not at liberty to presume or assume, in the absence of any record to that effect, that the defendant would have had an instructed verdict but for the withdrawal of a juror and the dismissal of the cause without prejudice.

The only cause of complaint which plaintiff in error can fairly make, by reason of the court’s actions in withdrawing a juror, and later in allowing plaintiff to dismiss without prejudice, is that it may be put to the additional cost, expense, trouble and time of defending another action brought by plaintiff; but this would be as probable if plaintiff had dismissed without prejudice at the close of his case before a motion had been made by defendant for an instructed verdict.

It is claimed that the court had no right to withdraw a juror and continue the case after the jury had been impaneled and the case had proceeded to trial, except by consent of parties, or because of sickness of a juror, or accident or calamity, or after the jurors have been kept together until it satisfactorly appears that there is no probability of their agreeing, and Sections 11453 and 11454, General Code, and the case of Rau v. Risiden, 11 C.C. (N.S.), 255, are cited in support of this contention.

We are of the opinion that Section 11453 does not embrace all the cases in which a continuance may be had after the commencement of a jury trial, nor does the code prohibit the practice of withdrawing a juror and continuing a cause when in the opinion of the court justice requires this to be done. This practice has been resorted to from time immemorial, not only in this state but in many other states, and in the federal courts as well as in the courts of Great Britain and her colonies.

"Withdrawing a juror: A fiction to which the court may resort when it appears that owing to some accident or surprise, defeet of proof, unexpected and difficult questions of law, or' like reason, a trial can not proceed without injustice to a party.” Cyc. Yol. 40, p. 2126.

"The withdrawal of a juror by direction or leave of court produces a mistrial and effects a continuance; and it is error when a party had been permitted to withdraw a juror, to enter judgment against him on the merits.” Cyc. Vol. 38, p. 1593; Planer v. Smith, 40 Wis., 31.

In the above case the court, after granting plaintiff’s motion to withdraw a juror, dismissed the plaintiff’s action and gave judgment for defendant, instead of continuing the case; and it was held that this was error, and that the only judgment which could have been properly entered was a non-suit, which would not be a bar to another action for the same cause; in other words, a dismissal without prejudice.

“A motion to withdraw a juror must be based on matters occurring at the trial; the granting of the motion being in the discretion of the court, which discretion is subject to review only in eases of abuse.” Abbott’s Civil Jury Trials, 3d. Ed., pp. 487 to 494 inclusive; Schofield v. Settley, 31 Ill., 515; Huntington v. Toledo, St. L. & W. R. R. Co, 99 C. C. A., 157; Benson v. Altoona & L. Ry. Co., 228 Pa. St., 290; Adler v. Lesser, 110 N. Y. Sup., 196; Morrison v. Hendenberg, 138 Ill., 22; and many other cases that might be cited.

A juror may be withdrawn where it is necessary to prevent the defeat of justice. Wolcott v. Studebaker, 34 Fed., 8.

In the ease at bar the plaintiff’s counsel asked leave to file an amended petition, which we think the court might and should have granted, but because of the objection of counsel for the defendant, the court held that he had no right to grant leave to file the amended petition. It was then that counsel for plaintiff asked and obtained leave to withdraw a juror and continue the case, manifestly for the purpose of more fully preparing plaintiff’s ease and amending the pleadings. This we think the court had the discretion to permit. Miller v. Metzfer, 16 Ill., 390; Messenger v. Fourth Nat. Bk., 6 Daly, 190.

We are of the opinion that, under the circumstances shown by the record in this rase, the court did not abuse its discretion in permitting a juror to be withdrawn and a continuance of the ease.

The case of Rau v. Risiden, 11 C.C.(N.S.), 255. which denied the right of the trial court to discharge the jury in a civil action during the trial, unless based on the finding of some necessity therefor, or upon consent of parties, was overruled by the Supreme Court without report, because the order was not a final one within the meaning of the statute. Rau v. Risiden, 81 O. S., 538.

In any event, the effect of withdrawing a juror operated merely as a continuance of the case; the order was not a final one; it rested in the sound discretion of the court, and no abuse of discretion is shown by the record; no judgment had then been pronounced in defendant’s favor; nor, as we view the record, can it be said that defendant was entitled to an instructed verdict; at least the trial court has never so declared. No prejudice resulted to plaintiff in error because of this action of the court.

As to the dismissal of plaintiff’s case without prejudice at the time it was done, we hold that the plaintiff had the N to do so up to the time the case, was finally submitted either to the court or jury. A motion had been made to instruct the jury for defendant and this motion was partly argued; but while being argued, and before submission to the court, and before any intimation had been given by the court as to how he would rule thereon, and before any announcement was made of the court’s decision on this motion, the plaintiff dismissed his action without prejudice. In fact, the court, on the record, has not yet passed upon that motion to instruct. This is one of the grounds of complaint by plaintiff in error that the court has not yet granted its motion or given a judgment in its favor.

The eases of Turner v. Pope Motor Gar Co., 79 O. S., 153, and L. S. E. Ry. Co. v. Sanders, 19 C.C.(N.S.), 21, are distinguishable from the instant case in that, in both of these eases it was sought to dismiss the plaintiff’s action after a motion for an instructed verdict for defendant had been made, argued decided, and granted by the court. The request in each of these cases to dismiss without prejudice came too late — after the court had announced its opinion and after final submission to the court — whereas under the statute, Section 11586, General Code, the right to dismiss without prejudice exists only up to the time of final submission. As was said by Judge Price, in the case of Turner v. Pope, etc., supra, at pages 167-168:

“We again say that the finding and judgment of the court on the motion is the determining authority, and the directed verdict is in compliance with the forms of practice.”

See also Bee Bldg. Co. v. Dalton, 68 Neb., 38; Morrissey v. R’y Co., 80 Ia., 314.

There being no errors in the record prejudicial to plaintiff in error, the judgment of the court of common pleas dismissing the plaintiff’s action without prejudice is affirmed.

Jones (Oliver B.), J., concurs in judgment of affirmance.

Jones (E. H.), P. J.:

Acting under authority of Section 11586, General Code, plaintiff below dismissed his action “before its final submission to the jury.” There had been no decision upon the motion for an instructed verdict, nor had any opinion been formed or expressed by the trial judge. Under these conditions plaintiff had the right to dismiss “without prejudice,” and the authorities relied upon by counsel for plaintiff in error do not fit this ease. There is no order or judgment of which he may complain in a court of review, and no showing by the record that a judgment in his favor was prevented or forestalled by the dismissal.

The petition herein contains the necessary jurisdictional averment in a proceeding such as this, to-wit:

“A final order was made by said court of common pleas determining said action and preventing a judgment therein.”

This must mean that a judgment for plaintiff in error was prevented by the voluntary dismissal of the action by plaintiff below. There is nothing in the record to support this averment. Hence plaintiff in error was not hurt by the order complained of. It was not deprived of any right nor was it the victim of any wrong, and it can not be heard to complain in a court of error.

The petition in error should therefore be -dismissed.


text:
    ACTION FOR. CONTRIBUTION FROM A CO-SURETY.
    Court of Appeals for Logan County.
    Wilson McAdams v. J. W. Dunson.
    Decided, August 10, 1915.

      Sureties — Contribution Among — Notice of Payment or Demand Not Condition Precedent to Right of Recovery.

    1. A surety who has paid more than his ratable share of a debt, is entitled to contribution from a co-surety, without averring or proving notice, or demand of payment.
    2. In an action for contribution where the only relief sought is a judgment for money, costs are recoverable by plaintiff, as of right, under Section 11624, General Code.

      John P. Bower and James Kernan, for plaintiff in error.

      Howenstine & Huston, contra.
    Crow, J.
    Error to the court of common pleas.
   Plaintiff in error, who was plaintiff in the court of common pleas, sought recovery from defendant in error, who was defendant below, by way of contribution, because of payments made by plaintiff, of the entire amount of two promissory notes upon which defendant and plaintiff were sureties.

The cause was tried to a jury, and at the close of plaintiff’s case, on motion of defendant, a directed verdict was returned for him. Judgment was accordingly entered in defendant’s favor.

The evidence tends to prove all the essential elements requisite to plaintiff’s right to recover, excepting (if such be an essential element) notice to defendant, of said two several payments, or demand on him for contribution, prior to commencement of plaintiff’s action.

The trial judge held such demand to be necessary, and for lack of evidence tending to prove same (and for no other reason), directed the verdict, as above stated.

The only question for determination in the present case is, therefore, the correctness of that action.

There are but three reported eases in Ohio, which either directly or remotely bear on the point.

These will be taken up in their order.

In 5 Ohio, 444, the material facts were as follows:

Edward Williams and Isaac Williams were makers of a joint and several bond, to one Heath. After its maturity, and more than six years prior to commencement of the suit, Edward Williams paid more than one-half the principal and interest then due, such payment being referred to in the opinion, as “a small sum.

Several years thereafter the obligee, Heath, brought suit on the bond for the unpaid balance, against Edward Williams and Isaac Williams, and recovered judgment against both. Soon after rendition of the judgment Isaac Wiliams died, and Edward Williams paid the whole of same.

For recovery of one-half of said two payments with interest, Edward Williams’ administrators sued Isaac Williams’ administrators.

The defenses were non assumpsit, and non assumpsit witkin six years.

The questions presented by the issues, so far as here pertinent, are: (1) applicability of the statute of limitations; (2) if applicable, the time from which it begins to run, whether from the date of each payment of a part, or from the time payment of the whole sum only, or from maturity of the original instrument of obligation upon which the parties were bound; and, (3) whether the action accrues until notice has been given, or demand has been made.

The court held: (1) that the transaction involved no element of trust, and that the statute of (six years) limitation applied; and (2) and (3) that in cases where the co-obligor has paid in small installments, he can not, without prior notice or demand, maintain a suit for each sum so paid.

It is worthy of notice, that no fact appears which would seem to call for any comment regarding “small installments,” as there were but two payments the first of which was more than one-half the total amount then due on the obligation, and the other covering the whole of the remaining sum.

It should also be observed'that at page 447, “other payments” are spoken of in obvious reference to the one payment of the judgment covering said remaining sum.

While the case nowhere either in the statement of facts or the opinion, specifically discloses whether notice was given, or demand made, between the dates of payment of the judgment, and commencement of plaintiff’s suit, we are constrained to assume that the court considered and decided the ease on the theory of absence of such notice or demand in view of the discussion of point 4 on page 446 and the language of paragraphs three and four of the syllabus.

Hence that case must be-regarded as supporting the contention that no notice of payment need be given, nor demand made, before commencement of suit.

The case of Carpenter v. Kelley, 9 Ohio, 106, is, however, a direct authority in complete opposition to the above contention,' so far at least as relates to the matter of giving notice to a co-surety, of payment. The syllabus is thus restricted, and the learned judge who delivered the opinion, construed at page 108, the issue of lack of demand to be the equivalent of want of notice of payment.

No case is referred to, other than 5 Ohio, 446, supra, no reasoning employed, nor is there any language save the bare statement that the co-surety from whom contribution was undertaken, was not by his own act, a debtor of the surety who had paid, but became so by reason of such payment.

The case of Neilson & Churchill v. Fry, 16 O. S., 553, was a suit between co-sureties, wherein one who had paid the full amount of a judgment upon which another was equally liable, brought suit against the latter for contribution.

The form of that action was equitable in that plaintiff was invoking the fiction of subrogation because plaintiff had paid the judgment, but he actually sought no equitable relief.

The court, disregarding the form so attempted to be impressed by the plaintiff on the transaction, held the latter to be in substance one for the recovery of money only.

The controlling question in the case, was that of applicability of the statute of limitation, and the court decided the action to have been barred by the lapse of six years, inasmuch as the ultimate (and only) relief sought was the recovery of money only.

The question of notice of payment as a condition precedent to the right to maintain the action, was raised and discussed in the ease, but was not necessarily material to the decision, because of the bar of the statute of limitation.

In discussing the question of notice, the language of the court is conflicting. At one place (page 556) it is said that, if the action was to be regarded merely as the old action of assumpsit, to recover money equitably due, the defense of want of notice, would have been a good bar to the action, whilst at page 558, it is stated that if recovery of the money be sought by simple action, or by the aid of the fiction of substitution, costs could not be recovered without previous notice of the payment.

It should also be noticed that paragraph three of the syllabus not only covers the question of the statute of limitation, but the necessity for notice of payment, is restrained to the question of costs.

The decision was by a divided court, three judges concurring, and two dissenting, as to the third proposition of the syllabus.

Turning from the inharmonious expressions in the above mentioned cases, to the decisions of the- courts of final resort in other states, no dissention can be found. All agree upon the proposition that neither notice, nor demand of, payment need be givqn a co-surety, before commencement of an action against him, for contribution. The following are among the leading eases: 39 Pickering, 260; 53 California, 686; 9 Iowa, 479; 5 Atlantic Eeporter, 801; 25 American Decisions, 714; 26 American Decisions, 265; 5 Yermont, 60; 34 Northwestern Eeporter, 921.

To the like effect are these authoritive text-books: Childs on Suretyship and Guaranty, 329; Stearns, the Law of Suretyship, 523; Spencer on Suretyship, Sections 149, 154; Pingrey on Suretyship and Guaranty, Section 196; Brandt, Suretyship and Guaranty, Section 319.

In harmony therewith, is also the modern and most excellent and dependable work, Ruling Case Law, Volume 6, page 1045.

The judgment will therefore be reversed, and the cause remanded for a new trial.

With respect to the taxing of costs, it is sufficient to say that where the action in which contribution is sought does not involve equitable relief, the matter is now governed by Section 11624, General Code, which requires them, in a ease like the one at bar, to be adjudged against defendant.

Kinder, J., and Ansberry, J., concur.