text:
    SCOPE OF A DECREE OF DIVORCE WHERE JURISDICTION WAS NOT OBTAINED OVER THE DEFENDANT.
    Circuit Court of Cuyahoga County.
    The Barberton Savings Bank Company v. Ethan Allen Belford and Anna S. Bedford, and Ethan A. Belford v. Anna S. Belford.
    Decided, April 12, 1911.

      Husband and Wife — Rights of Wife in Property of Hüsband-WJhere o Decree of Divorce Has Been Granted Against Her by a Court Without Jurisdiction — Section 11993.

    A decree of divorce granted to a husband by an Ohio court, which was without jurisdiction over the wife or over certain property standing in the name of the husband, does not determine the right of the wife to either alimony or dower in said property.

      F. A. Decker, for the bank.

      J. V. Walsh, for Ethan A. and Anna S. Belford.

      F. A. Decker, for Ethan A. Belford.
    W. E. Pardee and J. V. Walsh, for Anna S. Belford.
    Marvin, J.; Winch, J., and Henry, J., concur.
    Heard on appeal.
   The rights of the parties in these two actions grow out of the same state of facts. A sum of money, resulting from the sale of real estate upon foreclosure of a mortgage given by Ethan A: Belford and Anna S. Belford to the Barberton Savings Bank, and which sum is a surplus above the payment of the amount due to the bank upon the debt secured by such mortgage, is now-in the hands of the sheriff of this county, where it is remaining until the issues between Ethan A. Belford and Anna S. Belford are determined.'

Ethan A. Belford and Anna S. Belford-were husband and' wife. Both resided in Summit county while that relation subsisted between them, and each had resided there for a considerable period before they were married to each other. A separation took place between them, and then Ethan A. Belford removed to Guernsey county in this state, where he brought suit against his wife, Anna, and obtained a divorce from her. She, at the time, was not living in Guernsey county, and the only service obtained upon her in the divorce proceeding was by publication, the plaintiff in that action, Ethan A. Belford, having- filed an affidavit there that he did not know where she resided, nor could he by reasonable diligence ascertain where her residence was. The decree for such divorce was entered in the court of common pleas of Guernsey county on the 17th day of December, 1906, and the court decreed “that the defendant has been guilty of gross neglect of duty towards the plaintiff, and by reason thereof the plaintiff is entitled to a divorce as prayed for. It is therefore adjudged and decreed that the marriage contract heretofore existing between Ethan A. Belford and Anna S. Belford be, and the same is hereby dissolved and both parties are released therefrom. It is further ordered and decreed that the defendant be hereby barred and divested of all claim, title and interest by dower or otherwise in any real estate belonging to said Ethan A. Belford, by reason of the aggressions of said Anna S. Belford.”

The petition in No. 962 is filed by Anna S, Belford against Ethan A. Belford and sets out that she is a resident of the state of Ohio and now has a bona fide residence in the county of Summit; she says that on the 1st day of November, 1906, the defendant abandoned her without due cause. She says while she was his wife he neglected his duty towards her and illtreated her. Then she sets out his ownership of certain real estate in the village of Kenmore, Summit county. She further says that there is in the- hands of the sheriff of Summit county, subject to the order of the court, a considerable sum of money, to-wit, about $1,000, which belongs to the defendant, said money arising from the sale of real property in the case of the Barberton Savings Bank Company- against Ethan A. Belford -and Anna S. Belford (this is the same money already mentioned in this opinion), and she prays for alimony.

In the suit for foreclosure by the savings bank company' she answered, setting out that she was entitled to dower in the real estate, the mortgage upon which was foreclosed in that action, and she prays in that action to have allowed to her the value of her dower interest in the premises.

In his answer to the petition in No. 962, Ethan Allen Belford denies all allegations of wrongdoing on his part towards his wife, and sets up the decree of divorce granted to him in Guernsey county, as hereinbefore set out. • To this answer the plaintiff replies, setting out that if the defendant obtáined a divorce from her in Guernsey county, the same was obtained without notice to her and without her knowledge. She says that the time he filed his petition in the court in Guernsey county and at the time he filed his affidavit for service by publication upon her, he knew that she was a resident of Summit county, Ohio, and that if he did not know it, he could readily have found by the exercise of reasonable diligence that she did then reside in Summit county, and that therefore any divorce which he obtained in Guernsey county was by the perpetration of a fraud and imposition upon the court which granted the same; denies the jurisdiction of the court to grant the divorce; that she never had an opportunity to defend said divorce; that she -never had her day in court, and repeats her allegation that she was not in the wrong in any difference between the plaintiff and the defendant, but that the defendant was wholly in the wrong.

The defendant, Ethan Allen Belford, offers in evidence a transcript of the proceedings of the court in Guernsey county. From this transcript it appears that the divorce was granted, as already said; that service was obtained by publication, after an affidavit was filed by the plaintiff in that action; that he did not know and had not the means of knowing where his wife then resided, and it shows this further fact that on the 25th day of April, 1907, which was at a term of the court subsequent to that in which the divorce was granted, Anna S. Belford filed a motion in that court and in that case, asking that the court open and set aside and hold for naught the judgment, orders and decrees that had before that time been entered in the case. She sets out-in that motion the facts as contained in her reply here, that she had no notice of the filing of the petition or the hearing of the case, and that she has had no day in court, and at the same time she filed and caused to be forwarded a notice to the defendant that she would make an application on the 6th day of May, 1907, to have the judgment and decree of divorce set aside, denying all wrong doing on her part, and asking that the petition against her be dismissed. Thereafter, on the 27th day of May, 1907, the court entered an order in these words:

‘ ‘ The motion of the defendant to open and set aside and hold for naught the judgment, orders and decrees heretofore made and rendered against defendant herein was heard, refused and overruled. To which ruling the defendant excepts, and fifty days are allowed to prepare and file a bill of exceptions. ’ ’

On the part of the defendant it is urged here that the plaintiff ought not to be permitted to pursue her action for alimony, nor to pursue her claim for dower, or for an allowance in lieu of of dower in the foreclosure case. First, it is said, that whether the plaintiff could have any rights in reference to such dower or alimony, if she had not filed her motion and answer in the Guerm sey county case, she is precluded now from proceeding here, because, it is said, she has had her day in that court which granted the divorce.

The reasoning for this contention is not in accord with the holdings of this court.

In the case of Walter B. Solomon v. Anna A. Solomon, 25 C.C. Rep., 307 (4 C.C.[N.S.], 321) it is said in the syllabus:

“A decree for divorce procured through the fraud of plaintiff, which -consisted in his obtaining service by publication upon defendant under a false affidavit that her whereabouts were unknown, can not be opened up after the term and defendant allowed to come in and defend under favor of See.' 5355, R. S. Said statute is not applicable to .actions for divorce. ’ ’

The reasons for this holding are discussed in the opinion and this language is quoted from the statute in reference to divorce. ‘ ‘ No appeal shall be allowed from the decree, but the same shall be final and. conclusive.” And then this language is quoted from the opinion in the case of Parish v. Parish, 9 Ohio St., 535, where the foregoing provision of the statute is under consideration :

“This statutory provision is nothing more than a legislative recognition of the principle of public policy which has been repeatedly affirmed by the courts that a judgment or decree which affects directly the status of married persons by sundering the marital tie and thereby enabling them to contract new matrimonial relations with other and innocent persons, should never be reopened. Such a course would endanger the peace and good order of society, and the happiness and well-being of those who innocently relying upon the stability of a court of competent jurisdiction, have formed a connection with a person who wrongfully, perhaps, procured its promulgation.”

Besides this quotation from Parish v. Parish many other authorities are cited and quoted in the opinion in Solomon v. Solomon, and we reach the conclusion that the action of the court in Guernsey county in overruling the motion there made by the plaintiff in that .action settles nothing so far as the present case is concerned. The court necessarily overruled the motion because it had no jurisdiction to open up the decree, which it was by that motion sought to have opened up. This case, therefore, stands here as though this plaintiff had never made any motion in the case in Guernsey county. The language of the court in the decree of divorce which declared that the defendant in that action was barred from any claim for dower added nothing to that decree. If the court had the jurisdiction to make the order, it was because the case was so in that court thait the. defendant in that .action would have been barred of dower without the court saying anything about it.

The provision of law in regard to this matter is found in R. S., 5700, Section 11993 of the Gen. Code, and reads:

“When the divorce is granted by reason of the aggression of the wife, she shall be barred of all right of dower in the lands of which her husband is seized at the time of filing the petition for divorce, or which he thereafter acquires, whether there is issue or not.”

So that if this section applies to the present case, the wife is barred of her dower, because the statute says so. If this section does not apply, then the language of the court does not bar her, because if the court had jurisdiction to bar her dower she was barred by the.statute itself, and this brings us to the question urged with vigor by the plaintiff, (that since.no service, .except by publication, was had upon the 'wife and that she had no knowledge of the proceeding in Guernsey county until after the court had entered its decree, her property rights could hot be affected by such decree. That the inchoate right of dower is recognized as a property right by our supreme court is shown in numerous cases. Among others, the case of Mandell v. McClave, 46 Ohio St., 407, where in the syllabus it is said:

“The contingent right of a wife during her husband’s life to be endowed of his real estate at his death, is property, having a substantial value that may be ascertained with reasonable certainty from established tables of mortality, aided by evidence respecting the state of health and constitutional vigor of the husband and wife respectively.”

In that case the matter is thoroughly discussed, and the result reached as announced in the syllabus. _ •

To the same effect is the case of Black v. Kuhlman, 30 Ohio St., 199.

We agree with counsel for the plaintiff'who' says in his brief that Section 5700, Revised Statutes (Section 11993, Gen. Code), presupposes and intends that a judicial hearing shall be had in which the court either had jurisdiction of the person'of the wife or that the court had jurisdiction of the property itself in which dower might be or had attached, and in the absence of such' jurisdiction of the wife or property, or both, the court could not affect the property rights of the wife without her day in court. And this view is supported by the case of Doerr v. Forsythe, 50 Ohio St., 726, the syllabus of which case reads:

“A divorce obtained by a husband 'from his wife in another state, after service therein by publication and she being at the time a citizen of and residing in this state, does not in any way affect her property rights in this state.”

In the opinion, which is very brief, on page 730, the court gives, among other reasons, why a decree in Indiana could not affect the wife’s property rights in Ohio; that it is possible that the divorce was granted in Indiana upon some ground which would not be a ground for divorce in Ohio, and then follows with this language:

.“But, if it were otherwise, as she had no opportunity to defend, all that can be claimed for that decree is that it dissolved the marriage relation between the parties and restored the husband to the status of an umnarried man. This the court could do, but as it had no jurisdiction of the person of the wife, it was not competent to the Indiana court to affect such rights as she had acquired in the property of the husband under the laws of this state.”

The same reason which prevents the decree in a foreign state from affecting the property rights of the wife in this state .appears to us equally strong upon the proposition that a decree rendered in this state, where the court had no jurisdiction of the person of the wife nor of the property in which she was interested, her property rights could not be affected.

The reasons why the marital status of the parties can be fixed by a court having jurisdiction of .the person only of the plaintiff are founded upon public policy, as applicable especially to the marriage relation, and are fully discussed in the opinion in the .case of Solomon'v. Solomon, supra.

We reach the conclusion then that neither the right of Anna S. Belford to dower or to alimony is determined by the decree for divorce obtained in Guernsey county, and the court will hold the cases to hear evidence on the question of her rights in this regard.


source: Caselaw Access Project

license: Public Domain

text:
    IRREGULARITY IN PROVING CORPUS DELICTI.
    Circuit Court of Hamilton County.
    Harry Kohn v. State of Ohio.
    Decided, April 15, 1911.

      Arson — Failure to Establish Corpus Delicti Before Incriminating. Evidence was Introduced — Procedure in Criminal Cases.

    1. In a prosecution for arson a judgment of guilty will not be reversed becaus.e of failure to establish the corpus delicti before evidence tending to incriminate the defendant was introduced, where -the burning of the property was not disputed and the sáme evidence which established criminal agency also bore upon the question of the guilt of the accused.
    2. The question of the competency of evidence will not be considered, where no exception was taken to its admissibility.

      Littleford, James, Frost & Foster, for plaintiff in error.

      Henry T. Hunt, contra.
    Jones,• J.; Smith, P. J., and Swing, J., concur.
   Plaintiff in error was convicted at the April term, 1910, of the common pleas court of the crime of arson.

The main point relied on for reversal of the judgment below is that evidence was allowed to be offered by the state of alleged suspicious and incriminating conduct of the defendant before the corpus delicti was established.

It is true, as a general rule, that the corpus delicti must be proven in a criminal case before any evidence is offered as to the guilt of the accused.

But this rule has its exceptions as all rules have, and we thinli this case furnishes one of them.

There is no question about the burning of the property. The same evidence which shows a criminal agency as to the fire also shows the guilt of the accused and in such case the evidence may be offered at the same time. State v. Davis, 48 Kan., 1; State v. Potter, 52 Vt., 33; Best on Evidence (Am. Ed., 1883), Section 442.

The burning being admitted, the second element in the crime of arson, that of criminal agency, remained to be proven. This was proven to the satisfaction of the jury by the same evidence which fastened the crime upon.Kohn — namely, his conduct and statements before and after the fire, which were not only suspicious and reprehensible, but wholly inconsistent with any theory other than his guilty knowledge of and criminal connection with the origin of the fire.

We think, therefore that the corpus delicti was properly proven and that the record shows no error prejudicial to plaintiff.

It is contended with force and ability that the testimony of witness Hazel ITelvey as to a conversation had with one Levison was inadmissible. No exception was taken to its admission and hence we do not feel called upon to determine its competency.

We find no error in the record and the judgment below is affirmed;


text:
    SCOPE OF INQUIRY IN AN ELECTION CONTEST.
    Circuit Court of Putnam County.
    K. L. Smith et al v. Henry F. Rauh et al.

    Decided, March Term, 1910.

      Elections — Contest of Result as Declared Under the Rose Law — Probate Judge Con Not be Compelled by Mandamus to Certify Case to Common Pleas — Right of Trial Court to go Behind the Returns— Judges and Clerics of Election Called to Impeach the Accuracy of Their Own Certificate.

    1. In a contest of election under the Rose County Option Law, the court may go behind the face of the returns and inquire in to the facts and correct mistakes.
    2. Where there are conflicting certificates signed by the same officers of election, parol evidence may be received to impeach the accuracy of the tally sheets and to explain errors therein or in the certificates relating thereto.

      E. B. Eastman, Malone & Griffith,, D. N. Powell, J. S. Ogan, Wayne B. Wheeler and B. A. XJnverferth, for plaintiff.

      Straman & Straman, Watts & Moore and H. & B. Newbegin, contra.
    Hurin, P. J.; Donnelly, J., and Kinder, J., concur.

       Affirmed by the Supreme Court, May 2, 1911, In Re Contest Of Election Petitioned for H. F. Rauh, 84 Ohio St., p. -.

   This action was brought originally in the probate court to contest a local option election in Putnam county, which county, on the face of the returns, was declared to have voted “dry” on the 13th of October, 1908.

Soon after filing the petition 'to contest the election a motion was also filed by the eontestors asking the probate judgeffo certify the case over to the court of common pleas on the' ground that he was prejudiced against the side of the eontestors "as shown by his activity in the campaign preceding the election'. The motion being overruled by the probate court, an action in mandamus was commenced in the circuit court seeking to eoinpel the probate judge to so certify the case.'

A majority of this court, believing that such an action would-lie, granted such writ, and while exceptions were taken to this action and a proceeding in error was prosecuted to the Supreme Court, which resulted in that court's denial of the right to compel, by mandamus, a probate court to certify to the common pleas court a case in which it claimed jurisdiction, yet while such proceedings were pending in the Supreme Court, the probate judge obeyed the mandate of this court, and having done so, it was held by the Supreme Court that he had waived the right to rely upon his right of jurisdiction, and the Supreme Court therefore refused to take further action in the case.

. In the meantime the case had been tried on its merits in the court of common pleas. That court found on the evidence that the,results of the election in the south precinct of the village of Ottawa had been erroneously certified to the board of eléctions and that the vote had been improperly tabulated by the clerks of election; in this respect, that the number of voters voting for the prohibition of the sale of intoxicating liquors had been recorded on the line designated for those voting against such prohibition and that those voting against such prohibition had been recorded on the line designated for those voting for such prohibition, so that, in that precinct, the vote which had been recorded as 119 against prohibition, dr “wet,” and 196 for prohibition, or “dry,” as it is commonly'called, should have been recorded as 196 “wet” and 119 “dry” and that, as a consequence of that error, the vote of the whole county was changed, and instead, of there being a majority of 21 votes in the county for the. prohibition of the sale-of intoxicating liquors, there was, in reality, a majority of 133 votes against such prohibtion.

In a very able, learned and painstaking opinion the judge of the court of common pleas found that such was the actual result of such vote as shown by the evidence and that a trial court on the trial of a contest of an election could and should go behind the first returns and, having found the results- of the election to have been improperly recorded, should set aside such return and cause a correct return to be recorded.

From this decision error- is prosecuted to this court.

It is evident that there are but two important questions in this case, and that we must first inquire whether, on a contest of an election, the trial court had the power to go behind the face of the returns and inquire into the facts, and, second, if we find that the court had such power, we must inquire whether the evidence in this ease justified the conclusion reached by the trial court.

The law providing for a county local option election also provides for a contest of such election.

By Section 9 of the so-called Rose law (99 O. L., 38), it is provided that ‘ ‘ any qualified voter of the county * •* may contest the validity of such election by filing a petition in the probate court within ten days after the election, setting forth the grounds of contest.”

It further provides that “the probate court shall have final jurisdiction to hear and determine the merits of the proceedings, and in other respects in the procedure of the hearing he shall be governed by the law providing for the contesting of an election of a justice of the peace so far as such law is applicable.”

By referring to the law applicable to the contesting of an election of a justice' of the peace we find that, among other things., it provides, Section 572, for a notification to the probate judge by the contestor specifying the points on which the contest shall be based.

It provides further, Section 574, for the summoning of witnesses.

It provides further, Section 576, that “no election f * * shall be set aside because illegal votes were cast at the election, if it appears that the person whose election is contested has the greatest number of legal votes given at such election.”

These provisions point to contests on various grounds which, as is also reqxiired by the Rose law, shall be specified in the notification of contest, and they also specifically refer to illegal votes as a ground of contest — a question not raised in this ease.

Some light may be obtained by way of analogy from other similar statutes relating to other contests of election.

Section 3001, Revised Statutes, which relates to the contest of an election of a county officer provides that ‘ ‘ on the trial either party may introduce oral testimony or depositions of witnesses taken as provided in civil actions; and whenever any omission, defect or error occurs in the proceedings of an officer in declaring or 'certifying that a person was duly elected to an office, it may be corrected by oral or other testimony, offered at the hearing of any preliminary proceeding or at the trial; ” while Sections 2997, 2998 and 3000 give specific authority for the taking of testimony and the compelling of the production of books, papers, etc.

And Section 3018, which relates to the contesting of the validity of a vote on the removal of a county seat provides for a commissioner to take testimony in writing as to the validity of the votes cast at such election upon such question and as to the validity of the result thereof.

Provision is made for a review of the commissioner’s report by the judge of the court of common pleas, and by Section 3020 it is provided that “if, upon the hearing, the court or judge finds that illegal votes were cast at the election upon such question by reason whereof, or for any other reason found by the court or judge, the result of election or vote so returned and certified is contrary to what it would have been but for such illegal votes or other reason, the court or judge shall enter and certify such findings on the records of the court.”

By these last three sections it appears that in other contests of elections the Legislature has clearly provided for going behind the face of the returns in order to arrive at an understanding of the facts.

The section last cited provides for setting aside the result of an election either because illegal votes were cast or for any other reason; and Section 3001 (just read) provides that “any omission, defect or error in the proceedings of officer in declaring or certifying that a person was duly elected to an office, may be corrected by oral or other testimony * * * offered at the trial.”

It thus clearly appears that, in similar contests, errors in certifying returns may be inquired into by oral testimony.

By analogy, then, the same rule would seem to apply to contests of local option elections, although the specific statute providing for such contests does not in terms so declare.

The Constitution "of the state (Article II, Section 21) has provided that “the General Assembly shall determine, by law, before what authority, and in what manner, the trial of contested elections shall be conducted.”

This the General Assembly has done- in the statute previously quoted.

It is apparent at once that there is a sharp distinction between the powers and duties of the board of deputy supervisors of elections in declaring the results of the election and the powers and duties of a court in considering a contest of election. The board of deputy supervisors has ministerial powers only. The court has judicial powers. The board of deputy supervisors is without authority to hear evidence to contradict or explain the tally sheets; while a court, on a contest ,of the election, is clothed with such authority. See State, ex rel, v. Tanzey, 49 O. S., 656. And this distinction is clearly recognized by Section 2982, Revised Statutes, which specifically provides that “in making the abstract of votes, the board shall not decide on the validity of the returns, but it shall be governed by the number of votes stated in the returns. ’ ’

The Supreme Court of Ohio in the famous case of Dalton, Clerk, v. State, ex rel Richardson, 43 O. S., 652, a case where there seemed to be no doubt that the most infamous frauds had been practiced in an election in Cincinnati, held that the duties of canvassers of election returns under Section 2981, Revised Statutes, now Section 2982, were ministerial merely, and that they had no power to decide such returns invalid by reason of fraud at the election or in the returns thereof as made to the clerk, and that the court could not by mandamus compel such canvassers to omit certain votes from the abstracts and that the court could not in the mandamus proceeding, decide on the validity of such returns but that the remedy in such ease was by contest as provided by law.

The statute there under consideration expressly forbade the canvassers to decide on the validity of the returns, and the court held that in a mandamus proceeding it could not compel the canvassers to perform a judicial duty when the law made them ministerial officers only.

In a later case growing out of the same election, Ex Parte Dalton, 44 O. S., 142, the court again emphasized the fact that in a contest of election the facts could be thoroughly inquired into, and referring to the contest then in progress before the House of Representatives over the election of some of its members, the court repeats this strong assertion:

“In a contest in either House, the broadest range is given contestants to purge the ballot and returns of the consequences of neglect, mistake, fraud and crime, from the opening of the polls to the final declaration of the result.”

And in the contested election ease of Howard v. Shield, 16 O. S., 184, Judge Welch in the opinion, p. 189, says:

“The policy of the law seems to be, that until the contrary is shown, the tally sheet shall be taken and considered as a true statement of the number of legal votes cast for each candidate. Of course, it is open to be impeached by the other party.”

And further on in the same opinion, the court said:

“The question is, can the court, in trying a contested election, go behind the poll books and tally sheets, to supply and correct mere omissions and mistakes in them, by parol evidence? We have no hesitation, either upon principle or authority, in answering the question in the affirmative. * * * We apprehend the true rule to be that both the abstract and the poll books and tally sheets when substantially correct upon their face, are prima facie sufficient, but may be impeached by evidence aliunde, showing their falsity or sufficiency; and that when not so substantially correct upon their face, they may be sustained in the same way. To hold that, when an election has been in fact held, and the majority of .the legal voters have in fact, and according to the prescribed forms of law, cast their ballots for the candidates of their choice, the constitutional rights of the voters and of their candidates can be defeated by a mere misprision or omission of the judges or clerks, would be manifestly unjust and contrary to the plain intent and spirit of our election laws.”

And in the case of Ingerson v. Berry, 14 O. S., 315, the Supreme Court, per Scott, J., declares that the court of common pleas is “clothed with full power * * * to judge of the validity of the returns as shown by the poll books, .and to go behind them and inquire into the legality of every vote which they exhibit.”

The case of Phelps v. Schroder, 26 O. S., 549, is to the same effect.

There would seem, then, to be no room for doubt that the statutes of Ohio, relating to contests of election generally, passed in pursuance of the authority vested in the General Assembly by the Constitution of Ohio, and as interpreted by our Supreme Court, do give to courts, in contested election eases, the power to go behind the face of the returns and inquire into any neglect, mistake, fraud, or crime which has interfered with the true expression of the will of the people and that, in such inquiry, oral testimony may be received to support either side of the contest.

But in the case at bar the contestors rely in part upon the testimony of the judges and clerks of the election in the south precinct of the village of Ottawa to prove that their own certificate as to the results of the election was erroneous — and' that therefore the result of the election was the reverse of what they had officially certified it to be.

In other words, these contestors seek to have these judges and clerks of elections impeach their own certificates by their oral testimony. Can this be done?

We have little hesitancy in saying that, as a general rule and as applied to officers generally, this can not be done. The authorities are overwhelmingly against their power to do so.

In the early case of Hill v. Tiling, 4 O., 136, the court held that “the sheriff can not be permitted, either in pleading or by evidence, to falsify his return, citing Gardner v. Hosmer, 6 Mass. R., 325, and Purrington v. Loring, 7 Mass. R., 388,”

" The case of State, ex rel, v. Moffit, 5 O., 358, while not strictly analogous, decided that the record of an election by the Legislature where it was claimed that by mistake the record showed that Samuel Moffit had been elected judge whereas it was in fact Lemuel Moffit who was eléeted, could not be corrected by parol, because members of the Legislature could not be heard to prove what the action of that Legislature had really been, as against the actual yecord of that action.

The case of Sinks v. Reese, 19 O. S., 306, was a contested election casé wherein the tally sheet, poll-hook and ballots might have been offered in evidence but were not so offered, and oral evidence was offered to prove an error was made in the count.

The court held that this could not be done because of the rule requiring the best evidence to be produced where it is possible to produce it.

. The case of Taylor v. Wallace, 31 O. S., 151, was a case involving the election of state and county officers. The court held that the declaration of the clerk and justices showing who were duly elected ought to be certified in writing and the certificate ought also to show the day on which the declaration was made in order to fix the time for taking an appeal. The court then held that:

“If, taking the certificate in connection with the returns and abstract, there is no ambiguity or uncertainty as to the date of the declaration, parol evidence, in the absence of fraud, is inadmissible for the purpose of fixing the time for taking an appeal.”

In a case decided by the Court of Appeals of Kentucky it was held that:

“An officer of election will not be permitted to contradict his solemn certificate to the returns signed by him at the close of the election by parol testimony in an election contest.” Browning v. Lovett, 94 S. W., 661.

But the court in that case cites an earlier Kentucky case where the parol evidence of such an election officer was admitted to explain how an error in the additions had been made on the poll books which were in evidence.

In a few cases, such as Hamilton v. Young, 81 S. W., 685, we find that the courts of other - states have permitted officers of elections to testify orally as to the circumstances attending the preparation of their certificates, so that it appears that this exact question has arisen in very few cases and the courts are not at all uniform in holding for or against the admissibility of the parol testimony of an officer of election, impeaching his own certificate. The rulings appear to be governed more by the circumstances of each case than by any clearly defined principle of law; and in most of the eases where such parol evidence was-admitted, it appears to have been admitted to explain discrepancies in the certificates and returns or to explain errors alleged to exist in them, their admission being based on claims of fraud or mistake.

With the question thus undecided by the courts of our state and with no definite rule to be derived from the adjudicated cases in the courts of other states, we must resort to the general principles of law in the decision of this case.

It may be said to be well established that the certificates and returns of election officers are prima facie evidence of the fact certified to. Cooley on Constitutional Limitations, p. 940; Ewing v. Thompson, 43 Pa. St., 372; Hartman v. Young (Oregon), 2 L. R. A., 596; Elliott on Evidence, Section 1294, Volume 2, and many other authorities so declare.

This is equally true of the tally sheets. Howard v. Shields, 16 O. S., 184-189; State, ex rel, v. Doniworth, 21 O. S., 216.

In the case at bar the tally sheets, certified to by the officers of election, show one state of facts; the five other certificates of the same officers of election show exactly the contrary state of facts. Both are, as we have seen prima facie evidence of the facts therein recited. But neither the tally sheets nor the certificates are conclusive. Both are signed and certified as correct by exactly the same officers. If either- is correct, the other must be wrong.

It is of the greatest importance that the question as to which is more probably right shall be settled. In this dilemma the court must look to whatever evidence is available to aid it in its determination.

Where the same men have signed two contradictory certificates one of which must be wrong, sound sense would seem to demand that they should be permitted and required to explain the discrepancy.

This court is interested not so much in what the certificates say as in-what the people actually did at the polls. Courts of law and courts of equity both are compelled to allow a wide latitude where questions of mistake or fraud are involved and there is a large class of cases which hold that in cases of fraud and mistake a certificate, otherwise binding, may be contradicted by parol, and even by the oral testimony of the person making the certificate, where such certificate appears to be clearly a mistake or fraudulent. See Elliott on Evidence, Section 594; Young v. Duvall, 109 U. S., 573.

In view of these principles we have read and'reread, with the greatest care, the evidence offered in this case — looking first to evidence other than that of the election officers and finally to that of the officers themselves.

What actually took place at the voting place of the south precinct of Ottawa, on the 13th day of October, 1908, can only be known to eight persons — four judges, two clerks and two inspectors.

The judges and clerks all signed two absolutely contradictory sets of certificates, two of them attached to the tally sheets, and five of them purporting to state the facts disclosed by those tally sheets.

The tally sheets themselves a,re, of course, the best evidence for they are the record of the votes as originally called off and noted before the final result could possibly be known. They were kept by the clerks, and both show that 196 votes were cast for the prohibition of the sale of intoxicating liquors and 119 votes were cast against such prohibition.

Immediately after these were signed five other certificates were filled out and distributed as provided by law, though it appears that these had been somewhat irregularly signed before being filled out. These five other certificates all agree in stating the resulting as exactly contrary to the tally sheets.

Of the eight witnesses to the events of that evening only two— the inspectors — did not sign the certificates. Of these two men A. M. Brown represented the dry side and Andrew Brinkman represented the wet.

Mr. Brinkman testifies that he was present at the counting of the votes, watched the count, saw the record made and knows that the ballots were then burned; that, after the count, the number of votes was called off and that 196 votes were called off as “wet”; that a certificate of the result was made out after the count was over and given to him, as inspector — being certificate known as exhibit “I” and-that it showed then, as it does now, that there were 196 wet votes and 119 dry votes. He says that in counting the votes, there were first seven bunches of five wet votes each before there were any drys; that they put the wet votes in the dry column, and afterwards put the dry votes on the line below.

Mr. A. M. Brown testified that he was an inspector for the dry side, was present during all the time of the count, but did not see how the votes were being tallied by the clerks and did not see any inspection, either by any of the judges or by the other inspector of the tally sheets as they were made by the clerks, and that he made none himself; that all in the room were busy with the. particular work assigned to each. He says that he, too, received a certificate being exhibit “J,” which exhibit is in exactly the same form as the other four certificates in evidence; that is, it shows 196 “wet” votes and 119 “dry” votes.

Strange to say, neither the attorneys for the contestors nor for the contestees asked Mr. Brown whether, as a fact, the wet votes were recorded on the dry line and the dry votes on the wet line; nor did they ask him whether he knew on the evening of October 13th that there was a difference between the two kinds of certificates.

Later on Mr. Brown was again called as a witness and testifies that on the morning of the election one of the judges was absent and his place was filled by election and that Mr. Bennett received all the votes for that office, but one, which was cast by Mr. Brown himself. An attempt was made, and we think was improperly prevented by the court to show, that the complexion of the board and that of the crowd that elected Mr. Bennett was plainly “wet.” That the crowd was composed in part at least of saloon-keepers and bar tenders and that Mr. Brown was the only “dry” man present. But whether this was improperly excluded or not is now immaterial.

Of all those present at the counting of the ballot's on the night of the election, Mr. Brown was the one most interested in seeing that the vote of the “drys,” if in fact the larger, was properly recorded. He is unable to tell anything about the way the record was made, or whether the votes were recorded on the proper lines of the tally sheet or on the wrong lines. He, like the other inspector, received a certificate showing that the '“wet” side had received 196 votes to 119 for the ‘ ‘ dry. ’ ’ His attention was thus immediately challenged to the announced result. He made no protest, made no claim that this was an error and appears to have been perfectly satisfied with this statement of the result. If it was wrong, it was his plain duty to -see that it was at once corrected. That is what he was there for. His silence carries with it an almost overwhelming presumption that the result was correctly announced, that he understood it, and that he was satisfied with that announcement. As to what the tally books actually showed he appears to have been absolutely ignorant. He was not asked by either side.to state from his own knowledge what the vote actually was. He had not watched the tally made by the clerks, being engaged in watching the ballots as they were called off, and he was not asked to testify as to whether the statement of his fellow inspector was true, that is, that the wet votes were first recorded on the line reserved for the dry.

If there were no other evidence than these two inspectors, neither of whom could possibly be held to be an incompetent witness, for neither of them had signed the certificates or poll books, the court of common pleas would probably have been justified in deciding as it did.

But if we give any credence at all to the testimony of the judges and clerks, the proof is overwhelming that the five eertifi-' cates were right and that the tallies were erroneously recorded on the tally sheets. Every one of these six officers testifies. While there are some discrepancies in the details of their testimony, they substantially agree on all of the important facts.

Pour of these six officers swear that the first thirty-five votes counted, which were apparently the first votes east, were “wet” votes, thus agreeing with the testimony which was sought to be brought out on the other side, and was excluded, to the effect that all of .those who. organized the polls in the morning were “wet” sympathizers. The other two officers were not asked this question.

Pour' of these six officers testify, the others not being asked the question, that these first thirty-five wet votes were recorded on the first line of the tally sheets where the dry votes should have been recorded, and that from that time on, all the wet votes were recorded on that line and that the totals were always about the same number ahead of the total dry votes.

All but one of these six judges and clerks, the other not being asked the question, swear that at the conclusion of 'the count public announcement was made at the door of the voting place and that in this announcement the vote was publicly declared to be 196 wet and 119 dry.

Five of these' six witnesses, the other not being asked as to this, declare that a certificate stating this as the result was immediately tacked on the outside of the door of the voting place, and that certificate is identified and attached to the bill of ex-eeptions as exhibit “F,” and it like all the other certificates (except those on the tally sheets), shows 196 wet votes and 119 dry votes.

All of these officers of election testify that in fact there were 196 wet votes cast and only 119 dry votes. The testimony of these six officials is thus overwhelmingly in support of that of Mr. Brinkman, the wet supervisor, to the effect that the wet vote was actually recorded on the line intended for the dry vote, and that the- dry vote was recorded on the line intended for the wet vote.' It further substantiates the, statement which neither Mr. Brown, nor any other witness denies, that the result of the vote' was understood by all present to be and was certified to be 'and'was publicly announced to be 196'wet and 119 dry, and that Mr. Brown as well as all others entitled to them, were that night given certificates showing this result, and that no protest was made and no one questioned the truth of this certificate.

The clearest explanation of the whole matter is given by Mr. Crawfis, one of the clerks. He testifies as follows, pp. 88 and 89, and I quote his testimony on this point in full. He says:

“In the early part of the day I looked over the tally book as usual, investigating the form of it, read what was in it and paid no more attention to the printing on the left hand side. When the votes were counted out there was no one called for the two clerks; we were instructed not to tally any votes till called off by a certain judge who was to call them off in batches of five at a time; and there was seven batches of wet votes called off before there was a batch of dry votes; for some reason I know not what it is, any more than we can explain any other error th^t we make day by day,' I started in on the top line putting the first ones, down there and of course continued to do that until I had seven batches of fives; that thoroughly fixed in my mind which I was going to.use for the wets without referring whatever to the printing on the left; and then after the seven batches had been called off, one batch of drys, making thirty-five at the top and five at the bottom; from that time on till after the top line had gone above 100 there remained just thirty between the two; the other clerk and myself remarked several times during the tally the peculiar coincidence of the remaining just five apart after this thirty-five wet votes and then five dry and then there was five wet votes and then five drys and I went from the top to the bottom and the top to the bottom without any reference whatever to the printing on the left.”

The other clerk, Roy Deck, merely says that he tallied the wet votes on the upper line and the dry votes on the lower line.

Mr. Crawfis says that they called off their totals to each other and they agreed. The explanation is a simple one, and not unnatural. It is easy to believe that such a mistake could have occurred.

The hard thing to understand is how it could possibly remain undiscovered. That eight presumably intelligent men could stand by all evening and see such a mistake -carried out, and then in addition see those figures erroneously copied into the statement at the bottom of each tally sheet; that six of these men conld deliberately sign those erroneous statements which were directly contrary to their understanding of the facts, seems almost incredible.

Yet they all say that they did it, and Mr. Brown, who was certainly interested in proclaiming the truth, if those two statements were true, accepted in silence a certificate directly contradicting them in the very vital matter of the whole day’s work, heard that new certificate, which is now called false, proclaimed in public as the truth, and saw it tacked to the door to further proclaim that truth, and all without a word of protest.

Apparently all of these men relied entirely on the accuracy of two clerks, and must now ask ns to believe that they signed the clerk’s report without reading it. If the clerks and 'judges were careless, the inspectors were almost equally careless.

If the clerks and judges were deliberately falsifying the returns, as we are asked by the other side to believe, then they at least gave due notice of their design to the very man who was there to prevent such trickery, and he took no action to prevent it.

We are loath to believe that- these men would deliberately perpetrate such a fraud against the public, or that they would presume to carry out such a fraud by perjury on the witness stand. But whether we could believe it or not, the evidence does not prove it.

That they were grossly careless — astonishingly careless — is the only other alternative. The evidence, if believable at all, admits of no other conclusion. It is clear, explicit and without any contradiction. Such carelessness is more than unfortunate. It has been expensive, not only in money but in the reputations of all who participated in the transaction. It has kept the whole community in turmoil and has aroused suspicion and bitterness among citizens who ought to be on terms of cordial friendship. Such things are not good for a community. It is to be hoped that this unfortunate strife will now cease and that what can not be cured will be. forgotten.

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


author: Per Curiam.

text:
    PETITIONER FOR STREET IMPROVEMENT BARRED FROM OBJECTING TO ASSESSMENT.
    Circuit Court of Hamilton County.
    Charles C. Breuer and H. W. Morgenthaler v. John H. Gibson et al.

    Decided, May 19, 1906.

      Streets — Improvement of, by Petition — Abutter Estopped from Objecting to the Assessment, When.

    An abutting property owner, who petitioned for improvement of' the street and that the improvement be made in a certain manner, can not thereafter enjoin collection of the assessment on the ground that the improvement was made in an improper and negligent' manner, where it was made in the way designated in 'the petition. _

      Eorstman & Eorstman, for plaintiff.

      City Solicitor, contra.

       Affirmed by the Supreme Court without report, 77 Ohio St., 602.

   Per Curiam.

This action was commenced to enjoin the collection of certain assessments levied upon the plaintiff’s lots for a street improvement, on the ground that the street was improperly and negligently constructed. The amended answer contains the averment that plaintiff petitioned the city through its proper boards to make said improvement in the manner in which it was afterwards made, and wherein they agreed to pay for the whole cost of such improvement except two (2) per cent, of the entire cost of the improvement and the cost of the intersections. This averment is nowhere controverted by reply, and hence the court did not err in refusing to hear testimony tending to prove that the street was negligently and improperly constructed.


text:
    LIABILITY FOR RUNNING DOWN A LICENSEE ON AN INTERURBAN RAILWAY TRACK.
    Circuit Court of Hamilton County.
    Cincinnati, Georgetown & Portsmouth Railroad Company v. William E. Dameron, Administrator.
    Decided, April 15, 1911.

      Negligence^-Weight of Evidence iohere a Licensee was Bun Down T>y an InterurTxm Gar — Error—Charge of Court.

    1. Damages having heen awarded against an interurban railway company for the death of a licensee upon its track who was struck by a car, the judgment will not be reversed on the weight of the evidence, where the testimony for the plaintiff was to the effect that the decease had caught his foot and could not get off the track and others with him were signalling the motorman to stop, and the motorman himself testified that he saw persons on the track in ample time to have stopped the car but did not see any signal to stop or become aware of the peril of the decedent until too late to avoid the accident.
    2. A charge to the jury in such a case, that it was the duty of the company to keep a lookout to see if there were licensees upon the track and if a licensee was on the track to use reasonable care not to run him down, may have been too broad, but in view of the testimony of the motorman in this case was not prejudicial.

      Frank F-. Dinsmore, for plaintiff in error.

      8. O. Bayless, contra.
    Smith, P. J.; Swing, J., and Jones, J., concur.
   The main error relied upon by plaintiff in error to secure a reversal of the judgment of the court of common pleas rendered in favor of defendant in error, is that the verdict is against the weight of the evidence and the court should have instructed a verdict in favor of plaintiff in error.

In this connection we can not agree with counsel for plaintiff in error. The evidence offered on behalf of plaintiff below not only would be sufficient to- sustain the finding of the jury, but we tbinh.it is very materially strengthened by the evidence in-traduced by the defendant below through its agent, the motor - man of the car that ran over the decedent.

It was distinctly admitted in this court that the decedent ivas a licensee upon the track of plaintiff in error,- and the evidence on his part shows that he and his companion were using all possible means to notify the motorman of the car of the situation. It is further disclosed from the motorman’s own testimony, -that he saw the boys some distance up the track as he approached them, that upon passing the station at Koehlers, the speed of his car was fifteen miles an hour, that the power had. been thrown off and he was coasting along the track, during all of which time he saw the boys. He says he did not see them make any sign of distress and did .not know they were in distress until he got so near that when he saw the boy was caught it was too close for him to stop. This is the only material difference between the evidence of the plaintiff and defendant on this point, and we think that where the evidence of the plaintiff below showed to such a marked degree the signalling to the motorman to stop, and under his own evidence, that he saw the boys at such a great distance from them he must be mistaken in this statement; at any ratej this was the matter to be determined by the jury and it having come’to a conclusion in favor of plaintiff in error, which we think justifiable, the verdict should not be disturbed.

The second ground of error urged is that the court in its general charge told the jury, that it was, the duty of the traction company to keep a lookout to see if there be licensees on its track and in the event there be a licensee on its track be ready to use reasonable care not to run such licensee down.

It may be that this charge of the court is' too broad as compared with the rule laid down in Elliott on Railroads, Volume 3, Section 1250, but if so, we do not think under the pleadings and the evidence disclosed in the' record, that such charge, if erroneous, is prejudicial.

As said above, the evidence of the motorman was, that he saw these licensees upon the track quite a distance- from.the place where "the accident occurred,-therefore, according to the-rule of 'Elliott, he. Should not have" willfully Or wantonly injured them, but his'duty was to use reasonable care to-avoid injury to them after the danger was discovered. His evidence in this respect is, that when he got so near that he could see if the boy was caught, it was too close for him to stop, but he immediately pulled the sand-lever and reversed the car. The determination of this question of negligence on the part of the motorman was found by the jury against him, and we can not say but that this finding is correct.

As there is no error in the record the judgment will be affirmed.


text:
    PROCEEDINGS IN FORECLOSURE OF MORTGAGE.
    Circuit Court of Lucas County.
    Ohio Savings Bank & Trust Co. v. Ida E. Strausz et al.
    Decided, 1910.

      Mortgages — Foreclosure of. — Jurisdiction as to Second Mortgagee, Where First Mortgagee Has Dismissed His Action — Second Mortgagee Hot Bound to Pay Off First Mortgage before Proceeding to Foreclose.

    1. The voluntary dismissal of a cause of action by a plaintiff mortgagee asking to have its mortgage foreclosed will not oust the jurisdiction of an equity court to grant relief to a second mortgagee of part of the land, asking to have the cloud of the first mortgage removed by a sale in parcels.
    2. A second or junior mortgagee may maintain an action to foreclose his mortgage, without first paying off the debt of the first mortgage.
    3. A second mortgagee who has been brought into á foreclosure suit by a first mortgagee, may be granted relief upon .a cross-petition to have tne cloud of the first mortgage removed from the property, even tnough the first mortgagee volutarily dismisses his cause of action, and a third party who has purchased the equity of redemption desires to have the first mortgage remain on the property.

      Charles K:'Friedman, for the Ohio Savings Bank & Trust Co. and Willard. F. Robison; . .'

      Orville 8. Brwmhock, for the Mutual Aid Building & Loan.Co,

      Wildman, J.; Kinkade, J., and Richards, J., concur.
    Appeal from Common Pleas Court.
   This case has been submitted to us on the demurrers of the plaintiff, the Ohio Savings Bank & Trust Company, and Willard F. Robison, to the amended and supplemental cross-petition of the Mutual Aid Building & Loan Company.

The original action was a suit by the Ohio Savings Bank & Trust Company to foreclose a mortgage which it held on certain property owned by Ida E. Strausz and her husband.

The Mutual Aid Building & Loan Company was made a party, having a supposed interest in the property, and on June 3, 1910, filed a pleading in the case. The case on motion of plaintiff company was ordered dismissed by the court without prejudice.

The Mutual Aid Building & Loan Company excepted to this order, and thereafter attempted to proceed with its claims as to the property in controversy.

It seems, without á full review of the circumstances (which are somewhat complicated) out of which this litigation has grown, that the Mutual Aid Building & Loan Company had at one time itself a junior mortgage upon the property of the Strauszs, which mortgage covered a small part of the same property that is described in the petition of the plaintiff company, and which required some corrective instrument or instruments to be made by the Strauszs to the Mutual Aid Building & Loan Company to make this apparent. This was done and ultimately the Mutual Aid Building & Loan Company obtained title to the same property subject to whatever interest the plaintiff company, the Ohio Savings Bank & Trust Company, had by virtue of its prior encumbrance.

In the pleading first filed by the Mutual Aid Building & Loan Company it asked for the protection of its interests by a prayer which seeks to compel the Ohio Savings Bank & Trust Company to make sale of the property in parcels so as to subject first to the lien of its encumbrance the property not covered by the mortgage of the Mutual. Aid Building & Loan.Company, and to which the Mutual Aid Building & Loan Company ultimately .obtained:.title..

The prayer was that the court would determine the validity of the notes and mortgages set forth in the petition, and if same should be found a valid and subsisting lien against the property owned by the Mutual Aid Building & Loan Company, that the property described in the petition might'be ordered sold in parcels.

It prayed also for all relief to which in equity and good conscience the defendant company was entitled.

After the dismissal of the Ohio Savings Bank & Trust Company from the case, a so-called amended and supplemental petition was filed by the Mutual Aid Building & Loan Company, in which.they alleged that the Strauszs had made conveyance to Willard F. Robison and had him brought in as a party, and alleged further in its pleadings that there was a conspiracy between Robison, who was an officer of the plaintiff company, and the plaintiff company, to defeat the claims of the Mutual Aid Building & Loan Company by the dismissal of the plaintiff company out of the case and preventing the Mutual Aid Company from litigating its claims therein.

Motion was made to strike the amended and supplemental petition from the files, both by the Ohio Savings-Bank & Trust Company and by Willard F. Robison, and these motions were by the court overruled.

Demurrers were also filed by both plaintiff company and Willard F. Robison and subsequently withdrawn, and afterwards demurrers were again filed and heard and sustained by the court. The Mutual Aid Building & Loan Company, not desiring to plead further, its claims were dismissed by final judgment and order.

From these proceedings and final judgment, an appeal was taken to. our court, and the ease is presented to us upon the demurrers of the Ohio Savings Bank & Trust Company and Willard F. Robison to the claims asserted by the Mutual Aid Building & Loan Company.

It is insisted that after the dismissal of the plaintiff’s case there was no proceeding remaining in court in which the defendant company could have its rights litigated, and it is insisted by Willard F. Robison that he is not properly brought into the ease under the circumstances, and that the court has no jurisdiction to render judgment against him; and I suppose the plaintiff company is asserting substantially the same thing, that there is no jurisdiction now in court to grant the asked for relief, or any relief, to the Mutual Aid Building & Loan Company.

Without dwelling too long on the question of jurisdiction, it suffices to say that we are of the view that the Mutual Aid Building & Loan Company after having been brought into court by the suit of the Ohio Savings Bank & Trust Company had the right to file its cross-petition as to matters touching claims in the plaintiff’s petition, and ask the relief which it did ask.

In other words, when a first mortgagee brings suit to foreclose his mortgage, a subsequent mortgagee may properly ask, if the mortgage is on part of the same property, that the land be sold in parcels in such a way as first to subject that property which is not covered by the second mortgage, on the principle of equity that where one creditor has recourse to two funds, although his equity be prior, he must exhaust the fund upon which he has the exclusive right, so as not to prejudice the equity or right which is held by the other party.

As to Willard F. Robison, by invoking the jurisdiction of the court in his motion and demurrer, he gave the court full jurisdiction of his person. I will not stop to cite authorities. We think that under the law in Ohio it is quite clear that Willard F. Robison got himself into court, so that if the court had no original jurisdiction to entertain a suit of the Mutual Aid Building and Loan Company to quiet its title as against Willard. F’. Robison, or indeed, as against the Ohio Savings Bank & Trust Company, yet after the Mutual Aid Building & Loan Company was brought in as a defendant, and the court acquired original jurisdiction of the subject-matter to determine the right of the parties in such an action, the court below had-jurisdiction to go on and determine the case, and that the filing of the demurrers by the Ohio Savings Bank & Trust Company and Willard F. Robison to the subsequent pleading of the Mutual Aid, Building & Loan Company substantially kept all tbe parties in court, and gave the court jurisdiction to determine the matters in controversy.

One of the questions involved in this case we have had a good deal of trouble in determining, viz., whether a person who has' become the owner of property, a part of which is covered by a mortgage,'which the mortgagee does not desire at present to foreclose but which has become absolute, can compel its foreclosure so as to prevent the lien from remaining upon his property for an indefinite time, perhaps in the end growing by reason of accrued interest to such án amount as to endanger the property of the person who has become the owner, when otherwise it would be saved, and also at all times preventing his .sale of the property by reason of the cloud upon it. The assertion is made in this supplemental and amended cross-petition, that this mortgage of the Ohio Savings Bank & Trust Company is a cloud upon the title which the Mutual Aid Building & Loan Company has obtained from the Strauszs, and that the claim made by W. F. Robison by virtue of his deed from the Strauszs is also a cloud, and the Mutual Aid Company is endeavoring to have these clouds removed so that it may be in shape to give a perfect title to a purchaser in case it desires to sell.

We think the Mutual Building & Loan Company is right in its contention that it may compel foreclosure of the mortgage which covers a part of its property and have a sale of the property covered by the Ohio Savings Bank & Trust Company mortgage in parcels, so as to protect the interests of the Mutual Aid Building & Loan Company. If it is right in that contention at all, it may do so in this suit.

After a great deal of doubt in the courts of this state for many years, it has been settled conclusively that a junior mortgagee may bring a suit to foreclose even if the land has been sold upon the suit of a first mortgagee and has gone into the hands of the purchaser at a judicial sale. The junior mortgagee is not now, under the decisions in Ohio, compelled to redeem from the first mortgage by paying off the debt secured thereby; he is not compelled either to redeem, or bring suit to procure redemption. He may bring a suit asking to foreclose his mortgage, making the mortgagor and prior mortgagee parties so that the rights of such first mortgagee may be asserted.

Bearing upon these questions I will cite one of the eases in Ohio, the case of Holliger v. Bates, 43 Ohio St., 437. I read from the first and second paragraphs of the syllabus:

“Where a senior mortgagee forecloses his mortgage, and sells the property, without making a junior mortgagee a party, or giving him notice, the purchaser at such judicial sale, whether it be the senior mortgagee or a stranger, acquires his title subject to the right of redemption by the junior mortgagee, and the same rule applies where the junior mortgagee has assigned all his interest in the mortgage, and the notes secured thereby to a third person who is not a party and is without notice of such proceedings and sale.
“In such a case, the owner of the notes and junior mortgage, not being a party to said proceedings to foreclose and sell, is not affected thereby, and may maintain an action against such purchaser to foreclose his mortgage. ’ ’

Now, as I stated, for many years it was contended that the only right of a junior encumbrancer was to compel redemption; that is, to compel the acceptance of his offer to redeem. He could, if the first mortgagee refused to accept from him the amount of the indebtedness, bring proceedings in equity to compel such an acceptance.

I remember -while at the bar many years ago of being an attorney in a case where this question was raised, that there was no power except to redeem the property from the prior mortgagee; the court, however, held otherwise and subsequently the Supreme Court made holding in Stewart v. Railway, 53 Ohio St., 168, expressing the same rule as expressed in Holliger v. Bates, supra. So that it was established in Ohio, and has been repeatedly held since, that the junior mortgagee has the power to foreclose, which is not affected even by the sale of the property under the prior mortgage.

Now, if the Mutual Aid Building & Loan Company were still mortgagee and were asserting its right to foreclose there would be no question of its power to do so. There is, however, a dictum by Chief Justice Day in the case of Stewart v. Johnson, 30 Ohio St., 24, 31, in which he says as matter which he seems to take for granted, that while the mortgagee could do that, a person who gets his title from a second mortgagee can not do anything of the kind. That is, that the power to foreclose a mortgage resides only in the person who holds the mortgage, and an owner of the property has no power except to redeem; but this question was not involved in the case in which the opinion was announced by Judge Day, and we think that the rule is inequitable when applied to a case like the one at bar, and also in conflict with an earlier decision of the Supreme Court which seems to have been overlooked, or if not overlooked no mention of it is made in that case, viz:

The Miami Exporting Co. v. Bank, Wright, 249. I read from two paragraphs of the syllabus.

It is said in paragraphs 9 and 11 that “such purchaser (that is, a purchaser who has acquired title to the property), as well as a subsequent mortgagee, has a right in equity to compel a prior mortgagee who has other security, to exhaust the other security, before the resort to the fund on which they have a joint claim.”

It is held in the ease that “it is not essential that there should be an offer to redeem, or to pay the money into court. A prayer for general relief is sufficient * # * if the other property is sufficient to pay the debt, and sometimes relief will be granted more extensive and beneficial than the prayer.”

I will not stop to read the case, but I think it applies to the case at bar, and there is a certain equity which commends .itself to the conscience of the court in the application of this rule, since under the circumstances of this case no substantial prejudice will result to the plaintiff company by compelling it either to cancel its mortgage upon this small piece of land which is covered by the title of the Mutual Aid Building & Loan Company, or else to foreclose its mortgage and sell the property in parcels. This position is supported by Miami Exporting Co. v. Bank, supra.

Now, where the second mortgagee has, as is the undoubted law of Ohio, the right to foreclose his mortgage, not simply to redeem, it would seem that where a person has. purchased his interest, in the subsequent protection of that interest so purchased, the purchaser should for the purpose of subrogation step into the shoes of the second mortgagee.

In this case it happens that the person who gets the title, the Mutual Aid Building & Loan Company, is the same person originally holding a mortgage. In other words, the title is given to the junior mortgagee, and it seems to be asserted here, or at least is a logical question, as to whether that power which existed in the junior mortgagee is lessened when the legal title for the security of the debt is added to the complete equity of redemption. It dbes not seem in equity he ought to have less power when he has taken, in addition to the interest he had as mortgagee, the interest of all that the grantors were able to convey. In other words, the condition of the mortgage was practically extinguished; it is no longer a mere mortgage, but is the absolute title.

In the ease of Frische v. Kramer, 16 Ohio, 125, I find on page 139 this language by Judge Hitchcock:

“And it seems clearly to the court, that when it is sold, the purchaser takes the interest, not only of the defendants in the ease, but the interest of the mortgagee.”

That is, in the case at bar the Mutual Aid Building & Loan Company acquired not only the interest of the Strauszs, but the interest of the mortgagee; and again quoting:-

“So far as the land is concerned, he (it) is subrogated to all the rights of the mortgagee.”

There are other cases in which this principle of subrogation is applied, cases that are quite similar in some respects to some of the conditions pertaining to this case. I will not stop further to consider them.

It does not seem to us that the Mutual Aid Buildin'g & Loan Company by its acceptance of title from the Strauszs parted with any right which it had to protect its interest by compelling the prior'mortgagee to grant such relief as is sought here in the alternative. We think the court is not powerless to protect what seems so manifestly just a claim as that asserted by the Mutual Aid Building & Loan Company.

As to Robison: It is clearly asserted in this answer and supplemental pleading that he is conspiring with the Ohio Savings Bank & Trust Company to the injury of the Mutual Aid Building & Loan Company. All this is admitted by his demurrer. He not only admits that he is an officer of the Ohio Savings Bank & Trust Company, but he admits the conspiracy and purpose.

We think that these demurrers should be overruled and such will be the judgment of the court.


text:
    ACTION ON A BOND FOR. PERFORMANCE OF A CONTRACT.
    Circuit Court of Franklin County.
    Sumner Phosphate Co. v. Jarecki Chemical Co. and American Surety Co.
    Decided, November 26, 1910.

      Amendment — Denied for Laches in Malting the Application — Notice to Surety of Default as to a Part of the Contract — Surety Not Released dy Slight Deviation from Terms of the Contract — ¿Evidence as to Marltet Value.

    1. Having admitted by answer the execution of tbe bond sued on, a surety company will not be permitted, three years thereafter, to amend its answer by denying liability under the bond because of alterations therein, where it appears that during the interval depositions were taken upon notice to the surety and the original bond was exhibited, and especially when to interpolate the condition in the bond alleged to have been altered would have the effect of making the bond and contract «inconsistent.
    2. Failure of the payee of a bond for the performance of a contract to notify the surety of default by the principal as to a part of the contract does not, in the absence of actual prejudice shown, release the surety as to defaults as to which notice was duly given.
    3. A surety is not released by slight deviations as to amount and time of delivery of the article contracted for, where by request of the payee of the bond securing the contract and not affecting the period of liability.
    4. Admission of evidence as to market value at other nearby points of the article forming the subject of the contract, in the absence of such evidence as to market value at the place of delivery, is not prejudicial to the interests of the surety on the bond.

      Addison, Sinks ■.& Babcock and D. E. Sowers, for plaintiff in error.

      Arnold, Morton & Irvine and M. B. Waite, contra.
    Allread, J.; Dustin, J., and Rockel, J., concur.
   The Jarecki Chemical Company brought suit in the common pleas court against the Sumner Phosphate Company and the American Surety Company for damages for breach of contract for delivering of phosphate rock according to the terms of a written contract ■ of the phosphate company with the Jarecki company upon which the American Surety Company became surety for due performance by the phosphate company.

The Jarecki company obtained judgment against the phosphate company for $12,000 and against the surety company for $10,000 Thé phosphate company prosecutes error here to reverse this judgment and the surety company is made party and files a cross-petition in error.

The errors complained of and argued here relate more especially to the defense of the surety company.

'The surety company complains of the court’s refusal to permit it to amend its -answer so as to deny its execution of the bond sued on.

This question was made for the first time after the trial began.

The plaintiff in the opening of its case offered the original bond in evidence. The bond showed upon its face evidence of an alteration. Condition four of the bond requiring the Jareeki company to withhold 15 per cent, of the value of all work performed and materials furnished until complete performance or expiration of time for filing liens, etc., was erased.

Upon inspection of the original bond and discovery of the alteration leave was sought on behalf of the surety company to' amend its answer so as to deny the bond because of the alterations. This amendment was refused by the trial court because it came too late.

It is urged that the amendment was offered as soon as discovered and that terms might have been imposed but that an absolute refusal was an abuse of discretion.

This contention of counsel as a general proposition need not be controverted here.

The petition contained a copy of the bond with three conditions. These conditions were set out in the body of the petition. A demurrer was filed and argued by counsel for the surety company and overruled by the court.

Upon leave -granted the surety company filed an answer admitting the execution of a bond as set forth in the petition. The answer is sworn to by J. S. Mossgrove, the local agent who executed the bond.

The ease stood upon this answer from November 26, 1906, to the trial in October, 1909.

In the meantime the case had been prepared for trial. Depositions had been taken and the original bond executed. The surety company had notice of the taking of the depositions and did not attend, relying upon counsel for the phosphate company who did attend.

Upon the application for leave to amend, counsel for the surety company stated that the' local agent, J. S. Mossgrove, who verified the answer, would, if permitted, testify that the copy of the bond in his office-contains' the fourth condition and that the original bond when executed contained the fourth condition and that the alteration in the bond was after delivery.

Now, upon the face of the bond it appears to have been executed upon the part of the surety company by W. D. Park, “resident vice-president” and J. S. Mossgrove, “resident assist-' ant secretary.”

While Mr. Mossgrove assumes to speak positively as to the alteration so far as the local office is concerned he does not do so as to general offices, nor does his proposed testimony show that the bond was in his control until final delivery. The fact' remains that the fourth condition is inconsistent with the contract which the bond purports to guarantee and with the application upon which it is based. The failure to pay in full each month would be a breach of the contract; while a payment in full would be a'breach of the bond if the fourth condition remains.

There is, therefore, a strong presumption of fact that the alteration was made before final delivery. Franklin v. Baker, 48 Ohio St., 296-303.

And this presumption of fact is corroborated and strengthened by the admission of the original answer and long delay and is not met and overcome by the proposed -testimony of J. S. Mossgrove for the reason that he does not show opportunity to know of the condition of the bond when finally delivered or to know whether the general officers approved the alteration.

Upon this state of the evidence given and offered the trial court did not abuse its discretion in its refusal to permit the amendment at that stage of the case.

It is contended that the failure of the Jarecki company to notify the surety company of one or more defaults of the phosphate company in the full performance of the contract for preceding periods operates as a complete release of the surety company.

This question is raised by the demurrer to the petition, by demurrer to the plaintiff’s evidence, upon motion for non-suit and upon the special and general charges of the court. The contention .is based upon the first condition of the bond, viz.:

“That in the event of any default on the part of the principal, in the performance of any of the terms, covenants or conditions of said contract, written notice thereof with a verified statement of the particular facts showing such default and the date thereof, shall within ten days after such default be delivered to the surety company at its office in the city of Columbus, Ohio.”

The view of the court of common pleas as shown by charges given and refused was, in substance, that a failure to give notice within the stipulated time of any particular default was effective as a bar to liability for that default, but in the absence of actual prejudice to the surety company did not relieve it from liability for future defaults for which notice is duly given.

This view is supported by the weight of authority and is in harmony with the scope and purpose of the bond. Lakeside Land Co. v. Surety Co., 105 Minn., 213; United States F. & G. Co. v. United States, 191 U. S., 416; United States v. Fidelity & Guaranty Co., 178 Fed. Rep., 721; Lazelle v. Surety Co., 58 Wash., 589; Van Buren Co. v. Surety Co., 137 Ia., 490; Aetna Indemnity Co. v. Waters, 110 Md., 673; Henry v. Indemnity Co., 36 Wash., 553.

To hold as contended for here that notice is required for every trifling or inconsequential departure from the strict terms of the contract guaranteed and that a failure to give such notice is a bar to all further liability upon the bond is too narrow and would amount to a practical destruction of the objects and purposes of the bond.

Counsel for plaintiff in error cite Home Ins. Co. v. Lindsey, 26 Ohio St., 348, but a careful examination of that ease discloses that the holding of the court as to want of notice applied to an existing loss — not future losses. The case might be made parallel if we assume that an insured had one or moré fires in the insured building of trifling results and then a complete loss. It would be unreasonable and absurd to hold in the case assumed that a mere failure to report the small fires would be a complete bar to recovery for the complete loss upon its being properly reported.

The same conclusions must also prevail as to slight deviations by request or order of the Jarecki company as to amount and time of delivery during previous months where in no wise affecting the contract for the period of alleged liability.

We find no prejudicial error in admitting evidence of market values of phosphate rock at other nearby points to be considered in the absence of a market value at the stipulated place of delivery, nor in the charge of the court in respect thereto.

We find no prejudicial error in the charges given or special charges refused in respect to a complete breach of the contract.

The failure of the phosphate company to answer the letter of February 8, or to make any effort to comply with the contract up to the bringing of the suit, and in view of the needs of the Jarecki company and of their proceedings to buy supplies is sufficient evidence of repudiation of the whole contract to uphold the verdict.

Some of the special charges requested by the plaintiff in error might be considered good as general statements of the law but were not sufficiently concrete or specific to met the present case.

The subjects of the special charges were properly covered by the general charge.

We have examined the other exceptions complained of and find no prejudicial error in the record. Affirmed.


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    ACTION FOR. RECOVERY:OF. HOMESTEAD EXEMPTION.
    Circuit Court of Clarke County.
    Sarah M. Bentzel v. James P. Goodwin et al.
    Decided, December 1, 1910.

      Homestead — Order to Pay Cash in Lieu of, Out of Proceeds of Sale, Hot a Final Order Upon Which Suit May be Brought on the Bond of the Assignee — When an Action on the Assignee's Bond Would Lie on Order of Distribution — Procedure by Means of Exceptions to the Assignee’s Account.

    1. Where an assignor waives the right to select specific property in lieu of homestead under Section 11378, and asks that the sum of $500 be allowed to him out of the proceeds from the sale of the assigned property, and such sum is set off to him by the appraisers, ■ and the action of the appraiseis is approved by the court and said sum is ordered to be paid to the assignor out of the proceeds of sale — Held: that such order by the court is not a final order upon which, in case the assignee fails to pay, an action could be brought against the assignee on his oond.
    2. If the order directing the payment be made in the court’s eonsidera- ' tion of the question of distribution of the proceeds of sale of the property out of which exemption could be paid, and all persons in interest were in court, a failure to comply with such order might sustain an action on the bond.
    3. The better and safer procedure, however, in case the assignee has failed to pay the exemption claim, is for the party claiming the exemption to file exceptions to the account of the assignee and then, if an order to pay be made and the assignee fails to comply therewith, bring an action on his bond.

      J. .F. Locke, for plaintiff in error.

      J. P. Goodwin, contra.
    Rocked, J.; Dustin, J., and Allread, J., concur.
    Error to Common Pleas Court.
   In the court below, the plaintiff brought suit against the defendants' as set forth .in her petition. To this petition a demurrer was filed upon the ground that the petition does not state facts sufficient to constitute a cause of action.

The defendant in error, in support of the demurrer, contends among other things that whatever rights that the plaintiff in error may have, must be worked out through the probate court.

The plaintiff says, and for the purpose of this cause they are the admitted facts:

"That prior to and on or about July 10, 1905, she was the owner of a stock of goods and chattels in a storeroom in Springfield, Ohio, consisting of monuments, markers and other articles necessary for carrying on the business of furnishing and erecting monuments and tombstones, and some notes and book accounts, and that on said date plaintiff executed and delivered to the defendant, James P. Goodwin, her deed of assignment whereby she conveyed to him all her property in trust, for the benefit of her creditors, excepting therefrom and reserving to plaintiff her exemption in lieu of a homestead, and other rights and property to which she might be entitled, under the homestead, exemptions, or other laws of the state of Ohio.
"At the time of the making of said deed of assignment and ever since, the plaintiff has been a resident of the state of Ohio, residing therein, being a widow and not the owner of a homestead or any real estate.
, "Said James P. Goodwin, on or about July 10, 1905, filed said deed of assignment in the Probate Court of Clarke County. Ohio, and was thereupon appointed and qualified as assignee of the plaintiff, and letters as such were duly issued to him by said court, and said defendant, James P. Goodwin, and the Bankers Surety Co. of Cleveland, Ohio, thereupon duly executed a joint and several assignee’s bond, a copy of which is hereto attached, marked exhibit ‘A,’ whereby they became jointly and severally bound to the state of Ohio in the sum of $1,400, subject to the condition that if the said James P. Goodwin should administer the said trust according to law, then said obligation should be void, otherwise to remain in full force.
"Thereupon, said James P. Goodwin entered upon said trust of said assignment, and as such assignee at once took possession of all of'said property of plaintiff, and of the storeroom containing the same, and on or about July 14, 1905, by the oaths of Andrew Bennett, S. E. Fay and H. G. Forbes, who had been appointed appraisers by said probate court, proceeded to make an inventory and appraisement of said property and to set off and allow to plaintiff her homestead rights therein, and the said appraisers at the request of the plaintiff set off and allowed to plaintiff in lieu of her homestead in said property the'sum of $500 to be paid to her out of the proceeds of the sales thereof. On or-about July 20, 1905, the said inventory, appraisement and allowance of said sum of $500 to plaintiff in lieu of her homestead. therein made by said appraisers was approved and confirmed by said probate court, and said sum of $500 was ordered by said court to be paid to plaintiff by said assignee out of the proceeds of the-sales of said property.
“Thereupon, .under the orders of said court, the said assignee proceeded to sell the property so assigned to him by this plaintiff, and to collect the notes and booh accounts so assigned to him, and on May 2, 1906, the said defendant, James P. Goodwin, as such ássignee, filed his account in said probate court, reporting to said court that he had received from the sales of said property, and from collections of said notes and booh accounts the sum of $3,-107.75, and on June 29, 1906, said account was approved by said probate court.
“That on or about May 2, 1906, the plaintiff demanded of the said defendant the said sum of $500 and that on or about the — day of —1-, 1906, said defendant paid to plaintiff the sum of $350 thereof, and has since paid her the sum of $20 thereof, but the exact dates of such payments the plaintiff is unable to state.
“The defendant, said James P.,Goodwin, has neglected, faded and refused to pay to plaintiff the balance of said sum of $500 so allowed and set off to her in lieu of her homestead out of the proceeds of the sales of said property, being the sum of $130, with interest from May 2, 1906, although he has been frequently requested so to do. ■
“There is due the plaintiff from the defendants, by reason of the premises, the sum of $130,.with interest from May 2, 1906, for which she prays judgment.”

The plaintiff in error contends that when the appraisers in making the inventory allowed to her the $500 in lieu of a home-, stead and that such report having been approved and confirmed by the probate court and the same ordered to be paid by that court, that upon the assignee defendants’ refusal to pay such amount, that a right of action accrued against the assignee and the surety on his bond; and that thereafter such right of action could be enforced by the plaintiff in a court of general jurisdiction. Section 5441, Revised Statutes (11738, General Code), provides that:

“Husband and wife living together with an unmarried daughter or minor son, every widow and every unmarried female, having in good faith the care, maintenance and custody of any minor child or children of a deceased relative, resident of Ohio, and not the owner of a homestead, may, in lieu thereof, hold exempt from levy and sale, real or personal property to be selected by such person, his agent or attorney, at any time before sale, not exceeding $500 in value, in addition to the amount of chattel property otherwise by law exempted.”

It will be observed that this section does not allow a gross sum of money in lieu of a homestead, but allows specific property to be held which is to be selected by the person desiring the same, not to exceed $500 in value. In the case at bar, according to the petition, the plaintiff requested that the same be not set off to her in specific property, but that money out of the proceeds to the amount of $500 be allowed her.

While the petition does not so state, it may be assumed that the assignee agreed to this request, waiving a strict compliance with the statute. It is very often found to be to the advantage of both the person claiming the exemptions as well as the creditors whom the assignee represents, that such be done; that in compliance with such request the appraisers in their return reported such fact to the probate court and this inventory was approved and confirmed and by the averments of the petition at the same time, said sum of $500 was ordered by said court to be paid to the plaintiff by said assignee out of the proceeds of the sale of such property, receiving therefor the sum of $1,100.

The question thus presented is, was such order of the probate court such a final order as would justify the plaintiff in bringing the suit in question, and when it was made, did the probate court lose jurisdiction to further consider the question whether or not the plaintiff was really entitled to the exemption set aside to her.

It is well to observe, as hereinbefore stated, that the plaintiff waived the right to have specific articles set off to her and a strict compliance with the statute in that respect, and that the order of payment by the probate court was made before the property was sold and converted into money.

It seems, therefore, to us that this order made by the probate court was not a final order, and was subject to review by that court by motion, or in some other proper manner, when the. question of distribution of the funds derived from the sale of the property was before the court, That what was really intended by that order was a reservation to the plaintiff of her rights under this statute, and that the amount should be paid to her out of the proceeds of the sale upon a final distribution of the same. To hold otherwise might be manifestly unjust to creditors and other parties in interest. No doubt at the time this order was made the matter came up to the probate court principally upon the approval of the appraisement. If on motion in the probate court the assignee had been ordered to distribute to the plaintiff the sum of $500 out of the proceeds then in his hands, derived from the sale of such property, then the plaintiff would have had a right of action in the court of common pleas against the assignee and his bond if he would have failed to comply with such order. Even upon this proposition, there might be some doubt if such order was made prior to the expiration of eight months from the time that the assignment was made.

There is an averment in the petition that the said property was sold, and from it and notes, etc., the assignee realized $1,-107.75, and that he filed his account in the probate court which was by the court approved. What expenditures were made or whether anything remains on hand does not appear or that any order was made as to plaintiff’s claim.

"When the account was filed, the plaintiff had full opportunity to except thereto, and in that way have had an order of the probate court as to the assignee’s action on her claim. It may be that all the funds coming into the hands of the assignee were properly expended in a proper administration of the trust, and no further payment could be made on her claims. Perchance there might have been liens, prior to hers, that exhausted the entire fund.

The petition does not disclose the fact but what there may still be sufficient funds in the hands of the assignee to satisfy her claim in full. If that be true, she has yet a right to go into the probate court and have the court pass upon her right to have her claim satisfied, and if the court should find that her claim is unsatisfied, and an order would be made that the assignee pay the same and he should neglect, then an action like the present could be maintained. Perhaps then, as the probate court could not enforce the payment, by an order for the payment of money by contempt proceedings, no other remedy would be open to the plaintiff.

As a general rule it may be stated, and the courts have so held, all matters in assignments should be worked out through the probate court, and that court has full and complete jurisdiction in all cases relating thereto, except where its powers are inadequate to grant relief.

The matter as to whether or not the plaintiff, being a widow, is entitled to this exemption, under the peculiar punctuation of the statute, as it then stood, we have not found it necessary .to consider under the views we have taken., Suffice to say were the case of Brown v. Parham, 1 C.C.(N.S.), 602, not affirmed by the Supreme Court, we might find .ourselves not in harmony with the conclusions of that court.

We therefore find no error in the court below and the same is affirmed.


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    TRESSPASSER. INJURED BY OWNER. AND AWARDED DAMAGES.
    Circuit Court of Hamilton County.
    William Cordes, Plaintiff in Error, v. Charles Mason, Defendant in Error.
    Decided, March, 1911.

      Tort — Owner of Premises Shoots Trespasser — Judgment in Favor of Trespasser for Injuries Sustained,.

    A mere trespass on real estate does not justify the owner in the use o£ fire arms in driving the trespassers from the premises, and where a jury has found from the testimony of the owner himself that he had no- reason to fear the trespassers would do him great bodily harm a judgment for damages in favor of one of the tresspassers who was shot and injured will be sustained.

      Burch & Johnson, for plaintiff in error.

      Geo'. S. Hawke, contra.
    The .plaintiff below was given a verdict of $900 on account of injuries sustained.

      Giffen, P. J.; Smith, J., and Swing, J., concur.
   Charles Mason and two. companions were trespassers while fishing in a pond on the premises of William Cordes. The latter being advised of their presence at about 3:30 o’clock in the morning, secured a loaded shot-gun and proceeded toward the pond. On the way he met his servant, who informed him that three colored men were fishing in the pond; that he told them to leave the premises, and that they refused. When he arrived' at a point about 200 feet distant from the men on the other side of' the pond without any warning he fired the gun in that direction, and within two minutes thereafter seeing the plaintiff stooping as though intending to pick up something, he fired directly at the -plaintiff, one of the shots penetrating- and causing the loss of one eye.

He justifies the shooting on the ground that he believed and had reasonable ground for believing that plaintiff was- stooping to pick up a gun or other deadly weapon and intended to do him bodily harm. He does not claim that his servant or he himself saw them do anything that would justify the first shot, except fishing on his premises without permission.

He certainly can not excuse the unlawful use of fire arms by a mere trespass on his real estate by the plaintiff; but on the contrary the plaintiff himself, although a trespasser, would be justified in resisting the assault with force, if he believed that he could not escape from the premises without suffering great bodily harm, and had reasonable grounds for such belief.

The jury, however, must have found from the defendant’s own statement of the affair that he had no reasonable ground for believing that the plaintff would do him bodily harm.

In this view of the case we deem it unnecessary to consider the objections to the general charge of the court to the jury, which as a whole fairly states the law of the case, although certain parts considered above would be misleading.

We are not unmindful of the great provocation to use force, when one’s premises are invaded by three unknown men at such an unreasonable hour; but we are satisfied from the testimony of the defendant that a request or demand that they leave the premises, when made with a shotgun in reserve, was the only necessary and reasonable course to pursue, and would no doubt have been obeyed.

Finding no prejudicial error in the record the judgment will be affirmed.