text:
    LIABILITY FOR. BAD CONDITION OF COUNTRY ROADS.
    Circuit Court of Williams County.
    Ella Smith v. Commissioners of Williams County.

    Decided, January 21, 1905.

      Roads — Negligence of County in Failing to Keep in Good Condition — ■ Actions against County Commissioners — Improved Roads and Ordinary Country Roads Distinguished — ¡Section SJ/5.

    The duty of keeping ordinary country roads in repair is not imposed on county commissioners by Section 845, Revised Statutes; and a directed verdict for the defendants is not erroneous in an action for damages for negligence brought by one injured by his vehicle sliding into a deep rut or hole in the road.
    Hull, J.; Haynes, J., and Parker, J., concur.
    Error to Williams Common Pleas Court.

       Affirmed without report, February 27, 1906 (73-Ohio State).

   This action was brought against the board of commissioners of Williams county under Section 845, Revised Statutes, to recover damages for personal injuries the plaintiff claims she sustained on account of one of the county roads of the county being out of repair and dangerous at the time of her injuries. She alleges in her petition that she had been in the town of Bryan on the day of her injury; started home in the evening with a livery rig and driver, and at a certain point in this road, or a certain portion of the road I should say, where she was driving, it was out of repair and had been for many months; in that there were dangerous holes in it, washouts, pits and deep gullies, and that the commissioners had carelessly and negligently permitted that condition of affairs to exist, and as she was driving along in the buggy, her driver undertook to pass another conveyance going the same direction, and the accident occurred, the wagon in some way sliding into one of these ho]es, and she was injured, for which she asks damages.

The plaintiff offered testimony, quite a large amount, which tends to show that the allegations in her petition are true as to the facts in the case; but at the conclusion of the testimony in favor of plaintiff, a motion was made to direct a' verdict in favor of defendants, upon the ground that the county was not liable in this case, and that it was not one that fell within Section 845, Revised Statutes, making the commissioners liable in their official capacity for negligence. This motion was argued and sustained by the court of common pleas, and a verdict directed in favor of the commissioners, which is in favor of the county. Suit was brought against them in their official capacity, and tlio question here is, and practically the only question, whether under the facts in this ease and under the law there was any liability on the part of the county.

The ease was argued fully, and full and comprehensive briefs were filed by counsel in the case. A large number of statutes were cited and reviewed by counsel in oral argument and in briefs filed. Prior to the amendment of Section 845, Revised Statutes, as has been held by the Supreme Court, and as is well known, there was no liability on the board of commissioners for injuries such as this. The comity was a mere territorial division for governmental purposes, erected largely for, the convenience of the state, and unlike the case with municipal corporations there was no liability imposed upon the community or upon the county for injuries resulting from defective roads. There were officers such as county commissioners, trustees and supervisors who, under certain conditions, were given the power to improve roads, or levy taxes, but a person using the roads, so far as defects were concerned, did it at his own risk, without any right to bring an action for damages on account of defects in the road; but this Section 845, Revised Statutes, introduced a new element, by providing that .county commissioners may sue and be sued, and shall be capable of pleading and being impleaded in any court of judicature, and of bringing, maintaining and defending all suits, either in law or in equity, involving any injury to any public state or county road, bridge or ditch, drain or water-course established by such board, in their county, and for the prevention of injury to the same, any such board of county commissioners shall be liable in their official capacity for any damages received by reason of the negligence or carelessness of said commissioners, in keeping any such road or bridge in proper repair. It is' this last thing that I have read that imposes the liability upon the county in this case.

No case exactly like this has been before the Supreme Court under this statute. Cases involving actions on account of defective bridges, defective on account of not being kept in repair, or in their construction, have been before the Supreme Court. There are two leading cases of this kind, Alexander v. Brady, 61 Ohio St., 174, and Commissioners Hardin County v. Coffman, 60 Ohio St., 527. It has been held in those cases that there was a liability on the part of the county as represented by the county commissioners for negligence in not caring for the county bridges; but whether the county is liable in such a case as this has not been decided by the Supreme Court. That this was a county road seems to be admitted, but it is urged that no duty is imposed upon the county commissioners by any statute, of making such repairs as seem to have been necessary here under the circumstances of this case, while in the case of bridges, by express statutory provision, the duty is imposed upon the county commissioners to keep them and their approaches in repair.

This statute makes the county liable for the negligence of the commissioners. There can be no negligence unless some duty has been imposed upon them in reference to a case of this kind. The commissioners have power to levy taxes for road and bridge purposes, and it is their duty in some cases to repair roads; as for instance where, by freshet or inundation, the road has been partially or wholly swept away so as to render it impassable, there it is the duty of the commissioners to repair the road. That' is not claimed to be the case here, but it is claimed that this condition existed in the road for several months as alleged in the petition.

Now we have examined, so far as we know, all of the statutes bearing upon this question, and we have been unable to find any statute expressly imposing this duty upon the county commissioners in a ease of this kind. I will not undertake to review all of the statutes bearing on roads and bridges, as they are numerous and it would be impossible to review them in this opinion, but it will be observed that this statute only makes the county liable for the negligence of the commissioners. It does not, as in some of the bridge statutes, make the county liable for damages in case of failure to repair and keep in repair bridges as expressed in some of the bridge statutes. Negligence is the failure to use ordinary care. It is the failure to perform a duty imposed upon one either by statute or by common law, and the language used here, in using the word “negligence,” is different from that used in the bridge statutes, and in order to make the county commissioners- liable for defects in county roads under this statute, it must be shown that they were negligent in some respects.

It is provided in some of the statutes relating to improved roads and in other cases that the commissioners shall keep them, in repair, but there is no such provision as to an ordinary county road. On the contrary, express provisions are made in some statutes, as to township trustees keeping roads in repair, and conditions as to supervisors keeping roads in repair in their district, and provisions as to the fund from which they may draw to keep the roads in their district in repair. In this county there are some one hundred and forty supervisors.

Judge Williams, in delivering the opinion of Commissioners Hardin County v. Coffman, supra, discusses the question with reference to roads, and he says in the course of that discussion that the county is liable for defects in the highway, and puts them on the same level with bridges, and in discussing that question he discusses it as though there was a general liability on the county in failing to keep the county and state roads in repair.

As I have said, the statute as to bridges has expressly provided that the commissioners keep them in repair, and therefore what is said by Judge Williams can not be regarded as decisive of this question, or as the decision of the court. So far as we are able to find, there is no such express duty imposed upon the county commissioners in reference to such a road, as this, and under these circumstances it is provided by some of the statutes, where repairs are to be made, a petition is to filed invoking the action of the county commissioners to give them jurisdiction in the matter. Nothing of that kind has come in this case, or any evidence offered to show it. It not appearing herein that there has been a violation of any statute on the. part of the. county commissioners, in our opinion it has not been shown that they have been guilty of any negligence. This statute should receive a reasonably strict construction, for to impose upon the county the liability for a defect in any road would impose a tremendous liability regardless of the fact as to whether or not the board of county commissioners are actually negligent or not. If that is the law, it would require the county commissioners to devote a good deal of their time to patrolling the roads of the county to see that they were in proper repair.

L. E. Griffin and C. L. Newcomer, for plaintiff in error.

Edward Gaudern and C. E. Bowersox, for defendants in error.

Whether the doctrine of constructive notices would prevail or not, we are uncertain; that is, to hold the county liable on the ground that it had been out of repair for some time. There is no claim in this case that there was-any actual notice to the commissioners of the condition of this road. The question is an important one, and one that should be settled by the Supreme Court. In the light that we now have and that we were able to gain, we are of the opinion that the action of the court of common pleas was correct and, therefore, the judgment of that court will be affirmed. There is no other claim of error in the record that need be especially discussed. The judgment will be affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    ERROR. FROM COURT OF INSOLVENCY TO THE COMMON PLEAS.
    I Circuit Court of Hamilton County.]
    City v. Lohman et al.
    Decided, June 22, 1907.

      Eminent Domain — Purpose of the Legislature to Expedite Appropriation Proceedings — Error Proceedings — Duty of Common Pleas to Retain Cause — Sections 6438, 6453 and 1536-J.14.
    Where error is prosecuted from the court of insolvency to the court of common pleas in an appropriation proceeding, and the judgment is reversed, it is the auty of the common pleas to retain the case and proceed to try the matter at issue as provided in Section 6438.

      City Solicitors, for plaintiff in error.

      Renner c§ Renner, contra.
    Swing, P. J.; Smith, J., and Uibfbn, J., concur.
   This was in effect an action in the insolvency court for the appropriation of private property.

Error was prosecuted to the judgment of the insolvency court to the court of common pleas, in which court the judgment of the insolvency court was reversed, and the cause remanded to the insolvency court for a new trial.

We are of the opinion that the court erred in remanding the case to the insolvency court for a new trial. It should have retained the cause and proceeded to try the matter at issue as is provided in Section 6438, Revised Statutes.

Section 1536-114 provides that municipal corporations and other parties may prosecute error to the judgments of probate and insolvency courts as in other civil actions, which we think means as in other. civil actions for appropriation of private property.

Section 6453, Revised Statutes, says the provision of this chapter shall not apply to municipal authorities, but it goes onto point out in what respect it shall not apply, which is as to the payment of judgment.

It is apparent that the intention of the Legislature was to expedite the determination of appropriation proceedings, in order that the corporation may get the possession of the property for the benefit of the public and further that the citizen may have his money for which his property is taken and which right is especially guarded by the Constitution of the state and of the United States.

Judgment reversed to this extent.


text:
    CONTROL OF CHURCH PROPERTY.
    Circuit Court of Fulton County.
    Silas Munsel et al v. D. S. Boyd et al.
    Decided, May 11, 1907.

      Injunction — Upon Petition of Church Tnistees — Complaining of Interference with Control of Church Property by Others Claiming to Act as Trustees — Jurisdiction in Equity — Parties—Misjoinder— Quo Warranto — Exclusion of Church Members without Notice— Office of Trustee of a Church not Coupled with an Interest — Ten* ure of — Dismissal of a Pastor.

    1. There is jurisdiction in a court of equity to determine the rights of the parties to an action for injunction, where the plaintiffs claim to be legally elected trustees of an incorporated church, and ask that the defendants, who also claim to he trustees and one of them to he the pastor of the church, be restrained from interfering with their control of the church property or their use of it for purposes of worship.
    2. The fact that the plaintiffs sue as trustees and also as members of said church and in behalf of other members thereof, does not present a case of misjoinder, notwithstanding they are perhaps asserting rights in two capacities.
    3. The office of trustee of a church is not one coupled with such an interest that the church body in its corporate cápacity may not, at a meeting of its members duly called and held, terminate the tenure of such office.
    4. The fact that members of a church have become dissatisfied with the pastor, and disapprove of the control into which the church has fallen and cease to attend its services, does not afford ground, without some rule or law of the church therefor, for their dismissal or expulsion without .notice or an opportunity to appear and defend; and a vote of expulsion under such circumstances doe's not terminate membership.
    Wildman, J.; Haynes, J., and Parker, J., concur.
   Tbe case of Silas Munsel and others, claiming to be trustees of the First Baptist Church of Swanton, Ohio, against D. S. Boyd and others, is an unfortunate controversy which has grown up among persons claiming certain rights and interests in the assoeiation mentioned in the caption of the petition, the First Baptist Church of Swanton, Ohio.

The case of the plaintiffs is presented by a petition addressed to the equitable jurisdiction of the court and asking for an injunction to restrain the defendants from doing certain acts and interfering with the plaintiffs in the exercise of claimed rights and duties and the control of the church property belonging to said association.

The case was heard in the court below and appealed to this court. It was first submitted to us upon demurrer to the petition, setting out several grounds under the statute, indeed nearly all the grounds specified in the section for demurrer: a lack of jurisdiction; incapacity in the plaintiffs tó sue; defect of parties plaintiff; defect of parties defendant; that the petition does not state facts sufficient to constitute a cause of action; that there is a misjoinder of parties plaintiff and a misjoinder of parties defendant. The plaintiffs allege that they sue as trustees and also as members of the church society named and in behalf of a large number, to-wit, twenty other members of said church.

We have had some trouble over the question of misjoinder, but have concluded that there is no misjoinder of either parties plaintiff or parties defendant. It is true that the plaintiffs are asserting rights in perhaps two capacities. They allege that they are both trustees and members, and that they are asking relief in behalf of other members, but after all the result sought is one, and it is a resxdt which might with propriety be sought by the plaintiffs acting in either capacity, as trustees of the corporation or as members thereof, provided that they have the right to sue at all in a court of chancery.

The case of Bartholomew v. Lutheran Congregation, 35 Ohio St., 567, is one in which the trustees, or alleged trustees of a church, sued as such and the defendants were sued as persons claiming to be trustees and alleged to be usurping the powers and duties of such. No especial question seems to have arisen in that case as to whether suit was brought in the proper right or not, that is, as to whether they should have sued in their representative capacity or whether in their capacity as members of an association, but the relief sought and granted was such as might perhaps have been, at least in part, granted them as members of the association, if they had sued as such.

The suit here seeks not only to enjoin the defendants from exercising control as claimed trustees over the property of the church, but also from interfering with the plaintiffs in the exercise of such control. To that extent it is, perhaps; a controversy as to a right of trustees to control property entrusted to the trustees as such. But the petition further asks for an injunction to restrain the defendants from interfering with the plaintiffs in worshiping in said church or otherwise entering into it as members. I am not attempting to recite the precise phraseology of the petition or its prayor, but am giving merely the substance.

Without tarrying long upon the matters presented by the demurrer it suffices to say that it is our conclusion that the demurrer should not be sustained.

I should, before leaving the subject however, pay brief attention to the claim made by counsel for defendants that the court has no jurisdiction in equity to determine the rights of these parties at all. The contention is that the allegations of the petition, if conceded to be true, make a ease for quo warranto rather than for equitable relief by injunction, and that so far as pos- • session of the property is concerned, the plaintiffs might have an adequate remedy at law by ejectment or something of that kind. Our judgment, however, is that a court of equity has jurisdiction, although the validity of the election of persons as trustees or the question of authority of one of the defendants to act as pastor may be incidentally considered to some extent in the consideration of the case.

The object of the suit, at least the proper object of the suit, is not exactly to determine the rights of claimants to office, but rather to restrain persons from interference with the control and possession of property; or with the use of the property to the extent to which trustees or members of a religious association may use the property of' such association. The defendants, as the petition declares, claimed to be trustees and are in possession and control of the property and keep the plaintiffs out. The plaintiffs claim that they arc* the legal trustees. They assert, that one D. S. Boyd claims to be pastor of the church, and in substance that he is not; that although formerly pastor of the church he was deposed by the plaintiffs and that he is no longer entitled to exercise the duties or powers or functions of that office.

There are cases, of course, in which, the rights of claimants to act as officials of one kind or another are to be determined only by proceedings in the nature of quo waxranto, but the 35th Ohio St. ease, already cited, Bartholomew v. Lutheran Congregation, is sufficient authority, we think, for entertaining jurisdiction upon the averments of this petition, and as a court of equity.

The answer admits an averment found in the petition that this church is an independent organization subject to no control from the outside by any other church or organization.' It seems to have been, although an incorporated body, a sort of law unto itself, excepting so far as it is governed by the teachings of the Scriptures and general customs, perhaps, of the Baptist church or Baptist churches and customs which may have grown up in its own body.

The evidence which has been introduced upon the hearing, for the case has been heard by us upon evidence, pending our examination of the questions and conclusions thereon arising on the demurrer, discloses that said D. S. Boyd became the pastor of this church society some time in the year 1891 and that he has continued to act as such, claiming to be still pastor up to the rendition of the decree by the court of common pleas in the present suit.

On the 18th day of May, 1905, the plaintiffs and others, claiming to be members of the association, held a meeting 'at which they elected a new board of trustees consisting of five members. It may be said in passing that while no regulations appear to have been drafted or adopted by this society, the number of trustees has been usually, if not always during its history, five. There may have been vacancies at one time or another, but we are satisfied from the evidence that by common consent or otherwise the number of five has been adopted as a proper number for the board of trustees. At this meeting of the 18th of May, 1905, the persons acting and electing that board of trustees had no power so to act, unless they were in fact members of this corporate body, and upon the question as to whether they were or were not members on that day centers a large part of the present controversy. We will not attempt to review the evidence in detail. It is manifest that not many years after the induction of Mr. Boyd into the pastorate dissatisfaction arose among members of the organization, and that suggestions were made that he be retired or that he be asked to resign from the pastorate. At one time, as is claimed, he tendered a resignation which was not accepted. ITe does not seem to have tendered a resignation at any time which was accepted, and-he was never formally deposed, unless by the action of the meeting of the members held but a short time before the beginning of the suit in the court of common pleas; and the deposition at that time was by the plaintiffs and those associated with them claiming to be members of the corporate body. This claim was disputed by Mr. Boyd and his friends and associates in the church, upon the ground that, although many of these claimed members had been such at one time, they had been dropped from the roll of the church, and by reason of one cause and another had been expelled or dismissed from the church, so that they had no longer any power to act as members.' It appears, according to this claim, that although at the coming of Mr. Boyd to the church in 1891 the church had something more than one hundred members this number had been reduced year by year until at about the beginning of 1896 there remained but a corporal’s guard, consisting for the most part of Mr. Boyd, his sons and those who were either akin to him or related by marriage. It appears also that the persons claiming to act as trustees of the church at that time, and who have been brought into court as defendants, and who concede that they are acting and claiming as such trustees, are either of his own kin — his own sons or immediate relatives by blood — or that they are related to him by marriage.

Many of the expulsions to which I have referred, or attempted expulsions of members of the church, were had without any previous notice to the persons so sought to be expelled, so as to enable them to resist.or defend against the attempted expulsion if they saw fit. At one time nineteen members were so dismissed from the church or dropped from the rolls and at another twenty, without any apparent notice to them of the intention of the corporate body to dismiss them from membership. We think this could not be done, and we find no authority either in the book called the "star book” which has been offered in evidence or in the .-New Testament passages quoted and cited by Mr. Boyd in his testimony, or by any customs of the church which will justify the severing of the relations of the members in this way. It is true that most of them had ceased to attend upon his ministrations; they were dissatisfied with him; they did not approve of the management and control into which the church had fallen, and so remained away. We do not, however, deem that this was a relinquishment of their rights as members, and our judgment is that except as to such members as had previous notice, of an intention to pass upon their membership by investigation and dismissal if necessary, or as to such as were present when their eases were investigated, and had knowledge at the time of such expulsion, the méínbership was not terminated, and that the persons so attempted to be expelled remained members of the association up to the present time.

We think also that more than a quorum of legal members gathered at the meeting of May 18, 1905, and that proper notice of that meeting had been given to all persons concerned. It appears to us that Mr. Boj^d and the faction supporting him knew of this contemplated meeting; that they might have attended it if they had seen fit. There is no claim in this petition that Mr. Boyd and his sons and others associated with him are not members of the association; and it is not claimed on the other hand that there was any interference with their being present at the meeting referred to. 1't is agreed that five members of the church constitute a quorum to transact business at any meeting properly called. We think then that this meeting of May 18th was a legal meeting, and that it had authority to do any proper acts or transact any-proper business which might come before it connected writh the affaii’s of the church organization.

Now, it is insisted that although the board attempted to elect five trustees at this meeting of May 18, 1905, that there were still three trustees who had been elected for three year terms and that those terms would not expire until a date subsequent to May 18, 1905. This seems to be true. And it is insisted that because of this fact the members at the meeting of May 18, 1905, had no power to elect a board of five members. It has occurred to us that this question might be disposed of upon either of two grounds. AVhile by custom the board of trustees of this church consisted of five members there is no regulation and no statute that prevented them from at any time increasing that number, so that it would not necessarily follow that even if there were three legal trustees already holding office on May 18, 1905, the members of the church at a valid meeting could not add to that number five more so as to make eight trustees instead of five. We are inclined, however, to place our decision upon another ground, and that is that the trusteeship is not an office coupled with such an interest that the church as a whole, the church as a body in its corporate capacity and power, at a meeting of its members duly called and held, may not terminate the tenure of any trustee. We think that they had such power under all the circumstances of this case, considering the situation that had. arisen, the attempts made by Mr. Boyd and those associated with him to control all the affairs of the church, to keep its functions, its powers, its property in their own hands and to expel from membership and exclude from power the plaintiffs and all others associated with them, who had theretofore been members of the association and as we think were so still. We believe these facts justified the election of a full board, and we are satisfied that it was the intention, although not expressed upon the record of these proceedings, to elect a board of five which should constitute the whole board of the church, and that so many as were necessary should take the places of the three members who had been previously elected and were still in office.

Our judgment then is that, not only are the persons claiming here as plaintiffs, members of the association, and that a large number of others who have been treated as expelled members still retain their membership in the association, but also that the ^plaintiffs constitute the board of trustees of the association, and that they are entitled to such control and management and direction of the affairs of the clrnch as legitimately belong to any legal board of such body.

If this is true, they are clearly entitled to at least a part of the relief which is sought here. We are not inclined to believe from the facts disclosed to us that there is any present intention on the part of the defendants to incumber or dispose of the church property, and we doubt very much their ability to place airy troublesome cloud upon its title under the present circumstances. The property is already mortgaged, as appears, to the extent of $500, which might stand somewhat in the way of their disposition of it; but in addition to that, v\ith this decree of the court at which we are arriving, and under the manifest conditions which have been disclosed, it is hardly likely that any persons would be induced to attempt to make an investment in this church property, receiving title from Mr. Boyd and his adherents.

. Nor are we inclined to think that there is any disposition on the part of the defendants to prevent the plaintiffs from entering the church during the hours of open session for religious worship, of otherwise to take part in the public meetings to the extent that members of a congregation not members of a church would be permitted to take part.

We do not think then that the plaintiffs need all the relief for which they ask. We do think, however, that they are entitled to an injunction restraining the defendants from interfering with them, the plaintiffs, in the control of the church property. We think that they are entitled to an injunction restraining the defendants from attempting to exercise control over it, except in so far as the defendants “ as individual members may take part in the meetings or other affairs of the association.

There is another matter to which the petition invites the attention of the court, and that is the status of Mr. D. S. Boyd in the church. The petition alleges and the answer admits that he is one of the trustees. The answer is verified by Mr. D. S. Boyd with others, but it appears upon the trial that he ceased to be a trustee at some time — whether before or after the beginning of the suit I do not know. ITe insists however that he is still pastor of the church. It becomes essential to inquire as to whether he is justified in this claim.

After the meeting of May 18, 1905, to which I have referred, to-wit, on January 24, .1906, the recommendation was made by the board of trustees, as appears by the record of the society, that the pastorate be declared vacant and that the Rev. D. S. Boyd, the- so-called pastor, be informed that his relationship as such cease with the date last mentioned. 1

On the same day the society met in the evening at 7:30 o’clock and we find this record of the proceedings, so far 'as relate to the question which we are now considering:

“Brother Vaughan then attempted to read a recommendation of the trustees of the church, but Mr. Boyd and a few others made such disturbance that he waited for silence. On motion 8f Brother M. G-. Will, seconded by Sister E. J. Crissey, it was voted to adjourn to Sister E. J. Crissey’s home. A few minutes later the First Regular Baptist Church of Swanton, Ohio, met pursuant to its adjournment as above stated in the home of Sister E. J. Crissey. Brother J. C. Vaughan was appointed chairman. As the clerk had left, the minutes of the last business meeting was waived. The board of trustees submitted the following report and on motion of Brother David Kelsey and seconded by Brother M. G-. Will, the church unanimously voted to adopt the report and instructed the clerk to send a copy of the recommendation to Mr. D. S. Boyd. On motion it was voted that Brother J. C. Vaughan, David Kelsey, Silas Munsel, Sister C. A. Fairchild and Charlotte^ Munsel be the pulpit committee to look after the matter of pulpit supplies and a pastor. ’ ’

It was then voted that the church hold a business meeting in three weeks, etc. The reference to the report or recommendation which it is stated followed has evident reference, we think, to a copy of the recommendation found on the page immediately preceding instead of following the minutes of this meeting. There is no other record and the witnesses so inform us.

Our conclusion on this branch of our inquiry is that the relation of Mr. Boyd to the church as its pastor terminated on January 24, 1906; that the will of the members unanimously expressed at this meeting was one which they were authorized to make, and- that the meeting was regularly called.

There are many facts connected with the entire history of this association that show an inexperience in the matter of rules and records and proceedings generally; but we should look to the substaiice of things and endeavor to' ascertain just what parties are entitled to ask and just what they have at times sought to accomplish and what their relations are to one another, as shown by the transactions when analyzed and thoroughly examined.

Ray c6 Gordill, J. G. Gloon and J. G. Paxson, for plaintiffs.

John Schlatter, for defendants.

This case has been a most unfortunate controversy and it has developed into one of those bitter feuds that we sometimes discover in bodies which should especially exemplify to the world, that living Christian spirit which was inculcated by the Master. It is a kind of case which the courts dislike to approach. We have 2io disposition or wish to interfere in the affairs of religious organizations, and we have commented upon the transactions only in so far as a full consideration of the questions arising in'' law and submitted to us require.

I have sufficiently indicated how far the decree of the court should go and the journal entry will be drawn accordingly.

Jijdge Parker: I think, in looking through the “star book” that the pastor’s relation could not be terminated short of three months; the pastor is entitled to three months notice.

Judge Wiudman: Then instead of it’s being January 24th, it should be April 24th. What I said in relation to his pastorate terminating should be changed so that the date instead of being January 24th will be April 24th — three months from the time of the action of the church body as required by the custom or rule disclosed to us.


text:
    ACQUITTAL NOT A BAR..
    Circuit Court oi Huron County.
    Allen Beamer v. State of Ohio.
    Decided, 1906.

      Criminal Law — Indictment for Theft — Acquittal—Prosecution for Receiving the Same Stolen Goods.

    One acquitted under an indictment for stealing certain property may be subsequently indicted and tried for receiving and concealing the same property, knowing it to have been stolen.
    Parker, J.; Haynes, J., and Wildman, J., concur.
    Error to Huron Common Pleas Court.
   Allen Beamer, plaintiff in error, was indicted and convicted of the offense of receiving and concealing stolen property,- knowing that it was stolen. He filed a plea in bar, setting forth that at an earlier time in the same court he had been indicted for' stealing this same property and that upon trial he had been acquitted. He sets forth distinctly that it was the same transaction and the same property, and his contention is, that this constituted a good plea in bar. To that plea in bar the state filed a demurrer. This was the proper method of presenting the question of law that the state desired to raise, i. e., as to whether, upon the face of this pleading, it stated sufficient facts to constitute a good plea in bar. Counsel for plaintiff in error demanded a jury to try the issues, and complain because that demand was disregarded.

This question must be determined by the court from an examination and consideration of the record. As there was no controverted question of fact there, was nothing to submit to a jury. If any of the averments of facts in the plea in bar had been denied by answer, then, of course, the question or issue of fact thus raised should have been submitted to a jury. This demurrer raises simply a question of law.

True, it is averred in this plea in liar that the offense on account of which he was tried and acquitted, and the offense charged in the second indictment of receiving and concealing the stolen property, was the same offense; but we think the court was not bound to regard that conclusion as raising a question of fact for a jury, in view of the fact that it appeared upon the face of the record that the first crime charged was that of stealing, and the crime charged in the second indictment was entirely different, viz., the crime of receiving and concealing property stolen by another. We are satisfied that the decision of the court below upon that point was correct; that the offenses, within the meaning of the law on the subject of being twice in jeopardy, and a former acquittal being a bar, were separate and distinct ; that the word ‘ ‘ offense ’ ’ in that connection means a crime, and these were not the same offense — were not the same crime, but were separate and distinct offenses or crimes, so that an acquittal of one would not amount to a bar to a prosecution for the other.

I read from brief of counsel for the state a citation taken from the case of Arrington v. Commonwealth, 87 Va., 96 (12 S. E. Rep., 224) :

“The test is, ‘not whether the defendant has already been tried for the same act, but whether he has been put in jeopardy for the same offense. A single act may be an offense against two statutes, and, if each statute requires proof of an additional act which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other. ’ ’ ’

It is apparent that a conviction of one for receiving property stolen by another could not be had upon evidence showing that the defendant had stolen the property. On the .other hand, a conviction for stealing property could not be sustained upon evidence that another had stolen the property and that the person on trial had only received and concealed it knowing it to have been stolen.

Again I cite from brief of counsel:

. “ ‘Although proof of one particular fact is necessary to a conviction under either of two statutes, yet, if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either is no bar to prosecution and punishment under the other.’ Morey v. The Commonwealth, 108 Mass., 433.”

J. R. McKnight, for plaintiff in error.

L. W. Wickham, for defendant in error.

“Unless the first indictment was such as the prisoner might have been convicted upon, by proof of the facts contained in the second indictment, an acquittal on the first indictment can be no bar to the second. State v. Littlefield, 70 Me., 452.”

It is very evident that upon proof of the facts averred in this second indictment, i-. e., that defendant was the receiver of property stolen by another, the defendant could not have been convicted of theft of the same property.

I cite further from brief of counsel:

“ ‘The test relied on in determining whether a plea of former acquittal or conviction will avail as a bar is, that the facts alleged in the second indictment must be such that if proved they would have procured a legal conviction upon the prior indictment under which the prisoner has been acquitted or convicted. ’ Roberts v. State, 14 Ga., 8.”
“ ‘A former trial is not a bar, unless the first indictment was such that the prisoner might have been convicted upon proof of the facts set forth in the second indictment. ’ ”
‘ ‘ ‘ There was no error in charging a jury that a trial for, and acquittal of, the forgery of an instrument was not a bar to a subsequent indictment for uttering the same instrument as genuine, knowing it to be forged.’ Harrison v. State, 36 Ala., 248-249.”
“ ‘On a plea of autrefois acquit, the true test to determine whether the accused has been put in jeopardy for the same offense, is whether the facts alleged in the second, if proven to be true, would have warranted a conviction in the first indictment.’ Price v. State, 19 Ohio, 423, 424.”
“See also Bainbridge v. State, 30 Ohio St., 264.”

Substantially the same test is laid down in the case of State v. Warner, 14 Ind., 572; in 1 Archbold, Crim. Pr. & Pl. (6th Ed.), 112, note 2; 1 Bishop, Crim. Law, Section 680a, 896, and some other eases that are cited in the brief.

We know of no law or authority running contrary to the aiithorities cited. The judgment of the court of common pleas will be affirmed.


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    WAIVER OF CONDITION AS TO PRE-PAYMENT OF PREMIUMS.
    LOircuit Court of Hamilton County.]
    Preferred Masonic Mutual Accident Association v. Margaret J. Harrington.
    Decided, May. 11, 1907.

      Amendment — Permissible after Verdict, when — Waiver—Trial—Effect of Production of Receipt loithout Explanation — Interrogatories— Failure of Jury lo Answer — Error—Section 5114.
    1. In an action on a policy of insurance, where the case has been tried in part on the theory that there had been a waiver of the condition of the policy as to prepayment of premiums, it is not error after verdict to permit an amendment of the petition setting up such waiver.
    2. Moreover, the receipt of the company for the premium having been offered without explanation, it stands as prima facie evidence of compliance with the conditions of the policy, and the verdict should stand regardless of the question of waiver.
    3. Failure of the jury to answer special interrogatories is not ground of error when not excepted to at the time.
    Giffen, J.; Swing, J., and Smith, J., concur.
   This action was founded upon a policy of accident insurance. The plaintiff in her petition alleged full performance of all its conditions. The answer contains a general denial of such performance, and an averment that the last quarterly payment due before the accident was not paid, and that by the terms of the policy it thereby lapsed and became void and of no effect.

After verdict for plaintiff the court permitted plaintiff to file an amended petition, setting up a waiver of the condition of the policy requiring prepayment of the. quarterly premium due January 30, 1903. The case was tried partly upon this theory, and there was no error in permitting the amendment. Section 5114, Revised Statutes.

The production -of the receipt of the association for the quarterly premium was’ prima facie evidence of payment, and in the absence of any explanation entitled the plaintiff to a verdict without regard to any question of waiver. Neil v. Hepburn, 6 Ohio, 534.

Frank T. Lodge, Boyce & Boyd and M. G. Slides, for plaintiff in error.

M. G. Hcintz, contra.

The deposition of the witness, Warner, attached to the bill of exceptions is not identified by any mark as the deposition offered in evidence, and hence can not be considered as a part of the bill, nor will the court consider the alleged errors that the verdict is not sustained by sufficient evidence, and that the court refused to instruct the- jury to retiirn a verdict for the defendant. Railroad Co. v. Mackey, 53 O. S., 370.

Such of the numerous special instructions requested by the defendant as were refused had either already been substantially given to the jury, or were afterwards embraced in the general charge, or were inapplicable to the case as presented by the record.

The failure of the jury to answer the three special interrogatories were not excepted to until after the jury was discharged, and will not avail- as a ground of error.

We find no prejudicial error in the record and the judgment will be affirmed.


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    ACQUIREMENT BY PRESCRIPTION OF RIGHT TO USE STREAM FOR SEWER PURPOSES.
    [Circuit Court of Hamilton County.]
    John Schrenk, Jr., v. The City of Cincinnati.
    Decided, June 22, 1907.

      Pollution of Stream, — Charge of Court with Reference Thereto — Acquirement by Municipality — To Use Stream, for Sewer Purposes— Error — Damages.
    A charge of court with, reference to the time required by a municipality to acquire by prescription the right to empty sewage into a natural stream is erroneous and prejudicial, if it is nowhere stated that the time required to create the right must be at least twenty-one years.

      M. G. Ileintz, for plaintiff in error.

      City Solictors, contra.
    Gesteen, J.; Swing, P. J., and Smith, J., concur.
   The court charged the jury as follows:

“If you find from the evidence that Bloody run, as it flowed through plaintiff’s property, has been polluted by the city of Cincinnati for long period of time, and that the stream and its deposits along its banks, and the smell, if any, arising from its waters are but different in slight degree from what they have been for many years as it flowed through plaintiff’s property, then the plaintiff can not recover. ’ ’

And again as follows:

“The burden of proof is on the defendant to show a prescriptive right to use the stream for sewer purposes and to show that the water as it flowed through plaintiff’s premises was substantially as it was in 1903 for a period of time more than four years prior to that date.”

The jury naturally would and no doubt did infer from these instructions that the city could acquire a prescriptive right to use the stream for sewer purposes by an uninterrupted use of the same in that manner for any period of time more than four years and less than twenty-one years. Although in another part of charge the court said that such right could be acquired in twenty-one years, it nowhere appears in the charge that the period of time required to create the right must be at least twenty-one years.

• The instructions given were erroneous and prejudicial, for which the judgment will be reversed and cause remanded for a new trial.


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    ASSESSMENTS FOR. SEWERS.
    Circuit Court of Lucas County.
    Kohler Brick Co. et al v. City of Toledo et al.
    Decided March 9, 1907.

      Seioers — Notice to Property Owners not Necessary, When — Proper Method of Assessing Unplatted Property to the Extent of Benefits —Ordinance Providing for Assessment for Sewer of a Special Nature — Publication of, not Necessary — Where Cost is lo be Met by Bond Issue — Certificate of Auditor not Required — Assessment not Invalidated by Slight Change in Sewer Plan.

    1. The notice required to be given, to the owners of property to be benefited, of resolutions and proceedings lor the construction of a sewer system, is not applicable where council is proceeding to construct a sewer that is a part of a general system that has already been planned and provided for by proper proceedings.
    2. Where unplatted property abuts on a sewer or other improvement within a municipal corporation, a part of which will not be benefited by the improvement, it is within the power of council to limit the assessment .as to such property to the extent of the benefits received by fixing the assessment in proportion to the depth of an ordinary platted lot.
    3. An ordinance providing for the assessment of property benefited by a sewer improvement is of a special nature, and not within the meaning of Section 1695, Revised Statutes, which provides for the publication of ordinances of a general nature.
    4. Where a bond issue is required for the payment of the whole cost of a proposed sewer, no certificate is required from the auditor that sufficient funds are in the treasury arid unappropriated to pay the cost thereof.
    5. Slight changes in an adopted sewer plan will not invalidate the legislation or assessments, where the sewer is not rendered less servicable, or valuable, or more expensive, and is not affected thereby in any material manner.
    Parker, J.; IIaynf.s, J., and Wildman, J., concur.
   This is an action brought to enjoin the collection of assessments made upon the lands of the plaintiff, which appear to be unplatted lands in sewer district No. 36 of the city, for the cost of construction of a sewer therein, designated as “main sewer district 898.” The ease is submitted upon the pleadings and an agreed statement of facts. It is set forth in the petition, quoting therefrom, that—

“On October 5, 1903, the common council of the city of Toledo adopted a resolution declaring the necessity for constructing a main sewer for main sewer district number thirty-six, city of Toledo, Ohio.”

Then the petition further sets forth that the sewer was constructed in pursuance of that resolution. It is claimed that these assessments are invalid and their collection should be enjoined for various reasons, and the reasons now urged by counsel for the plaintiffs, in brief and in oral argument, I will endeavor to take up and discuss in the order in which they are stated in the brief. I may say that a great many, grounds of invalidity set forth in the petition are abandoned or based upon statements of fact that are not supported by any finding, agreement or evidence of such facts.

The first point made against this assessment, and perhaps the one that is most important, and the one which, if well founded, has the most merit in it, is that with respect to an alleged want of statutory notice to parties interested of certain steps taken in the course of the proceeding. It appears that sewer district No. 36 was established and a plan of sewer and sewage disposal plant thereof was adopted by an ordinance passed and approved in August, 1900, and that when the council came to proceed with respect to this particular sewer, their first step was the adoption of a resolution declaring the necessity for constructing a main sewer and sewage disposal plant for main sewer district No. 36, Toledo, Ohio, in accordance with such plan. That resolution discloses the necessity of the sewer and describes it — its dimensions, its length, its course, its outlet, etc. — and says that it is to be constructed for the purpose of disposing of the sewage of said main sewer district No. 36 in accordance with plans, etc., on file in the city engineer’s office. It provides:

“That the cost and expense of the sewer and sewage disposal plant shall be levied and assessed upon the lots and lands bounding and abutting thereon and benefited thereby according to benefits accruing therefrom in a sum not to exceed the amount that would, in the opinion of council, be required to construct an ordinary sewer or drain of sufficient capacity to drain such lots and lands, and the remainder of the costs and expenses of constructing said sewer and sewage disposal plant, except the amount charged to the municipality and except the amount assessed for local drainage, shall be assessed upon all the real property in sewer district No. 36, in which said main sewer 898 is located, according to benefits — said assessments to be made in five annual installments in accordance with the sections of the Revised Statutes of Ohio applicable thereto.”

And it is therein further provided that—

“All persons claiming damages for the foregoing improvements must file their claims thereto with the clerk of council within four weeks after the first publication of this resolution. ’ ’

Provision was made for the publication of this resolution once a week for four weeks; and such publication appears to have been made.

The next step in the way of legislation was the passage of an ordinance, on January 13, 1904, which is entitled, “An ordinance, No. 46, determining to proceed with the construction of sewer No. 898, and sewage disposal plant for main sewer district No. 36.” That ordinance provides for the construction of the sewer, the assessment of the cost, etc., in harmony with the provisions of the resolution; and it also provides for the issuing of the bonds of the city in anticipation of the collection of such part of said assessment as shall remain unpaid after the time prescribed in the assessing ordinance for cash payment, and in an amount equal thereto. It also makes provision for the assessments being paid in cash if the parties liable therefor shall choose so to pay. Tt provides how the contract shall be paid, how the contract for the work shall be executed, etc. It appears that in the course of the proceedings an assessing committee was appointed that proceeded to make an assessment upon the property abutting upon the streets through which the sewer extended, according to special benefits; and that this committee, in pursuance of legislation by the council, took into consideration so much of the property of the plaintiffs specially benefited by this improvement as fronted upon the streets through which the sewer district .extended to a fair average depth of the platted lots contiguous to such-unplatted lands and that the assessment upon said lands was laid upon such part of the lands only. And then, by an ordinance passed on March 27, 1905, these assessments were confirmed, and proper provision was made for their being duly recorded and collected.

In the agreed statement of facts certain other particulars are set forth, to some of which I may make reference in the course of this opinion.

It is contended by the plaintiffs that notice of this preliminary resolution should have been given them, as required by Section 42 of the act of the Legislature (96 O. L., 40; Revised Statutes 1536-212), called the new municipal code, passed on October 22, 1902, and which took effect on May 4, 1903.

Section 51, 96 O. L., 39 (Revised Statutes 1536-211), provides:

“Whenever it is deemed necessary by any city or village to make any public improvement to be paid for in whole or in part by special assessments, council shall declare by resolution (three-fourths of the whole number elected thereto concui’ring, except as otherwise provided herein) the necessity of such improvement, and thereupon prepare or cause to be prepared plans, specifications, estimates and profiles of the proposed improvement, showing the grade of the same with reference to the property abutting thereon, which plans, specifications, estimates and profiles shall be filed in the office of the department of public service in cities and in the office of the clerk in villages, and shall be open to the inspection of all persons interested. Not earlier than two weeks after the passage of said resolution, and before any such improvement is begun, council shall by ordinance (three-fourths of the whole number elected thereto concurring) determine the general nature of the improvement, what shall be the grade of the street, alley or other public place to be improved, as well as the grade or elevation of the curbs, and approve the plans, specifications, estimates and profiles for the proposed improvement. Council shall also determine in said ordinance the method of the assessment, the mode of payment therefor and shall declare whether or not bonds shall be issued in anticipation of the collection of the same.”

- There are some other provisions whicff I will not read, the last sentence in that section being:

' ‘ Said resolution and ordinance shall be published as required in Section 124 of this act.”

Then Section 52, 96 O. L., 40 (Revised Statutes, 1536-212), provides:

‘ ‘ A notice of the passage of the ordinance required in the last preceding section shall be served by the clerk of council or an assistant upon the owner of each piece of the property to be assessed or upon the persons in whose names the same may be assessed for taxation on the tax duplicate, in the manner provided by law for the service of summons in civil actions; * * . ”

With some further provisions respecting service of corporations and non-residents.

It will be observed that in this case no such ordihanee as is provided for in Section 51, 96 O. L., 39, was passed by the council — the ordinance which the counsel for the city here before us aré'in the habit of describing as the “intermediate ordinance” — and that Section 52, 96 0. L., 40, does not provide for this personal service of notice of any other legislation than such ordinance; so that, if such ordinance were required, the proceeding is defective, and fatally defective, not only because there was no notice of the ordinance, but because there was no ordinance of which notice could be given.

It is contended on behalf of the city that this provision as to the intermediate ordinance and as to the service of notice thereof, does not apply in a ease like this where the council is proceeding to' construct a sewer which is a part of a system which' has already been planned and provided for by proper legislation in pursuance of Sections 77, 78, 79, 80, 81, 96 O. L., 47)M8 (Revised Statutes, 1536-240, el seq.), and perhaps some of the following sections of this same statute upon that subject; and so, disregarding the provisions of Sections 51 and 52, 96 O. L., 39, 40, the council proceeded under Section 84, 96 O. L., 48 (Revised Statutes, 1536-247). and adopted the ^solution.

Section 84 reads:

“When it is deemed necessary by a city or village to construct all or a part of the sewers provided for in said plan, the council shall declare by resolution the necessity of such improvement. Said resolution shall contain a declaration of the necessity of said improvement, a statement of the district or districts or parts ' thereof proposed to be constructed, the character of the materials to be used, a reference to the plans and specifications, where the same are on file, and the mode of payment therefor, and the council shall cause the resolution to be published once a week for not less than two nor more than fqur consecutive weeks in one newspaper of general circulation in the corporation.”

We are of the opinion that these special provisions with respect to the construction of sewers in pursuance of a plan and appropriate legislation already adopted control the council and are independent of the provisions of Sections 51 and 52, 96 0. L., 39, 40.

We had before us, recently, in Wood county, a question very much like this, with respect to sidewalks, coming under the same subdivision of this p^irt of the statute defining the powers of municipalities. The case was that of Westenhafer v. Hoytsville, 8 C. C. — N. S., 284. It will be observed, on looking into the statutes, that a mode of procedure with reference to the construction of sidewalks, as well as other improvements, is provided for by Sections 50, 51, 52, 96 O. L., 39, 40, and some following sections; but a more summary method of procedure is provided for by Sections 70, 71, 96 O. L., 45, and some of the following sections-; and we held that in proceeding under Section 70 et seq., the council were not required to observe the formalities provided where the system or method described in Section 50 et seq., was pursued; .we held that—

“A special ordinance for the construction of a specific sidewalk is not required, where a general ordinance for the construction of sidewalks has been therefore enacted.”

This case is analogous.' If the council were proceeding here to construct a sewer not before provided for by legislation, and not before planned, it would doubtless be necessary to pursue the course marked out in Sections -51 and 52, 96 O. L., 39, 40; but where they are proceeding in pursuance of a plan already adopted, we think that is not necessary. That had been the law of the state up to the time of the adoption of this act of October 22, 1902, and it was expressly provided, in original Revised Statutes 2304 (Revised Statutes 1536-212), that in the case of sewers the twenty days written notice to the owners of the abutting property or to the persons in whose names the abutting property was assessed, was not required; and it is not apparent to us that in respect to these matters, the Legislature designed to make any radical change in the law; the general scheme appears to be the same. There are some transpositions of the provisions, and different arrangements of sections, and the omission of some language that, doubtless, appeared to the Legislature to he verbiage, and this particular provision respecting notice found in Revised Statutes 2304 .(Revised Statutes 1536-212) was omitted from the new municipal code; but we think such omission effected no change in the law.

By an act passed on April 19, 1904 (97 O. L., 121), entitled "An act to amend Section 51” and a number of other sections of this new municipal code including Section 60 (Revised Statutes 1536-220), we observe that this provision was added-to Section 60, which appears on page 123:

"In the case of construction of sewers hereafter, excepting main or district sewers, notice of the passage of the resolution therefor, as provided in Section 84 of the act of which this is amendatory, shall be made in the manner provided in Section 52 of said act as amended herein.”

In other words, thereafter personal sexwice of notice of the resolxxtion should be given. Coxxxxsel for plaintiff, in his brief, asks :

"Is it not a fair argument that the Legislature thereby declared that original Section 52 as passed was intended to nxeaxi just what it said, and is, therefore, broad enough to include sewers and all special assessments where materials. are xxsed, and for reasons of their own no xxotice should thereafter be given in case of a main sewer ? ’ ’

But I have already pointed out that what Section 52, 96 O. L.. 40, provided for was service of notice, not of the resolxxtion, bxxt of a certain ordinance of a certain character which was riot passed in this ease, and which we hold was not required. So that this amendment of Section 60 can not be regarded as deelaratory of the meaning of Section 52, 96 O. L., 40, as it originally stood; i. e., that it should apply to the resolution provided for by Section 84, 96 O. L., 48; but this amendment provides for a new thing — it makes a new requirement — and that is, that personal service of the notice of the resolution provided for in Section 84 shall be made. And even now the provision is made to extend only to local sewers. Main sewers are expressly excepted from the operation of the provision; and this sewer, according to the averments of the petition, as well as by the agreed statement of facts, was a main sewer, notwithstanding the fact that it did not provide for the conveying away of any storm water or water from the streets; it was distinctively and exclusively a sanitary sewer, and yet to all intents and purposes a main sewer.

Our attention is called to the case of Chicago & E. Ry. Co. v. Keith, 67 O. S., 279, wherein it is held that the law providing for assessments will be invalid, unless it provides for notice to the property owner whose property is to be assessed, somewhere along the line of the proceedings, so that he may have an opportunity to come in and make objections. But it does not require that the notice shall be personal. This legislation of the council, and the law under which it was passed, provide for notice at several stages of the proceeding. -The legislation was published; there was opportunity for hearing upon the original legislation with respect to the formation of the district and the plan of the sewers and sewage disposal therefor, and notice was given of the assessment which had been made and which was on file.

Secondly, objection is made because the council provide for the assessing of only a part of these unplatted lands; to-wit, the part abutting upon the streets where the sewer was laid, to a depth equal to the average depth of the platted lots in that vicinity. It is said that there was no authority for thus limiting the assessment to a part of these unplatted lands.

The statute formerly provided, in original Revised Statutes 2379 (see Revised Statutes 1536-248), that:

“The council shall provide for assessing the cost and expenses of constructing main sewers, upon the lots and lands bounding or abutting upon the streets, lanes, alleys, highways, market spaces, public landings, and commons, in or along which the same shall pass, by the feet front, or according to the valuation of the same on the tax list, or according to benefits, as it shall determine. ’ ’

And it is said that in the new municipal code no provision can be found corresponding with that, authorizing the laying of assessments upon the abutting property according to benefits, this original Revised Statutes 2379 (see Revised Statutes 1536-248), being repealed by the act which I call the new municipal code.

The authority for levying the assessments is found in Section 50, 96 O. L., 39 (Revised Statutes 1536-210), which then read:

“The council of any municipal corporation may assess upon the abutting, adjacent and contiguous or other specially benefited lots or lands in the corporation, any part of the entire cost of, and expense connected with, the improvement of any street, alley or public road or place by paving, repaving, repairing, constructing sidewalks, sewers, drains or water-courses, and any part of the cost of lighting, sprinkling, sweeping, cleaning, or planting shade trees upon the same, by either of the following methods:
“First. By a percentage of the tax value of the property assessed.
“Second. In proportion to the benefits which may result from the improvement, or
“Third. By the foot frontage of the property bounding and abutting upon the improvement.”

And then the limitations as to the assessments, substantially as they existed theretofore, are to be found in Section 53, 96 O. L., 40. There is in Section 50 authority for assessing according to benefits upon abutting property. But let me go further in stating the plaintiff’s position. Ilis contention is, that the whole of this unplatted land should be considered as abutting property, and that there is no authority for limiting the lien of the assessment to this strip of land abutting upon the street where the sewer was laid. It was formerly provided, in the original Revised Statutes 2269 (Revised Statutes 1536-213), as follows:

“In making special assessments according to valuation, the council shall be governed by the assessed value of the lots, if the land is subdivided and the lots are numbered and recorded; but if the lots are not assessed for taxation, or if there is land not subdivided into lots, the council shall fix the value of the lots or the value of the front of such land to the usual depth of lots, by the average of two blocks, one of which shall be next adjoining on either side.”

But the last provision of that section, is: “And this section shall be applicable to special assessments provided for in this chapter, excepting assessments according to benefits.”

So that it is not apparent that there was ever a provision for thus limiting the scope of the lien of special assessments, where they were laid according to benefits, and there seems-to be no particular reason why there should be such limitation in those cases. We are of the opinion that where it would be proper-where it would be just to the owner of the unplatted land to thus limit the scope of the lien — it is within the power of the council to do it, without any special provision upon the subject; and it seems to us that in a case like this, the lands extending a great distance from the street where the sewer was laid, when the council came to provide for the levying of an assessment upon the abutting property according to benefits, it would have been very wrong and very unjust to the owner of the property to have considered its full depth and allowed the assessment to be spread over the whole extent of the territory. One might own farm lands extending back from the sewer so that the rear part, or all except the very front part of the lands, would be without the local benefits contemplated or on account of which a special assessment might be levied. It is apparent that in a sanitary sewer of this description the only property that would be specially benefited would be the property lying immediately adjacent to the street where the sewer was laid; and it would seem to be not only proper, but just, but a thing that should be required of the council, that in considering the levy for this improvement it should take into consideration the depth of ordinary building lots upon which houses might be built which could have-access to this sanitary sewer for the purposes of such sewer. If the assessment had been levied without this restxúetive lixxiitation, we think the plaintiff’s lands might have been bound by it; but, in the absexice of a showing that they are prejudiced in any way by the course pursued by the council, we are of the opinion that they have no footing in a court of equity; and no express statutory provision upon the subject seems to have been violated or disregarded.

Complaint is made that the cost of intersections was levied upon the abutting property and was not paid by the city. It is conceded, as we understand it, by the city, that this was a mistake ; that the amount of .such costs was $1,314.60, and that a ratable proportion thereof should be deducted from the assessments charged against the plaintiffs.

It is said that the assessment ordinance was not published as required by Revised Statutes 1695 (see 1536-621); that is to say, that it was not all of it published. The assessment ordinance refers to the report of the assessors in these words:

"And the council further find and hereby further declare that the lots and lands assessed to pay the cost of said improvement are benefited thereby in proportion to the amounts assessed against the same respectively, by said committee, and that said assessment so reported by said committee upon each lot or parcel of land does not exceed its proportion of such special benefits and there is hereby assessed and levied upon the several lots and lands described in said report the amount therein set forth, for each of the several years therein named, as shown by the schedule of assessments hereto attached, signed by said committee, and dated December 27, 1904.”

It is urged that thereby the report was made a part of the ordinance and should have been published with it. It appears that that was not done. But we are of the opinion that it was not necessary to publish this ordinance at all; so that we need not pass irpon the question whether the schedule was made a part of the ordinance so that in case the publication of any part of it was required, the schedule should be published with it.

Revised Statute 3695 (see 1536-621) requires that—

"Ordinances of a general nature or providing for improvements shall be published in some newspaper of general circulation in the corporation.”

This ordinance was not an ordinance providing for an improvement; the improvement had been provided for; and it was not an ordinance of a general nature, but was of a special nature.

Holbrook & Monsarral, for plaintiffs.

G. 8. Norlhup, for defendants.

It is said that there was no certificate from the auditor of funds on hand to pay for this sewer, as required by Section 45, 96 O. L., 37 (R. S. 1536-205), as now found in the statutes. The ordinance provided for the issuing of bonds for the payment of the whole cost, and, under the authority of Emmert v. Elyria, 74 Ohio St., 185, we hold that no certificate from the auditor was required.

We are not required to meet or decide the question which is suggested, to-wit, as to whether this point touching the validity of the contract could be raised in this way after the work is all done and paid for.

It is said that there was some change in the plans — that is, in the length and dimensions of the sewer — a change from the plans originally adopted. It is not pointed out to us that this change was in any way material; that it rendered the sewer less serviceable or valuable, or more expensive, or that the change worked to the prejudice of the plaintiffs in any respect whatever; and we are of the opinion that the slight changes indicated could not invalidate the legislation nor assessments. It follows that our decree will be the same as the decree entered in the court of common pleas in this case. The parties are relieved from the expense of $10, the cost of improperly advertising the assessment ordinance. The costs of the appeal will be adjudged against the plaintiffs.


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    PROVING NEGLIGENCE BY CIRCUMSTANTIAL TESTIMONY.
    Circuit Court of Fulton County.
    Geneveve Smith’s Administrator v. Frank J. Curtis.
    Decided, May 29, 1907.

      Evidence — As to What Caused an Explosion — Proof by Circumstantial Evidence — Not Applicable, When — Speculation and Conjecture— Contradictions — Negligence in the Sale of Gasoline — Application of the Scintilla Buie.

    1. Tbe rule which, permits the proving of a case by circumstantial evidence requires that the evidence shall be such that the court or jury can reason from established facts to well defined conclusions, and is not applicable if the conclusions are based in any degree on conjecture or speculation.
    2. ' While there is force in the contention that contradictions in testimony should go to the jury for determination, a trial judge is not warranted in sending to the jury a case involving damages for injuries, where the inherent weakness of the evidence renders it impossible for the court to say, as a deduction from the facts, that the accident happened in the manner claimed by the plaintiff.
    Haynes, J.; Parker, J., and Wildman, J., concur.
   This case comes into this court upon a petition in error to reverse the action of the court of common pleas in directing a verdict for the defendant at the conclusion of- the plaintiif’s testimony.

The case has been earnestly argued by counsel for plaintiff in error, and we have endeavored to give it careful consideration and have discussed it at some length. I shall not, however, go into an extended discussion of the testimony, but content myself with speaking of the leading points in the case.

It may be premised at the outset that it involves a close question under the system of practice in this state. It seems that on a certain day last November Mrs. Smith was injured by the explosion of a can of oil or a mixture of oil and gasoline. She lingered for a period of nine days before she died. Tier evidence, of course, is not taken, and under the rules of law statements made by her could not be given in evidence in this case, so that what she had to say in regard to the occurrence is a closed book. The case before the court rests largely upon the testimony of the defendant, Curtis, and the husband of Mrs. Smith and her daughter, her daughter being about thirteen years of age.

The injuries or burns received by Mrs. Smith were severe and were confined largely to points above the waist and to the face. The contention of the plaintiff is that this daughter of Mrs. Smith went to the store of the defendant and asked for coal oil, and it is claimed that the defendant gave her oil that was mixed with gasoline. It is stated in the testimony of Mr. Curtis that he had received a barrel of gasoline the day before and that his clerk, in pumping it into another receptacle, had put it in with certain coal oil by mistake, and that he had ascertained that fact a short time before this young girl came in to inquire for the coal oil, and he claims, in his testimony, that he directed his clerk to draw the oil from a coal oil receptacle that contained oil that was sold at a price of sixteen cents^a gallon and sell it to her at eleven cents, being the price of the oil that she usually purchased and the price of the oil that had been mixed with the gasoline. And he claims that after giving the order he followed the clerk to the room where the oil was kept and saw him drawing it out of the receptacle, and that he knows he drew it from the receptacle which contained the sixteen cent oil.

The girl testifies that after she had inquired for the oil that some conversation occurred between Mr. Curtis and his clerk in regard to the matter of oil, but what -it was she could not state or repeat even the substance of it, but she claims that Mr. Curtis remained in the part of the store which is denominated the dry goods store or dry goods part of the store, and that he was not where he could see the clerk when he drew the oil and that he did not go, as T understand her testimony, near that part of the room.

The oil was taken home and the girl filled the lamps from it that evening, and a portion of it remained in the can, which is a half-gallon can, I believe, and it was set down a distance of about eight or nine feet from the stove, and remained there until the next afternoon ; the time differs,, but’it would seem until about five o’clock in tbe afternoon. This was in the month of November. The girl was working at the hotel and. was not at home much of the time. At the time Mrs. Smith was burned nobody seems to have heard any explosion. The alarm was given and certain men who were working in the vicinity ran to the building, and one of them testifies. Her husband was telephoned to and came home in a few minutes and found his wife at a neighbor’s. Everything at that time was, of course, in confusion. The fire had been put out and the stove, it was said, was deluged with water which had been poured in.

It was claimed on behalf of the plaintiff that there was an odor of gasoline detected about the fluid that had been used in the coal oil lamps. It was claimed that there was a burn in the corner of the room where the can had been placed and that the ceiling there was burned. At the time when the can was picked up, it was in front of the stove some five or six feet. The bottom was gone, but it was otherwise in its natural condition. The can is in evidence. It is a small can. The bottom is off, as stated. The top that screws on is on the can, and it seems that there is in the nozzle through which the fluid is poured out a little ball, inside, that, whenever the oil is poured out, falls down into the orifice and is supposed to retain any odor or gases escaping from the oil into the room.

These are the leading outlines of the case. After this testimony had been, given, the court stated its reasons for giving the decision it did, but the fact was it directed a verdict by the jury for the defendant, and the sole question for us is whether or not he erred in doing so, or whether there was sufficient evidence to constitute what is sometimes called a scintilla of evidence to go to the jury, upon which, the jury could have been called upon to pass.

It is urged here by counsel for plaintiff in error that a case may be proved by circumstantial evidence. We do not doubt that. But there are rules in regard to that binding upon the court and upon which courts act. The evidence must be such that the court can act from established facts to well defined conclusions. They are not allowed to conjecture nor to speculate. They are not permitted to theorize, about the. matter, excepting when they have definite facts that are well established; they may reach from those to conclusions in regard to the cause of the accident. It is required by the Supreme Court of Ohio that they should be definite and well fixed, and they have held in a case that has been cited to us (Andrews v. L. S. & M. S. Ry. Co. (58 Ohio St., 426; same case, 64 Ohio St., 614), in what appeared to be a pretty conclusive case of circumstantial evidence, that the facts did not prove or authorize the jury to draw the conclusions that they did draw from them.

Golclbram Schreiber, for plaintiffs in error.

Files & Paxon, for defendant in error.

Now there is, of course, this contradiction between the defendant in erorr and this young woman here testifying. It is claimed that that is a matter which should go to the jury, and there is some force in the suggestion. But that is not the whole case. The weakness of the case is that there was not sufficient evidence to enable the court to say, as a deduction from the facts, that the accident happened by the explosion of the gasoline in this can by being ignited from the fire in the stove. The evidence given in relation to the position of the can, the location of the burns on the body of Mrs. Smith, and all these matters, were all before the jury and are all before the court; and from them all the court must be able to point out a definite conclusion, sustained by the facts and by a logical sequence. And after we get through reading this record and sit down to talk about it we are still in the land of conjecture; the cause of the accident may have been one of a number of things. Before a man can recover of another for alleged negligence, he must show that the negligence of the party caused the injury, and we think that the court was right in its conclusions that the evidence submitted to him lacked this quality, that it lacked certainty or reasonable probability that the accident occurred in the manner in which it is claimed by the plaintiff, and that therefore the plaintiff’s claims should fail It was a sad accident, but in finding- who shall be liable civilly for the results of that accident, we must pay attention to the rules of evidence and the law of the case.

~We therefore affirm the judgment of the court of common pleas.


author: Burrows, J.

text:
    INTEREST ON INSTALLMENTS OF INTEREST OVERDUE.
    Circuit Court of Columbiana County.
    Solomon J. Firestone v. John A. Dellenbaugh et al.
    Decided, April Term, 1907.

      Promissory Notes — Interest and Usury — Construction of Section 3179; Finding a Maximum Bate of Interest which may he Stipulated in Instruments.

    A promissory note which, provides that it shall be payable one year after date with eight per cent, interest to be paid annually, interest and principal after maturity to bear eight per cent, annual interest to be paid semi-annually, is not usurious.
    Cook, J.; Burrows, J., concurs in a separate opinion; Laubie, J., dissents.
    Error to Columbiana Common Pleas Court.
    The action below was for the foreclosure of a chattel mortgage given by John A. Dellenbaugh and Sarah A. Dellenbaugh, his wife, to Firestone Brothers, of tvhom Solomon J. Firestone is the successor, to secure the payment of several promissory notes — all of the same character — of which the following is a copy of one of the notes:
    “New Lisbon, Ohio, February 1st, 1888.
    1 ‘ On or before one year after date we or either of us promise to pay Firestone Brothers or order at the banking house of Firestone Brothers, New Lisbon, Ohio, the sum of five hundred dollars with eight per cent, interest to be paid annually. Interest and principal after maturity to bear eight per cent, annual interest to be paid semi-annually.’.’
    Between 1888 and the time of bringing the suit some principal and a large amount of interest had been paid upon the notes. The manner of computing the interest after maturity by consent of both parties was to compute interest upon the principal at eight per cent., payable semi-annually, and the interest upon the interest overdue upon the notes unpaid at eight per cent., payable semi-annually, and upon the interest upon interest which was unpaid at six por cent,., simple interest, up to the time of computation and settlement.

      The question made by the defendants before the referee in ascertaining the amount due upon the notes, was that the notes were usurious and that simple interest at six per cent, was all that could be collected upon the notes. The referee held against the contention of the defendants; that the notes were not usurious; that the manner that the parties had computed the interest made in their various settlements was correct and found for the plaintiff in the sum of about $12,000.
    Upon his report being made exceptions were taken and the court confirmed the report in every respect, except upon the finding that the notes were not usurious, and held that they were usurious; and rendered a judgment and decree for about $6,000 instead of $12,000. The question made upon error is who was right, the referee or the court.
    Section 3179 of the Revised Statutes, which was in force when the contract was made, provides:
    “The parties to a bond, bill, promissory note or other instrument of writing for the forbearance or payment of money at any future time, may stipulate therein for the payment of interest upon the amount thereof at any rate not exceeding eight per cent, per annum, payable annually.”
    While it would seem from the text of .the statute that the intent of the Legislature was that money should in no case earn more than eight per cent, per year, yet it is now well settled thaf such is not the fact, and that although- the statute provides that interest may be reserved at eight per cent, “per annum, payable annually,” the words “payable annually” have no effect in qualifying the language of the statute whatever, and that it should be read the same as if the words were eliminated (Cook v. Courtwright, 40 O. S., 248).
    In that case it was held that under the act of May, 1869 (66 Ohio Laws), 91, which is the same as Section 3179, Revised Statutes:
    “A promissory note stipulating for the payment of the principal at a future time with interest therein at eight per cent, per annum payable semi-annually until paid is not usurious. ’

      In the opinion, on page 251, it is said:
    “Under a contract to pay eight per centum per annum, payable semi-annually, upon a given principal, the interest to be paid, upon that principal, is precisely the same as under a contract to pay ‘eight per centum per annum payable annually,’ upon the same principal. If the installment of interest falling due at the end of six months should not be paid, and the law would permit interest to run upon it at six per cent, until paid, no part of that six per cent, interest would be interest upon the principal named in the note. And such interest upon interest, if collectible, would not form any part of the interest ‘stipulated for.’ If collectible at all it would be because of the’ other sections of the same, statute.
    .“The third section applies to ‘all cases other than those provided for in the first and second sections of this act.’ The first section we have quoted in full. The second applies to judgments, decrees, and orders rendered upon any contract made under the first section. As the first section relates only to contracts for interest upon the principal, a suit for interest upon overdue interest may be considered a case ‘other than’ those provided for by said section, and is therefore collectible under said third section. And, if separately sued for, the judgment obtained would draw interest under the fourth section. ’ ’
    In the case of Taylor et al v. Hiestand & Co., 46 O. S., 345, it is held:
    “A promissory note bearing interest at the rate of eight per cent. i)er annum, payable semi-annually, is not usurious, although it stipulatd that the semi-annual installments of interest shall bear interest at the same rate if not paid when due.”
    And in the opinion, in referring to Cook v. Courtwright, supra, it is said:
    “This statute was under consideration in Cook v. Courtwright, 40 Ohio St., 248, and the court there held, first, that a promissory note is not usurious though it contain a stipulation for the semiannual payment of interest at the rate of eight per cent, per annum; and second, that the semi-annual installments of interest -«'ill bear interest at the rate of six per cent, per annum from the day they fall due, but form no part of the interest stipulated for ‘upon the amount of the note.’ This decision has become a rule of property, and we see no sufficient reason to disturb it now; and it furnishes a rule by which the rights of parties to this action can be ascertained. It establishes the doctrine that the payee of a promissory note may receive at the end of the year, as interest, a sum of money equal to eight per centum on the face of the note, with six per centum for six months on the first installment of interest added thereto.
    “Therefore, the fact that it is apparent on the face of a promissory note that it'will earn in any one year, as interest, a sum of money greater than eight per cent, on the principal sum, will not necessarily render it usurious.- The court says in that connection (40 Ohio St., 251), ‘no part of that six per cent, interest would be interest upon,the principal named in the note.’ This is equally true of the note here, and the only difference in this respect is, that in that case the unpaid installment bears interest at six per cent, and in this case at eight per cent. In either case the promissory note on its face earns more than eight per cent, per annum on the principal.
    “It is said, however, that in the case here, there is an expressed stipulation for interest on the several installments of interest as they respectively fell due, whilst in the case of Cook v. Courtwright, supra, there was none, but that the installment bore interest by operation of law; and this distinction seems to have been in the mind of the judge who wrote the opinion in that case; but it does not appear to be the principle on which the ease turned. The judge there must have referred there to an express stipulation, for surely the interest on the installment in that case was the result of the stipulation for semi-annual payments of interest. If there had been no such stipulation, there could have been no interest on interest, and it can not be important whether the interest on the installments resulted from an express stipulation for its payment, or necessarily, by operation of law, from another stipulation; in either case the result was apparent on the face of the paper. ’ ’
    It is said that the note in this case differs in an essential particular from the notes that were before the Supreme Court in .■the cases referred to, in that it provides “interest and principal after maturity to bear eight per cent, annual interest, to be paid semi-annually”; that this provision makes it a compound interest-bearing note. We do not think so. There is no distinct provision in the note for rests at stated periods at which time the interest should be added to the principal and to bear interest in the same manner as the principal sum; and if a compound interest-bearing note at eight per cent, in this state is usurious, about which there might be some doubt, this is not such a note and we can see no substantial difference between this note and ones referred to, especially the note in the case of Taylor et al v. Hiestand & Co.

    In the case of Cook v. Courtwright it was said that if interest could be collectible at all on the semi-annual payments of interest, that only six per cent, could be collected and that by operation of law, under the third section of the statute which is now Section 3181 of the Revised Statutes, but that was doubted in the case of Taylor et al v. Hiestand & Co., and it was held that a note of eight per cent, per annum payable semi-annually is not usurious, although it stipulates that the semi-annual installments shall bear interest at eight per cent, if not paid when due.
    What material difference is there under these decisions between interest bearing interest at eight per cent, payable annually and payable semi-annually? In either case the interest upon the interest could only bear simple interest at six per cent., which was charged and paid in this ease. Anketel and wife v. Converse et al, 17 O. S., 11.
    Indeed, what difference is there between the note specifying that the note shall bear interest at eight per cent, payable semiannually and that the interest shall bear interest at eight per cent, payable semi-annually ? In either case more than eight per cent, per annum payable annually is charged for the use of the money.
    In the 16‘tli American & English Encyclopedia, 1085, in summing up the authorities upon this question, it is said;
    “But it is believed to be a safe statement, as a loose general rule, that interest on interest at a rate not greater than the statute permits should never be held usurious where payment of the interest installments was actually contemplated on the date fixed, although the aggregate of interest on interest would, if contracted for on the original principal, exceed the rate allowed by law. ’ ’
    We are of opinion that the referee was right and that the court erred in sustaining the exception to his report. Judgment of court of -common pleas will be reverse^ an$, this qoprt rendering the judgment the common pleas should have rendered, the report of the referee is confirmed.
   Burrows, J.

I desire briefly to give the reasons that have induced me to decide in favor of a reversal of the judgment of the court below. I have been brought to the conclusion that the notes in suit are not usurious against my preconceived notions and prejudices. I had the impression that a contract wherein interest in excess of eight per cent, per annum is stipulated for was usurious; especially where such excess was the result of allowing interest upon interest to bear interest. These notes according to their express terms contain the stipulation that after maturity interest upon principal and interest shall bear interest at eight per cent., to be paid semi-annually.

If these notes do not provide for the compounding of interest semi-annually after maturity it is difficult to conceive what language could be used to accomplish that purpose.

Counsel for 'plaintiff in error contend that they do not so provide; and contend further, that a contract to pay more than eight per cent, per annum for a loan of money,'and for the payment semi-annually at the same rate of interest upon accrue*! interest overdue, is not usurious in this state; and in support of their contention they cite Cook v. Courtwright, 40 O. S., 248, and Taylor et al v. Hiestand & Co., 46 O. S., 345.

Section 3379, Revised Statutes, provides:

“The parties to a bond, bill, promissory note or other instmment in writing for the forbearance of payment of money at any future time, may stipulate therein for the payment of 0interest upon the amount thereof at any rate not exceeding "eight per centum per annum payable annually.”

In Cook v. Courtwright, it is held by the Supreme Court Commission that it is not usurious to stipulate in a promissory note, due one year after date, for the payment of interest semiannually, whereby the .holder of the note would be entitled at it? maturity to. eight .per cent, interest on the sum loaned for twelve months and also six per cent, interest for six months on the semi-annual installment of interest.

It is plain that the holder of an eight per cent, promissory-note given “for the forbearance or payment of money at any future time” will receive more than eight per cent, per annum for the use of his money if any part of said interest is paid or to be paid prior to the expiration of said ‘ ‘ future time, ’ ’ except, of course, where the interest is payable annually.

It is idle to attempt to criticize the validity of the reasoning upon which Cook v. Courtwright is grounded, as that decision seven years later was approved by the Supreme Court on the ground that ‘ ‘ it had become a rule of property. ’ ’

In the case of Taylor et al v. Hiestand & Co., the question of the validity of a stipulation ta pay interest at eight per cent., semi-annually, on a note payable three years after date, with interest at the same rate on installments of interest overdue, was fully considered, and a precise and comprehensive rule established for such cases.

It is there held that whatever stipulations may legally be put into a new contract between the parties, made after any installment of interest has been paid in respect thereof, may be made in advance and in the original promissory note.

This rule and the reason for it are given at page 348:

“Take another view of the subject. If the first installment had been paid it is clear that a new loan could have been made between the parties of the money at the rate of eight per cent, per annum. If it was not paid, a right of action to recover would at once accrue to the payee; and we think it clear the parties would be clothed with full power, under the 'statute, to stipulate for its payment at a future day with interest at eight per cent, per annum. If this can be done after default in the payment of an installment, no reason is apparent why the parties in the first instance might not anticipate and provide in advance for the contingency of a default. This we think may be done, and is what the parties to the note in fact did in the case before us.”

Under this rule no good reason can be given why parties may not stipulate in a promissory note payable at a future time that interest upon interest may be made to bear interest indefinitely with such periodic rests as may be agreed upon, for surely they could so stipulate in a new contract as to sirch interest in case the same had been paid. If we understand this rule correctly, the ease we have in hand is easy of solution.

Potts & Wells, for plaintiff in error.

- J. R. Carey and Y. T. Farrell, for defendants in error.

The claim that more than eight per cent, interest per annum was agreed to be paid, and that interest upon interest is to bear interest to be computed with semi-annual rests, become immaterial incidents, so long as only an eight per cent, interest rate is applied and reapplied to the interest upon interest as it periodical^ falls due.

It is of no importance that we think this rule of decision indefensible, and that it virtually ignores the evident intent of Section ,3179, which in terms permits an eight per cent, rate of interest per annum to be received and no more on the sum loaned from the date of the loan till the time the loan is paid. Nor is it important that we think that a provision for compounding the interest on a loan was not contemplated by the Legislature in passing this or any other statute relating to interest; but we must adopt and apply the interpretation placed upon the statute by the Supreme Court; ,and this interpretation, as we understand it, leads the majority of the court to hold that the notes in suit are not usurious.

J. H. McMahin and E. H. Williams, for plaintiff in error.

Brink c& Deasy, for defendant in error.