author: Haynes, J.

text:
    (Sixth Circuit — Lucas Co., O., Circuit Court
    Oct. Term, 1897.)
    Before King, Haynes and Parker, JJ.
    HENRY M. STRONG, et al. v. THEODORE SCHMIDT.

      Tenant holding over becomes tenant from year to year—
    During the year, tenant left the premises claiming the right to do so without liability to pay the rent thereafter.

      Held: That in order to admit proof by parol evidence of a surrender, there must have been a surrender in fact of the premises, accompanied by delivery of possession to the landlord, accepted by him as such surrender.
    Error to the Court of Common Pleas of Lucas county.
   Haynes, J.

This case is here upon a petition in error. It has been here once before, and is reported in 14 C.' C. R., 302, Bulletin, March 15, 1897. The case went back to the court of common pleas fora new trial, and was tried again, and now comes back the second time, the lower court having followed the opinion of the circuit court in .regard to certain points, and charging anew on some other- points.

The testimony as set forth in the record, shows that Schmidt was in possession of the premises under a lease from the plaintiffs for a year. Near the close of that year, certain matters transpired between the parties. Schmidt claimed that while he had agreed by the lease to pay $600 per annum, in fact he was to pay only $550. As the lease was approaching its completion, a new lease was written for another year, which was sent to him, and he declined to sign it. On or about the 31st of August, 1893, he wrote to Pomeroy & Son a letter, in which he said, “In looking over my lease I find it reads for one year. Under your present conditions I do not wish to renew the same for one year, but will rent by the month.’’ The next morning Pomeroy & Son answered him as follows:

“The owners of the Law Building decline your proposition. If it will be any convenience to you, we will renew your lease until April or May, ’94, but otherwise they wish the contract fulfilled as it stands. They do not see any great excuse for your arrears of rent, and request a settlement without delay.’’

That' is all that occurred between the plaintiff and the defendant prior to the expiration of the written lease, and Schmidt continued to hold possession of the premises, and paid rent at the rate of $50 a month. He continued in possession of the premises down to about the 15th of March, the next spring — 1895, and on the 1st of March he wrote a letter as follows:

“George E. Pomeroy & Son,

“Gentlemen — I hereby notify you that I will vacate room No. 310 Superior street, by March 31st, 1895.’’

No attention was paid to that letter, and on the 30th of March he wrote to them, enclosing the key in the letter, and putting it through the door of the office room, where it was found in the morning. His letter was as follows:

“Mess. Geo.E.Pomeroy & Son:

“Dear Sirs: — Herewith I hand you the keys to your room 310 Superior street, wtiich I have this day vacated. Mr. Brumback tells me that he has arranged with you to leave tbe wire screen partitions belonging tojj The Mutual Aid Building & Loan Company, in the room until such time as you may notify the company to take them out. Any arrangement you have made with Mr. Brumback does not concern me in any manner.

The key was passed over io the janitor, and in a short time afterwards, the testimony shows, there was placed in the window a notice for rent, but no rental was made of the premises. At the close of the month of April, a demand was made upon Schmidt by the plaintiffs for a month’s rent, which was not paid. At the expiration of the month of May, on the 1st of June, a demand was again made for that rent, and in addition for $50, May rent, etc,, and that was not paid, and thereupon suit was brought for two months rent, and subsequently another suit was brought, and the two consolidated, for rent down to the 1st of September, which was the close of the year. This testimony was offered, most of it subject to the exception of defend ant’s attorneys, and at the conclusion of the trial the court submitted to the jury the question which is stated as follows:

“The defendant claims that he held possession of this property as a tenant of the plaintiffs until the 1st of September, 1895; but his contention is,that he did not holdover under the terms of the written lease from year to year, after the expiration of that lease on the 1st day of September., 1893. And the burden is upon the defendant in this case to show, by a preponderance of the evidence, that there was a change in the tenancy after the expiration of the written lease on September 1st, 1893, or at that time. When a tenant, with the consent of his. landlord, express or implied, holds over his term, the law implies a continuation of the original tenancy upon the same terms and conditions, in the absence of any other contract or agreement between tbe parties. The fact of holding over after the expiration of the written lease, and entering upon another year, raises the presumption that such holding over is in accordance with the terms of the written lease, or former tenancy; and where the term of the former tenancy is one year, as it was in this case, if there is no other contract or agreement or understanding between the parties, the tenant is held for another year, at the same rent that he was theretofore paying. This presumption, which the law raises in the case, is one that may be rebutted by proving the real contract or understanding, if there was one. ’’

The matter seems to have been submitted by the court upon the theory that the defendant having said that he would not hold under that contract or agree to the terms of ■,the former lease, that that terminated the lease entirely, .and he became perhaps a tenant from month to month or ¡some shorter term, and that he had a right to leave at any time he saw fit to do so; and the question is, whether that was error on the part of the court.

It is well established in Ohio, we think; it is well' established by the terms of the law generally in other states; it is the common law of England, as we understand it, where ¡a party is in possession of premises for a year under a •written lease, and holds over,if the landlord recognizes that bolding over by receiving rent of him, that that creates a ¡new tenancy for another year,or from year to year,and that tenancy is to be terminated only by a written notice by either party at or near the expiration of the lease. At common law six months notice was required. We had that question before us at the last term. A majority of the court held that it was sufficient to give only reasonable notice. It is held by the supreme court of this state in the case of Armstrong v. Kattenhorn, 11 Ohio, 272, that where a party being in possession of premises under a lease, in order to make a new contract that shall be binding between the parties, that contract, under the statute of frauds, must be in writing, or if it is a verbal contract, that there must be such a.change of possession referable to that new contract as will take the case out of the statute of frauds. The last reference to that case that I know of in the reports of this state is in 45 Ohio St., 543 — the case of Myers v. Crosswell. There is a discussion there of the law in regard to the statute of frauds and the part performance necessary to take the case out of the statute. At page 548, quoting from Pomeroy on Specific Performance of Contracts, the court say:

“A plaintiff cannot, in the face of the statute prove a verbal contract by parol evidence and then show that it has been partly performed. This course of proceeding would be a virtual repeal of the statute. He must first prove acts done by himself on his behalf which point unmistakably to a contract between himself and the defendant, which cannot, in the ordinary course of human conduct be accounted for in any other manner than as having been done in pursuance of a contract, and which could not have been done without an existing contract; and although these acts of part performance cannot of themselves indicate all the terms of the agreement sought to be enforced, they must be" consistent with it and in conformity with its provisions when these shall have been shown by the .subsequent parol evidence. It follows from this invariable' rule, that acts which do not unmistakably point to a contract existing between the parties, or which' can be reasonably accounted for in some other manner than as having been done in pursuance of a contract do not constitute a part performance “ufficient in any case to tako it out of the operation of the statute, even though a verbal agreement has actually been made between the parties.

“In this state it has been held that ‘if possession be relied upon it must be clearly referable to the contract, and be delivered and held in performance of it. Possession must givé the contract life, and if they can possibly be separated the parol agreement perishes under the operation of the statute. Hence, if the possession can be referred to any other source than the parol contract which it is claimed to support, even to the wrongful act of the party in possession or to a different contract the statute applies.’

The testimony clearly shows that the defendant was in possession under a written lease. He refused to sign a new lease for the reason that he was not satisfied with its terms. He wrote letter to the other parties, saying that he would hold from month to month, and stated that orally, perhaps to the agent. The parties themselves, instead of consenting to that, answered that they would not consent. So that we have the terms, so far as any writing is concerned. We have a proposition to hold on differnet terms, with a refusal on the part of the landlord, and under that state of facts the defendant continued in possession.. There was no change in possession, nor did the landlord in any manner or form reorganize that there was a holding over under different terms than those of the lease. We see no reason whatever why the statute of frauds does not apply here and we think that all the evidence in regard to the statements made by the defendant as to how he would hold or in what manner was entirely irrelevant and illegal.

The rule of law is — it is said that the presumption of law is, that he holds under the .former contract from year to year. The language is varied by different courts in delivering the opinions: by some it is said to be a “presumption,” by some it is said to be an “implied contract,” and by some it is said to be a “constructive contract;” but no matter what it is called the law clearly is, that where the party has continued in possession after the termination of a year’s lease and the landlord has accepted rent from him, that the lessee holds for another year, and that the same is as binding and obligatory upon both parties, as it would be if re-executed. The landlord cannot evade it only at the expiration of the year, nor can the tenant leave possession of the premises. He is likewise bound to pay rent for the year. If he chooses to leave the premises, his obligation still remains to pay. It is a binding contract. That contract can only be set aside in some manner that hás reference to the law of the land. There are two and perhaps three ways in which it can be set aside: a new contract may be made,and there may be a surrender of the premises; but the new contract, in order to be binding, must be either a contract in writing under the statute of frauds, or it must be, if a parol contract, in pursuance of a change of possession, as the supreme court has said, which makes a new and binding contract,

It is said that there was a surrender of the premises. I should say here at the outset that no surrender was pleaded whatever. Two defenses only were set up in the pleadings ■ — one that there was a contract from month to month, and another that there was a new contract made as a settlement of some suit that was pending,and that at the expiration of the time the defendant went out and the landlord took possession of the premises, and gave notice of a desire to rent them. The court says:

“The question as to whether there was a surrender of the premises by the defendant to the plaintiffs, and an acceptance of that surrender by the plaintiffs, has been discussed in argument, with reference to the evidence in the case. If a tenant voluntarily abandons premises during the term without the authority of the landlord, or sufficient cause, he is not relieved from the payment of rent. The landlord may take possession and re-rent, and credit the first lessee with the proceeds which he may receive by re-renting the property; but if the landlord consents to the abandonment, or if the abandonment is for sufficient cause, the tenant will be" discharged from its payment. It is claimed in this case, on the part of the plaintiffs, that when Mr. Schmitt abandoned the room, moved out of'it, and sent the key to the agent of the plaintiffs, he simply abandoned the room; that he did it without the consent of'the plaintiffs, and that they were not, bound, or their rights were not affected by his ac tion in the matter. The plaintiffs’ rights are [not affected by such abandonment unless he consented to the abandonment. A surrender of the tenant, a turning over of his estate to the. landlord,cannot be done by the tenant without the acquiescence of the landlord. A surrender must be by agreement. The minds of the parties must meet, or they must so conduct themselves as that they are held to a meeting. It is essential to a surrender that there be an acceptance of, a surrender of, the interest. A leasehold interest in property cannot be one sided. And you. must deT termine from the evidence in this case what the facts are with reference to this branch of the case, if you come to a consideration of this branch of the case.”

As I have said, there was no surrender pleaded — no issue made upon that. The matter was submitted to the court, and went to the jury under this part of the charge that I have read. We said in deciding this case before, that a writing was not necessary for the surrender of the premises. This arises from a peculiar formation of the statute of frauds. In England the statute was in substance that there should be no grant of any premises by way of lease,nor surrender, except it was in writing, and the surrender had to be accompanied with the same formalities in regard to making it a written contract that the grant was, The language of the statute in this state is, that there shall be no grant of a lease, and the word “surrender” is- left out entirely. So that there may be a surrender by parol, but that surrender must be a surrender in fact, and not an agreement to-surrender. • An agreement to surrender must be in writing in order to be valid. Under the section (4199) of the statute of frauds which requires that a contract in regard to land must be in writing,an agreement to make a future surrender must be in writing; but an oral agreement to surrender, accompanied by an actual possession, as a termination of the contract-of lease, accepted by the grantor, would take the contract out of the statute and be valid asa surrender. On evidence of this branch of the case I shall have nothing to say,except that the tenant abandoned these premises, and went off and left them, saying to the landlord “I won’t have anything further to do .with them.” He takes the key and puts it in a letter, and leaves it in the office of the agent- — -in fact, left it in the door of the office. Mr. Pomeroy, as agent of the landlord, took it and handed it over to the janitor, and subsequently put in the window a notice to rent; but nowhere did he accept the surrender of the premises. The landlord held the tenant for the rent, demanded the rent,and then demanded it again, and when refusal was had, he commenced an action. It is said he did not commence until 60 days after the termination of the year: he had six years in which to commence an action,if he had a cause of action, under the statute of limitations. What was the duty of the landlord ? Was it not to take care of the premises?

G. W. Everett, for Plaintiffs Error.

Hurd, Brumback & Thatcher, for Defendant in Error.

The tenant had gone and left them. It was perfectly proper for the landlord to offer the premises for rent, and if he rented them — got anything for them — to credit the tenant. The fact that the key was left does not amount to anything, or tend to prove anything.

We think the court erred in submitting these two propositions to the jury. We think it would have been proper for the court at the termination of the evidence to have directed a verdict for the plaintiffs. We think the evidence should have been ruled out. We think there is no defense upon the testimony offered to the claim of the plaintiffs for this rent.

The judgment of the Court of Common Pleas is reversed.


source: Caselaw Access Project

author: Day, J.

license: Public Domain

text:
    (Third Circuit — Putnam Co., Circuit Court
    November Term, 1897.)
    Before Day, Price and Norris, JJ.
    JOSEPH R. MEGRUE, et al. v. THE BOARD OF COMMISSIONERS OF PUTNAM COUNTY, O.

      Suburban Railway — Contract with County Commissioners as to use of roads.

    Under the provisions of sections 3283 and 3281 Revised Statutes, a county board of commissioners, has power and is authorized to contract with a railroad company with respect to the manner, terms and conditions upon which such company may occupy, cross or divert a public highway in the construction of its railroad ; and such contract, when fairly made, is valid and will be enforced the same as other valid contracts.
    Error to the Court of Common Pleas of Putnam county.
    The Board of County Commissioners of Putnam county, filed a petition against Joseph R. Megrue, James B. Townsend and Nelson E. Mathews, alleging in substance: That on the 25th day of November, 1895, the defendants named, executed and delivered to the plaintiff their certain writing obligatory, whereby they became bound to the said board for the use of Putnam county, in the sum of one thousand dollars. The condition of the writing obligatory was to the effect that The Lima Northern Railway Co. had located and graded, and was about to construct, its railroad on and across the Columbus Grove and Ottawa public road, in section three, Pleasant township; and the construction of said railroad on the said public road will destroy its usefulness as a public way, and compel its abandonment at that point, and its rebuilding in a different location; that the said defendants, acting for and representing the railway company, proposed and agreed with the said board of commissioners, in consideration of the surrender of a portion of said public road for the uses and purposes of said railway company, to purchase the necessary ground and construct a public road on and along the east side of the said railroad right of way, so as to make the said public road connected and continuous; and to place good gravel on it, and to finish and complete it, suitable for public travel, within thirty days from the time rails are laid on the said railroad to the north line of said section three; and upon default of the said railway company in complying with the terms of said agreement, the said defendants were to become liable for the reasonable cost and expense of rebuilding or finishing and completing the said public road; the board surrendered to the railway company the designated portion of the public way, and the company entered upon and took possession of it, and constructed its railroad on and across it, and laid rails thereon to the north line of said section three, before January 1, 1896. The railway company purchased a strip of ground sixty feet wide and fifteen hundred and eighty feet long,in the location agreed upon, and partially rebuilt the public way as per its agreement,but has failed and refused to fully complete the same within thirty days,or at all, although requested. After waiting a reasonable time, much longer than thirty days, the board of commissioners completed the grading and ditching, and put gravel thereon, and in September .and October, 1896, fully completed the said public way according to the terms of the agreement at the reasonable cost and expense of $461.00. By reason of the facts stated, the claim is asserted that the conditions of the writing obligatory have been broken, and the liability of the signers, the defendants,has become absolute; and judgment is prayed against them for the amount of the cost and expense incurred in completing the public way. A second cause of action, with similar facts, is stated, and judgment demanded. A general demurrer,that the petition does not state sufficient facts to constitute a cause of action against the defendants, was overruled, and defendants not desiring to answer or further plead, judgment was entered against them for the full amount claimed. Defendants prosecute error, and base their right to .a reversal of the judgment on the insufficiency of the petition.
   Day, J.

The only question raised on this record is as to the sufficiency of the petition: Are sufficient facts stated to entitle the board of county commissioners to recover against the defendants below? The whole contention of plaintiff in error rests on the assumption that the board of commissioners was without power to make the contract which forms the basis of the action. It is urged, that the board of commissioners is without authority and cannot take action, legally, to vacate or dispose of any part of a public-highway, in the absence of the initial steps provided by the statute; that no such steps were taken in this case,'and hence, that the agreement to surrender a part of the public road to the railway company for its uses was unlawful, the board without right or power to act in the matter, and its contract absolutely void. This claim, we think, would have-to be allowed, if the transaction in question was, alone, a proposition to locate and establish a road, or, to vacate some part of a public road; but such was not the proposition. The proposition was not in any sense, to vacate a public road and to locate and establish a new one. The public road is not, and was not to be vacated and a new one opened, under the contract between the railway company and the board of commissioners. The words used in designating what the board was to do was, “surrender a portion of the public road for the use of the railway company in constructing its road and road crossing.” “Surrender” does not mean, in any sense, to vacate, or locate. In this, and in every connection, the word surrender only means to yield to,” “to cease to resist the efforts of another;” and the word including the entire contract in this instance, must be interpreted in the light of the legal right of the railway company to occupy and cross a public highway; and the fact that the company was making an effort to occupy, as a crossing, this identical part of the public road. Interpreted in this light then, the transaction and agreement in its entirety, was simply-and only a proposition to divert — to turn aside slightly, from its former location at one point, a continuous highway for the mutual welfare and benefit of the public and the railway company. And for this, it is believed, there is found special warrant.in the statutes. In sec. 3283, Rev. Stat., it is provided:

“If it be necessary,in the location of any part of a railroad, to occupy any public road, street, alley, etc., or any part thereof, the officers having charge thereof, and the company, may agree upon the manner, terms and conditions upon which the same may be used or occupied.’’

Further,provision of the section is: “If no agreement can be had, the railway company has a right of eminent domain,and may appropriate the same,as provided by law. ’’The following sec. 3284, provides: “A railway company may, when it is necessary in the building of its road,- to cross a road or a stream, divert the same from its location;’’ the only requirement being, that it “must, without unnecessary delay, place the road or stream in such condition as not to impair its former usefulness.’’

We think the provisions of secs. 3283 and 3284, Rev. Stat., contain ample authority for the board of commissioners of a county, to not only surrender — that is, yield to the efforts of a railway company to occupy some portion of a public highway; but also to make a contract stipulating and fixing the manner and terms of occupancy, and requiring the company to put the public road, as diverted, “in such condition as not to impair its former usefulness;’’ And so we reach the conclusion in this case, that the board of commissioners of Putnam county, in making the contract it did make, and in exacting the security for the faithful performance of the-contract it did, was clothed with ample power, and was in no sense acting without lawful authority. The contract it secured was fairly made,and was valid,and there was no error in its enforcement by the common pleas court.

W. H. Leete, W. B. Richie, Watts & Moore, for Plaintiff in Error.

. Jas. P. Leasure, Prosecuting Attorney, for the Commissioners.

The judgment is affirmed.


text:
    (Sixth Circuit — Lucas Co., O., Circuit Court
    Oct. Term, 1897.)
    Before King, Haynes and Parker, JJ.
    ALBERT W. PANCOST v. THE STATE OF OHIO, EX REL. MARY E. PANCOST, now MARY E. LANDER.

      Contempt of court for failure to pay alimony — Inability to comply,
    Plaintiff in error was imprisoned for contempt in refusing to obey an order granted in a divorce'case to pay certain sums to the divorced wife for the support of minor children.

      Held-. Under the evidence.it was not within the power of the plaintiff in error to perform the order of the court within the meaning of sec. 5616, Rev. Stats.
    Error to the Court of Common Pleas of Lucas county.
   Haynes, J.

A petition in error is filed in this case for the purpose of reversing the action of the court of common pleas in a certain proceeding in contempt.

The petition of the relator sets forth that:

“At the April term of this court, 1898,the plaintiff, then Mary E. Pancost, by the consideration of said court, in an action therein pending wherein Mary E. Pancost was plaintiff, and Albert W, Pancost was defendant, obtained a decree against defendant, a part of which is in words and figures following, to-wit:

“ ‘And it is further ordered, adjudged and decreed, that the defendant Albert W. Pancost shall pay to the said plaintiff, Mary E. Pancost, for the care, custody and maintenance of each of said minor children Olive Pancost and Leslie Pancost, the sum of $675, payable at the rate of $13.75 per month, for each of said children, payments to be made on the 1st and 15th of each and every month hereafter until the full sum of $675 has been paid, for the care and maintenance of each of said children, The first payment to be made as of July 1, 1893; and upon default of payment of the amount herein ordered, for five successive days, execution shall issue against the defendant for any amount remaining unpaid,’ ”

It then admits the payments of sums up to a certain amount, and says that since that time the defendant has wholly failed to pay the remaining amount that is due. Demurrers were filed to that petition, which were overruled, and an answer was filed, in which the defendant stated that he admitted that at the April term of this court,1893, Mary E. Pancost obtained a decree of divorce, and admits the decree as set out.

And answering further, defendant says that he is a married man, and the head and support of a family consisting of a wife and one child; that he is not the owner and holder of a homestead; and that his daily earnings are all necessary for the support of h.is family. Wherefore defendant asks that said charges in contempt be dismissed, and for other and proper relief.

An order having been made to which I will refer shortly, the defendant filed a motion for a new trial, in which he set forth, among other things, that the decision of the court was contrary to law and contrary to the evidence; that the court erred in the admitting of evidence and in rejecting evidence. The testimony was heard of Mr. Hamilton, who was the cashier of the Milburn Wagon Co., and of Mary E. Lauder, the divorced wife, and of himself, and certain letters were introduced in evidence. Upon the hearing of the evidence and the argument of counsel, the court made an order which recites the original decree, and found as was stated therein, that certain payments had been made on account of the support of the children, but found that certain”amounts were'unpaid, and that there was due at that time “the sum of $495.65, and of interest the sum of $18.41, and of installments not yet due,there remains to be paid of that for the month of August, 1897, the sum of $10.65.”

“And the court .further finds that said Albert W, Pancost is guilty of contempt of this court, as in said charges set forth, and said contempt consists in the omission to do acts which it is yet in his power to perform.

“ Wherefore,it is considered by the court that the said Albert W. Pancost be committed to the county jail of Lucas county, and therein confined until he shall have fully complied with the order'of the court in the case of said Mary A. Pancost v. Albert W. Pancost, rendered at the April term of this court, A. D. 1893, so far as the same relates to the payment by said Albert W. Pancost to the said Mary A. Pancost, of money for the support and maintenance of Olive Pancost and Leslie Pancost, children of said Albert W. and Mary A. Pancost, and until he pay the costs of this proceeding, including a fee of $25 each, to James M. Brown and John Berry, attorneys, heretofore appointed to prefer charges herein against said defendant, which he is hereby ordered to pay; and it is further ordered, that an order of commitment issue-to the sheriff of Lucas county in accordance herewith.”

The proceeding is had under sec. 5640,Revised Statutes:

‘ A person guilty of any. of the following acts may be punished as for a contempt:

“1. Disobedience of,or resistance to,a lawful writ, process-, order, rule, judgment, or command of a court or an officer.”

And it is under that first clause that the proceedings are had. Sec. 5644, provides:

“Upon the day fixed for the trial the court shall proceed to investigate the charge, and shall hear any answer or te&timony which the accused may make or offer.”

.“Sec. 5646. When the contempt consists in the omission to do an act which is yet in the power of the accused to perform, he may be imprisoned until he performs it.”

Argument has been made before the court as to whether the court had jurisdiction to issue this order under sec, 5640, for the reason that it was claimed that the order so made was a final judgment, and not properly an order of court. That part of the order in the original proceedings on which it was based, provided that he should pay $675, J‘and upon default of payment of the amount herein ordered for five successive days, execution shall issue against defendant for any amount remaining unpaid.” It is claimed on behalf of the relator that this was an order pure and simple, and is distinguishable from the judgment which is rendered for alimony in favor of the wife.

Sec. 5696, provides:

“The granting of the divorce, and the dissolution of the marriage, shall in no wise affect the legitimacy of the children of the parties thereto; and the court shall make such order for the disposition, care,- and maintenance of the' children, if there are any, as is just and reasonable.”

Sec. 5699 defines the rights of the parties when a divorce is granted by reason of the agression of the husband, and it is provided, among other things, that property may be allowed to the wife-for alimony, or it may allow alimony in real or personal property, or both, “or by decreeing to her •such sum of money, payable either in gross or in installments, as the court deems just and equitable.”

Now, whether this be such a final order that a court cannot take jurisdiction of it to issue an order for contempt, or whether it be such an order as comes within the first section of 5640, we shall not decide to-day. We leave that •open for future consideration and future decision, if the necessity shall ever arise for deciding it.

Inquiry was made of counsel whether the exemptions allowed to heads of families and w.idows, in sec. 5480, were applicable to a case of this kind. That provides that:

“Every person who has a family, and every”widow, may hold the following property exempt from execution, attachment, or sale, for any debt, damages, fine, or amercement, to-wit: :j .¿2

“6. The personal earnings of the debtor, and the personal earnings of his or her minor child or children, for three months, when it is made to appear, by the affidavit of the debtor, or otherwise, that such earnings are necessary to the support of such debtor, or of his or her family; and such period of three months shall date from the time of issuing any attachment or other process, the rendition of any judgment, or the making of any order, under which the attempt may be made to subject such earnings to the payment of a debt. ”

The supreme court, in a case reported in 50 Ohio St., 576, had under consideration the question whether a judgment for alimony was a judgment that became a lien upon lands, and discusses this question of debt. I read from page 481:

“It is contended in argument that alimony is not a debt, and if not, that it is difficult to see how it is a lien unless expressly made so by the court. But, in Lockwood v. Crum, 34 Ohio St., 1, it is well said by Boynton, J,, in delivering the opinion of the court: ‘The claim for alimony rests on the common law obligation of the husband to support the wife in a manner suitable to his condition and stañon in life during the existence of the marriage relation. And this obligation is as binding after the commission, by the husband, of a marital offense entitling, the wife to a divorce, as before. In respect to such obligations she may well be held to be a creditor of the husband. ’ In Chase v. Chase, 105 Mass., 385, it was held that a judgment for alimony in the case of a divorce a vinculo, or from bed and board, creates a debt of record in favor of the wife, and that she is entitled, as a creditor, to impeach a conveyance made by him with intent to defraud her. It is said by the supreme court of the United States, in Barber v. Barber, 21 How., 582, 595, that when the court having jurisdiction of her suit, allows the wife from her husband’s means, by way of alimony, a suitable maintenance and support, ‘it becomes a judicial debt of record against the husband; and it is as much a debt of record, until the decree has been recalled, as any other judgment for money is. ’ And if the duty of the husband to provide proper maintenance and support for his wife, before and after a decree of divorce, is not technically a debt, it is, nevertheless, a paramount obligation springing out of a sacred relation, which, when it has passed into judgment, should, as such,carry with it the well known binding force that attaches to judgments at law.’’

In the case of Pretzinger v. Pretzinger, 45 Ohio St., 452, I read from the syllabus:

“The obligation of the father to provide reasonably for the support of his minor child, until the latter is in a condition to provide for his own support, is not impaired by a decree which divorces the wife a vinculo on account of the husband’s misconduct, gives to her the custody, care and nurture of the child, and allows her a sum of money as alimony, but with no provision for the child’s support.

“The mother may recover a reasonable compensation from the father, for necessaries furnished by her to the child after such decree, and may maintain an original action for such compensation against the father, in a court other than that in which the divorce was granted.”

That case differs from the case at bar in this: that here there was this allowance to the wife for the support and maintenance of these minor children; so that obligation, so far as this case is concerned, is carried into that order, or judgment, if it be a judgment (for it seems to have the form of a judgment, in that it allows execution to be issued upon the non-payment on the sums).

But whether or not the exemption should be held to apply in a case of this kind, or in this particular case, we shall not definitely decide, for the reason that we do not think it is necessary. At the same time it will be seen by the decision of the supreme court that it might be very proper to take it into consideration when we come to consider the question of the property that the plaintiff has with which to meet this obligation which is imposed upon him by this order. We think, however, that this order was not made within the meaning of the statute which I have read: ‘‘When the contempt consists in the omission to do an act which is yet in the power of the accused to perform, he may be imprisoned until he performs it.”

Now, it will be observed that the order directed him to pay the sum of $495 and $18.41 of interest,and he was further directed to pay $50 as attorneys’ fees,and was directed to pay the costs of the contempt proceedings. In our judgment the testimony clearly shows that he was not in a condition or had the power at that-time to perform the order The testimony shows that he had during the previous year been earning at the rate of $100 a month, and that since the 1st of January last, and up to the 12th of July, when the order was made, he had been earning about $60 a month, or a little over. Some of the testimony shows that for the ordinary necessities of the house, such as living, light, fuel, etc., it was costing him $40 a month. He had other incidental expenses, which practically left him at the •end of each month without any money arising from his earnings during the month. And it further appears,that he had no other property which was available to pay this amount. It is true that he had some interest in property in South Carolina, in real estate, but it was then out of his possession, under some arrangement whereby the use and income •of it should go to pay certain liens upon it, and also to make certain improvements upon it, for which a power of attorney bad been executed to his brother, who was carrying out the arrangement. So at the time this order was made the defendant had no money whatever applicable to the payment of this amount, Defendant was a married man,as he sets up in his answer,and says he had one child, ■which I suppose is a child by .his subsequent marriage. At any rate he was a married man, was keeping house, and he was lawfully married — 'that is, he had a right to marry. And he was bound to support that wife and maintain her according to his circumstances. He was also bound to maintain his children, either through the order that had been made by the court, or independent of that order, under his general liability to support his children. If an order had been made for some limited amount, so that he could fairly lay aside some little sum from his earnings, aside from the questions of exemptions, it would present a very different question. To impose upon him the duty of paying this amount — the sum of $550 — and the costs of this court, we think was an excessive order, from the testimony of the case.

In regard to the attorneys’ fees we are unable to find any authority for the court directing their payment. But whether the court was authorized to do that or not, we are clearly of the opinion that he had no authority to order this man to be imprisoned at that time for the payment of those attorneys fees, nor for the payment of the costs made in the contempt proceedings. In support of that we cite a case from 80 Mo., 447. I read from the syllabus:

Petitioner was found guilty by the circuit court of Jackson county, of contempt in wilfully violating its restraining' order, by removing and refusing to return certain fixtures in controversy in a pending civil suit, and was adjudged to. pay the adversary party therein $150, as costs and ex-penes incurred by the latter in the contempt proceedings; also to pay a fine of $500, and that he restore the property mentioned in the order and be committed to jail untiJ he paid said sums of money and returned the property. Hold, that so much of the judgment of the court as related to the payment of the fine and the $150, was illegal and void.

The case is a lengthy-one, and discusses many questions under their statutes; but where they hold that he might be imprisoned for not returning the property, they say:

Horace A. Merrill, for Plaintiff in Error.

J. M. & W. F. Brown, and John Berry, for Defendant in Error.

Here the court had jurisdiction, and the imprisonment of the petitioner until he should comply with the order of the court, was warranted by law. After he shall have restored the goods the prisoner will be entitled to.his discharge, the other requirements of the judgment being nullities. Feely’s case, 12 Cush., 598; People v. Markham, 7 Cal., 208.

For these reasons the judgment of the court will be reversed, and the defendant be discharged, and the case be remanded to the court of common pleas.


author: Smith, J.

text:
    (First Circuit — Butler Co., O., Circuit Court
    Oct. Term, 1897.)
    Before Cox, Smith and Swung, JJ.
    THE C., H. & D. RAILROAD CO. v. N. L. HEDGES.

      ■Injury of employe by defective machinery — Allegation of want of knowledge of defeat by employe necessary—
    1. On the facts stated in the petition of the plaintiff, there should have been an additional allegation therein, that the defects averred by him to have existed in the machinery, and which caused him injury, were not known to him in time to have avoided such injury.

      Same — Want of knowledge by_ employe essential to recovery—
    2. The charge given by the court to the jury, to the effect, that if such machinery was out of condition, and the defendant company had knowledge thereof, or by reasonable diligence could have ascertained it, that it was liable in the action, was erroneous. This leaves out of view the question whether the plaintiff himself had knowledge of the defects ' alleged to have existed, and thus might have avoided the injury; and such error was not elsewhere cured by the charge of the court. The court also erred in refusing to give the 6th special charge asked by the defendant.

      Same — Act of 1890 applies to injuries sustained before act passed in suits afterwards brought—

    3. The injury to this plaintiff occurred before the passage of the law of April 12, 1890 (87 O. L., 150), but the action was commenced while the law was in force. The charge of the court, in effect, that the provision of the law that where an employe of a railroad company is injured while in the discharge of his duty by reason of defective machinery, and the defect is made to appear at the trial, the same shall be prima facie evidence of negligence on the part of the corporation in this case, was not erroneous.
    Error to the Court of Common Pleas of Butler county.
   Smith, J.

We are of the opinion that there was no substantial error in the rulings of the trial court as to the admission or rejection of evidence prejudicial to the plaintiff in error. Some evidence was ruled out which we think was competent, but afterwards the same evidence, substantially, was given tc the jury by the same witnesses, and thus the error was cured, and was not prejudicial to the plaintiff in error.

It is claimed by counsel for the plaintiff in error, that in many particulars the court erred in the - charge given to the jury, and in refusing to give certain special charges asked to be given.

Properly to answer the questions raised, the issues made by the pleadings, and what the evidence tended to prove must be considered. The petition filed May 19, 1890, in substance,was that the defendant is a corporation, and is a common carrier, engaged in carrying passengerg and freight over its road from Cincinnati to Dayton, and that on November 28, 1889,- and for a long time before, he, the plaintiff Hedges, was in the employ of said defendant as foreman of a switch crew, engaged in switching and transferring cars from point to point in the Hamilton yard of the company, and on said day the plaintiff, in the discharge of his duties as such employe, was engaged in letting off the brakes which had been set on a box freight car, then in use by the defendant; and while so engaged, without any fault on his part, the plaintiff was thrown and caused to fall,and thus was severely injured; and he then proceeds to describe what the defect was, and the particular nature of the accident to himself,averring that while he was in the discharge of his duties, and in a proper,prudent and careful way was about to let off the brake, it unexpectedly let go of its own accord, striking the plaintiff, and inflicting the injury upon him. That the brake machinery and apparatus were defective, out of repair and in a dangerous condition, and that the ratchet wheel on the brake rod was old and worn, so that the notches thereon were so worn away that the iron pawl failed to catch and securely hold the same, and that said iron pawl or brace was worn,or loose, and that the bolt which held the same on said board had no nut thereon, and had become loose, so that said iron pawl failed to hold said ratchet wheel. It was further averred that said defective, improper and dangerous brake apparatus and machinery were so used and maintained by the defendant carelessly and negligently, and with full knowledge of said defective, improper and dangerous condition aforesaid.

The answer of the defendant admits the allegations as to its being a corporation, common carrier, etc, and that plaintiff, while in its employ as stated, was injured as alleged, but denies all the other allegations of the petition.

It is to be noted that in this petition, the plaintiff nowhere avers that he was ignorant of the fact at the time or before he was so injured, that the machinery was defective, as he now alleges that it was. We incline to the opinion that this should have been averred and proved. The case of Railroad Co. v. Barber, 5 Ohio St., 541, tends strongly to support this view. It was there held that:

“The conductor of a train of railway cars, being the representative of the company in the command and management of the train, and not being under the immediate control or direction of a superior officer, is held to ordinary and reasonable care and diligence,not only m the management of the train, but also in the due inspection of the cars, machinery and apparatus of the train, as to their sufficiency and safety: And if he received an injury while neglecting that care and diligence required of him in the management of his train, or by reason of any defect or insufficiency of the cars, machinery or apparatus, with a knowledge of which he was running the train, or which could have been known to him by the exercise of the care and diligence required of him in the performance of his duty; or in other words, if his neglect in either of these particulars contributed as a proximate cause of the injury, he can have no right of action against the company for damages

“In such action the plaintiff, in order to lay a sufficient foundation for a recovery and judgment for an injury received by him while acting as such conductor, must aver or show in his petition, in addition to the allegation that he had not a knowledge of the insuffi.ciency or defects which were the alleged cause of the injury, that he had exercised due care and diligence in the use and examination or inspection of the cars, machinery, etc. belonging to the train, while the same were in his charge and under his direction.”

(Sections 3 and 5 Sub-divisions of the syllabus.)

. In the case at bar, as was alleged and conceded, the plaintiff was the foreman of the switching train, and not, as we understand, under the immediate control of a superior or supervisory agent; and it is difficult to see why the statement in the syllabus referred to, as to the duties of the conductor of a freight train,does not apply to him. But if not, it would seem that he was bound to use due care in the use of the machinery, and to aver and show that the defects complained of were unknown to him. By his proof he does attempt to do this .to a certain extent; but on his own evidence, there is some question whether he did not discover the defect complained of in time to have avoided the injury to himself.

We refer to this as being of importance in the consideration of the question whether there was er;ror in the charge given by the court to the jury. In the general charge given, the trial judge, after stating the issues as made by the pleadings, (not very accurately however, for he entirely omits the averment of the petition that the plaintiff while engaged in letting off the brakes which had been set on the car, “without any fault on his part was thrown and caused to fall”), proceeds to say, as to the duties imposed on the plaintiff:

“These duties, as has been stated to you, were to make up trains, to separate trains brought in, and to make up trains, and switch the different cars to make up trains to different destinations: The evidence shows you also that there were other parties,called inspectors,whose duty it was to inspect cars and see they were in proper condition. If you find that it was'no part of the duty of Mr. Hedges on that day to inspect the cars to see whether they were in proper condition or not, then he is not chargeable with any notice on that subject, unless it was a matter that he had knowledge of — then of course, he is bound to take notice of the condition of the cars when he is performing his duties as switchman.

“I say to you that if this dog was out of-condition, or if this rachet. wheel was out of condition, or both, and the defendant company had knowledge of the fact, then Mr. Hedges is entitled to recover. The converse of that proposition is true, namely: if the defendant company had no knowledge of it, or if by reasonable diligence it could not have ascertained that fact, then the defendant company is not liable. ’’

Again, in another place,the court says:

“As to the knowledge of the company, it is for the jury to consider whether the defendant company had actual knowledge of the condition. If it had, then it is liable for this damage on its failure to repair; or, if by reasonable diligence it could have ascertained the condition of this nut, assuming that it was out of order, then it is equally liable. ’’

It seems to us that in the giving of these charges the court erred to the prejudice'of the defendant company in this: that the jury were substantially charged twice, without any qualification whatever, that if the machinery in question was out of order, and the company had knowledge of it, or by reasonable diligencej could have obtained such knowledge, the plaintiff was entitled to recover, totally ignoring the question whether the plaintiff himself had knowledge of this defect in the machinery at the time, or by the exercise of proper care on his part could have discovered it, and thus have avoided the injury, as to which, in our opinion, there was evidence tending to prove that such was the cáse even on the evidence offered by the plaintiff himself. This is emphasized and made more clear by the refusal of the court to give to the jury the sixth special charge asked by defendant’s counsel, as follows:

“Defendant requested the court to state generally to the jury that if Nathanial Hedges, the plaintiff, failed to use ordinary care in unwinding the brake upon the wheels of the car, and that by reason of his want of ordinary care he contributed in any degree to his injury, he can not recover.’’

After this the court further charged the jury as follows:

“The court thinks that it has or at least it intended to give this as a portion of its charge viz.: That it was the duty of Mr. Hedges to act in a careful prudent manner,in a reasonable manner, to use reasonable diligence in switching these cars.

. “The court charges the jury now, (and thinks it did before) that if the evidence shows to you that it was the duty of other persons to examine the cars, inspect them, to see that they were all right, and it was the dutyof Mr. Hedges simply to switch them, that he was not bound to make any examination except what he discovered in the course of his switching duties, and if he discovered any defect during his discharge of those duties of switchman, having charge of a crew switching cars, of course it was his duty to take notice of it, and it was his duty to report it to the car inspector. ’’

Tais supplementary charge wholly failed to cure any error in the charge given, or in refusing to give charge No. 6 asked for, and which ought to have been given. It only says if he did discover it in the discharge of his duty,it was his duty to take notice of it and report it to the inspector.

But suppose he discovered it was dangerous,and that as a prudent man he should not attempt to unwind the brake, and yet he did so, and thus produced the injury. Should the court not have said that in such case he was not entitled to recover? . But there is not a syllable in the charge which deals with this phase of the case. Proper exceptions were taken to all of these ch >rg;s and failure to give the special charge No. 6.

Exception was also taken to the charge of the court as given, and the refusal of the court to give special charge No. 7, asked for as to the burden of proof being upon the plaintiff, and the applicability of the law of April 2, 1890, (87 Ohio Laws, 150), or any part of it to this case. As has been stated, the injury to the plaintiff occurred before the passage of the law, but the action was commenced after-wards. The court, in effect, charged that the provision of the law that where an employe of a railroad company is injured while in the discharge of his duty, by reason of defective machinery, and the defect is made to appear at the trial, the same shall be prima facie evidence of negligence on the part of the corporation. This we think was correct. Though the injury happened before the passing of the act, the action was commenced afterwards, and was governed as to matters, of evidence by the law then in force; and the court also correctly stated the law as to the burden being on the plaintiff to show negligence on the part of the defendant company. The other special charges asked for by the defendant were, we think, either given in substance, or contained some statement of law which justified the court in refusing to give them.

Millikin, Shotts & Millikin, for Plaintiff in Error.

Morey, Andrews & Morey, for Defendant in Error.

Exception was also taken to various parts of the .charge of the court, as announcing to the jury what had not been proved by the evidence in the case. We think that the charge in some particulars is open to criticism in this respect. It is the du|y of the jury to say what has or has not been shown on a particular subject, and the court, where there is any room for difference of opinion as to these matters, should avoid any expression of opinion in the charge to the jury on such subjects; but in this case,it is unnecessary further to refer to them.

While there is conflict in the evidence, or some question as to whether the plaintiff exercised due care, we do not think the verdict was so manifestly against the weight of the evidence as to require a reversal of the judgment, But on the other grounds stated, the judgment will be reversed, and the case remanded for a new trial.


author: Marvin, J.

text:
    (Eighth Circuit — Cuyahoga Co., O., Circuit Court
    Dec. Term, 1897.)
    Before Hale, Marvin and Caldwell, J J.

    W. L. WEST, ADMR, v. J. J. DEAN.

      Estate owning chattel mortgage — Administrator can not buy property for the estate—
    Where among the assets of an estate there is a chattel mortgage, , the administrator can not buy the property mortgaged and bind the estate by a promise made in his capacity as administrator of the estate to pay the purchase money. It is hot the part, but a violation of his duty as administrator, to buy any property for the estate even though he may think it will turn out to the advantage of the estate, and even if it so turn out.

      Same — Suit against administrator as such on his promise to pay purchase money — Judgment binds the administrator personally, not the estate—
    In such case a judgment, recovered against the administrator, in a suit instituted against him as administrator on such promise, made as administrator, to pay the purchase money, will not bind the estate, but will be effective against the administrator personally. *
    Error to Court of Common Pleas of Cuyahoga county.
   Marvin, J.

The case of W. L. West, Admr., v. J. J. Dean, comes here upon a petition in error.

A suit was brought in the court of common pleas by Dean, the title of the case, as given in his petition, being “ J. J. Dean v. W. L. West, administrator of the estate of John Glenn, deceased.” The petition avers that .West is the administrator of the estate of Glenn; that Dean was the owner of certain personal property; that Glenn, whose estate is being administered by West, had a chattel mortgage upon that property; that West purchased the interest of Dean in the mortgaged property, agreeing to pay therefor “as administrator of the estate of John Glenn, deceased, ”the sum of fifty-two dollars. It avers that such payment has not been made, and prays for a judgment against said defendant, for that amount, with interesst.

Judgment was rendered in the court of common pleas, in these words: ‘‘It is,therefore, considered that said plaintiff recover of said defendant his said damages and also his cost of suit. Judgment is rendered against said defendant for his costs herein.”

That judgment was taken upon default,and the error complained of is, that the petition stated no facts which warranted the judgment; that everything being true, as stated in the petition, there was no ground for the judgment.

Two questions are here involved: one, as to whether there could be a judgment upon that petition against West as administrator of the estate of Glenn.

West promised to pay, tbe petition alleges, “as administrator,” the sum of 152.00, for the interest of Dean in the mortgaged property. And, on the part of the defendant here — the plaintiff below — it was urged, that having made that promise “as administrator,” and having failed to pay, .judgment could be rendered against him as administrator; that it is fair to suppose the administrator regarded the buying in of the mortgaged property as the most advantageous manner of collecting the debt secured by the mortgage, and that, if it were such, then he might bind the estate to pay the 152.00.

It seems to us,that there is a mistake in supposing that the administrator may bind the estate to pay money'for the purchase of any such property.

I think there is a very general misunderstanding as to the duties of an administrator.

It is the business of the administrator of an estate to convert the personal property into money, and to pay the debts, and to distribute what is left, and it is no part of his duty, —mot only no part of his duty, but a violation of his duty, to undertake to buy property for the estate, even though he may think it will turn out to be to the advantage of the estate — and even though it does so turn out.

Suppose, after this property had been purchased by the administrator, it had been destroyed by 'fire or otherwise, immediately, is it possible that it can be said to have been the property of the estate when thus destroyed? I do not mean to say “the property of the estate;”I recognize that -an estate never owns anything — it is the thing owned; but is it possible that we could say it is a part of the estate, if it had been thus destroyed? The estate of a decedent is that which be owned at the time of his death, and no property, thereafter purchased by his personal representative or by any other person, ever becomes a part of such estate.

Our own Supreme Court have said, in the 28 Ohio St., in the case of Peter Lucht, Admr,, etc. v. John Behrens, beginning on page 231, that an executor, not authorized by the will of the testator to do that, cannot carry on a business for, or of an estate, and incur debts which shall bind the estate; and gives reasons why that may not be done: liabilities may be incurred; an executor or administrator may make a mistake in thinking that he is doing what is advantageous to the estate; and at the conclusion of the opinion, this language is used:

“To allow jersonal representatives of estates to go beyond this, and, without authority of law, or under the will, to embark the assets of an estate in trade or business, however well-intentioned they may-be, and thereby subject the estate'to all the hazards of the venture, would encourage that which it has been the special policy of the law to prevent — the employment of trust property in any other mode than is clearly authorized. For aught we know (for the court refused to hear evidence on the subject from the defendant), this well-meant endeavor to preserve the business of the testator,for his sons, while paying the debts and supporting the family out of it, may have been disastrous; and if this judgment stands and is collected, it may defeat the express provisions of the will.”

It will be observed that the court does not say the business turned out disastrously, but that it may be disastrous, and the very fact that it may so turn out, establishes that the administrator or executor must not so invest the money, even through he thinks it will turn out for the best interest of the estate.

. In 5th Circuit Court Reports, page 12, McBride & McBride v. Louis Brucker, Admr., the court hold, that the administrator can not contract a debt for attorney’s fees which can be recovered out of the estate. He may pay attorney’s fees that are necessary in the administration of the estate and he will be allowed, in his account filed in the probate court, for proper and suitable fees paid to the attorney; but he can not bind the estate by a promise that out of Jit shall be paid attorney’s fees, even though it is proper that an attorney shall be employed.' The same is held in several other states, if not in all of them.

Woerner, in his American Law of Administration, sec. 356, says:

“It is a well recognized principle, that if liabilities are contracted* by the personal representative, although for the benefit and in the interest and behalf of the estate, it is not liable to creditors. Disbursements, reasonable in amount and for services necessary in the proper discharge of the duties imposed upon them, will constitute a charge in favor of the executors and administrators against the estate, although their allowance should leave no surplus to pay creditors of the deceased. ”

The case of Dailey v. Dailey, in the 66 Ala. R., 266, is a case where suit was brought by Lucinda Dailey against Geo. J. Dailey, as administrator of the estate of Geo.Dailey, deceased. Among the things for which she claimed a recovery,' was one for twenty-five barrels of corn, which she, at £the request of the administrator, after his appointment, had fed to the swine belonging to the deceased at the time of|his death. The court in relation to that item, use this language, on pages 268-9 of the opinion:

“One item was for corn fed to the stock of the estate at the request of the administrator, made after his appointment. 'Such agreement is but the personal contract of the administrator, and is no charge on the estate when demanded by the creditor. ’ ’

It is further said in that opinion, that if it was necessary to have this corn to feed to the swine, the administrator might have paid for it, and been allowed its value in the settlement; but he could not bind the estate to pay for the purchase of that corn. And all upon the theory I have stated, that it is not the business of the administrator to invest the funds of an estate and make purchases and have charges against the estate therefor.

The case in the 47 N. Y., 366, Austin et al. v. Munro, et al., is a'case in which the doctrine is, as we think, well stated:

“The rule must be regarded as well settled that the contracts of executors, although made in the interests and for the benefit of the estate they represent, if made upon a new and independent consideration as for services rendered, goods or property sold and delivered, or other con. sideration moving between the promisee and the executors as promissors, are the personal contracts of the executors, and do not bind the estate, notwithstanding the services rendered, or goods or property furnished, or other considation moving from the promisee, are such that the executors could properly have paid for the same from the assets and been allowed for the expenditure in the settlement of their accounts. The principle is, that an executor máy disburse and use the funds of the estate for purposes authorized by law, but might not bind the estate by an executory contract,and thus create a liability not founded upon a contract or obligation of the testator.”

From these authorities and from the general doctrine of the duties of an administrator, we are clear that the court could not render any judgment — ought not to have rendered any judgment upon this petition against the administrator as such. The other question involved is whether a judgment could be rendered upon tie petition against the defendant personally.

The title of the case is, as I have already said, “J. J. Dean v. W. S. West, Administrator of the Estate of John Glenn, deceased.”

The allegations, however, are that as administrator he made the promise. But whether it be said that the words in the title of the case, after the name of the defendant, are simply descriptive of the defendant, or that he wls sued in his representative capacity, we still think it is settled in Ohio, that the judgment against him is against him personally,and not against him as administrator,and the judgment itself, standing as it does, could not be enforced against the estate.

Attention is called to the case of Thomas, Admx., v. Moore, etc., 52 Ohio St., commencing on page 200. A suit was brought before a justice of the peace by Moore, as surviving partner of a firm of lawyers; the other partner, McKnight, having died. The bill of particulars set out that services were performed by this-firm for the defendant, at her request, in various suits brought on behalf of the estate then being administered by her, and the prayer was for judgment for the amount of these fees. This suit for fees was brought against “Elizabeth J. Thomas as administratrix of the estate of David Thomas, deceased.” The judgment was against the defendant in the case, and an appeal was taken by her. The question was, whether she was required to give a bond in order to perfect her appeal. It was urged that because of the statutory provisions as to appeals' by trustees,.no such bond was necessary. Judge Williams, in his opinion, uses this language:

“Sec. 6408, Rev, Stats., contains the general provision that ‘when the person appealing from any judgment or order in any court or before any tribunal is a party in a fiduciary capacity in which he has given bond within the state for the faithful discharge of his duties, and appeals in the interest of the trust, he shall not be required to give bond, but shall be allowed the appeal, by giving written notice to the court of his intention to appeal within the time limited for giving bond.’

“The provision just quoted is applicable to appeals from justices of the peace, and dispenses with the necessity of an undertaking for an appeal from their judgments in cases within its scope, namely, where the appellant is a party to the judgment in a fiduciary capacity, and the appeal is in the interest of the trust; so that, the inquiry here is, whether the defendant’s appeal presents a case of that kind, We think it does’not. The judgment is not against the defendant in her fiduciary character. Though described in the proceedings as the administratrix of her intestate’s estate, the judgment rendered is not a judgment de bonis intestatoris, her designation in the proceedings as administratrix, being descriptive of her person merely, and execution issued upon the judgment can run only against her property. ’ ’

Laiorence & Estep, for Plaintiff in Error.

George A. Groot, for Defendant in Error.

From these considerations, we conclude that this judgment, as it stands, is a judgment against West personally, and not against him in h¡s representative capacity; that such judgment was warranted by the petition, and- the same is affirmed.


text:
    (First Circuit, Hamilton Co., O., Circuit Court
    Nov. Term, 1897.)
    Before Cox, Smith and Swing, JJ.
    THE WOOSTER TURNPIKE CO v. THE C. P. & V. R. R. CO.

      Railroad crossing turnpike — Low bridge — Remedy—
    Where an injunction is asked to restrain a railroad from building a bridge over a turnpike which would leave only a space between the surface of the pike and the bridge not sufficient for the purposes of the public using such pike, and it appears that much work has been done in building such bridge before the Turnpike Co. objected; that the cost of - raising the bridge and the approaches thereto, would involve a heavy expense,and that the difficulty could be remedied at a much less expense and trouble by lowering the surface of the pike at the point in question, the court will order that the latter be done at the expense of the Railroad Co.

      Same — Power of Turnpike Co. to acquire land in fee-simple—
    Where it appears that after making the application for such injunction, the Turnpike Co., to further prevent the building of the bridge,had acquired the fee-simple of the land occupied by the turnpike and the bridge at that point, in which before it held only an easement of right of way, such fee not being necessary to the Turnpike Co. for any other purpose than to prevent or delay the building-of the bridge, Held: that the Turnpike Co. has no legal right under our present laws to acquire and hold the fee-simple estate in such land for such a purpose.

      Application for injunction.
   Smith, J.

On consideration of this case we hold,

1st. That the Turnpike Company is not the owner,in fee simple, of the land over which this bridge is erected; that it has simply the right to use the same for the purposes of a turnpike road.

2nd. That the bridge now erected there, or in process of erection, being only thirteen and one-half feet above the surface of the turnpike road, it is probable that it may interfere to some extent with the proper use of the said turnpike, by vehicles of extraordinary height as have of late years come into occasional use in this region — such as ^‘Tallyho'’, furniture vans, etc. We would not, however, be disposed to hold that a bridge of a railroad company, over a roadway like this, must be so high above the surface of the ground underneath it, as not to interfere in any degree with the passage of vehicles along the road, no matter how high they might be constructed or loaded. The use of the road must be a reasonable one. And the claim made in the affidavits filed by the Turnpike Company,that it is possible or probable that this roadway may in the fu.ture have a street railway thereon, and that (if so) the cars can not pass under this bridge unless it is raised several feet above its present height," without lowering its trolleys, does not strike us as entitled to consideration. Evidently the trolley may be lowered at that point without difficulty. But inasmuch as there seems to be some reason to apprehend that this bridge, as being now constructed, may interfere with the reasonable use of the turnpike in a few cases, as for instance, by wagons loaded with hay, chairs, etc., as the road has been used by them, we think that some provision should be made to guard against this — -though it is true that there are other bridges over this same road, on either side of this one, which are much lower than the one in question. But as the cost of raising this bridge and the approaches on either side of it for a long distance would be very considerable and the height of the bridge and roadway was not objected to until recently,we think it would be inequitable to require it to be done,if the trouble can otherwise be avoided at much less cost, and we think it can by lowering the surface of the turnpike. We suggest therefore, that unless the parties can agree as to the cost of doing this, and- putting the turnpike road into substantially as good a condition as it now is, that an expert engineer be sent out to view the premises and report to the court whether it can be done, and the cost of it, and how it should be done, so that there will be a space of fifteen feet between the bridge and the surface of the turnpike road. If it then appears to us that it is practicable to do this at a reasonable cost, we would feel disposed to require this sum to be paid to the turnpike company, by the railroad company, to be applied by it to doing the work, or require the railroad company to perform the work to the satisfaction 'of the court, as a condition to our allowing the bridge to remain at its .present location. If the turnpike company refuses to take the money and do the work, qr to have it done by the company, its application for an injunction will be overruled; in the meantime the provisional injunction heretofore allowed, will be dissolved.

After we had reached the foregoing conclusion, and after the writing of the above memorandum, our attention was called by counsel to the fact that some days after the hearing of the application in this court, the turnpike company had obtained from the person owning the fee thereof, a quit-claim deed for that part of the ground covered by the roadway of the plaintiff company which lies between the west line of the turnpike at that point, and the center line thereof. . It seems that when the railroad company recently purchased the ground upon which to construct its new track and cross the turnpike road by the bridge in question, it only purchased from the owner up to the west line of the turnpike, and that the land on the east was purchased by it to the center of such road, This fact becoming known to the turnpike company at the hearing in this court, it obtained a deed from the owner of the land as stated, and now seeks to strengthen and support its original claim thereby. Should this fact induce us to change or modify in any way' the conclusion at which we had arrived before being advised of this fact?

E. MeColston, for Plaintiff.

Hollister & Hollister, for Defendant.

We do not feel disposed to do so. We question very much whether the turnpike company, under the laws as they now stand, has any legal right to acquire the fee simple of this ground for any such purpose. There is no doubt but that it is now entitled to, and is using and occupying the space in question, for turnpike purposes, and they have an easement in it for such purpose. There is no claim or evidence that the fee is necessary for such use, or that it is needed for any other purpose than to binder or defeat a great public improvement in process of construction and nearly completed, and this should not be allowed unless its right is clear. We therefore adhere to our original ruling, and think that the suggestions therein made should be acted upon by the parties.


author: King, J.

text:
    (Sixth Circuit — Lucas Co., O., Circuit Court
    Oct. Term, 1897.)
    Before King, Haynes and Parker, JJ.
    JENNIE C. FLETCHER v. OLIVER P. FLETCHER, et al.

      Divorce and alimony — Defendant’s interest in any property may be averred in petition—
    The plaintiff in a divorce proceeding may describe in the petition all the property in^which^the defendant has any interest, no matter what that interest is, and make others who claim any interest in such property parties to the suit, and the court has power to determine in such action, what the interest of defendant or of other parties to the suit is, and take it into account in the allowance of alimony.

      .Same — Property described in petition bound from date of filing of petition and service c/ summons—
    Where the petition alleges that defendant has fraudulently, without consideration, conveyed property to a third’person to defeat her claim for alimony, and that said third party is about to sell the same and has instituted proceedings in the probate court for the sale of the property to pay creditors of the defendant,and prays for an injunction to restrain such party from proceeding further, an injunction may properly be granted for that purpose. But where the property is fully described in the petition, no injunction is necessary to bind the property from the date of filing the petition and service of summons as to any claim plaintiff may be determined to have by the court.
   King, J.

Three different petitions were filed in the court by the plaintiff below, who is here the plaintiff in error, to each of which demurrers were severally sustained, and the action of the court on those demurrers is assigned for error; also the dissolving an injunction granted in the action; and the action of the court in removing or discharging a receiver appointed. As to the latter ground, it is sufficient to say that there is no bill of exceptions setting out the evidence, and it appears that the motions were heard upon evidence, and therefore the action of the court cannot be reviewed at this time and in this proceeding.

Plaintiff filed her petition on the 2áth of September, 1896, alleging several grounds for divorce as existing, and in her petition she describes certain tracts of real estate, alleging that certain real estate — describing it by metes and bounds, and its situs, one tract in Michigan and another tract in Toledo — had been conveyed to defendant Henricks for the purpose of putting it beyond her reach, so that it might not be made subject to the payment of any judgment for alimony; and she wound - up with the prayer that that conveyance be set aside, and she be allowed reasonable alimony. She also asked for an injunction, alleging that her husband was threatening to convey certain property, and also that Henricks would convey the piece to which he had the legal title, if not prevented by an injunction. A temporary injunction was allowed by a judge of the court of common pleas. That stood until when, upon motion, it was dissolved. On the 13th of January, 1897, some five months after the filing of this petition, the principal defendant, her husband, filed an amended answer, in which he set out the defenses upon which he relied. He denied generally the grounds for divorce that were set out in the petition, and then set up what he had been doing with his property. With reference to the property that had been conveyed to Henricks, this defendant, her husband, says he admits that the property had been conveyed to Henricks,

“But avers that the same was at the instance and solicitations of'her attorney, and that .he conveyed said property at her request, and for her behoof and benefit, and to' satisfy her of his affection for her, and of his willingness to do all things in his power for her welfare, and for the purpose of showing her that he bore her no ill will. And this defendant further says, that shortly subsequent to said transfer, he agreed with her attorney as to alimony for her, and that his attorney and her attorney then agreed upon practically the sum of $1500, in cash and real estate, the same being all and more than this defendant was worth. ”

And he avers that in all things he has endeavored to do what was right; and he further says, “he denies all allegations in said petition as to his placing or trying to place any property of any description beyond plaintiff’s reach, cr trying in any way to deprive her of any property rights whatever. ’’

The defendant Henricks did not answer, but he filed 'a demurrer, which was heard and determined on March 15th, some little time after this answer of the principal defendant. The demurrer was sustained, and in the judgment of the court sustaining that demurrer, I think appears also the judgments upon the motions that had been filed as to the receiver, and the judgment dissolving the injunction, There had also been a motion filed to have Mr,- Henricks show cause why he should not be punished as for contempt, and that was disposed of against the application of the plaintiff.

On the 17th — two days later- — -the plaintiff filed an amended petition. She sets forth substantially the same things that were in the original petition, and with reference to this property conveyed to Henricks, she in substance adopts some of the allegations of her husband’s answer — that it had been conveyed to Henricks to be held by him in trust to satisfy any judgment for alimony that she might recover, and that it had been transferred to him for her benefit; and she further says, that prior to the transfer the property had been acquired by the joint efforts of her husband and herself, and she had an interest thérein. To that a general demurrer was filed, and it was heard on the Srst day of April, 1897, and sustained. On the 2d day of April, 1897, a second amended petition was filed, which sets out more particularly the allegations with reference to this property conveyed to Henricks, and also sets forth that some time after the original petition was filed, perhaps in November, the defendant Fletcher had conveyed all his property to an assignee fcr the benefit of his creditors, and that the assignee was Henricks, and that Henricks, in his capacity as assignee, had filed a petition in the probate court in which he was seeking to sell this very property described in her petition, conveyed to him to satisfy such judgment for alimony, or such decree for alimony as the court of common pleas might thereafter render, and it was not at the date of the assignment the legal estate of Fletcher, her husband; and she asks for an injunction as to these acts of Henricks in the probate court. A general demurrer was filed to that, and on May 18th, 1897, it was sustained.

■ All these acts of the court, are alleged as error.

It is contended here by counsel, for the demurrers, that the plaintiff, in these amended petitions especially, has set up specifically a trust, and that she could not unite an action to enforce a trust made for her benefit as cestui que trust,with any cause of action that might fall within the jurisdiction of the court under a petition for divorce and alimony; that this is a misjoinder of causes of action, so far as it seeks to enforce anything against Henricks; that while she might allege that her husband has property which he is seeking to hold away from a judgment for alimony, she cannot come in and say a trust has been declared for her, and ask the court to adjudicate about that trust; and that the demurrers were sustained properly for that reason.

We cannot agree with the argument, nor with the decision of the court below upon any of those demurrers. We do not say as to the first petition that there was any error in that; but clearly the plaintiff,in filing a petition for divorce, had a right to describe all the property in which the defendant had any interest, no matter what that interest was. She might allege that he had, in anticipation of her filing a petition for alimony, conveyed that property away, without consideration, for the purpose of defeating her application for alimony. She might have made that allegation, described the property, and brought the grantee of the property into court, and held him, subject to the final decree that might be made — not for the purpose of setting aside that deed, although we have no doubt the court might do that; but for the purpose of holding that property in order to determine what her rights were — whether the court would grant her alimony in kind, in lands, or in money and make a money decree a lien upon the land. The court has ample power to determine every interest the defendant had in any propery, or that of other parties to that suit who claim an^interest in it. If this land was held by Henricks for the use of the plaintiff, it was actually the property of the defendant Fletcher, the amount and value of which the court should always consider in rendering its decree for alimony. Whether the court should, if it found that this conveyance was made ns the defendant Fletcher alleges it .was made, decree that Henricks should convey that property to the plaintiff as and for her alimony, or whether the court should decide that, in view of the property that Fletcher had, and the character of it, he should pay her so much money, and that should be a lien upon his other property or upon this, is not a matter of any consequence now The court of common pleas, when it tries and determines .this question, will make such decree as it deems right and legal. This pleading shows that Henricks was a proper party, if the allegations of the petition are true, and they are to be taken as true by the demurrer.

Whether the tiling of this petition holds this property now as lis pendens,is not now to be decided. The question is, whether this petition contains a cause of action as against Henricks. We cannot see why it does not. The statute-in reference to divorce and alimony, secs. 5699 and 5705, provides that any and every interest, legal or equitable, of the defendant, in any property whatsoever, may be described in the petition and taken into account by the court in its allowance of alimony.

It is claimed here by counsel for the demurrers, that this petition seeks to administer this assignment. ' We do not think it can bear that construction. The petition alleges that Fletcher had assigned all his property to Henricks to administer for the benefit of his creditors. It also alleges that before this assignment he had conveyed this estate to Henricks to hold in trust for certain purposes and uses. If these allegations were true, then the deed of assignment did not convey to Mr. Henricks, assignee, any of this real estate. The petition alleges that Henricks, assignee, is seeking in the probate court of this county to sell this property that he holds as trustee for plaintiff, and pay it over to the creditors of Mr. Fletcher. Clearly the court of common pleas should stop that proceeding until it shall determine whether this woman is entitled to alimony.

It is said again, that this assignment was made after this injunction was dissolved. It is not so alleged in the petition, but we’think that that makes no difference. If Hen-ricks was a proper party, if the allegations made against him as to his interest in this real estate are sufficient,and if the real estate is properly described, then no injunction was necessary. In 30 Ohio St., 579, is a case cited to us which we think expresses our view of this case, and clearly expresses it- — the case of Tolerton v. Willard. That arose from an action brought for divorce and alimony, in which the plaintiff described certain real estate as being owned by the defendant. She further set forth that “she had received from her father’s and her brother's estate moneys belonging to her as an inheritance to the amount of $2700; that her husband had, after the marriage,purchased a half section of land for $1600, and it was understood that said half section, in consideration of the moneys thus received by the plaintiff, was to be conveyed and secured to the plaintiff and her heirs, as her separate - estate and property; bu-t that defendant wrongfully caused the conveyance to be made in his own name, and has since sold a large portion, and mortgaged the same;’’ and she further averred that he intended to sell and mortgage the balance. As a matter of fact, after the filing of the petition, he did mortgage the balance. If that allegation in her petition is to be construed strictly, it was an allegation of a trust resting in her husband,which could have been enforced in a separate action. The prayer asked for an injunction, but no injunction was allowed in that case. When the court came to hear the case, divorce was granted, and when it came to consider the question of alimony, it allowed her $5000, and the real estate described in the petition' was held to pay the $5000, and it was ordered to be a lien upon the real estate until the same was paid, with interest, and in default of payment within the time limited, the real estate should be sold by the sheriff. Afterwards, proceedings were brought to marshal the liens and sell the property, and the property was sold at sheriff’s sale under those proceedings, and the plaintiff, bid in the property at a price named. She paid off the judgments prior to her lien, and kept the balance of the purchase money to apply on her alimony,

The court held that the petition which described this property and asked for an inunction, charged it with equities — not with her right to alimony, but with equities in her favor, and was sufficient to prevent an alienation of this property pendente lite; and it was a sufficient ground for any equitable relief which the facts, after the hearing by the court, would warrant,and also sufficient^to bring this property within the doctrine of lis pendens as to whoever might acquire any equity in it; that the decree of alimony, which settled the equities, being for $5000 in ^money, did not allow her an estate in this land, but made that a charge upon it, and bound the property from the date of the filing of the petition and service of summons. ¡[I cannot go over the decision in full, but it clearly sustains the proposition, that the petition, which made the defendant7[a ¡'party and which set up this trust, although nojnjunction was granted, was sufficient to charge all who might have knowledge of the pendency of the suit, and’that when the court came to make its decree, it might grant such relief as the facts warranted; it might recognize that the ^property was held in trust for her and purchased with her money, or it might take it into consideration in allowing alimony, and allow a larger sum o,f money on account of that, or allow it in real estate.

Hurd, Brumback & Thatcher, for plaintiff in error.

Frank I. Isbell and Seney, Johnson & Friedman, for defendant Hendricks.

C. W. Everett, for defendant Fletcher.

To the same effect, or at least upon the same line, is 50 Ohio St., 589, where it is held that no injunction is necessary to hold property in an application for divorce and alimony, where the property is described and the owner of the property and the person having an interest in it is made a party; that he cannot thereafter transfer it, although there is no injunction against his transfer.

We think both of these amended petitions were correct and proper, but we deem it sufficient to say that the court erred in sustaining the demurrer to the last amended petition; that the action of the court should be reversed and set aside, and the case remanded to the court of common pleas for further proceedings.