text:
    INSUFFICIENT SHOWING TO SUSTAIN AN ATTACHMENT.
    Circuit Court of Hamilton County.
    Dabney Young v. Millie C. Clark.
    Decided, March. 20, 1900.

      Attachment — Motion to Discharge Should he Sustained, When — Effect of Averment Denying Truth of Affidavit — Burden of Proof.

    1. Where, in an action in attachment, an affidavit by the defendant in support of a motion to discharge denies the truth of the allegation contained in the affidavit upon which the attachment was issued that he° has property and rights in action which he conceals, the burden is upon the plaintiff to show by a preponderance of the evidence that his allegation in that behalf is true.
    2. An affidavit by the defendant, averring that the affidavit of the plaintiff upon which the attachment was issued is not true, must be accepted as a denial of the allegation that the defendant has property and rights in action which he conceals.
    3. Evidence offered by the defendant that he is the head and support of a family is ground for a discharge of the attachment, where not met by evidence of greater weight offered by the plaintiff.
    Smith (Jas. M.), J.; Swing, J. and Giffen, J., concur.
   The plaintiff in error seeks the reversal of a judgment of the court of common pleas affirming a judgment or order of a justice of the peace, overruling a motion filed by the plaintiff in error before the justice of the peace to discharge an attachment issued in an action brought by the defendant in error against the plaintiff in error, and also seeking the reversal of said order made by the justice refusing to discharge said attachment.

The action was one to recover $20.20 on an account for board and lodging, without alleging to whom the same was furnished. At the commencement of the action, an affidavit was filed by the plaintiff averring that the defendant was justly indebted to her for board and lodging; that said claim was just and that she believed that she ought to recover thereon $20.20; that the property sought to be attached is not exempt from execution; that it was the personal earnings of the defendant for services rendered by him within three months prior to the commencement of the action ; that the defendant is not the head and support of a family, and has not in good faith the mainentance and support of a widowed mother, wholly dependent upon him for support; and that said defendant has property and rights of action which he conceals; and that the C., L. & N. R. R. Co. has in its posession, moneys, credits, etc., the property of the defendant.

Thereupon the defendant filed a motion to discharge the attachment on the grounds: First, that the affidavit on which it was allowed was insufficient and untrue; second, because the defendant is the head and support of a family; and third, because the money sought to be attached is the personal earnings of the defendant within the three months next preceding the commencement of the suit. He then filed an affidavit in support thereof, averring that he was the head of a family and not the owner of a homestead, and that the property sought to be attached herein was the personal earnings of the said defendant within three months last prior to the commencement of the suit, and that the affidavit upon which said attachment issued is not true; that said earnings do not exceed the sum of $150, and are necessary for the support of himself and family; that he has a minor child, to-wit, Lulu Young, aged six years, a widowed mother, to-wit, Cordelia Young, also a sister who is a helpless invalid living at Edwards, Mississippi, all of whom he has been supporting in good faith.

At the hearing of the motion to discharge the attachment no evidence was offered on behalf of the plaintiff, other than the original affidavit filed by her for issuance of the attachment, while the defendant offered his affidavit filed in support of the motion, and an affidavit of a witness, and the deposition of two witnesses residing in Mississippi, showing that the defendant was the father of a minor daughter between six and seven years old, who lived'part of the time with the mother of defendant in that state, and that an invalid sister resided also with his mother, who was a widow, and that all three of these persons were dependent upon the defendant for support, except that the mother dmv a pension of $8 per month, and that the defendant contributed to the support of the three as much as he was able whenever he was paid off. This was all the -evidence received, and thereupon the justice overruled the motion to discharge the attachment to which the defendant excepted and a bill of exceptions was allowed containing all of the evidence, and a proceeding in error prosecuted.

On this state of fact, there can be no question but that if the facts stated in the affidavit of the plaintiff for the attachment were not sufficient to justify the issuance of it, or the essential allegations thereof were denied by the defendant, that the motion of the defendant should have been granted, unless additional evidence had been offered on the part of the plaintiff supporting the essential statements of her affidavit, or the defendant by his evidence showed that they were true.

The ground upon which the affidavit issued in this case, was that the defendant had property and rights in action which he concealed. Unless this allegation was made, the attachment could not properly have been issued, and if denied by affidavit of the defendant the motion to discharge the attachment should have been granted, unless evidence was offered showing its truth on the hearing of the motion to discharge; for when the affidavit of the defendant denies such allegation, the burden rests upon the plaintiff to show by the preponderance of the evidence that her allegation was true, and there being a single affidavit on this point on each side, it can not properly be said that she did so.

The question then .is this: Was this allegation denied by the affidavit of the defendant.? The affidavit filed by him admits the allegation made in that of plaintiff, that the property sought to be attached was his personal earnings for services rendered by him within the three months immediately prior to the commencement of the action. It then denies the allegation of plaintiff’s affidavit that defendant was not the head and support of a family, by averring that he is the head and support of a family; that he has a minor child, Lulu Young, aged six years, and a widowed mother and a helpless sister, all of whom he has been supporting in good faith, and he also avers these earnings sought to be attached do not exceed $150 in value. ITe also makes this additional averment, that the affidavit upon which said attachment issued is not true. If this last averment is to be considered as denying the allegation of plaintiff’s affidavit, that he has moneys and rights in action which he conceals, this is decisive of the ease, on the principles before stated, for being denied the plaintiff offered no other evidence in support of his allegation, and the attachment should have been discharged by the court. The affidavit of the defendant is very inartistieally drawn but we are of the opinion that it is to be considered as a denial of this allegation, and therefore that the attachment should have been discharged.

This being so, it is not essential that we consider another question which arises, but we do so briefly. Section 6489, Revised Statutes, in clause 6 provides, “that no attachment shall issue by virtue of this chapter against the personal earnings of any defendant for services rendered by such defendant within three months before the commencement of the action, or the issuing of the attachment, unless the defendant is not the head of a family, or unless the amount of such earnings exceeds $150 and then only as to the excess over that amount. ’ ’

It is conceded by the affidavits that the property attached in this case is such personal earnings of the defendant for the three months preceding the commencement of the proceedings in attachment, and'that the amount is less than $150. The plaintiff in her affidavit says that the defendant is not the head or support of a family, and the defendant in his affidavit avers that he is, and further avers that such earnings are necessary for the support of himself and family, and that he has a minor child, Lulu, six" years old, and a widowed mother and a helpless invalid sister, all of whom he is aiding and supporting in good faith.

Section 6489, Revised Statutes, under which this proceeding is brought, in effect exempts the personal earnings of the debtor for the three months before the attachment proceedings not exceeding $150, when the defendant is the head or support of a family, or has in good faith the. maintenance and support of a widowed mother, wholly dependent upon him for support. The evidence submitted by defendant, shows that the mother is not wholly dependent upon him for support, though he does aid her and his helpless sister. But the affidavit of the defendant, as has been said, avers that he is the head and support of a family, having a minor child, and the evidence offered by him supports this claim, and there is no evidence of plaintiff other than her own affidavit to dispute it. As the burden was on her to support her allegations .and she failed to produce it, on this ground, also, the attachment should have been discharged.

The judgment of the justice of the peace therefore refusing to discharge the attachment, and that of the common pleas affirming it, will be reversed.


source: Caselaw Access Project

license: Public Domain

text:
    DISCHARGE OF INSTRUMENT AS DISTINGUISHED FROM DISCHARGE OF INDEBTEDNESS.
    Circuit Court of Hamilton County:
    The First National Bank of Wellston, Ohio, v. The Patton Company et al.
    Decided, August 6, 1910.

      Negotiable Instruments — Cancellation of .Old Note and Execution of New Note to Take Its Place — Not Discharge of Indebtedness, Unless — Section SSHJj, General Code — Stockholders’ Liability.

    1. In an action involving the question whether an original debtor .was released by the coneellation of the note evidencing the indebtedness and the execution of a new note to take its place, intention of the parties to treat the original debtor as released is not shown by testimony which amounts to a mere statement- of the opinion of the witness as to the effect of the transaction.
    2. The provision of "Section 8224 (3175;, E. £>.), that a negotiable instrument is discharged “by its intentional cancellation by the holder,” is limited in its effect to the express provision that' the discharge is of “the instrument,” and riot of the debt.
    3. Where additional stock is issued as a stock dividend at á time when. the corporation possessed no assets from which a dividend could be declared, an offer of the stockholders to return the stock to the company comes too late after the insolvency of the company has been established and a proceeding has been begun to enforce stockholders’ liability.

      Cobb, Howard & Bailey, for the International Leather Company.

      Grosvenor, Jones & Worstel and Cobb, Howard & Bailey, for the bank.

      W. D. James, for T. J. Morgan..

      Prescott Smith, for. J. H. Sellers, W. S. Patton, A. S. Patton and H. H. Patton.
    The action below was for recovery on certain promissory notes and to enforce statutory liability and liability for unpaid stock subscriptions.

      Giffen, P..J.; Smith, J., concurs; Swing, J„ dissents.
   Although the several causes of action stated in the cross-petition of the First National. Bank of Wellston, Ohio, were based upon promissory notes executed after the amendment of the Constitution of Ohio in relation to the liability of stockholders of a corporation, they are by amended cross-petition and amendment thereto based upon the original indebtedness of which the notes are evidence. The chief question presented is whether the notes given for the original indebtedness, or the renewals thereof, constituted a payment of the original debt or debts, so as to remit the bank to an action upon the notes last executed.

The notes were usually made payable sixty days after date, and as each became due a new note was given- — the discount paid —the old note marked “paid” and surrendered to thé Patton Company.

The cashier of the bank, who is also a stockholder of the defendant, the Patton Company, testified that the notes were understood to be and accepted by the bank -as payment of the debts, while other officers of the bank testify that they were mere renewals of old debts; but this kind of testimony aids us little, as the circumstances of each transaction must, in the absence of- express agreement, determine its nature. It appears that the notes were marked “paid” when surrendered, in order to prevent their subsequent use, and there was nothing else said or done by the parties at the maturity of any note from which the inference could be drawn that the new note given was intended to be a payment of the- original debts, but on the contrary was only a change of the evidence of it. If the time of payment of each original note had been extended at intervals of sixty days and the discount paid, the transaction would differ in form, but not in substance. Horsey v. Heath, etc., 5 Ohio, 353, at 357; Bank v. Slemmons, 34 O. S., 142.

Counsel rely also upon a conversation had between Mr. Sellers, the cashier of the bank, Mr. Morgan, a large depositor, and Mr. H. H. Patton, all being stockholders of the defendant company, and testified to- by H. H. Patton, as'follows':

“Q. Now state the conversation, as fully as you can remember, when Mr. Morgan and Mr. Sellers were both present. A. Mr. Morgan stated that the amendment doing away with the double liability had been adopted and that he wanted the debts of not only the Patton Company but all other companies in which he was interested paid in full and taken up as they became due, without regard to whom they were owed. After some discussion he remarked, that if it should happen at any time a note or debts became due when we did not have the money, that he had money which he would furnish us to complete the payment.
“Q. Well, now, what did Mr. Sellers say to that? A. I don’t remember what he said, any more than he agreed with Mr. Morgan that the indebtedness should be paid. ’ ’

This agreement, if any, contemplated the payment in money of the indebtedness as it became due, and if the Patton Company or Mr. Morgan wished to do so,,it was unnecessary to have the consent of the cashier. Sellers testifies concerning the same conversation as follows:

“Q. Well, now state what that conversation or agreement was ? A. Mr. Morgan came to • me with Mr. Patton, and he seemed to be worked up some way over the amount of the indebtedness of the Patton Company, all told, and said he was not going to let it stand any longer, that I knew he was able to liquidate that indebtedness and he would do it, if there was going to be any personal liability in this matter.
“Q. Well, did you say anything to him? A. I told him there would not be any personal liability in the matter. I told him that the transaction in the bank was complete; when a note was paid it was considered a complete liquidation of the old note, and the bank looked entirely to the new note. ’’

As we understand this testimony it is simply an opinion of the witness of the effect of a past transaction, and in many respects is sound; but it is not evidence of a contract to release Mr. Morgan from liability on the original indebtedness, nor is it evidence of the intention of the parties at the time the notes were discounted. It is further claimed that by force of Section 3175j, Revised Statutes, which provides that “a negotiable instrument is discharged by the intentional cancellation thereof by the holder,” the debt was paid when the note was intentionally marked “paid” by the bank. That would be true in the absence of any other circumstance; but when a new note is given at the time the old one is canceled and the cancellation is made for the purpose of avoiding the subsequent use of the old note, the effect of the statute is limited to the express provision a ‘ ‘ discharge of the instrument” and not of the debt.

The action against the stockholders was not barred. Brownson v. Schneider, 49 O. S., 438.

It is claimed by the stockholders of the Patton Company that they should not be held liable on the additional stock of the company issued to them on June 1st, 1903, as a stock dividend, upon the ground that the value of the stock thus issued had been earned by the company, and if the court should find otherwise, then it was a fraud upon them and they tender back the stock. The evidence shows no assets from which the dividend could be declared, and the offer to now return the stock is too late. Clarke v. Thomas, 34 O. S., 46; Chubb v. Upton, 95 U. S., 665.

It follows therefore that the court erred in sétting aside the findings of fact and conclusions of law of the referee relating to the statutory liability of the stockholders, and the judgment in their favor is reversed and a decree may be entered in accordance with the findings of the referee, and in so far as the judgment confirms the report of the referee it is affirmed.


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    SPLITTING UP AN APPEAL.
    Circuit Court of Hamilton County.
    The International Leather Company v. The Patton Company et al.
    Decided, August 6, 1910.

      Appeal — No Statutory Authority for Dividing a Decree in Order to Appeal From a Part Only — Construction of Sections 12224 and 12231.
    There is no statutory .authority for splitting up a cause, in order that an appeal may be taken from that part of the judgment which is unfavorable and leave standing the part which is favorable.

      Gifeen, P. J.; Swing, J., and Smith, J., concur.
   The court of common pleas confirmed the report of the referee in all respects, except the finding and conclusion of law that the stockholders of the Patton Company could be held for the statutory liability, and upon that issue dismissed such defendants with their costs. From this latter judgment the First National Bank of Well'ston gave notice of and did take an appeal,

Its interest in the action was not separate and distinct from that of the stockholders. It sought to recover the amount .of its claims from the stockholders to the extent their stock was unpaid as well .as under the statutory liability, while they resisted payment from either source. The decree, although severed in the journal entry, was one finding and judgment in favor of the bank and against the stockholders, although one fund only could be resorted to for satisfaction. We are of the opinion- that neither Section 5226 nor 5232, Revised- Statutes, authorizes a party to split up his cause, so as -to appeal from that part of the judgment which is unfavorable, and leave standing that .part .which is favorable. Branch v. Dick, 14 O. S., 551-557; Wright v. Telegraph Co., 4 C. C., 375.

The appeal will therefore be dismissed.


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    INJURY ON LOOSE BOARD IN SIDEWALK.
    Circuit Court oí Hamilton County.
    Mary Agnes Scrogin v. The City of Cincinnati.
    Decided, June, 1910.

      Municipal Corporations — Liability to a Pedestrian Injured on a Defective Sidewalk — Notice.
    The fact that portions of a plank sidewalk had been in bad condition, due to the sliding of an adjacent hillside of which the municipality had notice, does not as matter of law amount to notice of the defect causing the injury.

      Charles B. Wilby and Mitchell Wilby, for plaintiff in error.

      Walter M. Schoenle, for the city.

      Gieeen, P. J.; Swing, J., and Smith, J., concur.
   The plaintiff avers in her petition “that owing to the unstable and varying surface upon which said stringers are laid, caused by the constant sliding and washing of said hillside, the said plank walk has often been in bad condition and out of repair, owing particularly to the loosening of the planks from the' stringers, the nails holding the cross pieces to the stringers being pulled out or broken off when the cross planks are trodden upon at either end, this resulting from the unevenness of the ground upon which the stringers rest;” that prior to the 9th day of March, 1907, the defendant had due notice of the bad condition of said sidewalk and failed to repair; that the plaintiff on that day trod upon one of the cross planks which was loose and turned, causing the injury complained of.

There is no averment that the particular plank became loose as a result of the sliding and washing of the hillside. It is just as consistent with the allegations of the petition to attribute the defect to the act of a third party of which the city had no notice.

The evidence also shows that, the bad condition existing prior to March 9th, 1907, was repaired in December, 1906; that the sliding of the hillside was not constant, that the ground upon which the stringers rested was level, and that the loosening of the cross-planks was not general. How then can it be said that the tendency of the hillside to slide and wash, and the general condition of the walk prior to March 9th, 1907, were 'as matter of law notice to the defendant of the particular defect existing on that day and causing the injury to plaintiff?

It would be just as logical to hold that because the tendency of a plank walk is, from its very nature to become out of repair, the city by suffering it to exist is presumed to have notice of each defect as it arises. The prior condition of the walk was evidence from which the jury might infer constructive notice of the condition on March 9th, and whether there was such notice was properly left to the jury. Village of Shelby v. Clagett, 46 O. S., 549.

The charge upon this subject might and perhaps ought to have been more concrete, although we think, from the whole record, the jury were not misled.

The petition was framed apparently upon the theory that the city was bound at all hazards to keep its sidewalk free from nuisance, but it was required by law to exercise only ordinary care. There was no error in the exclusion of testimony, nor do we find any error requiring a reversal of the judgment and it will therefore be affirmed.


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    PROCEEDINGS IN ACTION ON A CREDITOR’S BLL.
    Circuit Court of Hamilton County.
    The Davis Carriage Co. v. Martin Weber et al.
    Decided, February, 1902.

      Pleading — Where the Action.is on a Creditor’s Bill — New Party in Asserting a Counter-Claim — Can Not Assert Another and Different Claim from that set up in the Petition — Section 11319, General Code.

    1. Where a plaintiff, in an action in the nature of a creditor’s bill seeking to have property sold and the proceeds applied to the payment of his debt, brings in another party who claims to have some interest in the property in question, such other party can not by answer and cross-petition assert against his co-defendant, whose property it is sought to subject to sale, a claim for a money judgment, but such other party is confined to the assertion of a claim against the particular property in question.
    2. On the allegations of the pleadings in this case, it was error for the court to make a finding as to the amount due from one of the defendants to the other, notwithstanding the defendant against whom the finding was made was in default for answer.

      Edwards Ritchie, for plaintiff in error.

      Paxton, Warrington & Seasongood, for Third National Bank.
    Smith (Jas. M.), J.; Swing, J., and Giffen, J., concur.
   The plaintiff in error seeks the reversal of a judgment rendered by the court of common pleas against said company in favor of Martin Weber on a cross-petition filed by Weber in an action in the nature of a creditors’ bill brought by the Third National Bank of this city against said Davis Carriage Co., G. H. Burrows, Martin Weber and the Dash & Carriage Goods Co.

The petition of the bank in substance avers, that on August-1, 1895, it recovered a judgment in the Superior Court of this city against said Davis Carriage Co. for $61,107.32 and for costs, which judgment is wholly unpaid and unsatisfied, and bears interest from August 1, 1895, at six per cent, per annum; that.said Davis Carriage Co. has not sufficient goods >or chattels, lands or tenements subject to execution to satisfy the same; but that said company is seized of an equity of redemption and has an interest in certain real estate particularly described in the petition, which premises the petition alleges had been sold by defendant, Weber, to defendant, Burrows, and in order to secure the balance of the purchase money, Weber executed a lease therefore to Burrows, his heirs, executors, administrators and assigns, for the term of two years, the purchase money to be paid -in stated installments until the whole amount of the purchase price agreed upon was fully paid, and that upon the payment of the last of said installments, the said Martin Weber covenanted and agreed to convey said premises in fee simple to the said Grant II. Burrows, his heirs or assigns, and that afterwards, to-wit, on the 24th day of March, 1890, the said Burrows by deed duly executed, conveyed said premises, subject to the payment of the purchase price aforesaid, to the said Davis Carriage Co., and said company entered into the possession of said premises at that time and have ever since so remained. Plaintiff further averred, that while said instrument was in the form of a lease with the privilege of purchase, it was in fact intended to be and was a mortgage executed in the -form stated above, for the purpose of securing to said Weber the payment of the balance of the purchase price of said premises, and that a large amount is still due thereon; that on August 31, 1895, plaintiff caused an execution to issue on its said judgment, and for want of goods and chattels whereon to levy it was levied on said leasehold, which levy still subsists. The petition therefore calls upon Weber.to set up his lien against said property, and asks that the same be sold to pay liis claim, and for full relief.

Thereupon the defendant, Weber, on September 4, 1895, filed his answer and cross-petition averring in substance, that on March 24, 1890, the Davis Carriage Co. purchased the premises in the petition described and assume the payment of the said notes in the petition described, and has paid all of the same except the last twelve. That all of the interest except $3,445.35 has been paid to January 1, 1895, and that $4,000 was paid April 14, 1894, on the principal, and that the balance due this cross-petitioner from said Davis Carriage Co. on the notes in the petition described is $74,000, with five per cent, interest thereon payable semi-annually from January 1, 1895, and $3,445.35, with interest from January 1, 1895.

Wherefore, he prayed judgment against the said Davis Carriage Co. for $74,000, with interest at five per cent, payable semi-annually from January 1, 1895, and for $3,445.35, with interest from January 1, 1895, and that the premises be sold and the proceeds applied to the payment of said judgment. He also made Edwards Ritchie, assignee of the Davis Carriage Co., a defendant, and caused a summons thereon to be issued against them and the same was returned as served October 1, 1895.

On the 27th of December, 1895, the court of common pleas entered a decree in substance, so far as it is necessary to state the same, that the ‘ ‘ cause came on to be heard on the petition of the plaintiff and-the cross-petition of Weber, the defendant, and that the defendants had been duly served with process under the petition and cross-petition, and were all in default except Weber; and thereby that the allegations of the petition and cross-petition are confessed by the defendants to be true; that the plaintiff recovered its judgment against the. Davis Carriage Co.'in the superior court and levied its execution as alleged; that the real estate described in the petition was sold by .Weber to Burrows, and that in order to secure the balance of the .purchase money, Weber executed a lease to Burrows as alleged in the petition and that Burrows conveyed the same to the Davis Carriage Co. subject to the payment of the purchase price, and that said company took possession of the premises,, and still retain them; that though in form a lease it was intended to be and was in fact a mortgage to secure the 'balance of the purchase price of the premises; and then finds that there is due to Weber from the Davis Carriage Co. thereon $80,149.47, with interest from October 7, 1895, and ordered the property to be sold by the receiver appointed.”

On the pleadings in the case (for it appears from the judgment entry that no evidence was heard by the court), was it error for the court of common pleas to render as was done, a personal judgment in favor of Weber, against the Davis Carriage Co. for $80,149.47 or for any other sum; or in this case under the circumstances to find that any particular sum was due from the Davis Carriage Co. to Weber?

In the first place the question arises whether in an action by a plaintiff in the nature of a creditors’ bill, seeking to have real or personal property which for some cause can not be properly sold on execution at law, applied by proceedings in equity to the payment of his debt, brings in another party who had or claims to have some interest in the property in question, that he may set up his claim thereto, such person may by his answer and cross-petition assert as against his co-defendant, whose property is thus sought to be sold, a claim for a money judgment, or is he confined to the assertion of a claim against the particular property in question?

We think that the last supposition is the proper one under our code of civil procedure,

Our statute, Section 5071) Revised Statutes, gives to a defendant the right to set up in his answer as many grounds of defense, counter-claim and set-off as he may have, and permits him to claim relief therein “touching the matters iu question in the petition against the plaintiff or against other defendants in the in the same action.” Thus in this case Weber might in his answer and cross-petition set up not only a counter-claim or set-off against the plaintiff which he did not do, but facts which would entitle him as against both the plaintiff and the' defendants, the carriage company and others, to an adjudication as to the claim held by him against the property sought by the plaintiff to be sold, the amount and the priority thereof, and for its sale for the payment of his claim. But we know of no provision of the law which would authorize him in such an action to assert, another and different claim, in no way “touching the matters in question in the petition,” against either the plaintiff or a co-defehdant as we think would be the case for a personal judgment in a case of this kind. So far as I am advised, since the decision of the case of Brown v. Kuhn, 40 O. S., 468, the practice as to this has been almost uniform. The question was not directly decided in that case, though it was expressly stated in the opinion of the court, that under our code there is no provision for the issuance of a summons on a cross-petition against a defendant who is already in court. That it is only needful or proper to do so, when neiv parties are made by. the cross-petitionand that as' a cross-petition under our statute can only ask relief touching the matters in question in the petition, there is no necessity for service of proofs on parties already in court. Being there it is their duty to examine the files and see what defenses or claims are set up by the parties to the cause, with relation to the matters in controversy.

We think clearly then that the rendition of a personal judgment in. favor of Weber against the carriage company was erroneous. On the allegations of the pleadings, which b'y failure to answer them the Davis Carriage Co. confessed to be true,- was the court authorized to find as it has done, that there was due to the defendant, Weber, from the carriage company this sum of money. There is no allegation in the petition of the plaintiff that tends to show that the carriage company ever became bound for this debt to Weber. It is said that Burrows conveyed the property to the carriage company subject to the Weber debt. But this would not make the carriage company liable for it, unless on a good consideration it assumed and promised to pay it. Of course the property itself wquld be bound, but the company would not without such assumption. It is probable that if in the deed from Burrows to the company this debt on the property had been mentioned, and the statement made therein that it was assumed by the company as a part of the consideration for the property and the company accepted the deed, this would make it a valid assumption of the debt of the carriage company. But nothing as to this is alleged in the petition, and so far as the allegations of the cross-petition are concerned, they are so indefinite and uncertain as not to disclose the real claim of the defendant, Weber, and would lead one to the conclusion that the answer was filed without knowledge as to the allegations of the petition. It does aver that the defendant, the Davis Carriage Co., “did purchase the premises in the petition described, and assumed the payment of said notes in petition described, and has paid all except the last twelve.” While the fact is that no mention of any notes is made in the original petition as having been given by Burrows to the defendant, Weber, or anything more than that the premises in question had been sold by Weber to Burrows, and that in order to secure the balance of the purchase money, Weber executed a lease thereof to Burrows for ten years, the purchase money to be paid in stated installments until the whole amount of the purchase price agreed upon was fully paid, when on full payment the property was to be conveyed to Burrows, his heirs or assigns. No amount of purchase money was named, or the amount or number of the installments; nor does the cross-petition set up any facts as to those points, or how, or when, or in what manner the Davis Carriage Co. assumed the debt of Burrows to Weber.

We think that on such allegations the defendant, Weber, was not entitled to have the court of common pleas find that there was due to him from the Davis Carriage Co. the amount which the court found to be due to him, and that both the finding of this amount and the rendition of the judgment therefor, should be reversed and held for naught, and the case remanded to the court of common pleas for a new trial as to the amount due from the carriage company to Weber, if anything, and as to the amount of the lien held by Weber against the property in the petition described.

As the plaintiff in error did not seek the reversal of the finding in favor of the original plaintiff, the bank, of course the finding of the common pleas court as to that was not brought into this court and stands unaffected.


text:
    PREMATURE PERFORMANCE OF A CONTRACT.
    Circuit Court of Hamilton County.
    The Niagara Fire Extinguisher Company v. the Dayton Folding Box Company.
    Decided, January 22, 1910.

      Contracts — Work Done Without Awaiting Authorization — Action by Manufacturers of •a Fire Extinguishing System for Recovery for Putting Frozen Water Pipes in Order.

    The correspondence in this case shows upon its face that no contract was entered into as averred in the petition, and the action thereon must therefore fail.

      Reeve, Burch,, Peters & Oppenheimer, for plaintiff in error.

      C. B. Matthews, contra.

    Giffen, P. J.; Smith, J., and Swing, J., concur.
   .The original cause of action was labor and material furnished by the plaintiff, the Niagara Fire Extinguisher Company, to the defendant, the Dayton Folding Box Company, at its request, in repairing a sprinkler system theretofore sold by the plaintiff to the defendant.

The evidence shows that the plaintiff delivered to the Postal Telegraph-Cable Company for transmission to the defendant the following telegram:

“March 2d, 1905.
‘ ‘ Dayton Folding Box Co., Dayton, Ohio.
‘‘ Our man reports system frozen up through no fault of ours. Do you want us to put in order at your expense ?
“Niagara Fire Extinguisher Co.”

The telegram as received by the defendant read “our expense” instead of “your expense.” To this telegram the defendant replied the following telegram:

“Dayton, Ohio, Mar. 2d, ’05.
“Niagara Fire Extinguisher Co., Akron, O.
“Telegram received. Have system put in order immediately.
“Dayton Fold. Box Co.”

On March 9, 1905, the plaintiff sent the following letter to the defendant:

“Dayton Folding Box Co., Dayton, Ohio.
“Gentlemen: We have been expecting to receive an order for the work which we are to do at yonr allagan plant. We have your telegram advising us to proceed with the work, but as considerable labor and material will be required, we would like to have an order from you authorizing us to furnish such labor and material at your expense. Please send us the order by return mail, so that the work will not be delayed.
“Very truly yours,
“Niagara Fire Extinguisher Co.”

The defendant replied by letter as follows:

“Dayton, Ohio, March 10, 1905.
“Niagara Fire Extinguisher Co., Akron, Ohio. .
“Gentlemen: We are in receipt of yours of the 9th, and are very much surprised at contents of same. On March 2d you wired us .as follows: ‘ Our man reports system frozen up though no fault of ours. Do you want us to put in order at our expense?’ To this telegram we replied as follows: ‘Telegram received. Have system put in order immediately.’ ”

Notwithstanding this letter which shows the error in transmitting the telegram of March 2d, and notwithstanding the letter of the plaintiff of Mrach 9, 1905, asking for further authority to do the work and furnish the materials, it proceeded to and did make the repairs. This evidense shows upon its face that no contract such as it averred was ever entered into.

Judgment affirmed.


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    NOTE SECURED BY WAREHOUSE RECEIPTS AND GUARANTEED.
    Circuit Court of Hamilton County.
    Third National Bank of Cincinnati, Ohio, v. Robert Laidlaw.
    Decided, August 6, 1910.

      Warehouse Receipts — Guarantor of Note Secured By Such Receipts— May Rely on Recital of Receipts as to the Property Represented.

    Tbe guarantor of a promissory note secured by warehouse receipts pledged as collateral may rely on the quantity and quality of tbe property set out in tbe receipts, and is not limited to the actual amount found to be on hand when the sale is made.

      Maxwell <& Ramsey, for the bank.

      Edivard Colston and A. C. Cassatt, contra.
    Smith, J.; Giffen, P. J., concurs; Swing, J., dissents.
   Plaintiff in error seeks to recover from defendant in error upon the following guaranty:

“Cincinnati, Ohio, January 3, 1905.
“For value received we hereby jointly and severally guarantee to the Third National Bank of Cincinnati, Ohio, in respect of any loans heretofore or hereafter made by it to the American Mahogany Company, or the International Mahogany Company, for which warehouse receipts calling for Cuban mahogany lumber or logs are taken as collateral security, that the net proceeds after deducting all expenses of the sale of said lumber or logs, should said company default in its payment and the bank sell its collateral, shall not be less than the amount of money loaned by the bank plus any accrued interest, and we agree to make good to said bank any loss it may suffer should the net proceeds of the lumber or logs be less than the claim of the bank. This guaranty applies to a loan represented by note dated January 5, 1905, amounting to $20,345.86 and to renewal of the same or any part thereof.
“L. M. Moragues, “Robert Laidlaw.”

At the time the note referred to in the above guaranty was executed and delivered to the bank, there was pledged as eollateral security for the payment of the same, warehouse receipts of the Export Storage Company, Nos. 529, 378, 420, 541,' 401, 472, 593, calling for 377,520 feet Cuban-mahogany lumber, log run.

While the date of the guaranty is January 3, 1905, and the actual date of the note is January 5, 1905, yet, from the evidence it appears that the note and guaranty were executed at the same time and no question is made as to the difference in the dates of the instruments.

The court below at the close of plaintiff’s evidence instructed a verdict for the defendant, and this action is brought'to reverse the judgment entered upon that verdict. The issue asked by the pleadings is as to the construction of the guaranty. To determine the meaning of the guaranty it is evident that it and the note must be taken together; that both refer to the warehouse receipts pledged as collateral for the note. By the warehouse receipts title to the property described therein vested in the bank. When default was made upon, the note, and the lumber pledged was sold, it was much less than 377,520 feet, and it would seem that the guarantor would have the right to rely upon the statement as to the quantity and quality of lumber set out by the warehouse receipts, rather than upon the quantity that actually was on hand at the time of the sale. ITe had the right to suppose from his contract that he had an ample security of 377,520 feet of Cuban mahogany lumber, log run, between him and his ultimate liability. Farmers & Mechanics National Bank v: Lang, 87 N. Y., 197.

There is no fraud or collusion charged against the defendant in error, nor is it alleged that he knew that the property pledged was not as set forth in the receipts. It seems to us there is no ambiguity in the contract sued upon, and as disclosed by the record we think the trial court properly construed the contract.

We have carefully considered the authorities cited by counsel on both sides and are of the opinion that under the construction of the guaranty given by the trial court, plaintiff in error is not entitled to recover from defendant in error, and the judgment of the court below will be affirmed.


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    LIABILITY FOR BALANCE OF FREIGHT CHARGES.
    Circuit Court of Hamilton County.
    Louisville & Nashville Railway Company v. The Magnus Company.
    Decided, August 6, 1910.

      Freight Charges — Billed at Less than Fixed Rate by MistaTce — Liability of Consignee for Balance Due — Freight Rates Not a Subject of Contract. '

    Where a railway company by reason of a mistake collects less from the consignor than the fixed rate on a shipment of goods and the goods have been delivered to the consignee, an action will lie against the consignee for the balance due, notwithstanding there was an agreement between the consignee and the consignor that the consignor was to pay the freight charges.

      Kinkead & Rogers, for the Railway Company.

      Max B. May, contra.
    Goods were shipped from Alabama to the defendants, with charges prepaid in accordance with contract. But by an error of the freight clerk at the place of shipment the freight charge was made $20.15 less than the established rate. The consignees accepted the goods knowing that the freight had been partly prepaid, but refused to complete the payment when the company sought to collect the balance due. Suit was thereupon brought by the railway company against the consignees, and in the court below judgment was given for the consignees on the theory that the claim should have been prosecuted against the consignors.
    Swing, J.; Giffen, P. J., and Smith, J., concur.
   By force of the'United States laws the rates of freight between points in the state of Alabama and Cincinnati are fixed and are not the subject of contract. The railroad company can neither charge more nor accept less than the fixed rate. In the present ease the railroad company by mistake accepted less than the fixed rate from the shipper. It supposed it was receiving from the shipper the exact amount of the fixed rate and did not attempt to contract to. carry the goods for less than the fixed rate. The railroad company had a lien on the goods for the balance of this freight charge, and the law made it the duty of the company to collect it. Not to do so would in effect amount to a rebate which would violate the statute. The mistake was discovered by the company before it delivered the goods and the Magnus Company were notified that the amount of the error was charged against the goods. The Magnus Company, under an agreement with the railway company, were allowed to receive all freight consigned to them and pay the charges at stated periods, the Magnus Company being on what is known as the credit list. On the facts we think the Magnus Company is liable for the balance due ‘on the frieght the same as if no freight had been paid.

Judgment reversed and judgment for plaintiff in error.


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    COLLISION BETWEEN CAR AND WAGON.
    Circuit Court of Hamilton County.
    The Cincinnati Traction Co. v. Maud Manning.
    Decided, July 23. 1910.

      Negligence — In Driving in Front of a Street Gar — Gircumstamces Under Which Looking and Listening Would Not he Sufficient — Weight of Evidence.

      A driver is guilty of contributory negligence, when from a position immediately behind a 'standing street car he turns into the parallel Track, without being able by looking to see whether there was a car approaching on that track or by listening to distinguish the . bell on the car before him from the bell on an approaching car; nor is he relieved from negligence by the fact that two cars had just passed on the track upon which the car which struck him was approaching.

      Kiltredge, Wilby & Stimson, for plaintiff in error.

      Thos. L. Michie and A. C. Fricke, contra.

      Giffen, P. J.; Swing, J., and Smith, J., concur.
   On the 18th day of July, 1907, at about 9:30 p. M., the plaintiff was driving a horse and buggy south on the west side of Western avenue, and after two street cars had passed her on the south-bound track she attempted to cross over at or near the intersection of Findlay street but was struck by a north-bound car and injured.

It is contended by counsel for the company that the court should have arrested the case from the jury because the plaintiff testified that she could see down Western avenue a distance of four blocks; that before attempting to cross she looked for an approaching car, and saw none. But she did not intend thereby nor did the jury understand her to mean that she could see everything on the avenue within that space regardless of temporary obstructions. She also testified that the two south-bound ears had at the time reached the middle of the block south of Findlay street, hence, if the north-bound car was a few feet south of the last ear, her view would be obstructed. If she saw no car approaching within that space, it would not be negligence per se to attempt to cross, because she had the right to assume that the motorman of the car, if any were approaching, would have the ear under control at and near the crossing, whereby she would have ample time to cross.

The great weight of the evidence, however, shows that the rear south-bound ear was at or about two feet south of Findlay street, and that the plaintiff drove in behind that ear and attempted to cross the north-bound track, when by looking she could not see the north-bOund ear, and the motorman could not see her or the vehicle. The ear could not have been moving very fast because the testimony is clear that the motorman brought it almost to a stop on the south side of Findlay street to avoid a collision with another buggy approaching from the east in Findlay street. But assuming that it did get full headway before the collision, and that "the motorman was negligent in not having the ear under control while passing the south-bound car at or near the crossing, the plaintiff was chargeable with contributory negligence in attempting to cross, when by looking she could not see and by listening she could not distinguish one bell from another.

The motormari admits that he did not sound the gong when he first saw plaintiff ’s horse, as it would then'do no good; but says-that he did sound it for the crossing.

The verdict was clearly against the weight of the evidence, and the-eburt erred in not granting a new trial for that reason.

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


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    FOR RECOVERY ON ACCOUNT OF THE COLLAPSE OF A BRIDGE.
    Circuit Court oí Hamilton County.
    The Batavia Turnpike & Miami Bridge Company v. John Hodapp.
    Decided, January 29, 1910.
    In an action for damages on account of a tort, it is error to charge the jury that -the plaintiff may recover if it appears from a preponderance of -the evidence that he was without fault, unless .predicated upon proof that the accident was due to the negligence of the defendant.

      D. W. Murphy and George Hoadly-} for plaintiff in error.

      Samuel B. Eammel, contra.
    Smith, J.; Giffen, P. J., and Swing, J., concur.
   It was error in the trial court to charge the jury that “if you find by a preponderance of the evidence that the plaintiff was without fault he would be entitled to recover.” This is not a proper statement of the law to the jury, as it eliminates from the ease the duty on the part of the plaintiff to prove that the negligence of the defendant caused the injury complained of, and we do not think the effect of this charge was removed by the -court.

Upon the question of the verdict being excessive, we are of the opinion that such is the case, and had the verdict been for a sum in the neighborhood of $250, under the evidence it would seem .more reasonable.

Judgment reversed.


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    INCHOATE DOWER. OF WIFE.
    Circuit Court of Wayne County.
    Susan Kaufman v. Henry B. Heckman.

    Decided, February Term, 1908.

      Dower — Inchoate Right of Wife not Barred — By Sale of Lands by a Judgment Creditor — Notwithstanding Mortgage in Which She Had Joined Was Set up by Way of Cross-Petition — Wife’s Equity of Redemption not Foreclosed, When — Pleading—Summons_Redemption.

    1. Where the judgment creditor of a husband brings an action to marshal liens and sell the real estate of the husband, summoning the wife, but seeking no relief against her; and a mortgagee is also made a party defendant, and files a cross-petition asking for a sale of the property, but issues no summons for the wife, who signed the mortgage but who in no way enters her appearance or participates in the proceeding, and a decree is entered ordering a sale of the property under the judgment creditor’s petition, and the mortgagee’s cross-petition, which is accordingly done, the-wife’s equity or redemption is not foreclosed, nor are her rights in the real estate extinguished.
    2. Where, after the sale of the property, the husband dies and the. mortgagee’s claim has been barred by the statute of limitation, the wife may, without redeeming, assert her right of dower in said property and have the same set off to her.

      M. L. Spooner, for plaintiff.

      Weiser & Ross, contra.
    Taggart, J.; Craine, J., concurs; Donahue, J., dissents.

       Affirmed by the Supreme Court without opinion, June 14, 1910.

   Opinion on Demurrer to Answer.

This case comes into this court by appeal from the court uf common pleas.. The plaintiff filed her petition for dower, the averments of which are very brief.

She avers that on or about the 19th of April, 1870, she was married to one Thomas Kaufman, who, on or about the 26th day of' March, 1907, died leaving plaintiff as his widow, and that during coverture he was seized of the premises described in the petition, and that defendant is the owner of said premises.

The defendant admits the marriage, admits the death, admits that he is the owner and in possession of the property; but denies that plaintiff is entitled to dower in the lands; and avers that during the lifetime of the said Thomas Kaufman, the plaintiff, was barred of dower in said lands. lie then proceeds to say that on the 6th day of October, 1877, the plaintiff, with her husband, joined in a mortgage duly acknowledged, executed and delivered to one Daniel Hiner, and thereby conveyed to the said Daniel Hiner by said mortgage deed the lands in the petition described. That said mortgage was duly recorded in the office of the recorder in Wayne county, Ohio, on the 6th day of October, 1877. That said mortgage had written therein a condition of defeasance conditioned that the said Thomas Kaufman should pay and protect the said mortgagee, Daniel Hiner, from liability as in said deed stipulated, and upon failure to so do that said mortgage should become absolute.

Defendant further avers that one Warren Aylesworth by the consideration of the Court of Common Pleas of Wayne County, Ohio, duly recovered a judgment against the said Thomas Kaufman, and caused an execution to be issued and the same was levied upon the lands in the petition described.

That thereafter, to-wit, on the 20th day of November, 1877, said Warren Aylesworth filed his petition in the Court of Common Pleas of Wayne County, Ohio; said Thomas Kaufman and plaintiff herein; together with other numerous persons were the defendants; the object, purpose and prayer of the petition of the said Warren Aylesworth being the marshalling of the various liens, either by judgment or otherwise, upon the lands of said Thomas Kaufman and subjecting them to sale in satisfaction of the liens thereon.

That in said cause the plaintiff herein was duly notified by service of summons of the pendency of such action and thereby had due notice of the claims of said Daniel Hiner by way of mortgage lien upon the lands in the petition described, and had due notice of the pendency of such action, and that the sale necessarily affected her inchoate right of dower in and to said premises.

The answer then proceeds to say that the said Daniel Iiiner was made a party defendant in said suit, and was duly served with process, requiring him to appear and answer therein setting up his claims in and to the lands in question.

The defendant avers that thereafter in the proceedings in the court of common pleas there was a decree of foreclosure in said cause, foreclosing the mortgage of said Hiner and foreclosing the equity of redemption of said Thomas Kaufman and Susan Kaufman, and which decree further provided that unless the said Thomas Kaufman and Susan Kaufman should within one day from the entry of said decree pay or cause to be paid the amount found due said mortgagee, Hiner, the equity of redemption be foreclosed and the lands in the petition described should be sold by the sheriff of Wayne county, Ohio, in satisfaction thereof. That such sale was by the sheriff duly made, and that one Zimmerman became the purchaser of the lands in the petition described. He further avers that out of the proceeds of such sale, which included the interest of the plaintiff herein, the indebtedness to said Hiner on his said mortgage was ordered by the court to be paid, and the same was paid out of said proceeds. And that in consequence of that proceeding the plaintiff became and was barred of her inchoate right of dower.

To this answer a general demurrer is filed, and it is submitted upon this general demurrer.

Briefly summarized, this case presents the following legal proposition: Thomas Kaufman was seized of these lands; Susan Kaufman was his wife. Warren Aylesworth was a judgment creditor of Thomas Kaufman, and brought proceedings to marshal liens, but so far as this ease is concerned it simply appears that it was brought to subject the lands of Thomas Kaufman to sale for the satisfaction of the liens that were upon them created by Thomas Kaufman. This petition does not aver that it was necessary, or brought to subject any interest which Mrs. Kaufman might have in this property. That is to say, the petition does not aver that a complete sale of the premises can not be had, nor is there any averment in that petition that it was necessary to sell the entire estate for the satisfaction of these claims.

Therefore, the majority of the court think the legal propositions involved are controlled by the cases of Jewett v. Feldheiser, 68 O. S., 523, and Southward v. Jamison, 66 O. S., 290. The 68th Ohio State controls this case thus far: ‘‘ The inchoate dower of the wife is not a lien upon the land of the husband, but an interest in it.” Susan Kaufman had an inchoate right of dower in this land, an interest in the land.

As I have indicated, this answer simply states that that suit was brought by a judgment creditor to marshal liens, but there was no proper sufficient averment in that petition that it ivas brought for the purpose of affecting or barring by foreclosure the inchoate dower of the wife.

This case is very decisive as to the duty of the wife to redeem. It says that in cases of this kind a wife is not entitled to or required to redeem a mortgage so as to be entitled to dower.

In the further analysis of this answer we find that there is no averment that we can construe as an averment that there was a summons issued on that cross-petition. There is an averment in this answer about which the court is somewhat in doubt, “that in such cause the said plaintiff herein was duly notified by service of summons of the pendency of said action and thereby had due notice of the claim of said Daniel Hiner.” But in the argument of this case we understand counsel do not claim that this averment in the answer is broad enough to indicate that a summons was issued on the cross-petition of Hiner, and inform us that such was not the case, and that ITiner’s cross-petition was filed some fifteen days after rule day for answer to the petition. We think the true construction of this language is, that simply a summons was issued on the petition of Aylesworth. And it is then claimed that therefore Susan Kaufman had due notice of the claim of. Daniel Hiner.

We now come to the 66th Ohio State, at page 290:

“So long as a cross-petition in an action is strictly confined to ‘matters in question in the petition,’ the summons issued on the petition would be sufficient notice to sustain a judgment rendered on the cross-petition; but when the cross-petition sets up matters which are not drawn ‘in question in the petition’ and seeks affirmative relief against a co-defendant of a nature different from that sought in the petition, a summons to the party to be charged, issued on the petition, will not confer jurisdiction to render judgment on the cross-petition, especially when the cross-petition is filed after the defendant thereto is in default for answer to the petition, and a summons on the cross-rpetition in such case is necessary. ’ ’

This action that is set up in the answer here, being simply for the marshalling of liens upon Thomas Kaufman’s land, the cross-petition that was filed by Daniel Hiner would, so far as the husband was concerned, be "matters in question in the petition,” because the "matters in question in the petition” was the sale of the husband’s land. And the. majority of the court do not believe that with that petition filed that the sale of the wife’s interest in that land would be matters germain, but on the contrary the matters that would be set out by Daniel Hiner in his cross-petition averring the execution and delivery of this mortgage, and that they were in default thereof, and that he was entitled to foreclosure and sale of these- premises, would not be brought in question by the averment in that petition, and would be of a nature different from that set out in the petition; but that to bind her a summons on the cross-petition would have to be issued and served; and that if a judgment was taken upon that cross-petition while it might be a valid judgment against the husband, yet it would not be valid as against the wife, and consequently her inchoate right of dower would not be barred. As reflecting upon the opinion and belief of the majority of the court, and as to the sufficiency of this answer we call attention to the case of Spoors v. Coen, 44 O. S., on page 502:

‘ ‘ But a judgment -rendered by a court of competent jurisdiction in a case brought before it, however erroneously the jurisdiction may have been exercised, is one thing, and a judgment entered by a court of like jurisdiction in a case not before it, is another and a different thing. In the one case its judgment may be erroneous, in the other it is void. To bring a cause before a court, competent to adjudicate it, it is not only necessary that the parties should be-in jus vocatio, cited or summoned in the manner required by the law of procedure, but a case must also be made, or stated, affecting the party against whom relief is asked. The power to hear and determine a cause is defined to be jurisdictional (Freeman on Judg., Sec. 118). And, to nse the language of Ranney, J., in Sheldon v. Newton, 3 O. S., 494, ‘It is coram judice whenever a case is presented that brings its power into action.’ But he adds, ‘before this power can be affirmed to exist, it must be made to appear that the law has given the tribunal capacity to entertain the complaint against the person or thing sought to be charged or affected; that such complaint has actually been preferred and that such person or thing has been properly brought before the tribunal to answer the charge therein contained.’ The italics are our own, to call attention to the clause applicable to the question in the case before us. ”

We think that there was nothing in the case of Aylesworth v. Kaufman which is sought to be set up in this answer which called upon Mrs. Kaufman to answer that petition, and unless there was a summons issued upon that cross-petition that she would not be concluded by any judgment that was in the case. In the opinion of the majority of this court the demurrer to the answer will be sustained, and leave given to file an amended answer within sixty days; exceptions.

Opinion on Merits.

Decided, September Term, 1908.

Craine, J.; Taggart, J., concurs; Donahue, J., dissents.

One Aylesworth, a judgment creditor of Thomas Kaufman, brought an action in the Court of Common Pleas of Wayne County, Ohio, for the purpose of marshaling liens and selling the real estate of Thomas Kaufman, and in such proceeding made the plaintiff herein a party defendant and served her with summons, but asked no affirmative relief against her. One Iiiner, a mortgagee, whose mortgage had been signed by Thomas Kaufman and the plaintiff, was made a party defendant in said proceeding, and filed a cross-petition in which he asked that Thomas Kaufman’s and plaintiff’s equity of redemption be foreclosed, and that the property be sold under his cross-petition; but said Iiiner did not make the plaintiff a party to his cross-petition, nor did he have any summons served upon her, nor did she in any way enter her appearance in the case, or participate in said proceedings.

A decree was entered directing that the property be sold under the petition of Aylesworth and the cross-petition of Hiner, which was accordingly done, and the purchaser pnt in possession of the property.

Fifteen years having expired from the time the mortgage debt became dne, and Thomas Kaufman having died, the plaintiff in this action brought suit in the court of common pleas against the defendant, Henry B. Heckman (who in the meantime had purchased the property), asking that her right of dower in the real estate be set off to her, and. the court of common pleas having found in her favor, an appeal was taken to this court, where the ease was presented on an agreed statement of facts, substantially as above set forth.

The defendant claims, first, that the plaintiff’s right of dower was barred by the original action in the court of common pleas, brought by Aylesworth against Kaufman et al; and second, that even if her right of dower was not barred, her remedy is by redemption.

A majority of this court are of the opinion that the defendant is wrong in both propositions.

Whilst in the original case the plaintiff in this action was served with a summons issued on the petition of Aylesworth, that summons simply notified her that Aylesworth had brought suit to sell the husband’s interest in the real estate. Aylesworth had no claim against her interest in the real estate, nor was he trying to sell the same; hence, so far as that summons was concerned, there was nothing for her to answer to, and no cause for her appearance in court. Nothing in the record indicates that she even knew that Hiner had filed a cross-petition, or that he was claiming anything against her rights. The sole question of the ease then is, was she bound to take notice of the cross-petition of Hiner ?

In Southward v. Jamison, 66 O. S., 290, the first paragraph of the syllabus reads as follows:

“So long as a cross-petition in an action is strictly confined to matters ‘in question in the petition,’ the summons on the petition would be sufficient notice to sustain a judgment rendered on' the cross-petition; but when the cross-petition sets up matters which are not drawn ‘in question in the petition,’ and seeks affirmative relief against a co-defendant, of a nature different from .that sought in the petition, a summons to the party to be charged, issued on the petition, will not confer jurisdiction to render judgment on .the cross-petition, especially when the cross-petition is Sled after the defendant there is in default for answer to the petition; and a summons on the cross-petition for such case is necessary. ’ ’

In the case at bar the cross-petition was not confined “to matters in question in the petition”; but on the contrary the cross-petition set up matter which was not drawn “in question in the petition” and sought affirmative relief against the plaintiff herein, Susan Kaufman, different in nature from that in the petition.

Another case is Jewett v. Feldheier, 68 O. S., 523, which we think fully supports our holding on this first proposition, which is worthy of a careful examination; and on the two authorities above citedj as well as on principle, we think the rights of Susan Kaufman were not barred in the action under which the real estate was sold.

The defendant, however, contends that even if Susan Kaufman’s rights were not barred by the original action, still her right of dower can not be assigned to her; but that if she has any remedy, it is simply the right' to redeem; in other words, she must pay off the mortgage debt before she can have her dower assigned.

The well-settled doctrine in this state is, that the mortgage is regarded in equity as a security for the debt, and that the legal title to the mortgaged premises remains in the mortgagor until condition broken, and that after condition broken the legal title vests in the mortgagee. If the mortgagee gets the legal title by condition broken, and then gets the right of possession by ejectment, or some other legal means; he then has the legal title and the right of possession, which vests an absolute estate in him; but for all that, he holds the legal title .and possession as a security for the debt. In the case at bar, the conditions of the mortgage were broken, and by that" act the legal title vested in the mortgagee, and the real estate having been sold under the cross-petition of the mortgagee, as well as the petition of Aylesworth, the purchaser of the property acquired both the legal title and the right of possession of Thomas Kaufman; but he did not acquire the right of possession of Susan Kaufman by that purchase, because she had no possessory right at that time to acquire, and because she was not in court. Her right to possession first sprang into existence by the death of her husband, and since that time her right of possession has in no manner been acquired by the defendant.

We would accept the doctrine of the defendant, that her remedy is to redeem the property, were it not for-, the fact that the mortgage debt has been barred by the statute of limitations, and hence there is nothing for her to redeem. The debt, for which her dower was pledged as security having been eliminated by the statute of limitations, there is no occasion for holding her dower longer. The security dies with the debt.


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    STREET IMPROVED UNDER. AN INVALID LAW.
    Circuit Court of Hamilton County.
    George W. Harding v. City of Cincinnati.
    Decided, April 2, 1910.

      Municipal Corporations — Improvement of a Street Afterward Declared Unconstitutional — Assessment Not Rendered Invalid Thereloy.

    A holding by the Supreme Court that the law under which a street improvement was begun and completed was unconstitutional because not of uniform operation, does not invalidate the assessment levied, for payment of the improvement, where the law was of such a character previously upheld by the court.

      George W. Harding, for plaintiff.

      Fyffe Chambers, for the city.
    Smith, J.; Giffen, P. J., and Swing, J., concur.
   Upon the agreed statement of facts in the above case the court is of the opinion that the petition of plaintiff seeking to enjoin the defendant from the collection of the assessment levied against his property for the improvement of Coulmbia avenue should be dismissed.

The adoption of the preliminary resolution by the council of the city declaring the necessity for the improvement of Columbia avenue on April 28, 1902, was the beginning of the proceedings in respect to said improvement. Toledo v. Marlow, 8 C.C. (N. S), 121.

Notwithstanding the fact that the law under which said improvement was initiated and completed was subsequently declared unconstitutional by the Supreme Court of Ohio, on the ground that all laws of a general nature must have uniform operation throughout the state,oyet the improvement having been commenced with reference to the law in force at the time the resolution declaring the necessity for the same was adopted, and which had heretofore been upheld by the Supreme Court, such law should govern and control the subsequent proceedings in relation thereto.

Petition dismissed.


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    ASSESSMENTS UNDER THE DOW LAW.
    Circuit Court of Hamilton County.
    Anna M. Foley v. Chas. E. Roth, Treasurer, et al.
    Decided, July 9, 1910.
    The statutory provision for the appointment by the dairy and food commission of assistant commissioners and inspectors for the purpose of determining names of persons liable to the Dow law assessment not now on .the tax duplicate, contemplates an official inspection for the purpose of enforcing the law; but there is no authority for procuring a violation of the law in order that the tax may be levied, and the evidence of sales under such circumstances will ■be received with much caution, .and the property of an innocent owner will not be subject to a lien upon such testimony where contradicted.

      Gideon C. Wilson, for plaintiff in error.

      Hunt, Bettman & Merrell, contra.
    Giffen, P. J.; Smith, J., and Swing, J., concur.
   The provision of Section 4364-14a, Revised Statutes, that “the assistant commissioners and inspectors appointed by the dairy and food commissioners * * * shall determine from information furnished by the auditor of state, or by personal visitation or otherwise, the names of all persons liable to such assessments,” contemplates an official inspection and investigation for the purpose of enforcing the law, and does not authorize a procurement of a violation of the law in order that the assessment may be levied. The evidence thus obtained will, like the testimony of hired detectives, be received with caution and carefully scrutinized. They were unable at the trial to identify the two women as the occupants of the house at the time of the alleged sales, although they were in fact such occupants, and testified that no sales of beer were made on the premises. We are of the opinion that the property of an entirely innocent owner -ought not to be subject to a lien upon such evidence contradicted as it is by the positive testimony offered by plaintiff.

An injunction will be granted as prayed for.


text:
    DOCTRINE OF LAST CHANCE NOT APPLICABLE.
    Circuit Court of Hamilton Co-unty.
    The Cincinnati Traction Co. v. William D. Jones.
    Decided, July 23, 1910.

      Negligence — Duty of One Driving Along Street Railway Tracks — Weight of Evidence — Doctrine of “Last Chance.”

    Where the evidence discloses that the driver of a wagon, following a street railway track in the opposite direction from which the cars run, turned onto the parallel track in order to avoid a car coming toward him, and in so doing turned directly in front of a car coming up behind him on the parallel track, and was struck by said car and injured, the doctrine of “last chance” is not applicable.

      Geo. P. Stimson, for plaintiff in error.

      John E. Fitzpatrick, contra.
    The defendant in error recovered a judgment -below for $500 as damages on account of the striking of a wagon, which he was driving on Eastern avenue, by a car which came up from behind.

      Smith, J.; Giffen, P. J., and Swung, J., concur.
   In the above case the court is of the opinion that .the motion of plaintiff in error to arrest the case from the jury and direct a verdict in its favor should have been granted. The greater weight of the evidence discloses that defendant in error was driving his wagon west upon the east-bound- track, and as the car which struck him was approaching on the west-bound track sounding its gong, he turned diagonally from the east to the westbound track at so short a distance in front of this car that it -was impossible for the motorman to have avoided a collision.

There is no dispute as to where he was- driving, and we do not think the doctrine of the “last chance” applies under the evidence in this ease, for if there was negligence on his part and that of the motorman, it would seem under the evidence that the same was concurrent, and if so, then the defendant in error was not entitled to recover. He was bound to look and listen before crossing the tracks of the defendant company and manage his horse and vehicle prudently under all the circumstances, considering especially that he was just previous to the accident on the track adjoining the one upon which h¿ was hit by the ear going in the same direction as himself.

In this view' of the case it is unnecessary to consider other errors alleged to have been committed at the trial, as we think plaintiff in error upon all the evidence was entitled to a verdict and judgment.

The judgment-of the court below will be reversed and a judgment for plaintiff in error may be entered in this court.