text:
    (First Circuit Hamilton Co., O., Circuit Court
    Jan. Term, 1898.)
    Before Cox, Smith and Swing, JJ.
    M.D. NEWBERGER AND THERESA LOEB, Executors of Leopold Loeb, Deceased, v. FRANK B. FINNEY, Administrator de bonis non with the will annexed to the estate of E. Ronsheim, Deceased.

      Suit against administrator and his sureties — On judgment against sureties only, principal need not be joined—
    (1). Where a principal and his sureties are sued together, and the principal being in default but the sureties answer, judgment, is rendered against the sureties, but not against the principal (as should have been done), and the sureties take the case on error to the circuit court without joining the principal as a party to such error proceedings, such principal is not a necessary party thereto, and a motion to dismiss such proceedings for failure to make such principal a party thereto, it being too late to make him a party, will be overruled.

      Erroneous sustaining of demurrer not ground for reversal if not prejudicial—
    (2). The erroneous overruling oí a demurrer by the trial court will not be ground for reversal of the judgment where it appears from the record of the case that the adverse party was not prejudiced thereby.
    Appointment of administrator de bonis non only instead of “with the will annexed’’ — Liability of sureties for assets coming into his hands—
    (3). Where on the death of an executor, an administrator de bonis-non only is appointed instead of an administrator de bonis-non with the will annexed, by mistake of the probate court, and his bond is executed as such administrator de bonis non only, his sureties on his bond as administrator de bonis non will be liable for assets coming into the hands of such administrator acting as administrator de bonis non with the will annexed.

      Proof of original bond — What necessary—
    (4). Where in an action on an administrator’s bond the sureties thereon deny the execution of the bond by them, if a certified ' copy of the record of the bond is produced and offered in ovi- • dence, under sec. 5, R. S., it would be prima facie evidence of the execution of the bond ; but where the original is offered and an effort made to prove the signatures of the defendants thereto, evidence must be produced whieh will satisfy the jury by its weight that the defendants did actually sign the bond, and if such evidence is not produced, the verdict must be in their favor; and a charge by the court that the bond produced being conceded to be the original bond filed with the probate court, and testimony having boen introduced tending to show that it has been in the possession and custody of the probate court from the time of its execution to the present time, that the introduction of such bond made a prima facie ease of its execution and existence, is error.
    Error to the Court of Common Pleas of Hamilton county.
   Smith, J.

The petition in error, in this case, seeks the reversal of a judgment rendered in favor of the defendant in error against the plaintiff in error in the court of common pleas,in a case brought by said Finney, administrator against them, and one William Ronsheim,to recover the sum of $5,200, and interest thereon claimed to be due from Ronsheim,as money'received by him as administrator de bonis non of the estate of one Ephraim Ronsheim,deceased,and the suit was upon a bond, given by him as such administrator,on which bond the petition alleged that Newberger, and Leopold Loeb deceased, were the sureties. The petition alleged that Wm. Rons-heim, as such administrator, received assets to the amount of $5,200, but made no settlement of said estate, nor filed any account in the probate court, and neglected to administer said estate according to law, but appropriated said $5,200 to his own use, and has not accounted for or paid said money to those entitled thereto, but has absconded and left the state. That after this, he was removed from said trust by the probate court, and the plaintiff was appointed administrator de bonis non of said estate in his stead. There were other averments in the petition to show the right of the plaintiff to recover from said Ronsheim and his sureties on the bond given by Ronsheim as said administrator, a copy of the condition of which bond was set out in the petition.

■ All of the defendants were served with process, but Ronsheim made no appearance or defense. Answers were filed by the other two defendants. A demurrer to one of the defenses was sustained by the court, and amended answers filed. The issues made by these pleadings were submitted to a jury, and a verdict rendered in favor of the plaintiff against the answering defendants, and a motion for a new trial having been overruled, judgment was entered upon the verdict against the two defendants who answered. No judgment appears to have been entered against Rons-heim. A bill of exceptions was allowed purporting to contain all of the evidence offered, the charge of the court, and the special charges given and refused, and the exceptions thereto, and a myriad of exceptions to the.rulings of the trial court as to the admission and exclusion of evidence.

Thereupon the two defendants against whom the judgment was rendered filed this petition in error, assigning as error that the court erred in overruling the motion for a new trial based on the ground, that the verdict was against the evidence; and in sustaining a demurrer to one of the defenses of the defendants, and erred in its rulings as to the admission of evidence, and in the charges to the jury given and refused.

T.o this petition in error Wm. Ronsheim was not made a party, and on this ground the defendant in error moves to strike the petition in error from the files, it being now too late to make him a party.

Wb think that this motion should be overruled. As has been said, the two plaintiffs in error are the only parties against whom any judgment was rendered. No judgment was ever taken against Ronsheim, though he was in default and judgment should have been taken against him. The judgment against the other parties did not affect him, and it was not necessary that he be a party to the proceedings in error, brought to reverse the judgment against them.

It is claimed that the court erred to the prejudice of plaintiffs in error in sustaining a demurrer to the first defense in the answer of defendants, It averred, in substance, that on September 10,1880, the will of Ephraim Ronsheim was admitted to probate by the probate court of Hamilton county, by which he gave the residue of his estate, (after payment of one legacy), to his wife for life, and on her death to his daughter, Fanny, absolutely. He appointed Leopold Eisman as the executor of his will, and directed, that during the life of his wife, his executor should invest and re-invest his personal property, so that his wife could receive the income during her life, and that on her death, it be distributed to his daughter. That on September 20, 1880, said executor qualified as such, and in pursuance of the will, he did invest and re-invest said residue of the estate, and that during his life, said Eisman did fully administer said estate as required by the will, and that in December, 1886, Eisman, the executor, died. It also admitted the subsequent appointment of Wm. Ronsheim as administrator de bonis non of the estate.

If this answer is to receive the construction, that as Eisman, the executor of the will, fully administered the estate, and therefore no assets came into the hands of his successor in the trust, and for this reason Ronsheim and his sureties were not liable on the bond, as Ronsheim received no assets of the estate, it might be considered as an argumentative defense. But even if this be so, the sustaining of a demurrer to it was not at all prejudicial to the sureties, for they were allowed to file au amended answer, in which they expressly denied that Ronsheim, as such administrator, received any of the assets of said estate, and the case was tried on the issue thus raised; and in our judgment, the evidence did show that Ronsheim, as such administrator, had received the $5,200, and applied it to his own use. Even if the amended answer had not been filed, as the parties contested this question before the jury, and offered their evidence in regard to it, and the evidence showed that the administrator so received it and converted it to his own use, there was no prejudice to the defendants from the sustaining of the demurrer. See on this point, also the recent decision of the supreme court in Yocum, Adm’r, v. Allen, 40 Bull., page 24.

It is further urged, that the verdict and judgment were against the law and the evidence, in this, that as Ephraim Ronsheim left a will, on the death of his executor, his successor in the trust would be administrator de bonis non with the will annexed, and as the bond given by Wm. Ronsheim, and his sureties, recited that he had been appointed administrator de bonis non of the estate of Ephraim Ronsheim, that the sureties were only liable for the assets received by him as such, and not as administrator de bonis non with the will annexed. That the sureties, by signing said bond, were not advised thereby that Ephraim Ronsheim had left a will, or that the estate was to be administered in accordance with the provisions of such will, and therefore were not liable for any default of Wm. Ronsheim as to assets actually received by him,

The defect in this claim is, that Wm. Ronsheim was appointed administrator de bonis non simply of such estate, and not administrator de bonis non with the will annexed as he should have been. And the form of the bond, purporting to be signed by him and his sureties, was the kind of bond provided by law for an administrator de bonis non, and not for an administrator de bonis non with the will annexed. Thia was clearly an error of the probate court— but it having been done, and the bond describing him as administrator de bonis non of said estate, and he having received assets in that capacity, it can not properly be said, we think, that the sureties were not liable if default be made in paying it over by such administrator.

By their answers, the defendants denied that they ever executed this bond, and it thus became necessary to any recovery against them, that the plaintiff should show by a preponderance of the evidence that they did sign it. Instead of introducing a certified copy of the bond filed in the probate court, as under section 5, Revised Statutes, might have done, and which under the terms of such section would be prima facie evidence of the execution and existence of such bond, the plaintiff attempted to prove the execution of the original bond by the officer who took it and was an attesting witness thereto, and it must be confessed that as to its execution by the sureties,he was not very successful. About all the officer could say as to them, was, that after the bond was signed by the administrator himself (Ronsheim), it was left with the clerk of the court, and probably some days after this, and perhaps at different times, two persons came to sign as sureties thereon, one representing himself to be M, ■ D. Newberger and the other L. Loeb, and he took from them their several affidavits as to their qualifications as sureties, and had them execute the bond; but he did not know them, and could not pretend to say that they were Newberger,one of the defendants in the case, or L. Loeb, the testator of the other defendant, Mrs. Loeb. This evidence was certainly not very satisfactory, but it was substantially all that was offered on the question of the execution of the bond, by the sureties, and there was no attempt to prove that the handwriting of those signing the bond was that of the persons who it is alleged signed it, though we understand from the evidence, that they were businessmen of the city. We would hesitate, however, to find, as is claimed by counsel for plaintiffs in error, that the verdict of the jury, that the persons who signed the bond as sureties were the said Newberger and Loeb, was so manifestly against the evidence, as to require us to reverse the judgment on this ground, particularly as against Newberger, who, we gather, was present at the trial, and offered no testimony of himself or others to sustain, on this point, the allegations of his answer.

We do not find it essential to do this, as we are of the opinion that the charge of the court, given in relation to the issues thus made, was erroneous and prejudicial to the defendants, and that the court also erred in refusing to give the special charge asked by them on this point. In the general charge it was said to the jury on this issue thus made — ■

“The bond has been introduced in evidence,gentlemen, and you will have it with you in the jury-room. This bond is conceded to be the original bond, filed in this case in the probate court of this county. There is no dispute about that. Testimony has been introduced, tending to show that it has likewise been in the possession and custody of the probate court from the time of its execution until the present moment. In view of this testimony, gentlemen, I will say to you, that the introduction of this record and this bond make a prima facie case- — Is prima facie evidence of the execution and existence of such bond, and in determining this question, you will keep the evidence in mind as the law, as I have given it to you upon the question of the signature. ”

We know of no doctrine of the law which will justify this statement. As before stated herein, if a certified copy of the record of this bond had been produced and offered in evidence,, under the provisions of section 5, Revised Statutes, it would have been prima facie evidence of the execution of the bond; but this course was not pursued, but the original was offered, and an effort made to prove the signature of the defendants thereto by oral evidence. An exception to this charge was duly entered, and the defendants,by special charges asked,sought to have the court state a different rule to the jury. One of the charges so asked, was the following:

Judge Schroder, for Plaintiff in Error.

W. A. Hicks, and Frank B. Finney, for Defendant in Error.

“The defendants, Newberger and Loeb, deny that the bond in question was signed by L. Loeb, deceased, and the M. D. Newberger mentioned in the petition. Upon this question the plaintiff must satisfy the jury by the weight of the evidence, that the said identical L. Loeb and M. D. Newberger did sign this bond. For his proof the plaintiff relies wholly on the original bond, and the evidence of Mr. Jones. He does not produce a certified transcript of the record of this bond, and he can not therefore avail himself of the statutory provision made for such case. Relying thus on the original bond, he must produce evidence that will satisfy the jury, by its weight, that the said Loeb and Newberger did actually sign the bond, and if he failed to produce such evidence, the verdict as to M. D. Newberger and Thomas Loeb must be in their favor.”

This was refused by the court,and exception taken. We think the court erred in refusing to give it

There were many other exceptions to the rulings of the court, but we see no other rulings on account of which we would reverse the judgment. But for the reasons above set forth, the judgment will be reversed, and a new trial awarded.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    (First Circuit—Butler Co., O., Circuit Court
    April Term, 1898.)
    Before Cox, Smith and Swing, JJ.
    THE CINCINNATI, HAMILTON & DAYTON RAILROAD COMPANY v. JANE MURPHY, ADM’X.

      Railroad--Liability for injury notwithstanding contributory negligence of injured—
    (1). In an action against a railroad company for damages for causing the death of plaintiff’s intestate at a street crossing, where it appears that the deceased went onto the track without looking for approaching trains which he could easily have avoided, he would lee guilty of such negligence that no re-1 covery could be had. But where it also appears that the train was running at a greater speed thán the city ordinance per-, mitted, and a dangerous speed for that locality without sounding the whistle or ringing the bell continuously as the statute provided; that the men on the engine discovered the man when the engine was about 100 feet from him, and that the danger signal being sounded, they saw the man apparently in a dazed condition hesitating what to do, and they failed to stop the train, which might have been done with proper appliances within eight or ten feet, and thus prevent the collision, if the train was running at the slow rate of speed claimed by them, che plaintiff wonld be entitled to recover notwithstanding the negligence of the deceased.

      Joint use of street — Rights of public — Duty of Railroad—
    (2). Where a street is used by the public and a railroad jointly, the public is entitled to the use of any part of the street; but the fact that the railroad is also entitled to the use thereof and thus makes the use by the public dangerous, calls for a high degree of care by those using it to avoid such danger.

      Duty of Railroad towards person in perilous position—
    (3). If the railroad by its agents or employes in charge of the train, knows a party to be in a perilous position, and might, after obtaining this knowledge, by the use of ordinary care have avoided tne injury to him, and did not do so, but carelessly and negligently caused the injury to him, then such party is entitled to recover notwithstanding he imprudently placed himself in the position of peril, if he was apparently unconscious of his danger or from some cause' appeared unable to escape it.

      Same — Duty to stop train—
    (4). It is very common for persons to walk upon a railroad track, even where they have no right to be, and they are often discovered by those running the train at a long distance ahead. It is not required that the very moment such person is so seen, every reasonable efEort must be made to stop the train. The presumption would be, that such person is . possessed of the ordinary senses of mankind, that he can hear and see, and when notified by the whistle or bell of the engine, or the noise made by the train itself, that he will leave the track in time to escape from the threatened danger, and the trainmen are justified in acting upon this presumption until the contrary appears to be the case, using due care in the premises. But if there is anything"disclosed which raises a suspicion that the person is deaf, or blind, or helpless, then the obligation on the part of the trainmen to use all necessary and proper care to avoid injury by stopping the train, if necessary to do so, immediately arises.
    Error to the Court of Common Pleas of Butler county.
   Smith, J.

We state our conclusions as to this case as briefly as possible, in view of the many questions of law and of facts which have been argued to the court. In the first place, we may say, that with some doubt in the mind of one of the members of the court, we would not reverse the judgment of the common pleas on the ground that the trial court erred in refusing to grant the motion for a new trial, based on the claim that the verdict was against the weight of the evidence. It seems very clear to us, that the evidence shows,that there was very great negligence on the part both of the plaintiffs intestate, and of the defendant company in their conduct at, and before the time of the injury, which produced the death of the former- — -in this, that the deceased, when he came down Fourth street from the north at the time, and before he reached Sycamore street on which the train was coming east to cross Fourth street, and before he reached the track and started to walk east thereon, might have seen the train coming for several hundred feet, and thus could easily have avoided any injury to himself. But instead of doing this, it would seem from the evidence, that before he reached the railroad track, or before he started, to walk in an easterly direction over Fourth street on the track of the railway, he neither stopped, looked or listened, as in the exercise of proper care he should have done and thus could have avoided the injury; and not doing so, he was run down by the train.

On the other hand, the railroad company was clearly negligent in this: It was evidently running its train along and crossing the street of the city at a greater rate of speed than the ordinance of the city provided for — -and at a dan- • gerous rate for such a locality. We think, the weight of the evidence is, that the whistle was not sounded or the-engine bell rung continuously as the statute provided. On this state of fact, both of the parties being negligent, and both contributing to the injury received by plaintiff’s intestate, ordinarily there could not be a recovery against the company for the injury suffered by the deceased. But in this case, if we take to be true the positive statements of the engineer and fireman of the train, that for several hundred feet before the train reached Fourth street, its speed! was only between four and five miles an hour (which we-greatly doubt), and that those managing the engine discovered this old man walking eastward on the track with his. back to the train, across Fourth street, apparently unconscious of danger, when the engine was perhaps one hundred' and fifty feet from him, and that immediately the danger signal was sounded, and they saw Murphy apparently in á dazed condition, hesitating as to what he should do, and under such circumstances the train was not stopped as might have been done by the use of proper appliances' in eight to ten feet, as the evidence shows, and thus prevented the collision if the train was running at the rate of speed testified to by those in charge of it, the plaintiff would be entitled to recover, though her intestate had originally been, negligent in walking on the track — for in such case the injury might have been prevented.

Second: Was there error in the rulings of the trial court as to the admission or rejection of evidence, prejudicial to the rights of the company ? There are so many of those questions raised that it would take a great deal of time to consider them, and we specially refer to those only about which there may seem some question. A great many objections were raised to evidence offered by the plaintiff as to the character of this crossing over Fourth street (which had been placed there by the company, being boards laid lengthwise along either side and between the rails, so that the track might safely be crossed by vehicles passing up and down the street), and that those boards had been constantly used by the public generally as a crossing of Fourth street, there being no crossing there made by the city, as the track crosses the street diagonally. The claim of the ■company being, that any person using said railroad track as ■a crossing was a trespasser.' We think this claim of the ■company was not well founded, and that evidence as to its general use by the public was competent. In our opinion, the public was entitled to the use of this part of the street, as well as any other part thereof; but the fact that the railroad company was also entitled to the use thereof, and thus made the use of it dangerous, called for a high degree of care and caution on the part of those so using it, to avoid danger from the proper use of its track by the company.

Objection was made to the introduction of an ordinance passed by the city authorities declaring the crossing of Fourth street, at this point, to be a dangerous one, and ordering the company to' erect safety gates there within fifteen days, and directing the proper officer to be notified as directed by the statute. No such notice was ever given to this company as required 'by law — though there is evidence tending to show that the superintendent of the company may have been advised of the passage of the ordinance, and some negotiations or conversation had with some officers of the corporation as to this and other matters —■ but no steps to carry this out as provided by Jaw, were ever taken by the council or the company. We question very much the competency of this evidence. The most that can be claimed for it is as showing the opinion of the council that the crossing was a dangerous one, and that the company was advised of this opinion. Whether it was prejudicial error, we perhaps might differ about, but we agree that it would have been better to exclude it.

We incline to the opinion also that the evidence of Hays, the conductor, a man of great and long experience in the running of trains, and who was shown to have been present on this occasion, and saw what took place, that in his opinion, the train was stopped as soon as it could have been done, should have been received, and on the evidence such testimony was material. And so of the testimony of Hainer, that on the sounding of the danger signal, it dazzed or excited Murphy, and it seemed as though he could not make up his mind what to do.

In many particulars it is urged, that the court erred in charging the jury, or in refusiUg to charge as requested. We notice the following: First: That the court erred in charging the jury, “that if you find from all the evidence that the deceased materially contributed to the injury that caused his death, then it is your duty to find in favor of the defendant.”

It is not disputed by counsel lor plaintiff in error, that the statement so made was correct. It is urged that he should also have said, that if he contributed in any degree thereto, that the same result should follow. And it is probable that such is the true rule. But as the statement as it stood was sound, if counsel desired the other statement given, he should have asked for it, and not having done so, the objection is not well taken.

The court, at the request of the counsel for plaintiff below, charged the jury as follows:

“If the defendants, in its agents or employes in charge of the-train, knew Mr. Murphy to be in a perilous position, and might, after obtaining this knowledge by the use of ordinary care, have avoided the injury to him, and did not do so, but carelessly and negligently caused the injury to him,then the plaintiff is entitled to recover notwithstanding Mr. Murphy imprudently placed himself in the position of peril. ’ ’

We think the general doctrine aimed to be stated here, is correct. The charge requested, might properly have been more correctly and clearly stated, by an addition thereto after the words, “in a perilous position”, of these, or words conveying the same idea, “and apparently was unconscious of his danger, or from some cause appeared unable to escape the threatened danger”. For it can not be questioned that a man on the railroad track,not far in front of a rapidly moving train, is in a perilous position, and particularly if unconscious of its approach; and for this reason, the duty is imposed upon those managing the train to use care in preventing injury to him, and in case of injury might be liable for the damage which resulted. But in this case, the court, of its own account, proceeded further to say in addition to the charge-asked:

“The court will give you that charge; it has substantially given you that before. It was the duty of the railroad employes, when they saw Martin Murphy, to have used every reasonable means in their power to stop the train and thereby save his life, And whether they could-have stopped the train or not is a question for you to decide from the evidence you have heard.”

In this additional statement at least, we think the court went too far and stated the law too strongly against the defendant, and assumed the province of the jury in deciding a question of fact against the company. There was evidence, as has been said, tending to show that the train was running between four and five miles an hour, and that by the use of reasonable and proper means, it could be stopped within ten to twelve feet when running at that speed on such a grade. That those running the train discovered Murphy on the track one hundred and fifty feet ahead of the train. The court then says to the jury, that when they saw him, it was their duty to have used every reasonable means in their power to stop the train — and this without any reference to the fact, whether the persons running the train had any good ground to believe that Murphy was unconscious of its approach, or that he was from any cause unable in time to step from the track and thus escape all danger of a collision with the train. We do not understand that there is any principle of law which justifies this statement to the jury. It is a matter of general knowledge, that it is a very common thing for persons to walk upon a railroad track, even where they have no right to be, and that they are often discovered by those running the train at a long distance ahead. Can it be claimed to be the law that the very moment such person is so seen, that every reasonable effort must be made to stop the train? This would be unreasonable and absurd. The presumption would be,that •such person is possessed of the ordinary senses of mankind —’that he can hear and see, and when notified by the whistle or bell of the engine, or the noise made by the train itself, that he will leave the track in time to escape from the threatened danger, and we understand the law to be that the trainmen were justified in acting upon this proposition until the contrary appears to be the case, using due care in the premises, Of course, if there is anything disclosed which raises a suspicion that the person is deaf or blind or helpless, then the obligation on the part of the trainmen to use all necessary and proper care to avoid injury by stopping the train,if necessary to do so,immediately arises. In the case of Street R. R. Co. v. Cavagna, 6th C. C., 606, this court held that a charge requested by the company to be given to the jury, “that the street was not a play ground for children, and that the gripman was not bound to anticipate that children on the side walk would suddenly run upon the track; or even if he saw a boy running towards the track, that it was not absolutely his duty to stop the car at once. That he might exercise his judgment to determine whether the boy would see the car and stop. And that after he saw him, and in the exercise of his judgment, he acted as a reasonably prudent gripman ought, and made every effort in his power to avoid the injury, the company would not be liable”, was a proper charge, and ought to have been given.

It is also urged, that the following charge by the court to the jury, was erroneous and prejudicial:

“The railroad company has a right to use its track and to cross Fourth street; the general public have a right to use Fourth street and cross the track. Upon that proposition, the court charges you that the rights of the respective parties are equal. The general public has as good a right to cross over the track at Fourth street as the railroad company has to cross Fourth street on its track — no better, no worse. They are both alike”.

In the case already cited from the 6th 0. 0. Rep., the court had occasion to consider the correctness of a charge, somewhat similar. There the court, without any ' qualification, charged the jury as follows:

“And in this connection, I may say, that upon public streets, any person has the right to walk, either on the pavement, or on the part usually used by vehicles, or upon the part of the street occupied by the street cars.”

The reviewing court held:

“That this broad statement was calculated to mislead the jury. There is no doubt but that foot passengers have a right to walk upon the roadway of the street, or even upon the tracks of a railroad laid thereon, under certain circumstances. They are compelled to cross such streets and tracks, and may walk along the same instead of the pavement ordinarily used for this purpose, if necessary, or proper under the circumstances to do so. But this is not to be done as against the ordinary rights of others, and when used in this way, much greater care and caution are required of the footman, than if he were in the ordinary footway, for the reason that such part of the street is also rightly and principally used by teams, vehicles and cars. In this case, where one of the issues was whether the defendant, under all the circumstances of the case, was running its cars with ordinary care, the jury might well have understood, that in the opinion of the court; the plaintiff was rightfully in the street and on the track, and that the fault was wholly with the defendant.”

The objection there made, applies with equal or greater force to the language used by the trial court in. the case at bar.

It is also claimed, that the trial court erred in the charge given to the jury as to the burden of proof being on the defendant below,to show negligence on the part of the plaintiff’s intestate, which contributed to the injury. The court spoke on this point several times. In the general charge he said:

“The burden of proving that he (the plaintiff) materially contributed to his own death is upon the defendant; that is, the defendant must show to you by a preponderance of the evidence, that the deceased contributed to his own death. The burden, upon that point, is upon the defendant. ” And in the third special charge, asked by th8 plaintiff and given by the court is this language: “Theburden of showing negligence on the part of the defendant, its agents or employes-is upon the plaintiff, and the burden of showing negligence on the part of Mr, Murphy is upon the defendant.”

This is all that appears in the charge of the court on this point.

The rule on this point is clearly and explicitly stated by the supreme court, in the case of B. & O. R. R. Co. v. Whitacre, 35 Ohio St., 627, as follows:

“In an action for injury occasioned by negligence,where the circumstances require of the plaintiff the exercise of due ■care to avoid the injury,and bis testimony does not disclose any such want of care on his part, the burden is upon the defendant to show such contributive negligence as _will defeat a recovery. But if plaintiff’s own testimony, in support of his cause of action, raises a presumption of such contributory negligence, the burden rests upon him to remove that presumption.’’

Now,in the case at bar, where the plaintiff’s own evidence did very clearly raise a presumption of negligence on his part which directly contributed to the injury, by his going upon this dangerous crossing when h9 must have known .that trains frequently ran over the track, without having once looked to see whether a train was approaching, though he could have seen the track for perhaps four hundred feet if he had looked for it — an old man with the heads of two hogs slung upon his shoulders and probably interfering with his vision and hearing, and his ability to escape, can it be said that the court was justified in saying that the burden of proving his contributory negligence rested upon the defendant? It was a case which clearly called for the whole of the law as announced by the supreme court in the case cited to be given to the jury. The claim may be made, that the law as stated by the court was the general rule, and that if the other side wished the court to give the limitation upon it, they should have asked for it, But the difficulty is that under the circumstances disclosed, the doctrine stated was not the law of the case, and the giving of it was erroneous and prejudicial to the rights of the defendant.

It is also claimed, that the court erred in giving the fifth special charge asked by plaintiff as modified by it, viz:

“While it was the duty of Mr.Murphy to exercise the care a man of ordinary prudence is accustomed to use under like circumstances, -be had a right to presume that the defendant would not run its train through said city and over said ■crossing any faster than the ordinance of the city of Hamilton provided,”

The correctness of this charge seems to be established by the decisions in this state, but the court added the following to it, and then gave it:

‘‘He bad a right to assume a train passing over that road would not be run at a speed greater than five miles an hour, and he had a right to govern his conduct accordingly,”

How far “had he a right to govern his conduct accordingly” ? Suppose he saw the train approaching ata rate of ■speed of twenty-five miles an hour. Had he still a right to proceed on the track as leisurely as if it were only running at five miles an hour, and suffer himself to be run down? The statement was incorrect, and was liable to mislead the jury-

Complaint is also made as to the sixth special charge given to the jury at the request of the plaintiff as modified by the court. The charge asked, was this:

“A person acting with ordinary care is not guilty of contributory negligence, because he fails to anticipate and protect himself against the negligence cf another”.

This was probably good law, but was modified by the court by adding thereto the following:

“A party has a right to assume that another will do his duty, and has no right to anticipate that he will do otherwise. And so in this case, if you find that Mr. Murphy is crossing the road at that place depended upon the fact that the train was only allowed to run at the rate of five miles an hour, he had no right to expect or anticipate it would be run faster than that.”

We know of no principio of law that would debar him of the right to expect or anticipate this, though he may not be guilty of contributory negligence if he fails to do so. The addition was uncalled for, and probably was erroneous, but may not have been prejudicial.

Millilcin, Shotts & Millikin, for Plaintiff in Error.

Morey, Andrews & Morey, for Defendant in Error.

There are other minor exceptions to the charge, as for instance, ihat the court erred in saying to the jury that it might give any damage it pleased so that it did not exceed $10,000, and that in estimating the damages the jury had a right to look at his advice to his children, his counsel to them, his control over them, and in stating that all these might be considered by the jury for the purpose of fixing the damages to which plaintiff might be entitled to recover. We do not regard these statements to the jury as being exactly proper, but as in the charge the court clearly instructed the jury that the plaintiff was only entitled to recover for the pecuniary damages suffered by those entitled to the fruits of the recovery, it is probable that any error therein was thereby cured.

But on the other grounds stated we feel constrained to reverse the judgment and award a new trial.


author: Nobbis, J.

text:
    (Third Circuit—Defiance Co., O., Circuit Court
    Oct. Term, 1898.)
    Before Day, Price and Norris, JJ.
    A. WILHELM & SON v. THOMAS PARKER, JR., Receiver of the Mutual Fire Insurance Company of Chicago, Ill.

      Mutual Insurance — Cancellation of policy and premium note— Liability to creditors — Jurisdiction of foreign court —

    (1). Defendant was a policy holder in a mutual fire insurance company. By the terms of his premium note and by the stipulation of the policy, he was bound for indebtedness of the company incurred during the life of the policy. The policy was cancelled, and his premium note was cancelled, and surrendered to him. After this a receiver for the company was appointed;
    Held, That although defendant is not excused from liability for indebtedness incurred during the life of the policy; yet his relation to the company is not such that he is represented by the receiver and the court thereby acquired jurisdiction of his person in a proceeding to wind up the affairs of the company, and to make assessments to'pay its debts.

      Action on foreign judgment — Necessary averment—

    (2). In an action to recover upon the judgment oí a court of a sister state the jurisdiction of the court from which the judgment emanates must be affirmatively asserted in the petition. Being a basis fact of remedy, it is met by a general denial; and when so denied the burden is cast upon the plaintiff to establish it by proof.

      Same — Proof of jurisdiction—
    (3). When it appears upon the face of the record that the court of a sister state from which the judgment emanates took cognizance of the action under authority conferred by legislative enactment, and its jurisdiction is denied; it cannot be presumed from the mere fact that the court assumed to act, that it was exercising powers within the scope of its statutory jurisdie- ■ tion.

      Presumption of jurisdiction over non-resident—
    (4). Presumptionjof jurisdiction of a superior court of a sister state in an action on its judgment, as in the caso at bar, extends to jurisdiction over the person of one within the territorial limits of the process of the court, and to those procedures which the common law recognized as within the radius of its adjudications.

      Same — Jurisdiction to be pleaded and proved—
    (5). Jurisdiction of subject matter which is conferred by statute is not presumed. Statutory jurisdiction of a court of a sister state, as well as the statute conferring it, are not subjects of judicial cognizance, but must be pleaded, and in the face of denial must be proved.'
    Error to[the Court ofTCommon Pleas of Defiance county.
   Nobbis, J.

The defendant in error,T§Thomas¿Parker, as receiver of the Mutual Fire Insurance Company, of Chicago, brought his action as^such receiver in the court of common pleas of Defiance county, Ohio,[To recover upon two certain premium or deposit notes’ — so called — which plaintiffs in error, who were lately?; partners, had executed to said company as such partnership firm, and which were made in compliance®with[the”eonditions of two certain policies of fire insurance, issued by said company, covering risks owned by said partnership firm.

The receiver in his amended petition in the court below alleges these facts, and further avers that said policies were issued and accepted by said Wilhelm & Son, and each policy contained the condition and agreement that “the insured becomes a member of this company, and agrees to pay the premium annually during the life of the policy, and in addition thereto such sums not to exceed five times the amount of the annual premium^ at such time and manner and by such installments, as the directors of the company shall assess and order pursuant to its charter and bylaws and the laws of the state of Illinois.

The company was chartered and organized under the laws of the state of Illinois.

The notes were dated, one March 22nd, 1886, for $500, the other dated February 1st, 1887, for $300, and are promises to pay by installments at such times as the directors of the company may order and assess for losses and expenses of said company pursuant to its charter and bylaws.

The dates of the policies correspond with the dates of these notes respectively, and were then issued.

The plaintiff says, that said company had before the making of these notes, and before issuing said policies of insurance, complied with the requirements of the laws of Ohio, enabling it to do business in this state, and had received its certificate from the proper authority in that regard; and at the date of these policies was so authorized to do business in Ohio, and so continued during the effect of the policies which covered the period respectively from the date they were issued until about the 4th day of August, 1890.

About the 4th day of August, 1890, said policies were, at the solicitation of defendants, cancelled and delivered up to said company, and these premium notes were to defendants returned.

The plaintiff says, that at the time the policies were so returned to the company, and the notes delivered up to defendants, said company was insolvent and unable to pay its debts and losses.

That the policies as a part thereof had this condition:

“That liability as to prior losses and expenses shall not terminate until all assessments levied for losses and expenses arising during the life of said policy, are fully paid.”

That losses and expenses had accrued during the life of said policies for which defendants were liable, and assessments for the payment of which had been duly made.

That by a proceeding had in the circuit court of Cook county, Illinois, after said policies and notes were surrendered up, and by the consideration of said court, the plaintiff was appointed' receiver of said company, and under the direction and guidance of that court the assets and liabilities of said company were marshaled, and an assessment was made upon its members to meet the deficiency and pay the debts of the company; and in that proceeding, and by the consideration of that court, defendants were adjudged to pay as the assessment upon the first note and policy, the sum of $106.79, and upon the second noterand policy, $108.20. And that by the decree and order of said court, it was considered that if said payments were not made within thirty days after demand of payment, then the receiver should collect all remaining unpaid of said premium notes. And plaintiff seeks to recover against the defendants the sums of $450 and $270, in the aggregate $720, being the full unpaid residue of said premium notes.

The various steps leading to this condition, are set out a^ great length in the petition, and also is stated the fact: that the company changed its name from time to time, as, its members desired, until was finally chosen, the name under which it figures in this action.

To each cause of action in this amended petition a demurrer was filed. The demurrer was overruled.

After the filing of this amended petition, one Long-worthy was appointed receiver of said company, to succeed Parker who had resigned, and he comes by supplemental petition and makes known that fact, etc.

Various motions to the pleadings and to the action were, filed by the defendants, and were overruled by the court.

The defendants finally answer the amended petition, and deny that the Mutual Fire Insurance Company of Chicago is a corporation organized under the laws of the state of Illinois. Deny that it received its name by any change from any former name or names, and deny that it was ever authorized to carry on business in Illinois or in Ohio. Defendants admit that the notes and policies were delivered up and cancelled,

Defendants aver that while' said company was solvent and competent to legally do so, it settled and adjusted these notes and policies; in which settlement were included all the liability to respond to assessments under them, and that the notes and policies were cancelled and released and the notes were returned to defendants under and in accordance with the provisions of this settlement. And that defendants were by said settlement forever released and discharged and ceaaed"to be members of said company, and ceased to be liable by reason of such membership.

The defendants specifically deny that the plaintiff was appointed receiver by the circuit court of Cook county, Illinois, or by any court that had jurisdiction so to do,

And they deny that the circuit court of Cook county, Illinois, had jurisdiction to appoint plaintiff receiver, as alleged in the amended petition. And also by their general denial, which denies all else in the amended petition not admitted, defendants deny that the circuit court of Cook county, Illinois, had jurisdiction of the persons of the defendants; and deny that said court had jurisdiction and power to do, and cause to be done, the things named in the amended petition, and to adjust and determine the assessment, and adjudge and order and make adjudication in relation to the matters and premises, as claimed in the petition and as therein set forth. .

The supplemental petition of Longworthy is denied by defendants.

Plaintiff replies and denies the settlement as pleaded in the answer.

An answer in abatement had been filed before the issues were hus made up, which alleged as its grounds, that Parker has ceased to be receiver of the Insurance Company; that for that reason the trial court had lost jurisdiction and the action of plaintiff abated, and that in its nature it is not such an action as can be revived in favor of Parker’s successor.

A demurrer to this answer was sustained.

The issues thus presented by the amended petition, the answer thereto and the reply, were upon the evidence submitted to the trial court without the interventionjof a jury, and the result is, the finding for the plaintiff. Defendants’ motion for a new trial was overruled, and judgment was entered upon the finding of the court. A bill^of exceptions preserving all the evidence was allowed by the trial®judge, and the case is here urged upon petition in #error for reversal.

The assignments of error are:

First: The court erred in its admission of evidence offered 'by the plaintiff and objected to by the defendants.

Second: That the finding and judgment of the court are :not sustained by the evidence, and are against the law.

Third: That the court erred in overruling defendants’ motion for new trial.

The other assignments of error are:

Fourth: That the court erred in overruling defendants’ motion to make the petition more definite and certain.

Fifth: That the court erred in overruling defendants’ motion to strike the amended petition from the files.

Sixth: Error in overruliug the demurrer to the amended petition.

Seventh: Error in refusing to dismiss the action and in entertaining the motion of Longworthy to revive the action, and in granting said last named motion.

Eighth: Error in granting Longworthy leave to reply.

Ninth: Error in striking the reply of Parker from the files and in sustaining the demurrer to defendants’ answer in abatement.

Tenth: Error in overruling motion to procure certain records.

Eleventh: Error in entertaining jurisdiction to try the case.

To none of the matters so assigned for error, have exceptions been saved, other than to complaints:

Tenth: That the court overruled defendants’ motion to produce certain records; v

First: Error to admission of evidence offered by plaintiff.

Second: That the finding and judgment are not sustained by the weight of the evidence, and are contrary to law;

Third: Error in overruling defendants' motion for new trial.

As to the motion to produce records, there is nothing in the bill of exceptions indicating wbat the record is that defendants desired to be produced, and hence this court is not informed how the case was affected, or what bearing the failure to produce may have had on the event of the action, and find no error in this regard.

As to the admission of evidence over defendants' objection, the record discloses nothing to the prejudice of defendant, that will warrant the conclusion that the trial court erred in admitting evidence offered by the plaintiff.

So there remains to be determined by this court only the question as to whether the finding of the court was against the weight of the evidence, and the judgment contrary to law, and whether for this reason there is error in overruling defendants’ motion for new trial.

It is conceded that at the date of the proceedings in the circuit court of Cook county, Illinois, these policies had been cancelled and these notes had been returned to the defendants; and all this, before, the appointment oh any receiver for the company. This action therefore, is not upon the notes, but is founded upon the decretal order of the circuit court of Cook county, Illinois, authorizing and commanding its receiver to make the assessment declared in the petition,and ordering action to enforce its decree.

It is not claimed that the defendants .were residents of Illinois, or were within the territorial limits of Illinois, at the time that proceeding was instituted,or at any time since, and it is not contended that jurisdiction of their persons was acquired by any service of the process of that court upon them, or either of them.

But it is claimed that the plaintiff, in his character of receiver, represented the company, and represented its members, and that through the receiver, and by virtue of his standing in the place of the corporation, and the associates who constituted it, jurisdiction of the person was obtained. We are not of the opinion that this condition prevailed in this case.

It cannot be claimed that defendants, at the time of the appointment of the receiver and of the proceedings in the circuit court of Cook county, occupied any relation to the company, other than that of debtors to the creditors of the company. They had agreed in their policies to remain ■ liable for debts which accrued during their membership. They were not in any sense of the term members of the company; they could not be heard as members; they had no voice in making its officers, or in dictating its management; they were not interested in its .earnings, they were no part nor parcel of it. They owed its creditors under a contract with it, the terms of which in that regárd did not cease with severance from it.

In this view it is the opinion of the court, that these defendants were not parties to the proceeding and judgment in the circuit court of Cook county, Illinois, and are not bound by it. They had ceased to be members of that company, in a sense that its receiver could represent them in an action, and thereby make them parties to the action. The receiver was not their representative; he was their adversary.

But whether they were so far members as to be represented by the receiver, or were not; or had they been before that court in fact in their own proper persons, the finding of the trial court is not sustained by the weight of the evidence.

There is not proof warranting this court in assuming that the circuit court .of Cook county, Illinois, was a legal tribunal having jurisdiction to do that which the petition claims was done in the proceedings had before it, and upon which, and by the strength of which, he asks relief here.

The judgment of a court of general jurisdiction in a sister state, possesses here the character of a contract liability with all defenses which might or ought to have been pleaded there to the merits eliminated by that adjudication.

In this case it does not appear, that the jurisdiction of the circuit court of Cook county, Illinois, depended upon any fact directly and necessarily decided by that court in that proceeding.

This is not a judgment pleaded in bar, but a judgment pleaded in support of recovery.

The answer in this case is not a plea of nul tiel record, but an attack upon the validity of the proceeding itself.

The laws of a sister state conferring power upon its courts,when the scope of the power thus conferred is put in issue as in the case at bar, becomes a fact in issue, and mast be sustained by proof as any other fact upon which the event of the action depends.

In this case, though proof might have been offered, and though the way is pointed out by which such proof can be made, it was not made and not offered.

The subject and trend of this proceeding of the circuit court of Cook county, Illinois, stamps it as not of the character known to the common law jurisdiction of courts. In a case as the one at bar, the jurisdiction of the court from which the judgment emanates is only presumed to extend to those matters which courts acting under the common law, are wont to recognize and determine.

The power of the circuit court of Cook county, Illinois, to take cognizance of such a controversy as that proceeding discloses, should be made to appear by a profert of the laws of that state conferring the power and fixing the status of the court and the scope of its jurisdiction in that regard. Revised Statutes, section 5244.

Section 905, of the laws of the United States, determines how the records and judicial proceedings of courts are to be authenticated and rendered competent as evidence and admitted as evidence, in the courts of any other state. And further provides that when so rendered competent by due attestation and authentication, such proceedings shall have the same faith and credit given to them in the courts where so admittted as they have by law or usage in the courts of the states from which they are taken.

And when such records are so presented, and admitted in the absence of denial, the jurisdiction of the person and of the controversy, and power of the court from which they emanate to take cognizance of the action and to determine the rights of the parties, is deemed to exist, because the validity and virtue of the proceeding and its effect is asserted in the petition, and not traversed and made an issue in the case by answer.

The foundation of the plaintiff’s claim, and the salvation, of the case rests upon the effect which that proceeding in the circuit court of Cook county, Illinois, has by law or usage in the courts of that state.

The .plaintiff claims, that the proceeding would have the effect in the courts of Illinois, to bind the defendants to this action, and for that reason that it has the same effect here.

The plaintiff asserts that the court from which the record offered in evidence in this case, was taken, was a court that had authority to make the adjudication, and that the action of which that record is the evidence, was one in its nature within the scope of its jurisdiction and contemplated in the purpose of its organization.

This is a fact when so asserted which invites denial, and is denied, and is susceptible of proof; of it proof is demanded, and the burden of sustaining the assertion is upon the plaintiff.

Presumption of jurisdiction of a superior court of a sister state in an action upon its judgment as in the case at bar, extends to jurisdiction over the person of one within the territorial limits of the process of the court, and to those procedures which the common law reóognizes as within the radius of its adjudications.

The limit of such jurisdiction, and the effect of such adjudication, is the same in states in which the common law prevails, and courts of such states are presumed to understand their force and purport. But the extent of power authorized by legislative enactment, and the effect of pro-ceedinge and judgments under such .powers, are not presumed to be within the knowledge of courts of another state, and hence may be put in issue, inquired into and explained.

So that jurisdiction of a subject matter which is conferred by statute is not presumed. The statutory jurisdiction of a court as well as the statute conferring it, are not subject of judicial cognizance, but must be pleaded, and in the face of denial must be proved. The judgment of a superior court, in a controversy in which jurisdiction is conferred by statute, is in character no stronger than the judgment of an inferior court of a sister state. 161 Mass. Ill, 25 L. R. A., 804.

The proceeding had in the circuit court of Cook county, Illinois, and the judgment upon which the action here is founded, were not in the exercise of the jurisdiction which at common law, courts of general jurisdiction have the power and right to exercise.

It is a jurisdiction .that, if possessed at all, is necessarily conferred by the legislative authority of the state where exercised. And the law clothing the court with power, is neither pleaded nor offered in proof in this action.

In such case it cannot be presumed that the court had jurisdiction because .it assumed to exercise it. Nor can it be supposed merely from the attested copy of the record of the proceedings in the circuit court of Cook county, Illinois,offered in evidence here,that that “court had jurisdiction because the page proffered is its record and that the paper offered is its record and imports verity because the court had jurisdiction.’’ A conclusion so determined would', to say the least, be a very lame one.

We cannot accept as proof of jurisdiction and evidence of power and assume the jurisdiction of that court to exist, from the naked proceeding of that count, the legality and force of which is challenged because, and upon the ground, that the court was outside of and beyond its power in attempting to entertain the action, and was not authorized by the laws of Illinois to take cognizance of the subject matter of the controversy. And this being all that is offered to meet defendants’ denial, we deem the proof in that respect insufficient to support the finding in the plaintiff’s favor.

Henry Newbegin, for Plaintiff in Error.

B. B. Kingsbury, and C. W. Greenfield, for Defendants in Error.

I might here gratuitously remark, that the judgment, inasmuch as it orders the collection of three or four times the amount necessary to meet defendants’ liability, is so far repugnant to the instinctive principles of justice, that if it were the judgment of the court of an alien state, it would, for that reason, not be considered the basis of remedy.

However,for the errors already designated, the judgment and finding of the trial court are set aside, at the costs of defendants in error, and the case is remanded for execution and new trial.


author: Bentley, J.

text:
    (Sixth Circuit—Lucas Co., Ohio Circuit Court
    Oct. Term, 1893.)
    Before Bentley, Haynes, and. Scribner, JJ.
    WILLIAM CHERRY v. AGNES C. HOWE, ET AL.

      Dedication — What requisite to constitute—
    (1). To constitute a common law binding .dedication of ground to ■ public use, there must have been an intention to dedicate and an actual dedication on the part of the owner,and an acceptance by the public, which may be shown by circumstances.

      Same — Twenty one years'1 use by the public—
    (2). Where an owner in building a barn on his lot left a space of eight feet at the end of his lot open, for the convenience of himself and his tenants merely, the fact that such open space was also used by the public without open objection by such owner to such use, will not be sufficient to show an intention to dedicate such space to the public for all time to come, although such condition may have continued *or more than twenty-one years.f

   Bentley, J.

Plaintiff, in his petition, alleges that he is the owner of the southwest thirty-two and one-hálf feet of lot 458, Port Lawrence division, of the city of Toledo, Lucas county, Ohio, which is a lot lying between Jefferson and Madison streets, having a frontage on Huron street, in this city. He gives a description of it, and avers that he has been the owner of it in fee simple since January 31, 1876, and says:

“Said lot extends back a uniform width to a depth of 120 feet to an alley of the width of about sixteen feet; that said alley extends from Jefferson street in said city a uniform width towards Madison street through the center of the block bounded by Jefferson, Huron, Madison and Erie streets in said city.”

He further says that it has been dedicated to the public use,and that it has been open and used as a public highway and by all the owners of lots abutting thereon more than twenty-one years. He says also that he bought said property upon the faith and with the understanding that the alley had been permanently dedicated to public uses, and been used by the public generally. .

He further states that he is interested in keeping said alley open as a means of access to the rear end of his said lot and for the accommodation of the public. He avers also in his petition that said alley has-been accepted as a public highway and treated as suchjby the^city authorities during all the times mentioned, and he then jroceeds to state that the defendant, who is the owner of lot 456 and part of 457 —lot 456 fronting on Huron street and abutting on Jefferson street — has proceeded to erect an obstruction across the alley, or a portion thereof, in order to prevent the plaintiff and the public generally from passing alone the alley, and that by reason thereof they are hindered and delayed in doing so; that(he has sustained injury; that he has no remedy at law,and he prays that defendant may be ordered to abate the nuisance and be enjoined from erecting,any nuisance, and from interfering with the passage of the plaintiff and the public along said alley.

Defendant files an answer, in which he denies each and all of the allegations in the petition contained.

The case was submitted to us upon written briefs and upon evidence that lies in statements and agreed statements, in the depositions of parties, and in sundry and divers documentary evidence. The briefs are very full, and embrace a great many cases, and we have endeavored to give them very full consideration.

The facts, in general, are substantially these: Williard W. Howe, in 1853, became the purchaser of lot No. 456, and proceeded during that summer to erect upon it a residence, completed in 1854, when he entered into occupation of it, and it remained his place of residence and that of his family, until a year or two ago. In 1857 — I think it was —be purchased the adjoining lot, No. 457, but having prior to that time erected upon the rear end and upon the line of the lot, of his lot 456, a barn, he moved the barn and swung it around, as he says, so that it stood when be had adjusted it, in part upon lot 458 and in part upon lot 457, and upon a line eight feet from the rear end of the line of his lots. His testimony has been taken (by deposition),and he states therein that he did this for the purpose of enabling him to reach the barn himself more conveniently, and for the convenience of nis tenants. He has also erected sheds in connection with the barn, and some outbuildings, and leased them to the United States Express Co. who have occupied it for some years; that that building was placed in the situation it was in for the more convenient use of himself and of those tenants — -the Express Company, their horses, wagons, etc. He further says, by his testimony (of himself and his son), that Jefferson street since that time has been filled up and that a sidewalk has been constructed along up Jefferson street the whole length of his lot, and an eight-foot stone sidewalk, which was completed a few years ago, and for which he was assessed the whole depth of his lot; that the sidewalk was uniform in width to its end, and that afterwards a change was made in its form by reason of this supposed alley.

His son testifies that by reason of the walks going along this alley they were injured by it, and for that reason they proceeded to erect the obstruction complained of, and not •from any malicious intention.

It is shown also that the assessments made from time to time by the city authorities for the improvement of Jefferson street have been levied upon the property to the full depth of the lot.

It appears by the testimony of plaintiff that he became the owner of the lot upon which he resides in the summer of 1883, which is described as the south thirty-two and a half feet of lot 458, and says: “My lot fronts on Huron street and runs back a uniform width of thirty-two and a half feet to the alley, which is about sixteen feet wide. Eight feet of this alley belongs to my lot. In taking my deed the lot was described as running back to the rear end of said lot, because I considered it necessary to so describe it in order to give me the benefit of the eight feet in case the alley should be ever vacated for any reason;” and he states that within the last three years he has erected upon the rear end of his lot and upon a line eight feet back from the rear end of the lot a brick — I think it is — barn, costing about $1,000; that at the time he purchased the lot he relied upon the fact that there was, as he supposed, a public alley there,and that he was told by sundry persons that there was a public alley there, but he was never told so by W W. Howe or by any of the defendants. The testimony of some other parties was taken showing that he bought the lots supposing that there was an alley there, and that one of them built a barn in the situation that I have stated.

It further appears that originally as they had used the alley they had been in the habit of coming through to Madison street; but sometime, as I understand it, about the year 1876, the supposed alley adjoining Madison street was closed up by Dennis Coglin — who owned property there to the depth of 100 feet; and by the joint action of himself and the heirs of the Walbridge estate, who,some years ago, built a brick block adjoining his property, and from that day there never has been any passage-way through there, and that the same has remained closed, and that the residue of the supposed alley is simply a pocket extending from Jefferson street down to the line of his lot.

In 1875 a resolution was passed by the common council of the city of Toledo to open that alley to the width of sixteen feet; and, in 1876, the council rescinded that resolution and passed a resolution to open it to the width of fourteen feet, and such proceedings were had, amounts were awarded to the respective owners for the value of their property, and that the city failed to pay within the time required, requiring the parties to take certificates, which they refused to do, and thereupon the city refused to advance the money, and the proceedings were dropped.

It further appears that in 1866, Richard Mott, being the owner of lot 455, which is a lot fronting on Jefferson street and adjoining this alleged alley, made a dedication of the alley eight feet in width adjoining or off of the lot, and extending across the rear end of that lot and some other property that he owned out to Erie street, which still remains, as we understand it, a public alley.

This, I believe, covers all the substantial facts that appear in the evidence.

It will be seen by the statement of facts that there never was any dedication, in the manner provided by the statute —mo deed or plat was made of the real estate as required, and that whatever dedication there was, was a common law dedication — If there be one.

It further appears — as I have cited already — 'that the 'plaintiff, in purchasing his lot, never made any inquiry of W. W. Howe, or of any person claiming to be the owner of these lots, as to whether there was an alley there or not, and the question for us to determine is, whether, under the ■facts of the case, there is evidence sufficient to constitute a common law dedication which will be available to this plaintiff.

A statement of some of the characteristics of a common law dedication has been made in the case of Lessees of Incorporated Village of Fulton v. Mehrenfeld, 8 Ohio St., 440, and it is there stated that dedications of landin general -operate by way of estoppel, and not as grants or transfers of -an interest. It is further held that a statutory dedication is in the nature of a grant; that the estate is vested by way -of a grant, and not by way of estoppel. On page 446, the court further state, that:

“To constitute a binding dedication of ground to public uses at common law, there must have been an intention to ■dedicate, and an actual dedication on the part of the owner, and an acceptance on the part of the public, which may be 'proved by the circumstances of the case,”

I should say, in passing, that that is put in that form in regard to the pleadings, because this particular action was brought in ejectment by the village of Fulton against certain parties, to obtain possession of the street. And it is expressly stated in this decision that there may be extended to the owners of the abutting property a right on the part of abutting property to restrain persons from closing a ■street — 'When the city would have no right in the street. I may say, in passing, that there is no evidence that the common council has in any manner recognized this alley as a public higwhay. They have never improved it. Indeed,it would seem that in 1875, they then recognized it so far as they could, as belonging to the property owners, because they passed a resolution to condemn it fo‘r the purpose of an alley.

It is then as between this plaintiff and the defendants,, that we shall discuss the case.

It is said in 8 Meeson & Wellsby, that the use of it by the public is simply evidence of the fact of dedication, and evidence only; and they further say that any act on the part of the owner of'the property showing that he had not intended to dedicate it, is of far more importance as a matter of evidence than the fact that the public have been allowed to pass along it.

In regard to the statement made in the testimony of Mr. Howe, how far there was any secret intention on his part to dedicate, we need not inquire. Objection is taken to-some of his evidence in respect to statements as to the purposes for which he moved his barn back and left the right of way open. We think, however, that the facts sufficiently appear by his evidence that at the time he moved his barn back and placed the foundations along adjoining the line of' the barn — -eight feet from the rear end of his lot, that he did it for the purposes as he states in his deposition, to-wit, for the purpose of enabling himself and his tenants to-reach the barn and to use it- — -the Express Company for the purpose of storing its wagons and keeping its horses and giving them an opportunity to pass in and out of Jefferson street to the barn.

We are of the opinion that, under the testimony in this case, there is nothing in the acts of Mr. Howe that shows that he ever intended to dedicate this property to the use of the public — that he intended to give it to the public; we think everything that was done by him is consistent with his statements in regard to the facts of the case at the time, to-wit, that he was simply opening that for his own private use and that of his tenants. It is true that he permitted persons to pass along the street from time to time, and it is further true that he never made any public objections, save in one or two instances where persons were using the street in such a manner as that it became a nuisance in there by allowing cattle to run in and out there, and perhaps some poultry, and allowed cattle to stay there and turned them into his lot. Neither did ha do anything, save and except that he left the road open, and induced any of these parties who were making purchases to believe that he had dedicated that property to the use of the public, and, before there should be an estoppel decreed against him, or before he should have been held to have lost his property, it is very clear that there should be such acts of dedication as to show that at the time the street was opened upon his part he had a clear intent to dedicate it to the use of the public for all time to come. We do not think that has been made out, and, in view of the principles to which 1 have referred we hold that he has done nothing to estop himself from claiming the right to put his fence out to the limits of the lots, and the decree for injunction will therefore be refused.


author: Swing, J.

text:
    (First Circuit—Hamilton Co., O., Circuit Court
    Oct. Term, 1898.)
    Before Cox, Swing and Smith, JJ.
    THE MERCHANTS’ NATIONAL BANK v. THE OVERMAN CARRIAGE COMPANY.

      Purchase by corporation of its stock — When void — Continued liability of stockholder—
    (1). A resolution by a corporation authorizing the purchase of a part of its own stock by B. as trustee for the company, to be paid for with notes of the company, is a purchase of the stock for the company.
    (2). Such a purchase by a corporation from two of its officers “in consideration of their proposed retirement”, does not come within the exception to the principle of law that a company cannot deal in its own stock; the purchase was invalid, and those who attempted to sell did not cease to be stockholders.

      Appeal from the Court of Common Pleas of Hamilton* county.
   Swing, J.

The point in controversy in this case is whether Peter' Junghaus and Bernard S. Fallon are stockholders in the-Overman Carriage Company.

On June BO, 1893, they each owned fifty shares of the' capital stock of said company. On that date, at a meeting-of the board of directors of said company, consisting ®f Messrs. Rossiter, Burrows, Fallon and Junghaus, the last two being the parties above named — Mr. Junghaus acting as secretary — Mr. Burrows made a motion which was carried, the president, Mr. Rositer, not voting. The motion was as follows:

“That in consideration of the proposed retirement of Mr, Fallon, as vice-president, and Mr. Junghaus, as secretary, Mr. G. H. Burrows be authorized to-purchase their stock as trustee for the company, paying for the same — giving notes to the order of the company payable five hundred dollars per month, with interest at six per cent. The president is authorized to endorse said notes, and the company to pay the same as they mature, holding said Burrows harmless, and retaining the stock when ali-are paid.”

The evidence clearly shows that Junghaus and Fallon, had full and accurate knowledge of the nature of the transaction; in fact, the resolution was carried by their votes, and they were chargeable with knowledge of the nature of the transaction, whether they actually knew its scope or not. At this time the assets of the company exceeded the liabilities, not counting the stock as a liability, by some $17,000. The capital stock of the company was $55,000, and according to the books of the company,the value of the stock was about thirty cents on the dollar, although if forced to realize,it probably would have been insolvent. At this time neither Junghaus or Fallon was indebted to the company, and they were solvent.

It seems hardly to admit of any question but what the sale of this stock by Junghaus and Fallon was a sale by them to the company itself. The purchase by Burrows, as trustee for the company, and its transfer to him as such does not change the real motive of the transaction. It was nothing more nor less than a sale to the company of its own stock.

That a company can not deal in its own stock is a well settled principle of the law that needs no citation of authorities. There are exceptions to this rule in cases only where the company may buy in its stock for the purpose of saving it from loss and for its own protection.

The resolution under which this purchase was made recites that it was for the purpose of the retirement of Fallon as vice president and Junghaus as secretary of the company. This is no valid reason for the company buying in its own stock. It may or may not have been for the interest of the company for these parties to retire from their offices, but it is not sufficient in law for the company to become purchasers of its stock. The necessity for avoiding loss to the company did not exist.

There is nothing in the case of Morgan v. Lewis, 46 Ohio St., 1, relied on by Junghaus and Fallon as authorizing this transaction, which holds that a corporation can buy in its own stock, except from necessity to avoid loss to the corporation. The reason for the holding there made, is found in the language of the court on page 7, where it is said:

“This proof would have established something beyond the mere good faith of the transaction.”

Of course,if there was bad faith in procuring the stock of' the corporation, it was the duty and the right of the corporation to undo the fraud.

But there was no element of fraud in procuring the stock of Junghaus and Fallon by them. They were the owners of the stock in good faith and for value and in the regular way, and the company did not have the power to purchase their stock. The transaction not being lawful, it was void, and said parties did not cease tc be stockholders in said company, and must therefore still be stockholders.

Marsh & .Ritchie, for Plaintiff.

Follelt & Kelley, contra.

A decree should be entered in accordance with this finding.


author: Pkioe, C. J.

text:
    (Third Circuit—Marion Co., O., Circuit Court
    Jan. Term, 1899.)
    Before Price, C.J., Day and Douglass, JJ. (Judge Douglass of 6th Circuit sitting in place of Judge Norris.)
    JOHN D. GUTHRIE & SONS v. THE ANGOSTA MILLING CO et al. and JOHN P. UNCAPHER against Same Defendants.

      Referee-Exceptions to findings of fact — Review—Motion for new trial necessary—

    Where, under sec. 6210, Revised Statutes, the court appoints a referee to hear and determine all the issues of fact and law in a case, and to report his findings of fact and conclusions of law separately, a party desiring to review in the higher court the findings of fact on the weight of the evidence, should ask the referee for a new trial by motion containing the proper ground for that purpose, and if it be overruled, except thereto ; and further, that to obtain such review, as well as a review of any other errors committed on the trial, a bill of exceptions must be tendered to and signed by the referee.
    Error to the Court of Common Pleas of Marion county.
   Pkioe, C. J.

These cases were heard and submitted together, and what we may say will apply to both.

The plaintiffs in error ask a reversal of the judgment of the lower court, wherein they were assessed as stockholders in the Angosta Milling Company — an insolvent corporation, and the suit in which the assessments were made, was brought by creditors of the corporation, in which its stock-holders and many creditors were made defendants. The creditors by answers and cross-petitions set up their respective claims, and some of these claims were contested on proper pleadings for that purpose.

Two of the defendants sued as stockholders — -Mrs, Fisher and Mr. Ackerman — answered that they were not in fact or in law, stockholders, because, while stock appeared in their names by transfer from other stockholders, the transfer was brought about by fraudulent representations and deceit, for which they had rescinded the contract for the stock, and they asked to be relieved of liability, and that the same be placed on the parties from whom the stock' had been thus obtained, who were its real owners. There were other questions made, which are usually incident to such proceedings.

The court or referee overruled demurrers to the cross-petitions of Mrs. Fisher and Ackerman, and this ruling is assigned for error.

During a term of the lower court, Rolla C. Perry was appointed referee in the case to hear and determine all the issues of fact and law in the case, and report the findings of fact and conclusions of law separately.

After partly hearing the case,Mr. Perry died, and W. Z. Davis was appointed his successor in the reference, and he took up the work under the scope of the order of reference formerly made, and after completing the trial and his investigations, he filed his report on the 19th day of May, 19, 1898.

On the 27th day of May, the court of common pleas ren. dered judgment against the stockholders, including plaintiffs in error, whom the referee had held to be liable, and for the amounts for which he had assessed them.

The plaintiffs in error have filed with their petitions in error, a voluminous bill of exceptions, purporting to contain the evidence heard by the referee, and many errors are assigned as having been committed by the referee during the trial; and it is further alleged that his findings are not supported by the evidence, and are contrary to law.

All the errors complained of, except the rulings on the demurrers, can appear only by a proper bill of exceptions bringing them into the record, and we are required to first pass on the motion of defendants in error to strike the bill of exceptions from the files, because it was not allowed and signed by the referee.

We find that the bill of exceptions was not allowed and signed by the referee, but was allowed and signed by Allen ¡Smalley, judge of the court of common pleas, , and within the statutory time for that purpose.

Another point made by defendants in error, in the same •connection, is, that we cannot review the findings of the referee on the weight of the evidence, because there was no motion for new trial filed with him at any time; and we find that no motion for new trial was filed with the referee and of course, he was not called upon to pass on such a motion.

It appears in the record, that the report of the referee was filed on the 19tb day of May, as before stated, and that ■on the 21st of May, the plaintiffs in error filed in the court ■of common pleas their motions for new trial, and that they were overruled by the court.

• Has the law been complied with in regard to the allowance and signing of the bill of exceptions? And was the ■court of common pleas the proper tribual to hear and decide the motions for new trial? These are important questions of practice about which there is some controversy and confusion in our circuit, and perhaps elsewhere, and they involve a construction of those sections of the statutes which define the powers' and duties of a referee.

It is provided by section 6210, Revised Statutes, that—

“All or any of the issues in the action or proceeding, whether of fact, or law, or both, may be referred by the court, or a judge thereof in vacation, upon the written consent of the parties, or upon their oral consent in court entered upon the journal.”

Section 5211, provides in substance:

“That where the parties do not consent, the court or a judge thereof in vacation, may upon the application of a party, or of its or his motion, direct a reference in any case in which the parties are not entitled to a trial by jury.”

Section 5213, gives the method of procedure before the referee.

“The trial by referees shall be conducted in the same manner as a trial by the court; referees may summon and enforce the attendance of witnesses, administer all necessary oaths in the trial of the case, and grant adjournments, the same as the court; they must state the facts found, and the conclusions of law separately, and their decision must be given, and may be excepted to and reviewed,in like manner; their report on the whole issue shall stand as the decision of the court, and judgment may be entered thereon in the same manner as if the action had been tried by the court; when the reference is to report the facts, the report shall have the effect of a special verdict; and when the court directs it to be done,the referee shall reduce the testimony of the witnesses to writing and require them severally to subscribe the same.”

By virtue of this section, when all the issues of fact and law in a case are sent to a referee, as in this case, for the purposes of the trial, he stands in place of the court, . and while it is in progress, may exercise all the powers of a court, and they continue until he has fully and finally disposed' of the case aud made his report, at which time they cease. He may allow pleadings to be amended — new parties to be made — rule on the admissibility of testimony' — ■ enforce order and the attendance of witnesses, and when the case is submitted, he makes the findings of fact and law.

If a party ia dissatisfied with the findings and desires a new trial, he should file his motion for new trial with the referee and have his decision upon it, and except to the decision if adverse to him, which is the foundation necessary to be laid for a review of a case on the facts in the circuit court. It is just as necessary that such motion be filed wit.h and passed upon by the referee, as it is necessary that one be filed in the court of common pleas in order to review a finding of the court or a verdict of the jury on the facts in that court; and we think it is not sufficient to wait until the report of the referee is filed and then file the motion for new trial in the court where he was appointed, as was done in the case at bar. Section 5213 makes it the duty of the referee to “state the facts found and the conclusions of la.w separately,and their (referees’) decision must be given, and may be excepted to and reviewed in like manner’’ — 'that is, in like manner as the findings and decisions of the court may be excepted to and reviewed — “and their report on the whole issue shall stand as the decision of the court. * * *_)>

If it is thought that the referee is in error as to his finding of facts, he should first be given an opportunity to cor-ect the error on a motion for new trial filed for that purpose, and the reasoning of Judge Ranney as to the fairness of the rule, as found in Ide v. Churchill, 14 Ohio St., 377-8—should apply to a referee as well as to the court.

Why file a motion for new trial as to the weight of the evidence, in the court of common pleas? That court did not hear the evidence or see the witnesses, and would lack some of the best means to test and judge of the credibility of witnesses. Moreover, unless the court directed the referee to reduce the testimony of the witnesses to writing and have the same signed, he is not required to do so, and he reports only his findings of fact and conclusions of law. How then could the court pass on a motionjjfor new trial because the findings of the referee are not supported by the evidence? If the answer is, that the unsuccessful party could have all the evidence embodied in a bill of exceptions and thus brought to the attention of the court, we observe that the referee, and not the court, would know whether or not all the evidence was in the bill, and he should, for reasons just as strong entertain and pass upon the motion for new trial. Not until the motion for new trial has been disposed of, is it known that a bill of exceptions is needed. Then the provision made by section 5216, Revised Statutes, applies:

“The referees shall sign any true exceptions taken to an order or decision by them made in the case, and return the same with their report to the court'iwhich made the reference.’’

In our judgment, the referee has not performed his whole duty, until he has so far disposed of all questions that could properly arise in the case, that it is ready for final judgment when his report is filed. If he is competent to try the cause, he is competent to hear and decide a motion for new trial and sign a bill of exceptions. The law does not contemplate that after all the issues of fact and law are referred, that the referee hear and determines part and the court another part of the case. This view is recognized in at least three cases decided by our supreme court.

In the case of Lawson v. Bissell, 7 Ohio St., 129, the court says:

“Instead of submitting a case to a jury or court, the code provides for a third mode of deciding issues of fact and law, and this is by referees. The referees are substituted for the court and jury, and their province is to decide'the facts of the case, if the facts only are submitted, or both the facts and the law of the case, if both are referred. The trial before referees is conducted in the same manner as a trial by the court on submission, * * * All such exceptions as could be made in the progress of a trial before the court, may be taken by either party in the trial before referees, and it is only in case an exception is taken, that so much of the testimony as may be necessary to give point and effect to the exception, must be embodied in the bill of exceptions. When the reference is to report facts only, the report has the effect of a special verdict; if the reference is of the facts and law, the facts and the conclusions of law are stated separately, and the report stands as the decision of the court, and judgment may be entered thereon as if the action had been tried by the court. The decision of the referee, however, may be reviewed by the court.
i:These provisions of the code show clearly, that while the trial by referees is subject to review and revision of the court ordering the reference, it is a substitute for a trial in court. The finding of the facts is, in effect, the special verdict of a jury. The conslusions of law of the referees stand as the law decision of the court; and if not set aside, a judgment follows of course. * *

In the case of Averill Coal & Oil Co. v. Verner, 22 Ohio St., 372, the supreme court, again had occasion to speak on this subject, and the point is stated by Judge Mcllvaine,on page 380. The referee appointed by the lower court had filed his report, and counsel for the defendant asked the court to re-commit the report, so as to enable defendant to except to the findings of fact,and tender a bill of exceptions to the referee for his allowance. The court,on page 380,in part says:

“The ground upon which this motion was urged was that the defendant had no knowledge of the findings in the report until after it was filed, and had no opportunity of taking exceptions. On the hearing of the motion, testimony was heard, and a bill of exceptions taken setting it out. From the testimony it appears that defendant’s counsel stated professionally, that he did not see the report until after it was filed, and had no opportunity before the filing to move the referee for a new trial, or to set out the whole of the testimony in a bill of exceptions. The referee, however, testified that in the morning of the day the report was filed, be informed defendant’s counsel that the report was ready to be filed. That counsel expressed a wish that he would retain the report three or four days, until certain parties could be consulted, but was told by the referee that if plaintiff desired it, the report would be filed at once.
“An opportunity should certainly be afforded to the parties by the referee, before filing his report, to examine it, and to tender, if desired, a bill of exceptions for his allowance, so that such facts as might be necessary to protect them against the consequences of errors, committed on the trial, may be placed on the record. But we cannot say that the court erred in finding from the testimony, that such opportunity had been afforded in this case. * * ”

If our position is not sound, a much shorter answer could have been made by the supreme court in the above case, by simply stating, it was not error to refuse to re-commit the report to the referee, so a motion for new trial could be filed and bill of exception allowed by him, because, he had no authority to hear a motion for new trial and sign a bill of exceptions.

Again, in Cincinnati v. Cameron, 33 Ohio St., 336, we find the following rule stated in the third syllabus:

“In a trial before a referee, the referee acts as a court, and exceptions to his action should be taken in the same manner as if the trial were proceeding in court. * *

We now cite two cases decided by the superior court of Cincinnati at general term, which have not been reversed or modified, and while they are not binding authority on us, they are at least very persuasive when we consider the names of the eminent judges who decided them.

In the Wesleyan Cemetery v. Woodruff, 2 Disney, 216, (3 W. Law Gaz. 251,) that court holds:

“Referees, under the code, possess judicial functions, and with the exception of the power to render judgment and issue execution, they possess all the authority of the court which appoints them. * * ' *”

■ The superior court was then composed of Judges Gholson, Spencer and Storer.

F. E. Guthrie, for Plaintiff in Error.

Schofield, Durfee & Schofield-, Grissinger & Fisher, for Defendant in Error.

The other case is Williams v. Stevens, 1. C. R. of Cincinnati, 176, wherein the court at general term, approving Wesleyan Cemetery v. Woodruff, supra, on page 178, says.

“As to the effect of the findings of referees, we cannot doubt the correctness of the opinion of this court in the case of the Wesleyan Cemetery v. Woodruff, 2 Disney, 216, announced by Judge Storer, ‘that referees, when appointed under the code, possess judicial functions; that the authority conferred is to hear and determine the cause; that with the exception of the power to render judgment and issue execution, it would seem the referees possessed all the authority of the court who appointed .them to hear and decide upon the matters submitted.’ And the supreme court in Lawson v. Bissell, 7 Ohio St. Reports, 132, hold to the same construction of the functions of a referee under the code.’’

The court then proceeds to distinguish between the reports of referees and masters, both as to procedure and the-effect of such reports.

The latter case was decided by Juges Storer, Taft and Hagans.

We therefore conclude, that where a party desires to review the findings of a referee on the weight of the evidence, it is necessary to file a motion for new trial with such referee and that an exception be noted to the overruling of the same, and that any bill of exceptions taken must be tendered to and signed by the referee.

This rule was not followed in this case, and we sustain the motion to strike the bill of exceptions from the files. The only questions remaining in the record for our consideration, are the rulings on the demurrers to the answers and cross-petitions of Mrs, Fisher and Mr. Ackerman, and perhaps one other. We are content with the decision of the lower court upon them, and affirm its judgment.

Judgment affirmed.