author: SPENCE, J.

text:
    PRINCIPAL AND AGENT
    [Hamilton (1st) Court of Appeals,
    February 8, 1916.]
    Spence, Pollock and Metcalfe, JJ., seventh district sitting by designation.
    Conrad Laudt and William Laudt v. Eliza Furer, etc.
    1. Burden on Real Estate Broker Claiming Commission to Show Willingness and Ability of Purchaser to Perform.
    Recovery of a commission for sale of real estate can not be based on the fact alone that the proposed purchaser signed the contract of purchase, but it must also be made to appear that he was able and willing to complete the purchase and make the payments stipulated in the contract.
    2. Concealment of Inability of Proposed Purchaser to Pay for Property Bars Recovery of Commission.
    The claim for a commission is unenforcible when plaintiff concealed from the owner of the property the fact that the proposed purchaser would not be able to take the property until he had sold certain other property the title to which was so clouded as to render a sale extremely improbable.

      E. A. Hafner and W. C. Muhlhauser, for plaintiffs in error.

      Spangenberg & Spangenb erg, for defendant in error.
   SPENCE, J.

The plaintiffs begun this action in the court of common pleas against Edward Furer and Eliza Furer to recover commissions for the sale of real estate, which they claim to be due under a contract of which the following is a copy:

“This agreement made June 9, 1911, Witnesseth: That Edward Furer in the county of Hamilton and state of Ohio, has this day placed with the Laudt Realty Co., the following described property, of which I am the owner in fee, situated in the city of Cincinnati, county of Hamilton and state of Ohio, to-wit: All that certain 4157 Apple street, lot 22 x 100 — 5-room brick; bath, toilet and reception hall and attic. Terms — Cash $3,200. Price, thirty-two hundred. Mortgage now on property. * * # The said Laudt Realty Co. shall have the agency on sale for the above mentioned realty for five months from date hereof, and thereafter, until I revoke the same by giving them ten days’ notice in writing, and I hereby authorize them to sell and contract in writing with purchaser for the sale of said property according to the price and terms above written, or any price or terms which I may agree to accept other than above stated, and if the said property be sold or exchanged during the period above mentioned, no matter by whom, or after above period on information obtained through their agency, I agree to pay them a commission of two per cent, of the gross amount of such sale or exchange. I hereby waive the benefit of all laws exempting real or personal property from levy and sale, or any laws intended for advantage or protection by homestead exemption law granted by the statute of Ohio.
“Owner sign here. Ed. Furek.
“Mrs. Eliza Furer.”
“Accepted by Conrad Laudt, Manager.”

Then the petition contains an averment that on or about September 7, 1911, the premises mentioned in the above agreement were sold to Mrs. Carrie Feldmann, by an agreement in writing; then follows a copy of an offer from Carrie Feldmann to purchase the property for $3,200 cash, which offer was accepted in writing by Ed. Furer and Eliza Furer.

The petition avers, further, that the plaintiffs have done all things which were upon their part to be performed under the agreement and ask for a recovery of the commission.

The second amended answer contains, first, a general denial of the allegations of the petition except what is hereinafter specifically admitted. The answer then admits the making of the contract dated June 9, 1911, with plaintiffs and the signing of the paper writing dated September 7, 1911, purporting to be a contract of sale to Carrie Feldmann, but avers that their signatures were obtained to the latter contract by the false and fraudulent representations of plaintiffs that Carrie Feldmann was ready and able to purchase said premises on the terms named in her contract, the plaintiffs well knowing that she was not ready and able to purchase same and has not been able to purchase the property, up to the time of filing this answer, though defendants have been ready and willing to convey the same and are still ready to convey on said terms.

Defendants further aver in their answer that, at the time of entering into the contract with Carrie Feldmann, it was represented to them that the sale should be held in abeyance until Carrie Feldmann’s property was disposed of and that her property has never been disposed of and that plaintiffs had charge of the sale of the Feldmann property and they knew that they would have to complete that sale before she could purchase the Furer property.

Plaintiffs filed a reply to the first amended answer, which is in effect a denial.

We do not intend to follow this case through its most devious and peculiar course, but only to refer to some of the more important features of the ease.

The petition in error in this case sets forth sixteen grounds of error for which plaintiffs in error ask to have the case reversed; if these grounds of error were set up by the other side, in this case the court would have but little trouble in sustaining most of them.

The petition does not contain the usual and ordinary averment and, as many courts hold, necessary averment that the plaintiffs furnished a purchaser able to purchase the property, but it contains the meager averment that the plaintiffs “have done all things which were upon their part to be performed under said agreements, or either of them.” Then the petition contains an allegation of the evidence of performance in the nature of a proposition to purchase from Carrie Feldmann and an acceptance by Ed. Furer and Eliza Furer, but it does not contain an averment that she was able to purchase for cash as provided by the contract, and it does not contain an averment that the sale was ever completed by the transfer of the property or payment of the purchase money, or that the sale was prevented by any act of the defendants. The plaintiffs seem to assume that all that was necessary for them to do was to procure the offer and acceptance between Carrie Feldmann and the defendants.

In the case of Wilson v. Mason, 158 Ill., 304-311 [42 N. E. 134; 49 Am. St. 162], the court say:

“An agreement by a real estate broker to procure a purchaser, not only implies that the purchaser shall be one able to comply, but that the seller and purchaser must be bound to each other in a valid contract.”

The above was quoted, with approval, by Judge Price, in his opinion in the case of Pfranz v. Humburg, 82 Ohio St., 1-11 [91 N. E. 863; 29 L. R. A. (N. S.) 533],

In Blackledge & Blackledge v. Davis, 129 Iowa, 591 [105 N. W. 1000], third syllabus:

“A real estate broker employed to procure a purchaser of land for a fixed price or any other price below that consented to by the owner, has the burden of proving that he produced a person with whom the owner reached an agreement of sale or exchange, and that such person was able and willing to carry out such agreement, in order to recover the commission provided for.”

Weaver, J., in his opinion says:

“The burden was upon the plaintiffs, according to their own theory, to show affirmatively that they did in fact produce a person with whom defendant reached an agreement of sale or exchange in which the minds of the parties had met as to the property, which was the subject of such sale or exchange and the terms and price on which the same was to be consummated, and that the customer was ready, able and willing then and there to carry out such agreement.”

It is said in the case of Fox v. Ryan, 240 Ill., 391 [88 N. E., 974], sixth syllabus:

“An action for brokers’ commission's where the contract is not performed by a transfer of the property, the broker has the burden of proving the readiness and ability of the proposed purchaser to take the property on the terms proposed.”

Farmer, C. J., says:

“An agreement by a real estate broker to procure a purchaser not only implies that the purchaser shall be one able to comply, but that the seller and the purchaser must be bound to each other in a valid contract.”

In Colburn v. Seymour, 32 Colo., 430 [76 Pac., 1058; 2 Ann. Cas. 182], the court say:

“The financial responsibility of the alleged purchaser was, or ought to have been known to the plaintiff; upon such responsibility rested the ability of the purchaser to make the pur- - chase. Through him (defendant) expected to effect the sale, and necessarily the burden rested upon the plaintiff to prove that the financial ability of the proposed purchaser was such that he was able to make the purchase. *_* * While it is true there seems to be some conflict of authority on the question of whether of not it is necessary for the broker to prove the financial ability of the purchaser in these cases where the owner refuses to carry out the contract of sale, we are of opinion that the great weight of authority and the well considered eases on the subject require that he make such proof, because he must show, before he is entitled to recover his commissions, that he performed those acts which, according to the contract of his employment it was necessary for him to perform in order to become entitled to the compensation agreed upon.”

If the above cases correctly state the law, then there was a complete failure of proof, by the plaintiffs, in tlie court below, as they offered no evidence as to the financial ability of Carrie Feldmann, or as to her ability to pay cash for the property, as provided by the contract.

The common pleas court tried this case on the mistaken theory that all the plaintiffs had to show was that they had procured a contract of sale of the property, which contract was signed by the defendants, and attempted to exclude all the evidence of the ability of the proposed purchaser to take the property and to pay cash for it. The court seems to have completely overlooked the fact that plaintiffs sued on a written contract and that the burden of proof was upon the plaintiffs to show that they had performed their part of the contract before they could recover; this they did not do, as they did not show that they had furnished a purchaser with ability to take the property on the terms provided in the contract.

Assuming that the law is, as contended by counsel for plaintiffs in error, that all that was necessary for the plaintiffs below to show in order to recover was that they brought the parties together and the defendants signed a contract of sale. The evidence which was allowed to get by the court, at the trial, we think shows clearly that the plaintiffs knew, when the defendants signed the contract of sale, that the proposed purchaser, Carrie Feldmann, could not buy the property unless she sold her property, and they knew that there was a defective title to her property and that it could not be sold without a proceeding in court, and the plaintiffs testify that they did not reveal these facts to the defendants before they signed the contract. If they were acting as the agents of the defendants and withheld this information from their principals and induced them to sign the contract, it was a breach of trust, if not fraud, and alone should prevent the plaintiffs from recovering in this case. !

We have examined all the assignments of error in this case and do not find any errors prejudicial to the plaintiffs in error.

The judgment of the court of common pleas will be affirmed.

Pollock, J., concurs.

Metcalfe, J., not sitting.


source: Caselaw Access Project

author: CHITTENDEN, J.

license: Public Domain

text:
    TAXES
    [Wood (6th) Court of Appeals,
    November 13, 1914.]
    Richards, Chittenden and Kinkade, JJ.
    Ella Simpson Powers v. William Henning et al.
    1. Tax Deed Rendered Invalid by Indefinite Description of Land Sold.
    Title may be quieted against the holder of a tax deed embodying a description of the land sold which is so indefinite as to render void the proceedings of the forfeited land sale upon which the deed is based.
    2. Recovery by Holder of Deed for Taxes and Penalties Paid Limited by Six Years Statutes of Limitations.
    The amount of the lien which may be asserted by the holder of a tax deed so declared invalid is limited to money advanced for taxes and penalties during the six years last preceding.

      F. II. Beed and B. F. James, for plaintiffs.

      N. B. Harrington, for defendants.
   CHITTENDEN, J.

This action was brought by the plaintiff to obtain a decree quieting the title to certain real estate described in the petition. The defendant, William Henning, by an answer and cross-petition, claims to be the owner in fee simple and in the possession of the property described in the petition, and denies that the plaintiff has any interest in said property, and asks that his title may be qnieted as against any claim of the plaintiff. The defendant, Amos Powers, alleges that on or about December 9, 1895, one William Hertzer bought the premises described in the petition at a forfeited land sale and that thereafter he paid taxes upon the property at the times and in the amounts set forth in his answer and cross-petition, and he claims that the amounts so paid by him, together with interest thereon, aggregated the sum of $157.44 on March 15, 1911. He alleges that on March 10, 1911, the said William L. Hertzer assigned to him the auditor’s certificate of tax sale and all the interest that the said Hertzer had in the premises by reason of the payment of taxes as alleged, and further that on said March 10, 1911, Amos Powers obtained a deed from the auditor of Wood county for the above described premises which deed was thereafter recorded in the record of deeds of Wood county; and he further alleges that since that time he has paid certain taxes upon the property in the amounts and at the times set forth in the petition.

The defendant, William Henning, by his answer to the cross-petition of Amos Powers, sets up that the sale of said premises at forfeited land sale was invalid, and that it had theretofore been so held and adjudicated in this action, and he further alleges that the defendant, Amos Powers, has no lien upon said land for any taxes paid thereon prior to a period of six years preceding the filing of the cross-petition of the said Amos Powers; and he alleges that any action brought to recover taxes paid prior to six years before the filing of the' cross-petition is barred by the statute of limitations.

It is further alleged that the deed executed by the auditor is wholly invalid because of defective description and that the proceedings relating to the sale of the premises are wholly invalid for a like reason.

Upon trial of the case the only issue presented was as to the validity of the auditor’s deed and the sale of the property upon which the deed was based, and as to whether or not, if the deed was invalid, the defendant, Amos Powers, had a lien upon the property for the full amount of the taxes paid by him unaffected by the statute of limitations.

The description recited in the deed is as follows: “Henning William. R. 10, T 3. S 15 NW cor E. NE less Town Lots 8.18 acres.” And in addition the deed sets forth that the property is situated in Henry township, Wood county.

This description is so indefinite as to invalidate the deed. We need only cite the case of Humphries v. Hoffman, 33 Ohio St. 395, and the cases cited by the court in the opinion on pages 400 and 401. It appears that the same description was used in all the proceedings pertaining to the sale of the property, and we hold that the sale was likewise invalid because of the indefiniteness of the description of the property.

It therefore remains to inquire as to the extent of the lien of the defendant, Amos Powers, for the amount paid by him for the tax title and subsequent taxes paid thereon.

Section 5766 G. C., provides that the purchaser of lands at a forfeited land sale shall be held in all courts to be the assignee of the state of Ohio, and that the amount of taxes and penalties charged on the land at the time of the sale, together with all legal taxes afterwards paid thereon by the purchaser, shall be a lien on the land and may be enforced as any other lien. By this section of the statutes the legislature has undertaken to transfer to the purchaser of lands at a forfeited land sale the lien of the state thereon. The statute of limitations does not run against the state, but exemption from the operation of the statute is a privilege of sovereignty, and this privilege can only be asserted by or on behalf of the sovereign. Hartman v. Hunter, 56 O. S., 175 [46 N. E. 577],

In the case just cited it was held that a civil action brought by the treasurer of a county to enforce assessments for the construction of township ditches is barred in six years after the cause of action arises.

It has been held Wiltsie v. McClymon, 31 O. C. C. 241 (11 N. S. 509), that a plea of the statute of limitations is a good defense against an action to subject lands to the satisfaction of a lien'for money paid for such lands at a tax sale which proved invalid.

In that ease it was held that Sec. 11222 G. C., which provides that an action upon a liability created by a statute, other than a forfeiture or a penalty, shall be brought within six years after the cause of action accrued thereon, governed an action to subject lands to the satisfaction of a lien for money paid for the same at a tax sale.

It is entirely clear that the only right the defendant Powers has in this respect is conferred upon him by Sec. 5766 G. C., and that his claim is, therefore, one based upon a liability created by statute, and the six years’ limitation above cited applies.

A decree may be drawn quieting the title of the defendant William Henning, against the plaintiff and against any claim of the defendant Powers by virtue of the tax title evidenced by the auditor’s deed, and providing that the defendant Powers shall have a lien upon the property for taxes within six years prior to the time of the filing of his cross-petition, together with interest thereon.

The plaintiff is required to pay the costs made by her, the balance of the costs to be paid by the defendant Henning.

Richards and Kinkade, JJ., concur.


author: RICHARDS, J.

text:
    CRIMINAL LAW
    [Wood (6th) Court of Appeals,
    May 1, 1916.]
    Richards, Chittenden and Kinkade, JJ.
    Charles Neiswender v. State of Ohio.
    Application to Take Testimony in Philippines Overruled because of Heavy Expense Involved.
    In the absence of a satisfactory showing as to the materiality of the testimony desired for use in a criminal case, it is not error to overrule an application for an order to take testimony in a distant country, when the expense to the state if the order were granted would amount to as much as $2,000.

      B. F. James and E. D. Bloom, for plaintiff iu error.

      E. K. SoleiJier, Pros. Atty., and C. S. Hatfield, for defendant in error.
   RICHARDS, J.

The plaintiff in error is under indictment for murder. The state made proper application to the court of common pleas for taking the testimony of one Richard Smith in the Philippine Islands. Thereafter counsel for the state, having determined to dispense with his .testimony, applied to the court for an order setting aside the former order for the taking of such testimony, and the former order was thereupon set aside by the court against the objection and exception of the defendant below. After this latter order the defendant below applied to the court for an order to take testimony of certain other witnesses in the Philippine Islands. The court after hearing evidence and statements of counsel on both sides, overruled the application, and this proceeding in error is prosecuted to obtain a reversal of the order so made.

The bill of exceptions does not disclose what the evidence was that was desired to be taken, nor that the same was material. It is apparent from the bill of exceptions and from the statements of counsel that it would involve an expense to the state of $2,000 or more to provide for the presence of the defendant below and Ms counsel and counsel for the state in the Philippine Islands at the taking of the testimony. It can not be possible that either side to a criminal case has the right to an order of court to take testimony, at the expense of the state in distant parts of the country, without a satisfactory showing to the court of the materiality of the testimony. If the law were otherwise, the state would be subjected in many cases to costs so great that it would prohibit the prosecution of crime.

We are not saying that there is any attempt in this case to do that, but the construction contended for by counsel for the defendant below would enable the defense, for instance, to obtain a commission for the taking of testimony in one part of' the world, and then about the time that was returned, another commission for the taking of testimony in another distant part of the world, and that without any showing as to the materiality of the testimony.

It can not be that the constitutional convention put into the constitution a provision justifying that sort of an interpretation, and so we are all agreed in this case that the trial court committed no error in declining to provide for the taking of this testimony, at the expense of the state, and in declining to provide for the transportation of the defendant and his counsel to the Philippine Islands. Neither did the trial judge commit an error in setting aside the order theretofore granted on the application of the state.

Now with regard to the taking of the comments of counsel and transcribing the same in the bill of exceptions, we never have known of a case where the statements of counsel have been required by the court to be taken, except in the trial of a jury case where it is claimed that the argument of counsel trespasses upon the rules of propriety. Of course, where it is claimed counsel are guilty of misconduct, the court should, on application, require the remarks to be taken, but in the absence of such claim, we are not aware of any case where the statements or arguments or claims of counsel have been taken. If that were to be done and the same embodied in the bill of exceptions, it would multiply the expense of litigation tremendously. It would multiply the work of the courts and require additional courts to transact the business. Bills of exceptions as now taken are so voluminous that the work of reading the testimony is sometimes a herculean task. For the .reasons given, we are unanimously of the opinion that the judgment declining to provide for the taking of this testimony at the expense of the state, should be affirmed.

Chittenden and Kinkade, JJ., concur.


author: GORMAN, J.

text:
    DEATH — ELEVATORS
    [Hamilton (1st) Court of Appeals,
    February 28, 1916.]
    Jones, Jones and Gorman, JJ.

      Ohio Traction Co. v. Alice Flynn, Admx.
    1. Passenger in Elevator must be Given Time to Secure His Balance before Machine is Started.
    The highest degree of care consistent with its practical use is required in the operation of a passenger elevator, and this requires that a passenger shall be given time to secure his balance after entering before the elevator is started.
    2. Judgment of $7,000 for Death of Young Man not Excessive.
    In view of the fact that the legislature has removed the former limitation on the amount which may be recovered for wrongful death, an award of $7,000 can not be regarded as excessive for the death of a vigorous man, twenty-six years of age, industrious, temperate and thrifty, who had contributed toward the support of his next of kin and who left surviving him a father and mother and ten brothers and sisters.

      Robertson & Buchwalter and Harry Neal Smith, for plaintiff in error.

      Pogue, Hoffheimer & Pogue and Joseph L. Meyer, for defendant in error.

      Motion to certify overruled by Supreme Court, October 10, 1916.

   GORMAN, J.

We are asked to reverse a judgment of the common pleas court in favor of defendant in error awarding her, as administratrix of the estate of Michael Flynn, deceased, $7,000 on account of the alleged wrongful death of said Flynn by reason of the alleged negligence of the plaintiff in error.

The plaintiff’s petition below alleged that Flynn was unmarried, twenty-six years of age, and employed by the Cincinnati Trac. Co. as á motorman; that on the day of his death he had occasion to go to the offices of his employer in the Traction Building at Fifth and Walnut streets, in Cincinnati, and in so doing was obliged to use one of the elevators in said building; that after he enteréd the cab of said elevator the operator thereof, an employe of defendant, suddenly and negligently started the same before Flynn had reached a position of safety in said cab and before he had secured a firm footing, as a result of which Flynn was thrown forward against the permanent iron work enclosing the elevator shaft and killed. The petition further alleged that the defendant had negligently failed to properly guard the interior of said cab so that when the decedent was thrown forward against the iron work he was dragged between the iron work and the cab. The petition set out as a third ground of negligence that the operator of the cab failed to stop the cab immediately after throwing Flynn as aforesaid; and as a fourth ground of negligence it was averred that the defendant employed an incompetent and unskilled operator of said cab.

On the trial of the cause the plaintiff abandoned the second claim of negligence to the effect that defendant failed to properly guard the interior of the cab.

It is claimed, first, that the verdict and judgment are not supported by any evidence. On the question of the sudden and negligent starting of the elevator upward before Flynn had put himself in a position of safety in th'e cab and before he had an opportunity to obtain his balance upon entering the cab* we are of the opinion that there is sufficient evidence to support plaintiff’s claim of negligence.'- This question was submitted to the jury under proper instructions,1 and it was a question of fact to be determined by the jury whether or not the operator of the elevator had been guilty of negligence, which proximately caused the death of the decedent, in suddenly starting the elevator before Flynn had adjusted himself and obtained- his balance in the cab.

In the case of Mitchell v. Marker, 62 Fed. 139 decided by the U. S. court of appeals for this district the fourth paragraph of the syllabus is as follows:

“It is the duty of one operating an elevator to give passengers reasonable opportunity to obtain a balance upon entering the car, before a rapid and sudden upward movement is begun, having a tendency to disturb the equilibrium of one yet in motion; and, therefore, held not error to charge in such a case that it is the duty of the elevator man to see that all his passengers are on, and to give them sufficient time to adjust themselves.”

Justice Lurton, in deciding this case, says:

“We know of no employment where the law should demand a higher degree of care and diligence than in the ease of persons using and running elevators for lifting human beings from one level to another. ’ ’

In this case it was also laid down as a rule of law in the second paragraph of the syllabus that:

“A carrier by elevator is not an insurer of the safety of his passengers, but is required to exercise the highest degree of care as in the case of a carrier by railway or stage coach. ’ ’

The record discloses that there was sufficient evidence of facts and circumstances attending the death of Flynn to warrant the jury in reasonably inferring that there was negligence in starting the elevator, and that such negligence proximately caused the death of this man.

Secondly, it is contended that there was no evidence to support the claim of plaintiff that there was negligence in failing to stop the elevator immediately after Flynn fell in the cab. There was evidence tending to show that Flynn was thrown or fell as soon as the elevator was started upward and that the operator saw him falling when the elevator had ascended but three or four feet from the ground -floor; that the elevator was not stopped until it had almost reached the second floor, eight or nine feet above the ground floor; that the elevator operator was throwing the lever back and forward, as one witness said, “he was monkeying with the lever trying to shut it off;” and there was evidence tending to show that if the elevator had been going slowly it could have been stopped within three/or four inches, and if going fast it could have been stopped, by throwing out the dogs, within a foot.

Under such circumstances we are not prepared to say that the jury did not have before it any evidence of negligence in failing to stop the elevator before it reached a height of eight or nine feet.

Thirdly, it is claimed that there was no evidence of negligence in employing an incompetent and unskilled operator.

We think the record fails to show any negligence in the employment of the operator of this elevator. He had been employed in that capacity for several years, not only by defendant but by others, and he had had considerable experience in operating elevators, and was not shown to have been incompetent and unskilled when employed by defendant. But aside from this claim of negligence the record discloses evidence sufficient to sustain the verdict, on the other grounds of negligence charged.

It is further claimed that the damages awarded, $7,000, are excessive and obviously influenced by sympathy or prejudice.

The record discloses that this young man at the time he met his death was twenty-five or twenty-six years of age, a splendid specimen of a strong, healthy, vigorous man who had never been sick, had never lost a day’s time from his work as a motorman during several years; was industrious, sober, hard-working, thrifty, saving and of good moral character, a devoted son to his aged parents, contributing to the support of his parents and next of kin, and at the time of his death he had saved out of his earnings more than $1,100. He left surviving him his father and mother and ten brothers and sisters. If we consider these facts and the further fact that the Legislature has removed the limits to the amount that may be recovered in cases of this character and that the jury is to be the judge of the reasonable amount that may be allowed, taking into consideration all the facts and circumstances of each ease, we are not prepared to say that the verdict and judgment are so excessive as to require this court to set aside the verdict and grant a new trial.

For the reasons stated, the judgment will be affirmed.

Jones (E. H.) and Jones (O. B.), JJ., concur.


text:
    ASSAULT — RAPE
    [Wood (6th) Court of Appeals,
    May 19, 1915.]
    Richards, Chittenden and Kinkade, JJ.
    Emery Allen v. State of Ohio.
    1. Character Witnesses in Prosecution for Rape Cross-Examined as to Reputation for Lascivious Conduct.
    On the trial of a defendant indicted on a charge of rape, witnesses who testify in his behalf that his general reputation for morality is good, may be asked on cross-examination if they have not heard reports or rumors of specific instances of lascivious conduct on his part with other women, although that line of cross-examination would not be proper if the witnesses had testified to his good character, only.
    2. Substance of Complaints Made by Prosecutrix for Rape, Admissible.
    The substance of complaints made by the prosecutrix in an indictment for rape, is admissible in evidence if the complaints are made immediately or soon after the offense, but if delay ensue, it must be excused by facts or circumstances introduced in evidence.
    3. Instruction Denominating “Assault with Intent to Commit Rape” as “Attempt to Commit Rape.”
    When the charge of the court on the included offense of “assault with intent to commit rape,” erroneously denominates it “an attempt to commit rape,” but accurately defines the elements constituting the offense, the error is not prejudicial, and the conviction will not be reversed therefor.

      Ladd & James, for plaintiff in error.

      Earl K. Solether, Pros. Atty. for defendant in error.
   RICHARDS, J.

Tbe defendant was indicted and tried on a charge of rape committed on September 26, 1914, and convicted of an assault with intent to rape.

It is insisted that the verdict is not sustained by sufficient evidence, and that error was committed in the reception of evidence and in the charge of the court. We have read all the evidence contained in the record with care, and are unanimously of the opinion that there is sufficient evidence to sustain the verdict, and a majority of the court, if sitting as triers of the fact, would have found on the evidence that the defendant was guilty. No useful purpose would be gained by a review of the evidence and we therefore omit the same.

It is claimed that the court erred in admitting evidence in the cross-examination of witnesses who testified to the reputation of the defendant. Some of these witnesses were inquired of if they had not heard of the relations of the defendant with other women at a place called Haneytown, which they denied. We think that line of cross-examination would be proper where a witness had testified to the general reputation of the defendant in that respect, but the record fails to disclose an exception taken to the admission of such evidence.

The defendant on numerous occasions objected to the introduction of evidence of complaints made by the prosecutrix immediately or soon after she claimed to have been raped. The admissibility of this class of evidence is not an open question in Ohio. Whatever may be the rule elsewhere, it is settled in this state that the substance of what the prosecutrix said in making complaint immediately after the offense was committed, is competent evidence to corroborate her testimony. Some of these complaints were not made immediately after the commission of the offense, but in each case the delay was excused by circumstances shown in the evidence. McCombs v. State, 8 Ohio St. 643; Dunn v. State, 45 Ohio St. 249.

It is further insisted that the charge, contains-error to the prejudice of the defendant. The trial judge in charging on the subject of the included offense of assault with intent to commit rape, uses that phrase interchangeably with the phrase, an attempt to commit rape, but when he comes in the charge to define the statutory elements necessary to be found by the jury in order to enable that tribunal to return a verdict of guilty of an assault with intent to commit rape, he does so with accuracy.

In the case of Fox v. State, 34 Ohio St. 377, the verdict found the defendant guilty of an attempt to commit rape, and this was held to be error. The verdict in the case at bar is drawn in accordance with the statute, and finds the defendant guilty of an assault with intent to commit rape, so that, while the trial judge in his charge commented on an attempt to commit rape as if it were an offense, yet in view of the fact that he properly charged as to the elements constituting the offense of which the defendant was convicted, it does not appear that the jury was misled, or that the charge was prejudicial.

We have examined other portions of the charge which have been subjected to criticism, but find no prejudicial error. The judgment will, therefore, be affirmed.

Chittenden, J., concur.

Kinkade, J., concurring.

While I think the judgment in this case must be affirmed, under the rule laid down by the Supreme Court in the case of Breese v. State, 12 Ohio St. 146, nevertheless it seems to me there was abundant evidence to raise a reasonable doubt as to the guilt of the accused in the mind of any juror, and had I been a juror in the case I would not have voted to convict him on the evidence submitted.


text:
    SALES
    [Hamilton (1st) Court of Appeals,
    February 7, 1916.]
    Jones, Jones and Gorman, JJ.
    William E. Barrs v. Rudolph Wurlitzer Co.
    Whether Sales on Installment Plan are Condition Sales, Question for Jury.
    When goods are purchased on the installment plan, the amount remaining due being evidenced by notes secured by chattel mortgage, and the goods are afterward retaken by the vendor, it is error in an action brought by the vendee, for recovery of the amount paid on the theory that the transaction was a conditional sale, to withdraw the case from the jury, when testimony has been offered tending to prove it was understood at the time the sale was made that title to the goods was to remain in the vendor.

      Chas. M. Urban, for plaintiff in error.

      W. S. Little, for defendant in error.
   GORMAN, J.

Tbe plaintiff in error commenced an action in the common pleas court against the defendant in error averring in his petition that he had purchased from the defendant for the sum of $2,400 a certain musical instrument termed a “Paganini,” upon the following terms and conditions, to-wit: $200 cash, and the balance of $2,200 to be paid in twenty-two monthly installments of $100 each, with interest; the title of said instrument to remain in the name of the Rudolph Wurlitzer Co. until the entire sum of $2,400 was paid. Plaintiff in error further averred in his petition that on or about June 1, 1912, the said instrument was delivered to him, and he thereupon paid $200 cash on said purchase price; that he paid the first eight installments next becoming due, together with the interest thereon, amounting in all to the sum of $1,018; that on or about September 3, 1913, the defendant in his absence and without his consent took possession of said instrument without due process of law, and without tendering or refunding to plaintiff the money so paid after deducting therefrom a reasonable compensation for the use of said instrument. He asks for a judgment from said defendant in the sum of $1,080, with interest, upon the claim that the purchase of said instrument was under a conditional sales agreement, and that under the provisions of Section 8570 G. C. he was entitled to recover from defendant the amount of money so paid before the defendant was warranted in taking from his possession said instrument.

The defendant by answer admitted the sale to have been on June. 1, 1912, and that it was to be for $2,400 — $200 cash and the balance of $2,200 to be paid in twenty-two monthly installments of $100 each with interest; but denies that the title was to remain in the name of the Rudolph Wurlitzer Co. until the entire sum of $2,400 was paid. Defendant admitted that on June 1, 1912, said instrument was delivered, and that plaintiff paid $200 on account of the purchase price,- and that the first eight installments of $100 each were paid, together with interest ; admitted that on September 3 it took possession of said instrument, but averred that it took possession at plaintiff’s request; it denies each and every other allegation of plaintiff’s petition.

Defendant further set up by way of cross-petition several notes and a chattel mortgage claimed to have been executed by the plaintiff in favor of the defendant, and asked for a decree of foreclosure of the chattel mortgage, and a decree finding the amount to be due under the mortgage.

The plaintiff replied denying that the defendant took possession of the instrument at the plaintiff’s request, and denied that he executed and delivered the chattel mortgage to defendant to secure said notes.

Upon the trial of the case plaintiff, to maintain the issues offered himself as a witness, and, among other things, testified: that one Ulrey, who was the agent of the defendant company, negotiated the sale of the Paganini to him; that on or about June 1, 1912, Ulrey went to plaintiff’s place of business and there made the sale.

The court asked plaintiff, Barrs, the following question:

“You made the purchase of the machine. Now the question is what did Mr. Ulrey say about that, that is the question? A. (By Barrs.) Mr. Ulrey told me that the title of the machine remains in the hands of the Rudolph Wurlitzer Co. until the notes were paid.
“Mr. Urban:
‘ ‘ Q. How did he come to tell you that? A. I asked him if I was unable to pa3^ these notes, who does this machine belong to, and he says; ‘You will be able to pay them all right’ he says: ‘I will fix boxes and things around so that you will get some kind of money derived from these boxes’ and I said ‘Well suppose I don’t?’ ‘Well,’ he says ‘the title of the instrument remains in the hands of the Rudolph Wurlitzer Co.’; so I purchased the machine. ’ ’

Plaintiff’s brother was also called and testified, among other things, as follows:

“Edward Bernard Barrs.
“Q. What did you hear Mr. Ulrey sa3r, and what did you hear your brother, Mr. Barrs, say? A. When I got there he asked him, he says, ‘To whom will the instrument belong, Mr. Ulre3''?’ And Mr. Ulrey said: ‘The instrument will alwa3'-s remain the property of the Rudolph Wurlitzer Co. until the notes are paid.’ ”

This was practically all the testimony offered by the plaintiff in support of his claim that the sale was a conditional one. At the close of plaintiff’s testimony, when he had rested, a motion was made by the defendant to direct the jury to return a verdict for the defendant. After argument the court said:

“I have examined the record in this case and the testimony shows that Mr. Barrs — the record shows that Mr. Barrs testified that after he signed the notes and mortgage he asked Mr. Ulrey what would be the effect of that. Whereupon Mr. Ulrey told him ‘Well, you can pay it all right, I will fix it so that you will make some money; you will be able to pay all right. ’ After that he said ‘Well suppose I don’t make any money?’ ‘Well’ he says, ‘the title remains in the Rudolph Wurlitzer Co.’
“Therefore the petition will be withdrawn from the consideration of the jury. Now there is a cross-petition here that can be either continued or set for trial in another court or tried here. ’ ’

Plaintiff excepted to the ruling of the court withdrawing the petition from the consideration of the jury.

It is claimed by plaintiff in error that there was evidence to go to the jury upon the question of a conditional sale, and that the trial court erred in withdrawing from the consideration of the jury the ease made by the plaintiff in error and in refusing to allow the jury to pass upon the question of whether or not there was a conditional sale.

There was evidence offered during the trial of the case, by the defendant, consisting of the agreement in writing dated April 19, 1912, some time before the sale was made, in which this instrument was placed in the plaintiff’s place of business by the Rudolph Wurlitzer Co. on two weeks trial, and it was agreed that during the time it was on trial in plaintiff’s place of business he might purchase the instrument for $2,400 — $250 cash and the balance at the rate of $100 per month, the amount taken out of said instrument during the two weeks trial period shall be applied in liquidation of said purchase price, and the deferred payments to be evidenced by promissory notes secured by mortgage on said instrument. This paper was signed by William E. Barrs. It was not offered in evidehce at the time plaintiff moved for an instructed verdict, nor could it properly have been offered in evidence at that time inasmuch as it was a part of the defense. It was offered in evidence subseqently to the ruling of the court upon the motion to arrest the ease from the jury. A chattel mortgage on said instrument, dated June 1, 1912, was also offered after this ruling. There was evidence tending to show that the Rudolph Wurlitzer Co. went to the plaintiff’s place of business and took away without process of law the musical instrument without the consent of the plaintiff.

We held that this case should have gone to the jury, under the ruling laid down in Speyer & Co. v. Baker, 59 Ohio St. 11 [51 N. E. 442], Among other things the conditional sales act, Sec. 8570 G. C., provides:

“When such property” (property sold under a conditional sales agreement) “except machinery, equipment and supplies for railroads and contractors, for manufacturing brick, cement and tiling, for quarrying and mining purposes, is so sold or leased * * * the person who sold, leased * * * or the agent or servant of either * * * shall not take possesion of such property without tendering or refunding to the purchaser, lessee,” etc., * * * “-¡¿be money so paid, after deducting therefrom a reasonable compensation for the use of such property, which in no case shall exceed fifty per cent, of the amount so paid, anything in the contract to the contrary notwithstanding, and whether such condition be expressed in the contract or not. But the vendor shall not be required to tender or refund any part of the amount unless it exceeds twenty-five per cent, of the contract price of the property. ’ ’

In the ease under consideration the purchaser paid by admission of the pleadings, more than twenty-five per cent, of the purchase price — $1,018. There was evidence tending to show that the vendor took possession of the property without paying or tendering back any part of the money paid on account of the purchase price, and if it were a conditional sale then thq plaintiff, the purchaser, was entitled to recover under Sec. 8570 G. C.

It was shown in the case above cited, Speyer & Co. v. Baker, that a chattel mortgage had been given upon the goods sold by Speyer & Co. It also appeared from the record that in the trial of that ease in the common pleas court evidence was given which fairly tended to prove that, when the sale was made to the defendant, it was verbally agreed between the parties that the goods should remain the property of plaintiff until the purchase price be fully paid, and should become the property of defendant only upon such payment being made. The court, on page 24, says :

‘ ‘ There was evidence at the trial, though it was not without conflict, from which the jury might have found that the sales made by the plaintiffs to the defendant of the property in question were conditional sales of the character defined by the statute. ”

It appears to be tbe intent of the statute to permit the person who complains that the sale was a conditional one to show by parol evidence that it was a conditional sale, notwithstanding any contract or agreement in writing to the contrary. And in the ease above cited, notwithstanding the fact that there was a chattel mortgage given to secure the payment of the unpaid balance for the goods, the court held that it was admissible to show by parol evidence that it was not an absolute sale but a conditional one.

In the instant case there was evidence tending to show that the title to this property sold to Barrs was to remain in the Wurlitzer Co. until the entire sum of $2,400 was paid It was for the jury to say, tinder the circumstances whether or not it was a conditional sale, and the court erred in withdrawing from the consideration of the jury the plaintiff’s petition. It should have been submitted to the jury at the close of all the evidence under proper instructions. -

It may be claimed that the rule laid down in Speyer & Co. v. Baker, supra, was modified by the case of Chicago Cottage Organ Co. v. Crambert, 78 Ohio St. 149 [84 N. E. 788]. In that case it was sought to show by parol evidence that there was a conditional sale, and the parol evidence was admitted. The evidence in that case which it is claimed tended to show a conditional sale was as follows: Mr. Morey, a salesman of the company, made the sale in that case.

(Page 157.) “She (the vendee) looked at some of the pianos, and she was asked to ‘tell the whole transaction.’ Ans. ‘As I was saying, I looked at the pianos. I saw a piano I liked, and I told him I would like to take that piano, and of course he told me it was a good piano, and I asked him what the piano cost. He said $265, and the agreement I made with him, I would pay $10 down. That was the agreement I made, and $6 a month, and I paid him $10 and he said, ‘Now, Miss Crambert, I know you will be prompt in your payments. ’ I said ‘ I will try to be as prompt as I can, ’ and he said, ‘ when you have the piano paid for — when all the payments are paid up the piano will be yours.’ ”

It will be noted that nothing was said about where the title was to remain until the piano was paid for, and the court in that case held that the statement that the piano would be Miss Crambert’s when it was paid for, when made by the agent was a mere expression of opinion. The court says, on page 159-160:

“Neither party said a word about the title remaining in the vendor and therefore the minds of the parties never met on that point. What the salesman said about the piano becoming her property when the payments were made, is but the expression of an opinion. Whether he was authorized to make the remark or not is immaterial, because in our judgment it did not establish, or tend to establish, a contract between the purchaser and the company, that it should hold the title until the payments were made. The expression of an opinion by the salesman falls far short of making a contract of conditional sale. ’ ’

It appears, therefore, that this last cited case does not in any way affect the ruling laid down in Speyer & Co. v. Baker, Supra. The evidence in the case under consideration did tend to establish a conditional sale, and it was proper to submit the question of whether or not this was a conditional sale to the jury for its determination.

For the reasons stated the judgment below will be reversed and the case remanded for a new trial.

Jones (E. H.) and Jones (O. B.), JJ., concur.


text:
    APPEAL-MORTGAGES
    [Wood (6th) Court of Appeals,
    February 5, 1914.]
    Kinkade, Richards and Chittenden, JJ.
    Jessie M. Shank v. Darwin B. Beers et al.
    An Action to Redeem Property Sold Under Foreclosure is Appealable.
    When the primary relief sought is the setting aside of a decree and the cancellation of conveyances, and as an incident thereof, the recovery of real estate, the action is one which is appealable.
    Motion to Dismiss Appeal.

      A. G. Fuller, for plaintiff.

      Kelly & Hill, for defendants.
   RICHARDS, J.

The action was brought in the court of common pleas for the purpose of procuring the cancellation of a mortgage and redeeming certain real estate which had been sold under foreclosure proceedings in the Common Pleas. The trial in that court resulted in a finding and decree in favor of the defendants, from which the plaintiff appealed to this court.

It appears from the pleadings in the case that the plaintiff and her husband executed to Darwin B. Beers, in the year 1895, a note in the sum of nine hundred dollars, payable five years after date, with interest, and that to secure the same they executed a mortgage on the real estate in controversy in this action. It appears that Beers brought an action in foreclosure, and that in the case such proceedings were had that a decree was entered in his favor, and thereafter the property was sold and a deed executed by the sheriff to the purchaser, and that from this purchaser, by sundry mesne conveyances, the legal title has passed to and is now vested in the defendant, Libbie Henning, who is in possession of the premises.

In the petition in the present action Darwin B. Beers is named as a defendant, and a personal judgment is asked against him for the amount which the rents and profits exceed the amount which would be due on the promissory note already mentioned ; but no summons was served on Beers, although repeated attempts were made to procure service, and he did not enter his appearance in the action, and no order or judgment was made in the common pleas court against him. So far as the other defendants are concerned, the plaintiff asks in her petition that the decree, and all conveyances and mortgages under which the defendants hold possession may be adjudged to be of no effect as against plaintiff’s title, and that she may be restored to possession and enjoyment of the premises and her title quieted, and for such- further relief as she may be entitled to in the matter.

We think the action is clearly one in which the plaintiff, on being defeated in the common pleas court, is entitled to appeal to this court. It is said in argument that the action is one for the recovery of real estate, or ejectment, and in which the parties would be entitled to a trial by jury, but to that argument we can not accede. The primary relief sought is to set aside the orders and decrees of the trial court in the original foreclosure action and the subsequent conveyances of the real estate -based on such judgment and order of sale in that case.

Of course, if the plaintiff should prevail, it would probably result in her recovering the real estate, but that would be only an incident to the main relief sought. Clearly an action to recover real estate, or, as it was called under the old law, ejectment, would not lie, for such an action could not be maintained until the plaintiff had gotten rid of the muniments of title now held by the defendant, Libbie Henning.

The case is quite similar to the one under consideration by the Supreme Court in Pierce v. Stewart, 61 Ohio St. 422 [56 N. E. 201], I quote from the opinion of the court on page 424:

“Before any money judgment can be rendered, the court must examine and weigh the equities of the case, and exercise its sound judicial discretion. * * * The equitable considerations and exercise of sound judicial discretion are the body and substance of such action, and a judgment for money or other relief in any particular case, is only an incident flowing from the determination of the body of the case. ’ ’

I quote also from Willson Improvement Co. v. Malone, 78 Ohio St. 240 [85 N. E. 51].

“It does not, however, extend the right of trial by jury to cases calling for any form of relief peculiar to courts of equity. When the action is for the recovery of money, and no equitable relief is sought, it is an action for money only.”

In 2 Jones, Mortgages, Sec. 1093, the true rule applicable to such cases is very well stated in the following language:

‘ ‘ The only remedy of the mortgagor for enforcing his right to redeem, after a breach of the condition, is by a bill in equity. If the mortgagee is in possession he has the right to retain the possession until his claim upon the property is paid. So long as the mortgage is in fact not discharged, and is apparently a subsisting security, the mortgagor can not obtain possession by ejectment. The rule is the same, although the mortgagor claims that the debt has been paid in full. So long as the mortgage is apparently unsatisfied, and the mortgagee claims any interest under it, the mortgagor must resort to a suit in equity to redeem; and although he may allege that the mortgage has been paid or was given for the accommodation of the mortgagee, and may pray that a decree be entered that it be discharged, yet he should at the same time pray that he be allowed to redeem, and should offer to do so, if anything be found due upon the mortgage.”

We think, therefore, that the motion to dismiss the appeal should be overruled, and such will be the order.

Kinkade and Chittenden, JJ., concur.


text:
    JURY — STREET RAILWAY
    [Hamilton (1st) Court of Appeals,
    November 29, 1915.]
    Harry Cohn, By Next Friend v. Cincinnati Trac. Co.
    1. Reply by Young Attorney to Casual Question by Juror Retiring not Misconduct.
    A reply by a young attorney, not connected with the case on trial, to a casual question by a juror as the jury were retiring for deliberation, does not constitute misconduct warranting a reversal of the judgment.
    2. Refusal to Instruct Jury that if Motorman had Reason to Believe Child Might Come on Tracks, not Erroneous.
    It is not error to refuse to charge a jury, in an action against a traction company for injury to a child, that if the motorman had reason to believe the child might come upon the track or within the danger zone of the car, then he was bound to exercise more than the ordinary degree of care incumbent upon him,
    3. Traction Company not Liable for Injury to Child Running into Car.
    A traction company is not liable for injury to a child eight years of age, who became frightened and in attempting to cross the street ran into a rapidly moving car, colliding with the car just behind the forward vestibule.

      Moulimer, Bettman & Hunt, for plaintiff in error.

      Joseph Wilby and James G. Stewart, for defendant in error.
   GORMAN, J.

The plaintiff in error by his next friend sought to recover damages for personal injuries claimed to have been received on account o*f the negligence of defendant in error, whereby he was struck by a street car on Woodburn avenue, Cincinnati, on February 20, 1912.

The plaintiff in error was a child eight years of age on his way to school. The evidence shows that he together with two schoolmates were going south on Woodburn avenue to attend school. While walking along the street on the sidewalk they noticed an empty brick wagon going south on Woodburn avenue towards their schoolhouse. The boys thereupon got behind the brick wagon, Harry Cohn taking hold of the clothing of one of his companions. Almost immediately after getting behind the wagon'they noticed an automobile approaching behind them going towards the south, and becoming frightened the boys ran towards the sidewalk. Harry Cohn running towards the west sidewalk and then towards the east side of Woodburn avenue. The car of the defendant company was passing north at a rapid rate of speed, and the evidence shows that the boy ran into the car near the front part where the front vestibule curved. It was a large pay-as-you-enter car with a stove on the left hand side, and the evidence of all of the witnesses who observed the accident was to the effect that the boy was either struck or ran into the car just about where the stove in the front vestibule was located, and not in view of the motorman. The boy did not get upon the northbound track on which the car was running. The car went on, and apparently the conductor and motorman failed to see the boy who after being struck was thrown unconscious in the street between the two tracks. No person who was on the car was called as a witness.

The jury found for the defendant, and it is now claimed that there was error in the case in two respects: first, that there was misconduct, not on the part of counsel for defendant, but on the part of a young attorney who at that time had his desk in the office of counsel for defendant but was in no way associated with counsel for defendant or interested in the cause. It is claimed that this young lawyer spoke to one of the jurors as the jury was retiring after being charged by the court, and the father of the boy claims that he understood this young man to say to this juror “A verdict for the defendant in this case, gentlemen, please.”

The lawyer makes an affidavit to the effect that he knew the juror to whom he spoke, and that he and the juror had been witnessing the trial of a case in another room from that in which the case at bar was being tried, and the juror asked the lawyer what the verdict was in the other ease in the other room, and he said to him there was a verdict for the defendant. Counsel for plaintiff do not claim that there was any intentional wrong on the part of this young attorney, but claim that his statement might have been overheard by the jury, and what he said might be construed as a request that the jury return a verdict for the defendant in the ease at bar.

We have carefully considered this matter, and are of the opinion that there was no misconduct on the part of the young attorney, and nothing which would warrant the court in reversing the judgment on the ground of misconduct. Counsel for defendant in error are not responsible for what the young man may have said, nor is it shown that they were in any way chargeable with knowledge of what he did or said. The trial court to whom the motion for a new trial was directed had the whole situation before him, and he having refused to set aside the verdict because of misconduct, we feel that this court would not be in as good a position to determine the question of misconduct as the trial court.

The second ground of error complained of is that the court failed to charge the jury as to the proper degree of care which should be exercised by the motorman towards the plaintiff a child eight years of age.

The charge of the court upon this point we think was full and fair and laid down the correct rule as we conceive it. In defining negligence, the court in his charge uses the following language:

“Now this, gentlemen, brings us to the consideration of what were the relative rights and duties of the parties to this suit. Both parties * * * had an equal right in the streets, the traction company to operate its cars along the rails which are laid in the streets, and the plaintifff to walk in the street or to go across the street at a crossing, but each person, that is to say the plaintiff and the defendant, owed a reciprocal duty one to the other, to avoid injuring each other. The traction company, in approaching a street crossing with its ear, must have its car under control, and must giving warning of its approach. A pedestrian going across the street at a street crossing must use his faculties to look where he is going, to see that he himself does not run into danger, and both parties have a right to anticipate that neither one will be guilty of negligence. The plaintiff Cohn had a right to expect, when he was crossing the street at a crossing, that the traction company would not be guilty of any negligence in operating its car, and the traction company had a right to expect that a person would not run in front of its cars, if that person had notice of the approach of the car. ’ ’

The court further charged as to the duty of the pedestrian and the defendant company:

“A man crossing the street must use his faculties and exercise his prudence, as the circumstances at the crossing demand, to avoid being injured by others who may be using the streets, and so those operating the cars must exercise ordinary care and prudence, as required by the situation, to avoid injuries to anyone else who may be using the streets.”

The court further charged the jury that the degree of care which was to be exercised by the motorman was "ordinary care under the circumstances.”

At the close of the charge, counsel for the plaintiff requested the court to charge as follows:

"I want to suggest that you charge the jury that if the motorman had reason to believe that the child might come upon the car track, or within the danger zone of the car, then he must exercise more than the ordinary degree of care. ’ ’

The court refused to give this charge, and it is complained that in so doing the court erred. At least it is claimed the court should have given some such charge as this, or should have charged that the defendant company owed a higher degree of care than ordinary care to the plaintiff because of his tender 3rears.

This court in Morgenroth v. Northern O. Trac. & L. Co., 39 O. C. C. 510 (18 N. S. 306), says:

"In an action for damages against a traction company for injury sustained by a child run over while playing in the street, a request to charge the jury, ‘that a street railway compan3r in the operation of its cars upon the public streets is required to exercise more care at those places where children congregate and play than is ordinarily required,’ should not be given, for ‘ordinary care’ is the standard, and not ‘more care than is ordinarily required.’ ”

We think the record in this case fails to show that the defendant company was guilty of such culpable negligence as would warrant the jury in returning a verdict in favor of the plaintiff. It appears that the verdict and the judgment were as they should have been, and therefore it is not material what errors may have been committed in the trial of the cause, because the same would not be prejudicial to the plaintiff in error if upon the whole view of the case the plaintiff failed to establish a case entitling him to recover.

Judgment affirmed.

Jones (E. H.) and Jones (O. B.), JJ., concur.


text:
    DETERMINATION AS TO DOWER
    [Wood (6th) Court of Appeals,
    October 24, 1912.]
    Wildman, Kinkade and Richards, JJ.
    Samuel H. Pelton v. Edwin Smith et al.
    1, Action to Fix Dower Appealable.
    An action to determine whether plaintiff is entitled to dower in the entire proceeds from the sale, or only in the surplus after satisfying a mortgage lien, is appealable.
    2. Mortgages Existing Prior to Coverture Payable before Dower is Determined.
    When a mortgage was placed on the premises prior to the marriage of the plaintiff to the mortgagor, the mortgagor at no time during coverture had more than an equity of redemption in the property, and the plaintiff is therefore dowable only out of the surplus after satisfaction of the mortgage.
    Appeal.

      Benj. F. James, for plaintiff.

      B. D. Moore, for defendants.
   RICHARDS, J.

In the court of common pleas, Samuel H. Pelton brought an action for the purpose of obtaining an assignment of dower claimed by him in a tract of land containing forty acres in this county. On the trial a decree was entered adjudging the plaintiff to be entitled to dower, but only in the surplus remaining after' a certain mortgage was satisfied. From that decree the plaintiff prosecuted both error and appeal, claiming that he was entitled to dower in the entire proceeds of sale without abatement therefrom.

Under authority of Corry v. Lamb, 43 Ohio St. 390 [2 N. E. 851], we hold that the case is appealable, and therefore case No. 950 will be dismissed and the question determined in the appeal case, No. 952.

It appears from the record in the case that the plaintiff intermarried with one Mary D. Smith about August 12, 1908, and remained her husband until the date of her death, June 30, 1912. At the time they were married a mortgage given by her was held by the Mutual Benefit Ins. Co. of New Jersey, covering the premises in which plaintiff seeks dower. In this case, by proper decree entered in the court of common pleas, the premises have been sold and the amount found due upon the mortgage determined, that amount being some $1,558. The purchase price of the land on sale made by the sheriff amounts to the sum of $4,000.

In view of the fact that the mortgage was' on the premises at the time the plaintiff was united in marriage with the mortgagor, she had at no time during coverture more than an equity of redemption in the property, and he therefore could only be dowable out of the surplus after the satisfaction of the mortgage. The principle enunciated in Nichols v. French, 83 Ohio St. 162 [93 N. E. 897], is applicable and controlling in the ease at bar, and decree may be entered finding the plaintiff entitled to dower in the surplus remaining after the satisfaction of the mortgage indebtedness.

Wildman and Kinkade, JJ., concur.


author: JONES (O. B.), J.

text:
    COURTS — DIVORCE AND ALIMONV
    [Hamilton (1st) Court of Appeals,
    March 20, 1916.]
    Jones, Jones and Gorman, JJ.
    State ex rel. Marie Gellner v. Joseph B. Kelley, Judge.
    Hamilton County Insolvency Court has no Jurisdiction in Divorce.
    Sec. 1637 G. C. Act. 104 O. L. 179, amending, operated to withdraw from the Hamilton county insolvency court jurisdiction to hear and determine actions for divorce and alimony after Decembex 31, 1914, even though pending at that date.
    J. G. DeFosset, for relator.

      C. W. Baker and J os: B. Kelley, for respondent.
   JONES (O. 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 29, 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 overuled, 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 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 Sec. 1637 G. C., 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 Sec. 1637 G. C. to take away the jurisdiction of the insolvency court of Hamilton county in divorce and alimony cases.”

By this act Sec. 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 31, 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 no 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 filing his petition. (Sec. 11980 G. C.)

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 Act. 4 See. 6, 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 case of Oldman, Ex Parte Oldham, 36 O. C. C. 153 (19 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 v. Cushing, 45 O. C. C. 147 (25 N. S. 11), 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 — State v. Brough, 94 Ohio St. 115 [113 N. E. 683], and State v. ClenDening, 93 Ohio St. 264 [112 N. E. 1029]. In these cases 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 a 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 p'ower 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 ease 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 has jurisdiction to try an action for divorce and alimony after December 31, 1914.

The insolvency court is a local court established by act of the general assembly under authority granted by Art. 4, Sec. 1 of the Constitution. The constitutionality of the law creating it was upheld in State v. Archibald, 52 Ohio St. 1 [38 N. E. 314]. An amendment to the act conferring certain jurisdiction upon it (93 O. L., 669) was held invalid as being obnoxious to Art. 4, Sec. 26, 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 v. Bloch, 65 Ohio St. 370 [62 N. E. 441], 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 power, 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 v. Wright, 7 Ohio St. 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 Ohio St. 268, 270. It is a judicial power, not legislative. Bingham v. Miller, 17 Ohio, 445 [49 Am. Dec. 471].

Under Sec. 1637 G. C., 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 Sec. 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 Sec. 1639 G. C. 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 eases (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 cases 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 eases with no provision for transfer, is to be deplored. But it must be noted that this amendment was 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 cases to another court, there could have been no con-I, tention that it should persist after that time to hear and determine cases until all its pending cases had been tried and adjudged. There is no question but that all of its pending eases ivould 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. Tolman, 135 Cal., 375 [67 Pac. 339; 85 Am. St. 110]; Hunt v. Jennings, 5 Blackf. (Ind.), 195 [33 Am. Dec. 465]; Todd v. Landry, 5 Mart. (O. S.) 459 (La.), [12 Am. Dec. 479].
“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 [32 Am. Rep. 506].

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. Christiansen, In re, 17 Utah, 412 [53 Pac. 1003; 41 L. R. A. 504; 70 Am. St. 794],

It is contended, however, that the general saving clause found in Sec. 26 G. C., 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 ease 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 Sec. 26 was not intended to apply.

The case of Friend v. Levy, 76 Ohio St. 26 [80 N. E. 1036], 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 Sec. 79 R. S., 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 Legislature 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 D. C., 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 ease 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 Sec. 26 G. C., 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 pro-ceding, 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 allowed that a court of superior jurisdiction might intervene by prohibition. In this case, 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.) and Gorman, JJ., concur.


text:
    PROHIBITION
    [Hamilton (1st) Court of Appeals,
    March, 1915.]
    Swing, Jones and Jones, JJ.
    State ex rel George T. Berry, v. Wade Cushing, Judge.
    1. Writ of Prohibition Resorted to Prevent Unauthorized, Injurious Quasi or Unlawful Judicial Power.
    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. Writ of Prohibition Denied Against Common Pleas Judge About to Exercise Jurisdiction of Appeal from Municipal Court. But inasmuch as the . common pleas court has jurisdiction to entertain an appeal from an order by the municipal court overruling a motion to disolve an attachment, a writ of prohibition does not lie against a judge about to exercise such jurisdiction.

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

      Ralph E. Cla/rlc, for defendant.
   JONES (O. B.), J.

This is an action praying for a writ of prohibition 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 Art. 4, Sec. 6, 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 Art. 4, Sec. 2, vested with original jurisdiction in prohibition.

It is provided in Sec. 1475 G. C. as amended, in cases in the Supreme Court, and in Sec. 1523 G. C. 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 Sec. 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 functions 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, Extraordinary Legal Eemedies, Sec. 764a.

This proceeding arises out of a suit in the Municipal Court of Cincinnati wherein G-eorge T. Berry, a resident of Kansas City, Missouri, brought suit against Norman E. 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 Co. 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 Co. to pay said amount into court, and the case was continued for the purpose of securing constructive notice upon the nonresident 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 Secs. 10259 and 10260 G. C., 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 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 Sec. 6 of act 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 Sec. 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, or upon justices of the peace. ’ ’

The municipal court, therefore, has jurisdiction of such an action as that from which this proceeding arises. Secs. 10259 and 10260 G. C. 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 See. 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 ease in a municipal court as well as to one before a justice of the peace.

In the opinion of this court, therefore, Sec. 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 and Jones (E. H.) JJ., concurs.