author: Richards, J.

text:
    ACTIONS FOR ALIENATION OF AFFECTIONS.
    Court of Appeals of Lucas County.
    Smith v. Lyon.
    Decided, March 18, 1918.

      Husband and Wife — Limitation as to Time for Bringing Action for Alienation of Affections — When such a Cause Arises — Damages Crim. Con.

    1. By virtue of the provision of Section 11224, paragraph 4, G. C., the right to bring an action for alienation of affections is limited to four years from the time the cause of action accrued.
    2. The marital relation is invaded and a cause of action for alienation of affections accrues, whenever a third person by enticement, seduction or other wrongful and intentional interference with 'the marriage relation, deprives either the husband or wife of the consortium of the other.
    3. A married woman may maintain an action to recover damages for criminal conversation with her husband.

      Jacobson & Sayles, for plaintiff in error.

      M. O. Bettig, for defendant in error.
   Richards, J.

Heard on error.

The original action was commenced in the court of common pleas by Ida Bf. Lyon filing a petition to recover damages for the alienation of the affections of her husband. The trial resulted in a verdict and judgment in favor of the plaintiff in the amount of $2,500 and we are asked, because of numerous errors which are claimed to exist,, to reverse this judgment.

. The ease was tried on the third amended petition, the answer thereto and the reply. The original petition was filed on June 27th, 1916, and alleged the marriage, of the plaintiff to Hervey C. Lyon on April 25th, 1886, and averred that the marriage relation had continued until June 26th, 1916. On that day Mrs. Lyon and her husband were divorced and on the succeeding day the husband married Sarah E. Smith, and this action was commenced by the divorced wife, Ida B. Lyon. The plaintiff, Ida B. Lyon, and Hervey O. Lyon, are, or were at the time of the commencement of this action, the parents of two grown daughters. The petition further averred that early in the year 1905, the defendant commenced to commit adultery with plaintiff’s husband with the wilful and deliberate intention of alienating his affections from his wife. This petition and two successive amended petitions thereafter filed, were held bad, presumably because of the statute of limitations, the pleadings containing the averment that the alienation of affections continued from early in the year 1905. The third amended petition, after setting out the marriage, avers that for the last four years prior to the beginning of the action, the defendant continuously lived in a. state of adultery with plaintiff’s husband, and that by reason thereof, she has deprived plaintiff of the society of her husband and his assistance and comfort and has wilfully alienated his affections from her.

Although the action was planted and tried as one for alienation of affections, we-are met at the threshold of our investigation of the record with the third amended petition which appears to set forth a cause of action, not simply for the alienation of affections, but also for criminal conversation. It is true that at common law the wife could not maintain an action for criminal conversation had with her husband, and neither could she maintain an action for the alienation of the affections of her husband. Under modern jurisprudence, which takes cognizance of the enlarged rights of a married woman, all but two or three of the states of the Union have recognized the right of a wife to maintain an action for the alienation of the affections of her husband and among the states recognizing that right is the state of Ohio. Westlake v. Westlake, 34 O. S. 621.

Under similar principles of jurisprudence, we see no reason why a married woman should not also have the right to maintain an action for criminal conversation with her husband, independent of any question of alienation of affections. The wife’s right of action is lucidly discussed and maintained in 13 Ruling Case Law', 1488, the author concluding with the following statement:

“Moreover, under modern statutes, the broad rule has been laid down that a married woman may maintain an action for criminal conversation with her husband, it being said that while the injurious eousequences of a wife’s adultery may be more far reaching because of probable difficulties and embarassments in respect of the legitimacy of children, her conjugal rights are in principle the same, substantially, as his, and that, no matter what the ancient doctrine may have been, modern morals and law recognize the equal obligation and right of husband and wife.” Dodge v. Rush, 28 Appeal Cases, District of Columbia, 149, 8 American and English Annotated cases, 671.

It is true that the first petition in the case at bar was met with a motion to separately state and number the causes of action, which motion was overruled, but the plaintiff filed subsequent pleadings and no further attempt was made to compel a separation of the causes of action, and the case was tried and the jury charged as if the action were one for the alienation of affections only.

The answer consisted of a general denial and a plea of the statute of limitations, but the charge omits all reference to the statute of limitations, although much of the evidence that was introduced related to transactions occurring many years prior to the commencement of the action, some of them, indeed, extending back as far as the date which had been set out in the original petition filed by plaintiff, to-wit: the year 1905. By virtue of the provisions of the General Code, Section 11224, paragraph 4, the right of action for the alienation of affections is limited to a period of four years after the cause of action accrued. An important question of fact therefore arose in the case as to when the cause of action accrued. The action being one for alienation of affections would evidently accrue when the affections were alienated. The right to bring an action would then arise and when that right arose, the statute of limitations would begin to run. The gist of an action for alienation of á husband’s affections 'is the loss of the society, affection and consortium of the husband. Just when the right to sue accrued was, of course, a question of fact to be determined by the jury. The defendant contended that the right arose in 1905. This question should have been submitted to the jury under proper instructions as to the law. 1 Encyclopaedia of Evidence, 760.

If the right arose in 1905, it was, of course, barred by limitation- when the action was commenced in 1916, unless the offense was condoned and the affections reinstated and again alienated within the statutory period of four years prior to the commencement of the action. The question is very clearly discussed in Farneman v. Farneman, 46 Indiana Appellate Court Reports, 453, which ease was cited with approval by the Supreme Court of Indiana, on October 11th, 1917, in the case of Fidelity & Casualty Company v. Jasper Furniture Company, 117 Northeastern Reporter, 258. See also 25 Cyc. 1148; Bookman v. Ritter, 21 Indiana Appellate Court Reports, 250; Hogan v. Wolf, 10. N. Y. Sup., 896; MacFadzen v. Olivant, 6 East’s Reports, 448. In this last ease, Lord Ellenborough used the following language:

‘ ‘ The cause of action in those cases arises from the time of the injury done by the defendant, by the corruption of the body and mind of the wife; for from that time she is less qualified to perform the duties of the marriage state.”

The invasion of the marital relation which gives rise to a right of action independent of the question of Crim. Con. is clearly stated by Donahue, J., in the course of the opinion in Flandermeyer v. Cooper, 85 O. S. 327, 341, in the following language:

“This right is invaded whenever a third person through machination, enticement, seduction, or other wrongful, intentional and malicious interference with the marriage relation deprives the husband or wife of the consortium of the other.”

See also Sanborn v. Gale, 162 Mass., 412, although we think the rule is not very cautiously stated in this last case, as an action for alienation of affections will lie although the wrongful conduct was not accompanied by adultery.

While the last amended petition limited the complaint to the period of four years, yet the evidence that was introduced covered, as has been said, a much longer period of time and the charge permitted the jury to assess damages for alienation of affections, regardless of when it occurred, and scrupulously avoided giving the jury any instructions on the subject of Crim. Con.

The charge of the court contains instructions to the jury on the subject of a common law marriage between the defendant and Hervey C. Lyon. We are unable to see how the existence or non-existence of a common law marriage between them could, in any wise, affect the rights of the plaintiff below.

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

Chittenden and Kinkade, JJ., concur.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    RIGHT OF INHERITANCE UNDER A TECHNICALLY IMPERFECT ADOPTION.
    Court of Appeals for Cuyahoga County.
    Porter H. W. Taylor v. Edward Bushnell, Executor, et al.

    Decided, February 7, 1919.

      Adoption — Inheritable Quality of an Order of — Where the Proceedings - Fail to Disclose Consent of the Mother or any Reference to Her— Collateral Attach — Presu/mption as to What the Cowt Found.

    1. Attack on an order of court, entered in a case in which the petition was jurisdictionally sufficient, is in the nature of a collateral attack and is subject -to the rules applicable thereto.
    2. Where a petition asked for relief which the court had the power to grant, and a decree was entered in accordance therewith, it will he presumed in subsequent collateral proceedings that all incidental questions were duly -considered.
    3. The right to inherit from a foster parent is not defeated by the absence from the proceedings of adoption of assent thereto on the part of both of the natural parents.

      Walter G. Ong, Esq., Counsel for plaintiff in error.

      Messrs. Cook, McGowan & Foote, contra.

       Motion to direct the court of appeals to certify its record in this ease overruled by the Supreme Court, March 25, 1919.

   Grant, J.

Error to the court of common pleas.

The plaintiff — both in error and below — was in the lifetime of Mary S. Bradford and at her death, a collateral relative of the latter, to-wit: a cousin-german. In default of descendants in the direct line, upon her decease he would have been her heir at law, upon whom, if she had died intestate, her estate would have been settled by devolution to him.

Mary S. Bradford at her death left a paper in due form of her last will and testament, and purporting to be such, and which as her last will has been duly admitted to probate and proved in the court to which the jurisdiction for that purpose appertained. The defendant Edward Bushnell was named by the will as its executor and also as trustee to carry out certain of its provisions; he has duly qualified in both capacities and has entered upon the duties thus cast upon him. The defendant Ella Bradford Brown is a legatee and devisee under the will. The plaintiff is not a beneficiary under the will, nor is he named in it.

This action, in origin, was to contest the will and have it declared void and inoperative in the disposition of any of the estate that was of Mary S'. Bradford, deceased. All proper parties were made defendants.

A motion was made in the court below to abate the action and dismiss the petition, on the ground that the defendant Ella Bradford Brown is the only child and sole heir at law of the testatrix, so that, even if the contention of the plaintiff were to prevail, all the property involved in the suit would pass to her under the statutes of descent of Ohio; reduced to its lowest terms, the contention of the motion was to the effect that in no event could the plaintiff be said to be a party in interest in the case.

The plaintiff controverted, as matter of fact, the heirship of Ella Bradford Brown to the testatrix. This decisive question of fact, determinative of the right of the plaintiff to sue, and hence of the case, was heard below. The finding was that the facts upon which the motion depended were made out and it was sustained. As this disposed of the entire controversy, final judgment dismissing the petition was entered.

To reverse that judgment this proceeding in error is prosecuted here.

From the foregoing recital it will be seen that the sole question presented by this record is whether the defendant Ella Bradford Brown was the child, and is the sole heir at law of Mary S. Bradford, the testatrix. It is not claimed that she was the born child of the decedent, but she relies for her heirship on an adoption duly made, whereby the status of daughter to the testatrix was created as matter of law, so that upon the death of the adopting parent, and no will intervening, the succession of the property of the latter would pass to her by operation of statute.

To rebut this claim and defeat the devolution of the estate, in case the contest of the will should prevail, upon the claimed heir by adoption, the adoption itself is attacked as being null and of no effect in law.

The purported adoption arose and became effectual, if at all, by virtue of a judgment in due form of the probate court of Cuyahoga county, Ohio, entered on the 13th day of August, A. D., 1866, the record of ivhich appears here.

The claim is that this judgment is void for want of jurisdiction to render it, so that it may properly be called in question in this action, although it still remains unreversed of record.

As the question is important, although not difficult, as we regard it, we feel justified in exhibiting fully the facts upon which the ease proceeds and our own conclusion must depend.

The statute of Ohio in respect of adoptions, in force at the time the one controverted here purported to be had, was as follows : — S. and C.., 506.

“Any inhabitant of this state not married, or any husband or wife, jointly, may petition the probate court of their proper county for leave to adopt a minor child, not theirs by birth, and for a change of the name of such child, but written consent must be given to such adoption by the child if the age of fourteen years, and by each of his or her living parents who is not hopelessly insane or intemperate, ’ ’ etc.

The petition upon which the judgment and order of adoption was finally entered, omitting the caption, was as follows:

“William Bradford and Mary S. Bradford, wife of said William Bradford, respectfully represent and state to your honor, that'they are desirous of adopting as their child, Ella Scranton, who is a minor of the age of eight years, and the child by birth of Abel Scranton, the father of said, child, and who resides at Brighton, in the county of Lorain, and state of Ohio, has given his written consent to such adoption of said child by your pétitioners, and to such change of her name as aforesaid; that your petitioners are of sufficient ability to bring up and educate said child properly.”

This was signed by both petitioners.

The only answer in the matter was in the following language:

“I, Abel Scranton, the father of the above mentioned child, Ella Scranton, who is a minor child of the age of eight years, do hereby consent to the adoption of said child by William Bradford and Mary S. Bradford his wife, and to the change of her name from Ella Scranton, her present name, to Ella Scranton Bradford, according to the prayer of the foregoing petition.
(Signed) Abel W. Scranton.
Cleveland, March 2, 1866.”

Thereupon an entry, constituting the final judgment said to be void, was made in the journal of the probate court, as follows:

“This day came William Bradford and Mary S. Bradford, and moved the court for the adoption of Ella Scranton, aged eight years and thereupon this cause came on to be heard upon the petition of William and Mary S. Bradford and the answer of Abel Scranton, the father of said minor child, And the court find upon examination of said Abel Scranton, that he of his own free will and accord desires the adoption of said minor child. And the court is satisfied from the testimony that the petitioners are of capacity and ability to bring up and educate said minor in a suitable and proper manner, having reference to the degree and condition of said child’s parent; and the court is further satisfied of the fitness and propriety of said adoption. The court do therefore order, adjudge and decree that from and after this date, the said minor child, to all legal intents and purposes, shall be the child of the said petitioners, and that the ñame of said child be changed from Ella Scranton to Ella S. Bradford.”

It will be seen that the record does not affirmatively show that the consent of the natural mother of the child, if she was then living and not insane, was ever given to the adoption.

The claim of the plaintiff that the judgment of adoption was void ab initio, is set forth in his brief, as follows:

“Now the portion that must appear in the petition or in writing underscored herein can not and does not relate to anything other than to give to the court jurisdiction upon the filing of the petition when the facts are set forth therein that the written consent. has been or is given to such adoption by the child, and by such of his or her living parents, who is not hopelessly insane, etc. * * *
‘ ‘ There is no allegation in the petition or request that the child by birth was the child of Abel Scranton, and the child’s mother, Mrs. Scranton. There is no allegation in the petition or request setting forth even the color of an excuse for not having the written consent Of such adoption of the child’s mother.
‘ ‘ Now the language of the statute is clear, certain and definite that there must be a written consent by each of his or her living parents (in the plural) who are not hopelessly insane, etc. Now this being true, jurisdiction never attached at all in the court where the petition omits the essential and necessary allegation to give jurisdiction. The fact that Abel Scranton, the father of the child, gave his written consent to the adoption of the child, by your petitioners, in no way clothes the court with jurisdiction, because he is only one of the parents, and the statutes expressly provides that 'both shall consent.
“Further, there is not one word in either the application or the journal entry, that any notice of any kind or character, summons or otherwise, was ever given to the child’s mother, nor did she in any way ever appear in court to be heard as to the disposition of her child. Now, if this is true, and it is, what jurisdiction did the probate court in 1866 receive or was clothed to give and do what the record of that court says and sets forth was done.
Where the child to be adopted is under the age of fourteen years, the appearance in court, and the consent of the child’s parents brings the child before the court by the acts of its parents, and the court then and then only acquires jurisdiction over the child, and the parents of the child in this case Abel Scranton, the child’s father, ánd Mrs. Scranton, the child’s mother.
It further appears by the record that Abel Scranton, the father of the child Ella Scranton, a minor child of the age of eight years, did by his answer consent to the adoption of said child by William Bradford and Mary S. Bradford, and to the change of her name from Ella Scranton, her present name to Ella S. Bradford. There is no answer of the mother of Ella Scranton, there is no consent of the mother of Ella Scranton; she never was notified and never was heard in court in this proceeding, which was adverse to the child, as well as the parents of the child Ella Scranton. ’ ’

Let us examine this extreme claim that the judgment is void in the light of principle.

It is first to be observed that the adoption proceeding is in no just sense adversary in character, although it can not be said to be in rem, strictly speaking; it is quasi in rem, or, as the old books would say, sounding in rem.

So far as the here wanting natural mother is concerned, the proceeding, if valid, divested her of no property right, or any right except that of filial obedience and duty on the part of the child, and that right, as the law stood in 1866, before the legal emancipation of married women in Ohio, was a shadowy right, having little or no substance as long as the wife was under the overpowering paramountcy of the husband and the disabilities of coverture at common law. The question of what obligation of duty the proceeding cast upon the adopting parties is not material here, as they were in no default in the steps taken in the direction of jurisdiction. The chief person in'concernment was the child, and the advantage accruing to her from the proceeding, if it is not avoided here, turns out to have been considerable, and in return for which she, so far as appears, yielded the full consideration of service, duty and obedience, through many years, to her adopters, and of which the plaintiff by this suit seeks to deprive her — he purporting to be in law the successor in right to the adopting parents who received the service. This measures the merit of his contention, carried to its result as to her.

' Jurisdiction, shortly stated, is the power to hear and determine. As to the subject of it, it must either reside inherently in the court which undertakes to exercise it, or it must be created by law. There is no doubt that constitutionally it may in Ohio be conferred by statute upon the probate court, as it has been conferred by the Legislature in the act mentioned. There was, therefore, the power to hear.

In that statute it is particularly to be noticed there is an entire absence of what the petition must contain as the first and only step towards the exercise of that jurisdiction which the act has conferred; it must ask for the adoption of a minor child not the proposed adopter’s by birth. The simple asking is enough to set the machinery of the jurisdiction created by law in motion in the direction of granting the prayer.

All things else are matters to be supplied, either at the motion of some one who wants more in the petition or by the evidence produced.

While the contention of the brief is that the petition must contain much more in order to invoke the jurisdiction of the court to find effect, we do not find any such requirement, in the light of the enabling statute.

In Ruling Case Law, Vol. 1, p. 603-4, it is said:

“It has been ruled that the petition for the adoption of a child must be liberally construed; that facts not averred in it may be supplied by caption; that the facts disclosed need not be other than expressly required by the statute; and that, even as to conditions precedent necessary to support the adoption, such conditions need not be set forth in the petition unless the statute so requires.”

This consideration appears to us to much impair, if not to destroy the value of the authorities cited in the brief from states other than Ohio, — we not having their correlative statutes to inspect and guide us.

As to jurisdiction of the parties, the constitutional requirement is due process of law; which is made up of notice and an opportunity to be heard, before rights can be judicially defeated or interests cut off. But this condition precedent to the exercise of jurisdiction can be predicated only of adversary proceedings, and for the benefit and protection of an adversary party in matter of substance and not of form only.

We have now reached a point in this discussion where it may be asked whether, — -the filing of a petition .being enough to set the wheels of jurisdiction in motion — the other steps necessary to complete the operation of the statute make effectual its declared purpose and advance the remedy it gives, may not be supplied by allowable legal intendent, or inference, or presumption, favoring jurisdiction, under the rule quoted, as against the attack made on the jurisdiction in this case, — a mode of attack which, since we find the petition jurisdictionally sufficient, we must regard as collateral and not direct. We may meet and answer this inquiry, as we think, without determining whether the fact that the natural mother of the child is not named as affirmatively consenting to the adoption and does not appear as having notice of the proceeding, in the absence of the muniments of presumption, would be decisive of the case or not. Before, however, proceeding to consider in the light of authority, the question of how far a presumption has arisen here which will protect the judgment assailed at the bar against this mode of assault, we desire to view the matter from another point of view, from which we may, as we think, also reach a satisfactory conclusion.

The one who makes the attack must be looked at, as would be the case if Mrs. Bradford were here trying to defeat a right of Ella Brown, accruing to the latter as the result and consideration of a contract, her part of which has faithfully been performing for more than a half century. Would Mrs. Bradford be heard to put forward the infirmity that Ella’s mother is not by record shown to have joined in an answer in adoption — although the natural mother may have been unable to so join because she was then dead, — after she, Mrs. Bradford had received all that the law required the child to give in return for the right to inherit, which Mrs. Bradford vicariously through the plaintiff, is attempting to do ? What standing would she have — and therefore what standing does he have — in a court of conscience? We think this material inquiry is answered in Chehak v. Battles, 133 Iowa, 107.

By the Iowa statute in force at the time, the adoption was required to be evidenced by a deed duly executed, acknowledged and recorded. In that case the deed was signed, but the signatures were not acknowledged, nor was the instrument ever recorded. The child lived for years with the adopting parents and fully performed the obligations cast upon her by the deed of adoption, although of course she was in person no party to it.

After their death advantage was attempted to be taken of the infirmity mentioned, to defeat her right of inheritance under it. We can see no difference in substance or principle between that case and this case.

The syllabus is as follows:

“An instrument whereby, in consideration of the surrender to them of a child, parties accept the duties of parents to the child, and agree that it shall have all the rights of inheritance by law, may be specifically enforced as a contract as to the right of the child to receive a share of the estate, though it is invalid as an instrument of adoption because not acknowledged and recorded as required by the laws in force at the time of its execution.”

Another holding in the case was that the instrument was not within the statute of frauds and could not be avoided as being in the nature of a testamentary disposition of property.

But the case at bar was not argued, as we recollect, from this point of view, and we shall not let our disposition of it rest on this consideration alone; although we might safely do so, as we think.

Its other aspect — the one in which the cause has been mainly argued — concerns the nature of the attack on the jurisdiction of the probate court of Cuyahoga county, — whether the attack is collateral or direct.

We have seen that the court had jurisdiction of the'subject by creation of law, and that its exercise was invoked and set in operation by the filing of a petition sufficient under the statute. Jurisdiction, therefore, attached by the taking of that step towards it. This conclusion denies, necessarily, the contention that there was no jurisdiction. It seems to follow that the present action attacks that jurisdiction collaterally instead of directly. Whether the jurisdiction was exercised effectually or not, is another question.

The'only instance we have found in the books which seems to countenance such a proceeding as we have here in the light of a direct attack on the judgment in adoption, is Willis v. Bell, 86 Ark., 473.

But the proceeding there was habeas corpus, and the writ was allowed because the mother had not been notified in the adoption case and she sued to get possession of her child; it was not a suit to defeat the inheritable quality which the adoption judgment created if jurisdiction was present effecutally, by any showing known to the law.

In Re Camp’s Estate, 131 Cal., 469, it is remarked:

“ It is a well settled rule of law that where the jurisdiction of an inferior or special tribunal, or its power to act in any particular case, depends upon the existence of a fact which is to be established before it by extrinsic evidence, the determination of that fact by the tribunal can not be questioned in a collateral attack on its order. ’ ’

Wells, Jur., Section 61, and eases cited.

In Richardson v. Matteson, 8 So. Dak., 77, it is said — p. 80:—

“If silent as to jurisdictional facts, the order of adoption relied upon, having been made by a court of record, clothed with original jurisdiction of the subject-matter, its authority and jurisdiction will be presumed, unless by necessary implication from the recitals of the order it appears that something essential to the jurisdiction had been omitted, or that the required statutory conditions did not exist.”

Let us apply the test thus propounded to this case. The order of adoption was made by a court of record having jurisdiction of the subject-matter. What is left to give rise to the presumption which will validate the order ? From the recitals of the order does it appear “by necessary implication” that any remaining thing “essential to the jurisdiction” has been omitted or that “the statutory conditions” to the adoption did not exist when the order was made ?

If it is said that the consent of the mother is wanting, the answer is that such consent is not in all cases an essential to jurisdiction, or a statutory condition which must under all eircumstances be present in order to make the judgment of adoption effectual. If the mother was at the time dead; if she was then hopelessly insane; if she had then abandoned her child — in none of these contingencies was her consent indispensable, or requisite, or possible. The provision of the statute for a representative to act for the incapable parent, in any case, may be presumed to have been complied with, so long as the order does not show ‘ ‘ by necessary implication” that it has not been complied with- — the court having original jurisdiction of the subject-matter, — according to the ease last cited. We are of the opinion that, favoring a judgment, such presumption is to be indulged here — no recital of the order asserting or implying anything to the contrary.

We are, however, relieved, as we think, from all uncertainty of conclusion in accordance with the rule we have thus endeavored to extract from the authorities, from a consideration of another case, which apparently is exactly in point and which seems to us to resolve even a lingering doubt. It is the case of Wilson, Administrator, v. Otis et al., 71 N. H., 483. It was an appeal from a judgment in distribution in the probate court. The brothers and sisters of the intestate claimed the entire estate as his heirs at law. One who claimed to be a son by legal adoption contested their right to inherit on the ground that he was the sole heir. The legality of the adoption proceeding was challenged and passed upon by the court.

The petition for adoption was filed in 1882 and was in the usual form, except that the father consented — as he did — and that his wife was then divorced, from him, without a reservation in the judgment of divorce of the custody of the child.

An order of adoption was made, but was not entered on the journal of the court, and both it and the petition and the files in the case were taken to a lawyer’s office where they remained undiscovered for fifteen years, when they were looked up, the adopting father, with whom the child had been living, being then dead and doubts as to the heirship being then cast upon the reputed son. The entire order of adoption, which was then brought out and put to record, was in the following language:

State oe New Hampshire.
Strafford, ss. At a court of probate held at Rochester in said county on the seventeenth day of January, A. D. 1882: On the petition of George W. Otis and Addie F. Otis, both of Farming-ton in said county, praying for leave to adopt as their own child Arthur PI. Edgerly, of Wolfeborough, in our county of Carroll, the child of William A. Edgerly and Sarah F. Edgerly, and that a decree to that effect may be made, it appearing to the court that said Arthur PI. Edgerly is the child of said William A. Edgerly and Sarah F. Edgerly and is under fourteen years of age, and that said- the parents of said child, having consented in writing to such adoption, and the court being satisfied of the identity and relations of the persons, and that the petitioners are of sufficient ability to bring up said child, and furnish suitable nurture and education, having reference to the degree and condition of its parents, and that it is fit and proper that such adoption should take effect:
It is therefore decreed that the said-have leave to adopt said child as h — , own child, and that the name of said child be changed to---and it is hereby ordered, that from the date hereof, said child shall, to all legal intents and purposes,, be the child of the said-and shall hereafter have the name of-■ — -.
J. D. Young, Judge of Probate.

We call attention to the blanks appearing in this judgment, which lacks the quality of affirmatively showing a consent by either parent or by any one.

But every phase present in the case at bar important in this consideration, was dealt with and. passed upon by the court in the opinion, which proceeds as follows:

“The question raised by the ease is whether the defendants are entitled to inherit a part of the estate; and this depends upon the question whether Arthur was legally adopted by the deceased. If he was legally adopted, it is conceded that he would inherit the estate subject to the widow’s rights and to the exclusion of the defendants. G. L., c. 188, s. 4. Their contention is that there was no valid judgment or decree of adoption by the probate court, in which the deceased entered a petition for that purpose. It is found as a fact, that upon that petition the judge of probate did judicially what the imperfect document signed by him, upon a reasonable construction thereof, shows he did. If upon competent evidence it appears that the court, having jurisdiction of the subject-matter, determined the issue or point presented by the petition, the parties are concluded thereby. Whether the judgment was actually entered up in the technical form of a decree, is not material in this collateral proceeding. Nihan v. Knight, 56 N. H., 167.
“Did the court grant the prayer of the petition? It appears from the record that the court, presumably upon competent evidence, found certain facts which were essential to a decree of adoption. G. L., e., 188, s. 3. These facts are expressly recited in the signed document, which, taken in connection with the petition, indicate with much force that the judge understood that he had decided the question of adoption, and that nothing remained to be done except to enter up a formal decree. The signing of the blank form of a decree of adoption as a part of the record would be inconsistent with a judgment denying the prayer of the petition, and would not indicate that the court was in doubt as to what the final order should be. Nor is it reasonable to infer that the judge did not attach any importance to this document — that he regarded it as a waste piece of paper. Having some significance, it must be deemed to indicate the judge’s finding upon the petition in favor of adoption. As he had made specific findings of fact relating to the merits of the action and signed a blank decree, the work of filling up the blanks was merely clerical, requiring the exercise of no judicial function. If he had entered a minute on the docket to the effect that ‘the petition is granted; that would have been conclusive evidence, in a collateral proceeding, of the judicial act of rendering judgment in accordance with the prayer of the petition (State v. Narcarm, 69 N. H., 237; State v. Cox, 69 N. H., 246; Matthews v. Houghton, 11 Me., 377; Felter v. Mulliner, 2 Johns. 181; Fish v. Emerson, 44 N. Y., 376, 378; Swain v. Gilder, 61 Miss. 667, 671; Overall v. Pero, 7 Mich. 315; Lynch v. Kelly, 41 Cal., 232, 233) ; but such evidence would be no more convincing than the evidence furnished by the record in this case. Upon a reasonable construction of the record, the fact that a judgment of adoption was rendered is not susceptible of serious doubt. Freem Judg. (4th ed.), s. 45; McDonald v. Frost, 99 Mo. 44, 48.
“The fact that the petition with the blank decree at some time after the hearing was taken from the files or from the possession of the judge, and was not returned for some years, did not have the effect of invalidating the previous action of the court. The record, having been restored, is as competent and conclusive evidence of the judgment as though it had remained on the files.
But it is insisted that the judge of probate had no jurisdiction to decide the question presented, or to render a judgment thereon, because it does not affirmatively appear in the record that the mother of the boy consented in writing to the adoption as required by the statute. C. L., c. 188, s. 2. This fact, however, is not necessarily essential to the exercise of jurisdiction by the probate court. If the parent has abandoned the child for three years, his consent to adoption proceedings is rendered unnecessary by the statute. Gr. L., c. 188, Section 2 It is for the court, after having acquired jurisdiction by the filing of an appropriate petition, to decide in the first instance whether the parent has consented to a decree of adoption; if not, whether there is any valid excuse for his non-action, as death, insanity, or other dis-. ability; or whether he has so far abandoned his parental duties for three years as to render his consent unnecessary. These, with other preliminary questions that might be suggested, must be. determined upon evidence and a hearing by the judge, after he has acquired jurisdiction of the general subject-matter of the petition. The filing of the petition and the appearance of propefr parties gave him, under the statute (G. L., c. 189, Section 4), power to act judicially. Horne v. Rochester, 62 N. H., 347, 348, 349; Spaulding v. Groton, 68 N. H., 77, 78. The court was not asked to do what it has no judicial power to do under any circumstances. It became its duty to act upon the subject-matter presented, and to receive evidence upon all material questions suggested, among others upon the question of abandonment as an excuse for the failure of the mother to consent to a decree of adoption. State v. Arlin, 27 N. H., 116, 129. If its decision was erroneous upon this question, the error did not render the proceedings absolutely void (State v. Richmond, 26 N. H., 232; White v. Landaff, 35 N. H., 128, 130), so that they might be disregarded in a collateral suit. The error if there was one, was correctable by appellate procedure, and does not prove a want of jurisdiction in the probate court. Fowler v. Brooks, 64 N. H., 423, 424; Kimball v. Fisk, 39 N. H., 110.
“Nor does the absence in the petition of an allegation of abandonment, or of the mother’s consent, effect the question of general jurisdiction. It is not necessary that the petition should contain a full- statement of all facts essential to a decree. It might seriously fail in this respect, or be demurrable, and still, state a case calling for and requiring the exercise of the judicial power of the court. The test has been said to be, not whether it states a perfect case, but whether the court has the power to grant the relief sought in a proper ease. Van Fleet Ool. At., Section 61. If upon a petition for adoption which omits these allegations tha court finds the fact of abandonment, as well as other necessary facts, its' decree of adoption is valid. The judgment or decree necessarily implies a finding of all material facts not inconsistent with the record, one of which may be the fact of abandonment. In this case, as the finding of that fact is not inconsistent with other facts disclosed by the case or the record, it is included in the general finding in favor of adoption, and furnishes a valid excuse for the non-consent of the mother. Erwin v. Lowry, 7 How. 172; Florentine v. Barton, 2 Wall., 210, 216; Thornton v. Baker, 15 R. I., 553. The judgment of adoption, therefore, is not impeachable in this proceeding.”

We have quoted thus extensively from the New Hampshire case, partly because it appears to us‘to leave no important question involved in this case unanswered, and in part because before finding it we had really, in a manner, anticipated some of its discussed doctrines as to the consequences flowing from a statutory grant of jurisdiction of the subject of adoption when it is once set in motion by a prayerful petition invoking its exercise clear through to the end.

The law of the case, as declared by the syllabus, appears to us to meet and dispose of every contention urged upon our attention in the case at bar.

The syllabus reads thus:

“A decree of adoption is not invalid because it does not recite nor the petition allege, an assent by the parents or'facts excusing their assent.
“Where a petition asks for relief which the court has power to grant, and a decree is made, it will be presumed, in collateral proceeding, that all incidental questions were duly considered.”

Applying this law to the matter in hand, and how stands this ease?

Our decree of adoption does not recite, nor does the petition allege, an assent to the adoption by both parents, and no facts are put forward to account for the want of consent. The judgment operating an adoption in law is not, for that reason, invalid.

The petition asked for relief which the court had power to give. A decree granting it was made. Without more, the law presumes; in a collateral proceeding, that all things necessary to reach the end sought have been done upon due consideration by the court clothed with the power to advance the remedy and grant the relief sought.

We know of no authority — can think of none — that more concretely squares with the case under review here.

Its conclusions — justifying ours — do not commend themselves the less to a court because in each case the attempt to defeat a consummated and earned adoption and its . benefits, was made by one who sought, by a supposed fortuitous slip in the law’s meshes to reap where he had not sowed and to gather where another had strown.

AVe find no error in the judgment complained of, and that it does substantial justice. It is affirmed.

Dunlap, J., and Washburn, J., concur.


author: Washburn, J.

text:
    BOY INJURED WHILE SHIFTING A BELT.
    Court of Appeals for Cuyahoga County.
    Carl Sawitzke v. The Peters Machine & Manufacturing Company; and The Peters Machine & Manufacturing Company v. Carl Sawitzke.

    Decided, December 16, 1918.

      Jurisdiction — May be Controverted by Evidence — In Spite of Recitals in the Record of the Court Below, When — Minor Without Capacity to Appear as Plaintiff in an Action for Injuries — Or Sis Mother, Appearing as Sis Next Friend, to Waive any of Sis Rights — Direct and Collateral Attack on Judgments.

    1. Extrinsic evidence is competent as to failure to obtain jurisdiction in the court below, notwithstanding it contradicts the record of the inferior court, where the allegations are to the effect that the defendant employer brought into court the plaintiff, an injured minor, together with his mother as next friend, and the form of a trial was had and judgment entered in favor of the minor for a small sum as compensation for his injury, the purpose being to give validity to a proposed settlement for said sum, neither the said minor or his mother having, any understanding as to what was being done and no assistance from counsel.
    2. A judgment is not against the weight of the evidence, where it is for injuries sustained by a boy sixteen years of age who was required to shift a belt with his hand and it was in dispute whether he had been properly instructed as to how the shift could be made with safety.

      Howell, Roberts <& Duncan, for plaintiff.

      Guthery c& Guihery, contra.

       Motion for an order requiring the court of appeals to certify its record in this case overruled by the Supreme Court, February 25, 1919.

   Washburn, J.

Heard on appeal from the court of common pleas and on error from the court of common pleas.

Carl Sawitzke recovered a judgment for thirty-five hundred dollars ($3,500) against the Peters Machine & Manufacturing Company in an action for damages for personal injuries suffered by said Sawitzke while in the employ of said company.

The petition set forth two causes of action, one, in equity, to set aside a settlement and a judgment of a justice of the peace, which it was claimed merely confirmed and carried into effect such settlement, and the other cause was the usual action for personal injuries.

The equity action was tried in the court below and appealed to this court by the company as case number 2247; the action at law is before this court on error proceedings as case number 2316.

It is conceded that if Sawitzke fails in the equity action he fails entirely. His claim in the equity action was that when sixteen years of age he was injured while in the employ of the company, and that a few weeks after the' accident, at the instance and request of an attorney for the company, his mother, as his next friend, undertook to settle his claim for damages, which resulted in an alleged judgment for $82 being entered against said company and in favor of Sawitzke in a justice of the peace court, and it is conceded that said judgment was by said company paid in full to the mother of Sawitzke as his next friend; that the proceedings of the justice of the peace, while in form an action at law, in fact was merely a means used by the company to obtain a release binding upon Sawitzke, a minor and was in fact a proceeding instigated and carried through by said company for its benefit, and that while he and his mother apparently consented to the same, they had no attorney and Were entirely ignorant of what was being done; that the attorney for the company assumed to act for both parties and that he failed to inform them and make them understand the nature of the proceedings, and that his conduct amounted to a deception and fraud by which apparent jurisdiction was acquired by the court, when in fact the court acquired no jurisdiction, and that their lack of representation and their non-participation in the proceedings, in view of the disability of the infant and the legal inability of the mother as next friend to enter into any compromise or settlement or do anything to waive or change the infant’s rights, rendered said proceedings a mere sham without substance, and that in fact there was no suit and consequently no valid judgment.

It is quite easy to extract from the evidence the real truth as to the important and controlling facts, but we are met on the threshold of the inquiry with the contention of the company that insomuch as it appears by the record of the justice of the peace that the court had jurisdiction of the parties, no extrinsic evidence is admissible to contradict the presumptions or recitals of the record.

The record of the justice of the peace is to the effect that the plaintiff in that court filed a bill of particulars, and that the defendant entered its appearance, and then the record reads:

‘ ‘ Plaintiff sworn and heard; no defense; trial had; wherefore on said day it is considered that the said plaintiff recover of said defendant the sum of $82 damages, and the costs of this suit herein, taxed at $1.50.”

We find the rule of law on this subject to be that when the judgment of an inferior court is drawn in question in any collateral way, and the record shows on its face that jurisdiction of the parties was obtained, then the record imports absolute verity and extrinsic evidence is not competent to contradict the recital of the record; but when the judgment is directly attacked for want of jurisdiction, such want of jurisdiction may be shown, though it be in contradiction of the record.

The difficulty lies in determining what is a direct and what is a collateral attack. It is said that a -direct attack is one by which the judgment is directly assailed in some mode authorized by law.

We regard it as settled that a judgment may be impeached in a suit instituted against the party through whose means, and by whose procurement a fraudulent judgment is obtained, where such fraud amounts to a fraud on the court as well as on the opposite party, and that such a proceeding is a direct attack upon the judgment, and in such a case extrinsic evidence is admissible though it contradicts the record.

The question is, do the allegations of the petition bring the .case within the rule of a direct attack? As we view it, the complaint attacks the foundation of the judgment in question — the jurisdiction of the justices of the peace.

If jurisdiction was conferred upon the justice, it' was by plaintiff’s filing a bill of particulars and knowingly participating in the trial as such plaintiff.

The petition alleges that the bill of particulars was not filed by Sawitzke or his mother, but was filed by the company, and that Sawitzke and his mother did not participate in a trial — that in fact no trial was had, and that said judgment was rendered upon the confession of the company and without the will or consent of Sawitzke or his mother, and the prayer is that the judgment be adjudged to be void and of no effect.

The fraud alleged consists in the attorney for the company, without any authority so to do, assuming to file a bill of particulars on behalf of Sawitzke, when Sawitzke and his mother were wholly ignorant of the proceedings, and in assuming, while really representing the company, to act also for Sawitzke and his mother in instigating and participating in a pretended trial, when in fact no trial was had.

In this connection, it is well to keep in mind the fact that Sawitzke’s infancy precluded him from making any binding agreement of settlement or taking any part in a court proceeding which would be binding on him; and that his mother, neither as next friend nor as guardian for the suit, could waive any of his rights or enter into any agreement or arrangement binding on him; the office of next friend is solely to bring the infant into court because of his leg'al inability to present his own case; the next friend can do nothing which may injure the rights of the infant and his admissions are not binding upon the infant; the next friend can not release a cause of action, nor compromise, nor submit it to an arbitration.

We hold that under the allegations of the petition the evidence objected to is competent, and that the evidence establishes facts which constitute legal fraud in the procurement of said judgment, and that the same should be set aside, and it is so ordered.

In the error proceedings we find that there was no error in the action of the court below in setting aside said judgment.

The other error complained of in the trial of the case to the jury is, that the. verdict and judgment are against the weight of the evidence in. that there was no evidence of negligence on the part of the company.

The negligence complained of was that Sawitzke, who was an infant sixteen years of age, had had no experience in the handling and operating of machinery and was wholly inexperienced and ignorant as to the dangers in connection with the. shifting of belts which was a part of the work he was employed to do, and in the doing of which he received his injuries, and that the company negligently and carelessly set him at said work without giving him any instructions or warning and without showing him the safe and proper way to do said work and to shift the belt when necessary to be done in the performance of said work, and that said company, in violation of the statutes of Ohio, negligently and carelessly failed to have upon the machinery operated by him in the performance of said work, or in connection therewith, any shifter to be used in shifting the belt upon the pulleys, in the operation of said machinery, and required him to do said work of shifting said belt by using his hand, which was a dangerous and unsafe method of performing said work.

The defense pleaded in this branch of the case was a denial of negligence and that the injuries were caused or contributed to by the negligence of Sawitzke.

The claim of the company is that the evidence discloses that there was no negligence in not instructing Sawitzke, because he had performed the operation of shifting said belt frequently every day and at the time of the injury had performed the operation four or five hundred times.

But the evidence also disclosed that the accident was caused by an unusual occurrence in that, after he had shifted the belt at the top and was in the act of shifting' it at the bottom, it jumped back on to the cone at the top from which it had been shifted, and thereby his- hand was caught and jerked in between the belt and the cone, causing the injury; and there wa$ evidence that he was not instructed and there was also evidence on behalf of the company tending to prove that he was instructed. .

Under such circumstances, it was peculiarly a question for the jury to determine whether or not the company owed Sawitzke a duty to instruct him, and whether it failed in that behalf, and whether such failure to perform that duty was negligence which was the proximate cause of the injury, and we can not say as a matter of law that no duty existed or that a finding of such duty and failure of its performance is against the weight of the evidence.

The company also claims that while the statute of Ohio in general terms requires belt shifters, the evidence discloses that at the time of this injury no shifter of any kind was in use for the purpose of shifting belts on cone pulleys of the character in question, and that no shifter suitable for such purpose had then been devised which was practical, and that for that reason it was not negligence on.the part of the company to not comply with the statute.

There was much testimony pro and con as to such shifters being practical and in use since the accident, and there was some testimony to the effect that they were in use before the accident.

The judge charged the jury:

“And if you find from the evidence that there was no shifter suitable for that purposejorovided at that time then I say to you, the company was not guilty of nigligence in not having the shifters.” ”

Without discussing the correctness of this instruction, we feel that the company was given the full benefit of their contention, and as there was another claim of negligence which might account for the verdict of the jury, we can not determine which way the jury found this question of fact, and consequently it is useless to consider or speculate as to whether such finding is or is not against the weight of the evidence.

We find no error in the record prejudicial to the plaintiff in error, and the judgment in ease number 2316 is affirmed.

Grant, J., and Dunlap, J., concur in both cases.


author: By the Court.

text:
    DIVISION OF PROFITS ON THE PURCHASE AND SALE OF BASE BALL STOCK.
    Court of Appeals for Hamilton County.
    Charles Schmalstig v. Charles P. Taft.
    Decided, February 6, 1919.

      Agency — In the Handling of a Heal in Corporate Stock for Joint Account• — Answer Construed not' as a ConJession and Avoidance — But as a General Denial, Amplified by Evidential Facts — Defenses— Burden of Proof.

    Where the facts presented by the testimony on a given issue have been construed by the jury in favor of the plaintiff, an incorrect charge as to the burden of proof on that issue is not available to the plaintiff as a ground of error, inasmuch as it was without prejudicial effect.

      Jacob Shroder and Benton S. Oppenheimer, for plaintiff in error.

      Lawrence Maxwell, Worthington, Strong & Stettinms and Robert A. Taft, contra.
   By the Court.

Plaintiff sued defendant for $55,555.55 and interest, claimed to be due for money had and received by defendant for his benefit, being his portion, as the owner of 10)0 shares, of the proceeds of a sale of 900 shares of stock of The Chicago National League Baseball Club.

Defendant in his answer set forth in considerable detail a history of the purchase, ownership and sale of the stock and admitted that there was due from him to plaintiff the sum of $6,255.54, with interest, but denied that plaintiff was entitled .to recover any greater sum from him, and made a general denial.

This ease has been tried twice to a jury, the evidence being substantially the same at each trial. The facts in the case are stated in the opinion of Judge May, reported in 19 N.P.(N.S.), 513, in which the verdict by three-fourths of the jury at the first trial for $58,703 was set aside and a new trial granted for the reason that the verdict was manifestly against the weight of the evidence, and for error in giving the special charge requested by plaintiff, which is set out on page 519 in said report, which placed the burden of proof on defendant to show that hebought the 530[ shares of stock from Murphy as agent for plaintiff with others proportionately.

At the trial under review, three theories of the case were left open to the jury under the charge of the court, and three forms of verdict submitted.

(1) They might'find for plaintiff in the full amount claimed by him on the theory that he would be entitled to one-ninth of the purchase price regardless of other considerations, in which finding the verdict would be for $55,555.55, with interest.

(2) They might find that the 530 shares of stock were purchased by defendant as agent for plaintiff, together with the other two owners of stock acting with him, and that-plaintiff was chargeable with his proportion of the losses and expenses incurred as to said Murphy shares, or so-called treasury stock, in which ease the verdict would be for $6,255.54, with interest, the amount defendant admitted to be due.

(3) Or they might find in accordance with the understanding or agreement that “fair treatment” shown to exist or be implied between the parties by their conversations and conduct on January 3, 4 and 5, 1916, when plaintiff might be entitled to his pro rate of 10-37 of $50,000 cash left after the payment out of $500|,000 purchase money the balance due, $450,000 on the original Murphy purchase. This amount according to the check offered plaintiff by defendant before .the commencement of this suit would be $13,513.50, with interest.

The verdict returned at the second trial was consistent only with the last above named theory, the amount being $14,892.35.

A motion for a new trial was overruled, and judgment entered on the verdict, to which plaintiff prosecuted error.

The errors chiefly urged here on the part of plaintiff are in relation to the charge of the court. Judge May found that upon the first trial the court had been in error in placing the burden of proof upon defendant as to the question of agency or trusteeship of defendant in the matter of the so-ealled Mhrphy shares. After a careful reading of his opinion and the authorities cited by him a majority of the court agree with his conclusions and consider the answer not as pleading a confession and avoidance, but as being in effect no more than a general denial, merely amplified with unnecessary relation of evidential facts.

If defendant sold plaintiff’s stock under an express or implied agreement made on or about January 4, 1916, that fact could have been proved under a general denial, it would not have been an affirmative defense, nor would the burden of proof in respect thereto have been on the defendant.

In order to determine just what the defense made by the answer was, a minute examination of the entire document must be made. Under Section 11345 of the Code it is to be liberally construed. The difficulty is rather one of determining the intent of the pleader than one of principles of law involved. Undoubtedly defendant could have alleged that he had acquired rights that offset those of plaintiff. Such matters would constitute an affirmative defense. The answer might be construed as alleging that the defendant had bought 530 shares of stock from Murphy as agent for plaintiff and others; and held them as trustee for them; that the stock cost $500,000; and that they were included as part of the 900 share lot sold with the consent of plaintiff; and that there was a loss in that part of the venture in which plaintiff must -participate, and which should be deducted from plaintiff’s share of the proceeds, if his 100 shares of stock had been treated as sold for $55,555,55.

It might be noted that after the answer was filed, plaintiff moved to strike out the allegations of the answer relating to the Murphy deal, and the court in a written opinion then upheld what apparently was the claim of the plaintiff at that time that those 'matters constituted an equitable defense.

A proper construction of the pleadings is a question not without difficulties. According to the view which the trial court took, the defendant was attempting to state facts which would have constituted a defense without regard to the issue as to whether the stock was sold under the contract made January, 1916. One member of this court inclines to the view that the transaction in regard to the Murphy stock was intended by the defendant to be set up as a defense independent of and in addition to the defense of the general denial. And that irrespective of the issues raised in the pleadings. If an issue is raised by the evidence properly offered in support of the respective claims of the parties, it is not improper for the trial court to charge the jury as to the law governing the situation thus developed. Rayland Coal Co. v. McFadden, 90 O. S., 183. And that the transaction in regard to the Murphy stock raised such an issue, the court charges:

“He (Taft) says he was acting as agent of the plaintiff, and that acting as agent he had the right and authority to first reimburse himself for any expenses incurred in making the Murphy purchase.” * * *

The court continued, “he then sets up an additional defense to this action * * *.” And thereupon, the court explained the claim in respect to the agreement of purchase of the Murphy stock. That as agent for plaintiff the defendant would have had the right to reimbursement for losses in the transaction, in which the plaintiff was principal, and that would have been true regardless of the agreement of January, 1916, for such a defense, however, could only be regarded as established if there was a preponderance of the evidence in its favor. And it is the view of such member of this court that when the court charged generally that the burden was upon the plaintiff, without explaining that the burden as to that specific issue of defense was upon the defendant, he committed error.

But whether any error was thus committed in that respect or not, the court are entirely in accord that such error, if any, is not prejudicial.

The verdict of the jury conclusively shows that they did not adopt either of the first two theories upon which the case was submitted to them, as stated before, and found that plaintiff was not entitled to recover the amount claimed by him, being one-ninth of the purchase price, regardless of other considerations. They also found against the claim of the defendant that he was holding the Murphy stock as trustee or agent for plaintiff and. others, and plaintiff was chargeable for his pro rate of the losses thereunder, and was entitled to only $6,255.54, with interest. And they must have found that the third theory of the case was the true and correct one, and that an implied agreement had been made between the parties by their conduct and conversations under which plaintiff was entitled to the amount found in their verdict, to-wit, $14,892.35.

The jury must have been deemed to have adopted the third theory or view of the ease. They construed the facts on the issue as to the agency in favor of the plaintiff. An incorrect charge as to the burden of proof on the issue therefore could not possibly have prejudiced plaintiff.

The rule as stated by the court in the case of Butte & Boston Consol. Mining Co. v. Montana Ore Purchasing Co., 121 Fed., 524:

“A party in whose favor the jury has found an issue can not allege error in the court’s charge as to the burden of proof on that issue.”

The clearest illustrations of the operation of this rule are in cases where there is a special finding in respect to certain facts. Elliott on Appellate Procedure, Section 624; Ellis v. Hammond, 157 Ind., 267-271; Roush v. Roush, 154 Ind., 562, 573; Moore v. Lynn, 79 Ind., 299.

The rule is not confined to such cases. Keyser v. Railroad Co., 61 Iowa, 175; Lathrop v. Railroad, 69 Iowa, 105; 4 Corpus Juris, 1042.

Even if the burden was upon defendant as to the issue of agency in the Murphy deal, as the jury determined that in plaintiff’s favor, he can not complain of erroneous instructions which only affect that issue.

Considering the general charge as an entirety, it fairly states the law and is free from error.

Nor was there any prejudicial error in the refusal to give plaintiff’s special charges 3, 4 and 5. Each of these special charges related to the question of whether or not defendant was acting as trustee or agent of plaintiff, and we have seen that question has now lost its importance inasmuch as the jury on the issue of agency found in favor of the plaintiff and against the defendant. These charges were also properly refused for the reasons given by Judge G-eoghegan in his memorandum opinion in refusing the motion for a new trial.

While plaintiff and defendant did not fully accord in their respective versions of the conversations' of January, 1916, that led to the placing of plaintiff’s stock in defendant’s hand for the consummation of the sale, the testimony of plaintiff himself does not bear out his claim, that it was then the agreement of the parties that he was to receive one-ninth of the entire sale price of the 900 shares. On the contrary, the verdict of the jury is fully sustained by the evidence. In view of the fact that the excerpts set forth in the published opinion of Judge May are substantially the same as the testimony at the second trial it is not necessary to set out the evidence here.

The judgment is therefore affirmed.

Jones, P. J., Hamilton and Sitoi-il, JJ., concur.


author: Ktjnkle, J.

text:
    PRESUMPTION AS TO WHETHER A MISSING PERSON IS LIVING OR DEAD.
    Court of Appeals for Franklin County.
    John S. Young v. Wheeler J. Young et al.
    Decided, February 20, 1919.

      Burden of Proof — Of the Death of One Mysteriously Missing — Rests for Seven Years on the Party Asserting Death — Presumption of Death then Arises.

    Where a person mysteriously disappears and is not again heard from, a legal presumption of his death does not arise until seven years from the date of his disappearance, and in the absence of any proof showing his death the property of an ancestor dying within •the seven year period will be presumed to have descended to such ■ absent heir.”

      M. E. Thrailhill and John B. Horst, attorneys for plaintiffs in error.

      James A. Allen, attorney for James Ross and William R. Diehl.

      Donaldson & Tussing, attorneys for the Sifrits.

      Huggins, Pretzman <& Davies, attorneys for Anna Yonng individually and as executrix.
   Ktjnkle, J.

This case comes into this court on error from the judgment of the court of eomihon pleas.

In brief the facts disclosed by the record show that John S. Young Sr., late of this county, died intestate, March 4, 1900, owning 98 acres of land in this county; that he had two children, Edward W. and Wheeler J. Young; that Wheeler J. Young disappeared on December 31, 1899, and has not been seen nor heard from since the date of his disappearance; that Wheeler J. Young was sheriff of this county at the time of his disappearance and that his second term of office, as such sheriff, expired the day after his disappearance; that at the time of such disappearance Wheeler J. Young was a man of about fifty years of age and in apparently good health; that he made an assignment of all his property upon the day of his disappearance; that he was a man of striking appearance and had an unusually large circle of friends and acquaintances.

In view of the circumstances disclosed by the record it is claimed by counsel for plaintiff in error that Wheeler J. Young was either killed or committed suicide on December 31, 1899, the day of his disappearance.

It further appears from the- record that Edward W. Young, the brother of Wheeler J. Young, died intestate, November 12, 1907, leaving the plaintiff in error, John S. Young, Jr., and Joseph Young, now deceased, as his only children and heirs at law.

Under this state of facts to whom does the 98-acre tract of land above referred to belong?

- If Wheeler J. Young died on the day of his disappearance, then he can not be considered as an heir of his father, John S. Young, Sr., as the father died after the date of such disappearance, namely, on March 4, 1900, and none of the defendants in error are entitled to an interest in this land through Wheeler J. Young, either as creditors or otherwise.

If Wheeler J. Young was living at the time of the death of his father, namely, on March 4, 1900, then certain of the defendants in error have an interest in said 98-aere tract of land.

If Wheeler J. Young died December 31, 1899, that being the date of his disappearance, or at any time prior to March 4, 1900, then the judgment which was recovered by William R. Diehl on April 6, 1900, was rendered against a dead man and is void.

If Wheeler J. Young died December 31, 1899, or at any time prior to the death of his father, then the judgment for alimony in favor of Mrs. Young which was recovered July 31 would be void for the same reason and the devise of same to her son, William R. Diehl, would be of no effect.

If Wheeler J. Young died December 31, 1899, or at any time prior to the death of his father, then he was- not seized of any interest in his father’s estate, and Edward W. Young was the sole heir of the father, John S. Young, Sr.

We have no doubt but that counsel have investigated every clew to determine whether Wheeler J. Young is dead or alive, but it is conceded that the record does not contain any facts which show whether Wheeler J. Young is actually dead or alive, or if dead, when he died.

Certain facts are disclosed by the record which tend to show that Wheeler J. Young had a motive for concealing his identity at the time of his disappearance, namely, financial and domestic troubles.

Upon the other hand, it is claimed that Wheeler J. Young was a man of such striking personality and had such a wide acquaitanceship that, if living, he could not have concealed his identity for this length of time had he desired to do so.

Any conclusion reached is mere conjecture, as the record does not contain any testimony which would justify the finding that Wheeler J. Young was either actually dead or alive on March 4, 1900, the date of the death of his father.

This case must, therefore, be determined upon legal presumptions.

What is the legal presumption as to the date of the death of Wheeler J. Young?

Upon the one hand it is claimed that the legal presumption is that Wheeler J. Young died on the date of his disappearance, and that the burden rests upon defendants in error to show that he was living at the time of his father’s death.

Upon the other hand it is claimed that such presumption does not arise until the expiration of seven years from the date of the disappearance of Wheeler J. Young; that the evidence shows he was-alive and in apparently good health within about three months from the date of the death of his father, and that, under the pleadings and the law the burden rests upon plaintiff in error to prove that Wheeler J. Young was not living when his father died.

We have carefully considered the very helpful briefs which have been filed by counsel.

• We shall not attempt to discuss these authorities in detail, but from a consideration of the same, we think the presumption is that Wheeler J. Young was living at the date of the death of his father.

In the 10th O. S. Reports, page 596, the first paragraph of the syllabus is as follows:

“When a man leaves his home or usual place of residence, and goes to parts unknown, and is not heard of or known to be living for the period of seven years, the legal presumption arises that he is dead.”

In the 33d O. S. Reports, page 155, the first paragraph of the syllabus is as follows:

“ If a husband leaves his family and usual place of residence, and goes to parts unknown or a distant state and is not heard of or known to be living for the period of seven years, the presumption arises that he is dead. ’ ’

In G-reenleaf on Evidence (15th Edition), Volume 1, page 62, the following rule is announced:

“Other presumptions are founded on the experienced continuance of permanency of longer and shorter duration in human affairs. When, therefore, the existence of a person, a personal relation, or a state of things, is once established by proof, the law presumes that the person, relation or state of things continues to exist as before, until the contrary is shown or until a different presumption is raised, from the nature of the subject in question.
“(a) Thus, where the issue is upon the life or death of a person, once shown to have been living, the burden of proof lies upon the party who asserts the death.
“(b) But after the lapse of seven years, without intelligence concerning the person, the presumption of life ceases, and the burden of proof is devolved on the other party.”

Upon a consideration of the pleadings, the record and authorities cited, we are of opinion that the weight of authority and the better reasoning sustains the finding that a legal presumption of the death of Wheeler J. Young did not arise until the expiration of seven years from the date of his disappearance, and in the absence of any proof showing his death prior to March 4, 1900, Wheeler J. Young should be considered as an heir of his father, John 8. Young, Sr., and entitled to a one-half interest in the 98-acre tract of land in question.

In reference to the claim that the court had no jurisdiction in the alimony proceedings of Anna Young, we are of opinion that under the decision of our Supreme Court in the case of Benner v. Benner, 63 O. S. Reports, 220, the court acquired jurisdiction to decree the property in question and that the proceedings in that case were regular.

We have also considered the objections urged against the .Sifrit judgment and the other errors claimed by counsel for plaintiff in error, but finding no prejudicial error in the record, the judgment of the lower court will be affirmed.

Allread and Ferneding, JJ., concur.


author: Houck, J.

text:
    PROPERTY INHERITED FROM RELICT REGARDLESS OF PROVISIONS OF SEPARATION AGREEMENT.
    Court of Appeals of Richland County.
    Maude M. May et al v. Henry O. Hess et al.
    Decided, October 7, 1918.

      Husband and Wife — Provision in Separation Agreement — Barring Either of any Bight of Inheritance from the Estate of the Other— Not Effective, When — Descent of Non-Ancestral Property.

    An agreement of separation between husband and wife, which recites that “each party is by these presents hereby barred from any and all rights or claims by way of dower, inheritance, distribution,” etc., from the estate of the other, does not bar either of said parties from inheriting from the other property which did not come by descent, devise or deed of gift, where the decedent died intestate and left no children or legal representatives.

      Sidles, Sidles and Sidles, McClelland, Brucker, Vogele & Hinkle, and Mdbee & Anderson, for plaintiffs, and all defendants and cross-petitioners, except Henry C. Hess.

      J. B. Graham, Walter J. Sperry, and Reed & Beach, for Henry C. Hess.
   Houck, J.

This ease is here on appeal from á judgment entered in the common pleas court of Richland county. The agreed facts are:

That Mary A. Hess and Henry C. Hess were married January 9th, 1913; that Mary A. Hess departed this life, intestate, leaving no children or their legal representatives, on the 17th day of January, 1917, seized of the real estate described in the amended petition of plaintiffs, and which real estate is non-ancestral, except two cemetery lots located in the Belleville, Ohio, cemetery; that said non-ancestral real estate is of the value of not less than twenty-five thousand dollars; that Henry O. Hess and Mary A. Hess were husband and wife at the time of the death of the said Mary A. Hess; that the following post-nuptial agreement was entered into between the said Henry C. Hess and Mary A. Hess:

“separation agreement.
“These articles of separation made and concluded at Mansfield, Ohio, this 5th day of November, 1913, by and between Henry O. Hess and Mary A. Hess, husband and wife, witnesseth:
^“That whereas the parties hereto have agreed and hereby do agree to live separate and apart during' the remainder of their natural lives: and
“Whereas said Mary A. Hess has this day paid to Henry C. Hess the sum of $1.00 the receipt of which is hefeby acknowledged and has this day signed a deed for said Henry C. Pless, thereby conveying to his daughter Eosa Burris real estate known as part of lot No. 6 in Mt. Vernon, Ohio; now therefore with full knowledge of the rights and interest of the property of each other and of our own free will, and in consideration of the foregoing, each party hereto does hereby release and discharge the other from all obligations of support and from all other right, claims and duties arising or growing out of their marital relations; and said parties mutually agree that each party hereto may freely sell or otherwise dispose of his or her own property, by gift, deed or last will and testament, and each party is by these presents hereby barred from any and all rights or claims by way of dower, inheritance, descent distribution allowance for a year’s support, and all other rights or claims whatsoever, in or to the estate of the other, whether real estate or personal, and whether now owned or hereafter to be acquired.
“And each party hereto for the consideration aforesaid, does hereby release and relinquish to the other, and to the heirs, executors, administrators and assigns of the other, all claim or right of dower and inheritance in and to all the real estate of the other whether now owned or hereafter acquired, all rights or claims to a distributive share of the personal property of the other, now owned or hereafter acquired, and all claim to year’s support and all other claims whatsoever.
“Each party hereto further agrees, upon request of the other, to execute and acknowledge any and all deeds or other instruments of release or conveyance to enable such other to sell, convey or otherwise dispose of his or her own real property, free from any apparent right of inchoate dower therein.
‘' In witness whereof the parties have hereunto set their hands on the day and date herein written.
“Henry O. Hess,
“Mary A. Hess.”
“Signed in presence of
“B. E. Sapp,
•“Hugh Neal.”

But one question is here presented for determination, namely, under the facts and law is Henry O. Hess the owner in fee simple of the non-ancestral real estate described in the amended petition of plaintiffs?

It is claimed by counsel for Henry O. Hess that all non-ancestarl real estate of which Mary A. Hess died seized passed to and the fee simple title vested in the said Henry O. Hess, as the surviving widower of Mary A. Hess, under and by virtue of the provisions of Section 8574, General Code, which reads:

“Section 8574. If the estate came not by descent, devise, or deed of gift, it shall descend and pass as follows:
1. To the children of the intestate and their legal representatives.
2. If there are no children, or their legal representatives, the estate shall pass to and be vested in the husband or wife, relict of such intestate.
3. If such intestate leaves no husband or wife, relict to himself or herself, the estate shall pass to the brothers and sisters of the intestate of the whole blood, and their legal representatives.
# * # * j ?

Counsel opposing Henry C. Pless urge that notwithstanding Mary A. Hess died intestate, without issue, and survived by her said husband Henry C. Hess, that he is barred from any interest in said real estate by reason of the terms and provisions contained in said post-nuptial agreement.

How stand the issues thus raised, under the conceded facts and the law applicable to them?

Under Section 7999, General Code,'it is provided that a husband or wife may enter into any agreement or transaction with the other, or with any other person, which either might if unmarmarried, subject in transactions between themselves to the general rules which control the actions of persons occupying confidential relations with each other. Therefore, it will be conceded that the parties to the contract under consideration had not only a moral but a legal right to enter into it.

It will further be conceded, under the facts, that unless Henry C. Hess has barred his right to inherit the real estate in question, by the provisions of said written contract, that he takes same under favor of said Section 8574, General Code. If Henry C. Hess has barred his right to inherit said real estate by said post-nuptial agreement, it is by reason of the following language used therein:

"And each party is by these presents hereby barred from any and all rights or claims by way of dowser, inheritance) descent, distribution, allowance for year’s support, and all other rights or claims whatsoever, in or to the estate of the other, whether real estate or personal, and whether now owned or hereafter to be acquired. And each party hereto for the consideration afore* said does hereby release and relinquish to the other and to the heirs, executors, administrators and assigns of the other all claim or right of dower and inheritance in and to all the real estate of the other whether now owned or hereafter acquired...”

The language here used, as we construe it, in.no way barred the right of the husband, if he survived his wife, to inherit her real estate; therefore it follows that it passes by operation of law.

It is clear to us that under the terms of the contract Mary A. Hess, during her lifetime could have sold and conveyed by deed this real estate, or she could have disposed of it by will, but she elected to do neither; and having died intestate, and leaving no children or their legal representatives, but a husband surviving, and being seized of real estate that came not by descent, devise, or deed of gift, it goes to and vests in said husband in fee simple.

Mary A. Hess had full power and dominion over the real estate owned by her, and had a legal right to alienate same by deed or will, but this she did not do. And having failed to designate who shall succeed her in title, our statute steps in and supplies the omission, and casts it, in this ease, upon the surviving husband, Henry C. Hess.

Counsel opposed to Henry C. Hess propound, in their written brief, the following question to the court:

“Now, shall it be said that after Henry C. Hess had procured Mary Ann Hess to relinquish her right in his property, and each of the parties lived under this contract the remainder of the life of Mary Ann Hess, that Henry C. Hess may treat this contract as a nullity, and reap the benefits under it?”

This is a proper and pertinent inquiry, and it seems to us that if correctly answered is decisive of the issues in the case. Our answer is:

Mary A. Hess was bound to know the law. She knew that she was- the owner of the property now in controversy, and had a right to sell and dispose of it during her lifetime, yet she did not do so. She knew, and in law was bound to know that she could dispose of her property by will, but did not do so. It therefore follows, and the presumption of law is, that she intended the real estate in this lawsuit to go to and vest in the one designated by our statute to inherit same. True, Mary A. Hess might not have placed the proper interpretation or meaning upon the terms and conditions of the contract now before us, and might have been mistaken as to the legal effect of same, but this can in no way chánge the law of inheritance as fixed by legislative enactment.

Owing to the conclusion reached in this ease, we deem it unnecessary to discuss the numerous claims made in the several answers and cross-petitions filed herein, other than the issues we have referred to as made by the amended petition and the answer of Henry C. Hess.

It must and does follow from what we have already said, that we find the issues in this ease in favor of the defendant Henry C. Hess, and judgment is here entered finding that he is the fee simple owner of all the real estate described in the amended petition of plaintiffs, except the two cemetery lots located in the Belleville .cemetery.

Judgment and decree accordingly.

Powell, J., and Shields, J., concur.


text:
    PROSECUTION FOR KEEPING A PLACE WHERE INTOXICATING LIQUORS ARE UNLAWFULLY SOLD.
    Court of Appeals for Williams County.
    Ernest P. Mignery v. The State of Ohio.
    Decided November 5, 1917.

      Criminal Law — Irregularities in Issue of the Warrant of Arrest— Waived by a Plea of Not Guilty■ — Complaint does not Lie to Failure to Make Preliminary Examination, When — Evidence of a Single Sale to a Minor Justifies a Conviction, When.

    1. In a criminal prosecution before a mayor, neither the omission of the mayor’s official seal on the affidavit and warrant, nor the absence of a file mark thereon, nor the insertion of the original affidavit in the warrant instead of a copy or a statement of the substance thereof, affects the validity of the proceedings, and such irregularities are waived by a plea of not guilty.
    2. A liquor licensee, prosecuted under Section 13196, G. C., for keeping a place where intoxicating liquors are unlawfully sold, can not complain that no preliminary examination has been had under 103 O. L., 239, Section 54, where he made no demand therefor, nor any claim of a previous conviction, nor that a conviction would operate to revoke his license, and where he went to trial on the merits before the magistrate without demanding a jury.
    3. Proof that the defendant had given directions in good faith to his ‘ barkeepers not to make unlawful sales of intoxicating liquor is no defense in a prosecution under Section 13196, G. C., for keeping a place where intoxicating liquors are' sold contrary to law.
    4. Evidence of a single sale of intoxicating liquor to a minor, in a . room equipped with bar fixtures and conducted as a saloon, justifies a conviction under Section 13195, G. C., for keeping a place where intoxicating liquors are unlawfully sold.

      John E. Schrider and F. S. c& J. M. Earn, for plaintiff in error.

      D. A. Webster, Prosecuting Attorney, contra.
   Richards, J.

ITeard on error.

Mignery was convicted before the mayor of the village of Stryker, in this county, of keeping a place where intoxicating liquors were unlawfully sol'd in violation of General Code, Section 13195, and was sentenced to pay a fine of $500. The judgment was affirmed in the court of common pleas, and this proceeding in error is brought to reverse these judgments.

Very -many reasons are urged why the judgments should be reversed. It is insisted that no affidavit was filed; that the paper which was filed as an affidavit is void for uncertainty and is not certified under the seal of the mayor; that no sufficient warrant was issued; that no preliminary inquiry was had pursuant to 103 O. L., 239, Section 54; that the court erred in the admission and rejection of evidence; and that the judgment of conviction is against the weight of the evidence.

An affidavit, which appears to be in due form of law, was made and filed with the mayor by W. M. Bonebrake, who made oath before the mayor that the statements contained in the affidavit were true. This original affidavit was pasted in a blank space in a warrant instead of writing into the blank space a copy of the affidavit or the substance thereof, and the warrant was thereupon signed and issued by the mayor. While it was somewhat irregular to use the original affidavit in this way, yet the validity of it was in nowise affected by such use; nor was the sufficiency of the warrant lessened by the fact that it contained the original affidavit instead of a copy thereof. The validity of the proceedings is not affected by the fact that the mayor omitted to attach his official seal to the affidavit or to the warrant. It was at most an irregularity which would not invalidate the proceedings. The state having done all that it was required to do by causing an affidavit in proper form to be made out and verified and filed with the mayor, it is not material that the affidavit does not bear a file-mark nor contain the official seal of the mayor of the municipality.

The defendant on being arraigned plead not guilty and on his application the hearing was continued to a later date. All objections of the character mentioned are waived by the filing of a plea of not guilty, Riflemaker v. State, 25 O. S., 395.

When the case came on for hearing objections were made to the sufficiency of the affidavit and warrant and, on consideration, those objections were overruled. After the hearing had proceeded to the extent that the objections to the affidavit.and warrant were overruled, a witness was called and the examination commenced, whereupon counsel for the defendant objected to further proceeding with the trial for the reason that no preliminary examination or investigation had been made as provided by 103 O. L., 239, Section 54. In order for a defendant to take advantage of the provisions of that section it is necessary for him to make due application to the magistrate for the preliminary hearing therein mentioned, and this application should be made before the parties have begun the trial of the case on its merits. In the case at bar the defendant made no application for a preliminary hearing under the section cited, but merely objected to proceeding to trial, and he failed to make even this objection until after the commencement of the trial upon its merits. While the defendant is the holder of a liquor license, nowhere does it appear in the record that he has been heretofore convicted of a previous offense under the liquor laws or ordinances; nor did he at any time make such contention; nor did he claim that a conviction in the pending case would work a revocation of the liquor license which had been granted to him by the state. The record does not disclose that the defendant at any time asked for a trial by jury. Under these circumstances the court committed no error in proceeding with the trial of the case upon its merits without theretofore having had the preliminary examination provided for in Section 54 above cited.

While the defendant was prosecuted in this case for keeping a place where intoxicating liquors were sold in violation of law, reliance was placed on certain sales to various minors claimed to have been made by bartenders in the defendant’s employment. Three boys varying in ages from sixteen years and ten months to nineteen years testify to having bought liquors at various times of bartenders in the defendant’s employment in a saloon which was kept and conducted by him. It appears from the evidence-offered by the defendant that one of these boys was required to sign a written statement with reference to his age, and that thereupon he did sign one, not, however, writing his own name but writing the name Ralph Jones. This statement reads that the signer was twenty-one years old on the 15th day of March, 1893. Possibly the parties intended to set forth that the signer of the statement was born on the date given, but the writing does not so read and no explanation of the fact is made in the evidence. After these facts had appeared the defendant offered the writing in evidence and the court excluded the same. We see no prejudicial error in excluding this writing. Certainly the defendant could not be' protected by a written statement so palpably false and signed under an assumed name.

Evidence was introduced on behalf of the defendant showing that he had on various occasions given his bartenders directions not to sell liquor to minors. If the prosecution were for unlawfully selling intoxicating liquor, it would be competent for the defendant to prove that he had given in good faith directions to his bartenders forbidding sales to minors as was held in Anderson v. State, 22 O. S., 305. The charge in this case, however, was not that the defendant had unlawfully sold intoxicating liquor, but that he was the keeper of a place where intoxicating liquor was sold in violation of law, an entirely distinct offense. The General Assembly has by General Code, Section 13195, prohibited the keeping of a place where intoxicating liquors are sold, furnished or given away in violation of law, and in order to sustain a conviction under that act it is only necessary for the state to prove that the defendant is the keeper of the place and that intoxicating liquors have been unlawfully sold therein. In such a prosecution, order or directions given to the bartender are not material; nor is actual knowledge of the keeper of the premises that intoxicating liquors are unlawfully sold therein important. The question of agency of the bartender has nothing to do with a prosecution -under this section. State of Ohio v. Fuller, 13 C.C.(N.S.), 405.

Some evidence was excluded tending to show that on particular occasions, other than those claimed by the state, the defendant, through his bartenders, refused to sell liquor to minors. The court committed no error in so holding for, as has been well said, evidence that one has violated the statute in one instance can not be rebutted by testimony that he did not violate it every time he had the opportunity. State v. Lindner, 76 O. S., 463.

As the statutes of Ohio now read, we have no hesitancy in reaching the conclusion that in a prosecution for keeping a place where intoxicating liquors are unlawfully sold, furnished or given away, proof of one unlawful sale in a room conducted as a saloon is sufficient to sustain a conviction. Sanders v. State, 1 Ohio App. Rep., 306; same case, 20 C.C.(N.S.), 395; Lynch v. State, 12 C.C.(N.S.), 330.

The .evidence has at least the usual conflict found in cases of this character. The witnesses were before the mayor and he had better opportunity to judge of their truthfulness than this court. There was ample evidence introduced which, if believed by the lower court, would justify a finding that.the defendant was guilty and, indeed, that sales had been made to minors on various occasions by persons in his employment. We have read all of this evidence and are not able to say that the judgment of conviction is so manifestly against the evidence as to justify a reversal.

Finding no prejudicial error, the judgment will be affirmed.

Chittenden and Kinkade, JJ., concur.

      Motion for leave to file a petition in error overruled by the Supreme Court, February 19. 1918.