text:
    QUALIFICATION OF A MAYOR ELECT.
    Court of Appeals for Tuscarawas County.
    The State of Ohio, ex rel J. J. Sturm, v. Levi Bimeler.
    Decided July 6, 1921.

      Office and Officer — Effect of Failure of an Officer Elect to Qualify in the Manner Prescribed by Law — Amounts to Refusal to Accept the Office — Mandamus Rot Available.

    One elected to the office of mayor who fails to take the oath of office before some official authorized to administer oaths and fails to present his bond to council for approval as required by statute, but instead thereof appears before the incumbent mayor who refuses to administer the oath or receive the bond, must be regarded as having refused to accept the office, and a petition in mandamus praying that the incumbent mayor whose term of office has in the meantime expired be ousted, does not lie and will be dismissed.

      J. G. Mitchell for relator.

      E. G. Seikel for defendant.
   Houck, J.

This is a proceeding in quo ivarranto, and is brought under-favor of Section 12307, General Code, which provides:

“A person claiming- to be entitled to a public office unlawfully held and exercised by another, by himself or an attorney at law, upon giving security for costs, may bring an action therefor.”

■ This being a proceeding against a person, and a civil action may be brought in the name of the state, as provided in Section 12303, General Code, which reads:

“Against a person who usurps, intrudes into, or unlawful d holds or exercises a public office, civil or military, or a franchise, within this state, or an office in a corporation created by the authority of this state.”

The relator avers in his amended petition that on the 4th day of’November, 1919, at a general election held in said county of Tuscarawas, and "in the state of Ohio, and in the village of Zoar, in said county and state aforesaid, lie and the defendant were the only candidates for mayor of said village; that he received the highest number of votes for said office, and was duly elected thereto for a term of two years from the first day of January, 1920; that on December 30th, 1919, he duly qualified by giving bond and taking the oath as such officer, in the usual form for such oaths, and presented his said official bond and oath to said Levi Bimeler, defendant herein, the mayor of said village of Zoar, Ohio, but that defendant refused to examine said bond for approval or rejection, and refused to administer the oath of office to said relator, which said relator had already subscribed and tendered to defendant with said bond. That defendant has usurped and unlawfully holds and exercises said office of mayor, to the exclusion of relator and his rights in and to said office, under a claim that he is entitled to hold over his said term in said office for the reason that relator failed to file a statement of receipts and expenditures, as required in an act “To Prevent Corrupt Practices at Elections,” as contained in Section 5375-2. General Code of Ohio.

Relator prays for a judgment of ouster against the defendant, and that he may be adjudged to be the mayor of said village of Zoar. Ohio.

The answer discloses two defenses, to-wit:

(a) That relator failed to qualify as such mayor of Zoar, Ohio, by taking the oath of office and giving bond, as required by law.

(b) That said relator did not comply with .the “Corrupt Practices Act,” as provided in Section 5175-2 General Code, by his failure to file a statement of his receipts and expenditures.

The reply denies each and every allegation contained in the answer, except such parts of same as are admissions óf fact set forth in said amended petition.

Upon these pleadings and the evidence the cause was submitted to this court. Tbe undisputed evidence establishes the following facts:

1. That on or about the 30th day of December, 1919, the relator presented to the defendant his bond, .in the sum of one hundred dollars, being the required amount, and signed by himself and the proper number of sureties, with the oath duly signed by him on the back thereof, and requested the defendant to accept and approve said bond, and administer the oath of office to him as mayor of the village of Zoar, Ohio, which defendant refused to do. That relator made no further effort to have the oath of office administered to him, and did not at any time present his bond to the village council of Zoar, Ohio, for approval or disapproval. , -

2. That on the 12th day of January, 1920, he filed a statement of his receipts and expenditures with the Board of Deputy State Supervisors of Elections, of Tuscarawas county, Ohio.

Under the facts, and the law applicable thereto, how stand the issues in the instant case, as between the- relator and the defendant ?

We have given this ease much time and attention, and in doing so have examined all the Ohio statutory law relating to the questions raised in this proceeding; also all the adjudicated cases cited by counsel in their briefs, as well as many others obtained by our personal research.

The legal rights of the parties to this controversy are purely statutory, and must be determined by a proper application of these legislative enactments to what we find are the conceded facts now before us.

Section 4666, General Code, provides:

“Each officer of the corporation, or any department or board thereof, whether elected or appointed * * * before entering upon his official duties shall take an oath to support the Constitution of the United States,” etc.

Under the facts it'will be conceded that relator never took the oath of office as mayor of Zoar. Tt is not sufficient, in law, that a request was made of Mayor Bimeler to administer the oath. Any person authorized by law to administer an oath could have done so in the present case. It was not limited to the mayor of Zoar. And by the failure of the relator to take the oath of office, as required by statute, he is bound to suffer the consequences of his neglect to do so.

Section 4667, General Code, provides for the approval of official bonds, as follows :

■‘The official bonds of all municipal officers shall be prepared by the solicitor. Except as otherwise provided in this title, they shall be in such sum as the council prescribes, by general or special ordinance, and be subject to the approval of the mayor, except that the mayor’s bond shall be approved by council, or, if it is not legally organized, by the clerk of the court of common pleas of the county in which the corporation, or the larger part thereof, is situated.”

Under the conceded facts no bond was ever presented by the relator, for approval or disapproval, to the village council of Zoar, Ohio.

It follows that there was a clear failure, on the part of said relator, to comply with the requirement of said statute as to the approval of his bond, as mayor, by the council of said village. It was the duty of the relator herein to present his bond to said village council for its approval, and not having done so, he failed to bring himself within the provisions of said statute.

One elected to an office; who does not take the oath thereof and give bond, as required of such officer, as provided by law, loses his right to such office.

This is not a court made rule, but is the law, by statutory provision, as found in Section 7, General Code of Ohio, which provides :

‘‘A person elected or appointed to an office, who is required by law to give bond or security previous to the performance of the duty imposed on him by his office, who refuses or neglects to give such bond or furnish such security, within the time and in the manner prescribed by law, ¿nd in all respects to qualify himself for the performance of such duties, shall be deemed to have refused to accept the office to which he wras elected or appointed, and such office’ shall be considered vacant, and be filled as provided by law.”

When this enactment of our Legislature is applied to the undisputed- facts in the case at bar, we are bound to find against the claims of and relief sought by the relator. A successor to the defendant was elected in the person of the relator, but he never qualified by taking the oath of office and giving bond, as required by law; and not having done so, defendant, by virtue of statutory law, continues in office until such time as his successor shall be duly qualified to succeed him, as provided in Section 8, General Code, as follows:

“A person holding an office or public trust shall continue therein until his successor is elected or appointed and qualified unless otherwise provided in the constitution or laws.”

This proceeding in quo warranto is for the purpose of determining the question of the mayorship of the village of Zoar, and to determine whether or not the relator or the defendant is entitled to hold said office and exercise its functions.

The prayer of the petition is that defendant be ousted, and that the relator be adjudged to be mayor of said village of Zoar, and that an order be entered by this court placing him in possession of said office.

This relief can not be granted unless the proof warrants it, and the burden being upon the relator, we are free to say that he has not sustained his claim by that degree of proof required in law. The undisputed facts lead to but one conclusion, and that is that a judgment must be entered for the defendant.

Measuring the facts in the present ease by the rule of law laid down in the case of State ex rel Heer v. Butterfield et al, 92 O. S., page 428, first syllabus, is decisive of it in favor of the defendant, said syllabus being:

“In order that a private relator may be entitled to maintain an action in quo warranto under Section 12307, General Code, to recover a public office, he must show not only that he is entitled- to the office, but also that it is unlawfully held and exercised by the defendant in the action.”

Having disposed of the issues herein raised adverse - to-the claims of the relator, upon the first question raised by the defendant, and feeling that it is decisive of the case, we do not deem it necessary to pass upon the second defense, to-wit, that no statement of receipts and expenditures had been filed by relator.

The judgment to be entered in this case is the result of the unanimous finding of the members of the court.

Judgment for the defendant. The petition of the relator- is dismissed at his costs.

Shields, J., and Patterson, J., concur.


source: Caselaw Access Project

author: Gorman, J.

license: Public Domain

text:
    WHAT HOLDS A PURCHASER AS TRUSTEE UNDER THE BULK SALES LAW.
    Court of Appeals for Butler County.
    The Slifer Packing Co. v. Elcook et al.

    Decided November 3, 1917.

      Bulk Bales — Suit Necessary to Make a Purchaser Trustee for Creditors —Notice by a Creditor Insufficient, When.

    A written notice given by a creditor within ninety days after sale to a purchaser of goods and chattels who has failel tc comply with Sections 11102, 11103 and 11103-1, General Code, known as the bulk sales law, is insufficient alone to hold such purchaser as trustee for creditors, since the words “application of any of the creditors” as used in Section 11103-1, mean an application to a court having-power and jurisdiction to declare a trust.
    The plaintiff brought an action in the common pleas court of Butler county, Ohio, against the defendants, to declare a trust in certain personal property, consisting of a stock of groceries, alleged to have been purchased by the defendant, Blanche Faucett, from the defendants, Lotta Elcook and Edwin Elcook. The case is here on appeal from the judgment rendered by the common pleas court.

      It appears from the pleadings and the evidence that on or about the 8th of June, 1914, the defendants, Elcooks, were engaged in the retail grocery business at 855 North Third street, in the city of Hamilton, Butler county, Ohio, and were the owners of a stock of groceries, merchandise and fixtures used in the conduct of said business and located on said premises; that on said date the Elcooks were indebted to the plaintiff, The Slifer Backing Company, in the sum of $64.25 for goods and merchandise sold to them. This debt was due and unpaid. On said date, June 8, 1914, the defendants, Elcooks, sold to Blanche Faucett said stock of goods, merchandise and fixtures pertaining to said business, in bulk, and as an entirety, for the sum of $592.75.
    The provision sof Sections 11102 and 11103, General Code, as amended 103 Ohio Laws, 462, were not complied with, in that the sellers did not furnish to the purchaser, Faucett, a list of all creditors and amounts due creditors and places of residence, nor was any request made by the purchaser for this list. The purchaser, Blanche Faucett, sent no notice to the defendant, either at the time of the purchase or thereafter, that she had purchased the stock of goods in bulk.
    Demand was made of Blanche Faucett by plaintiff to pay the amount of its claim, which she refused to do. Thereupon the plaintiff, and also another creditor, notified Blanche Faucett, the purchaser, in writing, that they would hold her as trustee of the fund and of said property.
    It further appears that the day before the written notice was sent to Blanche Faucett the stock of goods was totally destroyed by fire.
    The defendant, Blanche Faucett, failed and refused to pay the plaintiff’s claim, and thereupon action was brought in the common pleas court praying that said sum of $592.75, the purchase price of said property, be brought into court and an accounting be had and the money distributed to creditors of defendants, Elcooks; and that the defendant, Blanche Faucett, be declared to bt a trustee of the property for the benefit of said creditors.

      It further appears from the evidence that Blanche Faueett paid to the vendors, the Elcooks, the sum of $325, andi that there remained due on account of said sale $267.75, the balance of the purchase price. The written notice to Blanche Faueett tr« become a trustee of said fund and said property was given by the plaintiff and another creditor within ninety days, as provided by statute. The action in the common pleas court to have the trust declared and to subject the property to the payment of creditors of the defendants, Elcooks, was not brought until a year after the sale.

      W. 8. Bovjers and H. 8. Wonnell, for defendants.
    W. (J. Shephard, for plaintiff.

       Error not prosecuted.

   Gorman, J.

The sole question to be determined in this case is whether or not under the bulk sales law, Sections 11102, 11103 and 11103-1, Genera] Code (103 O. L., 462), it is sufficient to hold the purchaser of goods and chattels in bulk as a trustee, that a creditor give written notice within ninety days from the date of the sale. It is claimed by the defendant, Blanche Faueett, that something more than a mere written notice should be given ; that an action should be commenced in a court of competent jurisdiction within ninety days from the date of the sale in order to hold the purchaser of goods under the bulk sales law a trustee for the benefit of creditors of the seller.

The sections of the General Code referred to provide as follows:

!‘See. 11102. The sale, transfer or assignment, in bulk, of any part or the whole of a stock of merchandise, or merchandise and the fixtures pertaining to the conducting of said business, otherwise than in the ordinary course of trade and in the regular and usual prosecution of the business of the seller, transferrer or assignor, shall be void as against the creditors of the selle*, transferrer, assignor, unless the purchaser, transferee or assignee demands and receives from the seller, transferrer or assignor a written list of names and addresses of the creditors of the seller, transferrer and assignor, with the amount of the indebtedness due or owing to each and certified by the seller, transferrer and assignor, under oath, to be a full, accurate and complete list of his creditors, and of his indebtedness; and unless' the purchaser, transferee or assignee shall, at least five (5) days before taking possession of such merchandise, or merchandise and fixtures, or paying therefor, notify personally, or by registered mail, every creditor whose name and address appears in said list, or of which he has knowledge, of the proposed sale and of the price, terms and conditions thereof.
“Sec. 11103. Sellers, transferrers and assignors, purchasers, transferees and assignees, under this act shall include corporations, associations, co-partnerships and individuals, but nothing contained in this act shall apply to sales by executors, administrators, guardians, receivers, trustees in bankruptcy or by any public officer under judicial process.
“Sec. 11103-1. Any purchaser, transferee or assignee, wtic shall not conform to the provisions of this act, shall at any time within ninety days after such sale upon application of any of the creditors of the seller, transferrer, or assignor, become a trustee and be held accountable to such creditors for all the goods, wares, merchandise and fixtures that have come into his possession by virtue of such sale, transfer or assignment, provided, however, that any purchaser, transferee, or assignee, who shall conform to the provisions of this act shall not in any way be held accountable to any creditor of the selle]1, transferrer or assignor, or to the seller, transferrer or assignor for any of the goods, wares, merchandise or fixtures that have come into the possession of said purchaser, transferee or assignee by virtue of such sale, transfer or assignment.”

We are of the opinion that the mere serving of a notice upon the purchaser within the ninety days provided by this statute is not sufficient to hold the purchaser as a trustee for the benefit of the seller’s creditors, but that the word “application,” as used in the statute, means something more than a written notice. A fair construction of this statute requires us to hold that it means some formal action to be taken in a court of competent jurisdiction, which would have the power to declare the purchaser to be a trustee under the statute for the benefit of the creditors of the seller.

While the language of the statute provides that sales made in contravention of this statute shall be void, nevertheless the sale is only void as to creditors, and it is not void at all, but merely voidable, because if no proceedings are taken by the creditors to question the validity of the sale, or to have a trust declared,, after the'expiration of the time provided in the statute for making the application the sale becomes absolute. The sale' is perfectly good as between the purchaser and the seller, but is voidable only at the instance of a creditor or creditors, and. in order to avoid the sale, some proceeding must be commenced, within the time prescribed in the statute, to have the sale declared void and the purchaser a trustee for the benefit of creditors.

In this ease it is undisputed that the provisions of Section 11102, General Code, were not complied with, either by the seller or by the purchaser, and the failure to so comply made the purchaser liable as a trustee for the benefit of the creditors of the seller. But the creditor on his part was obliged to do something more than merely serve written notice upon the purchaser, in order to save his rights and assert his claim. He could not sleep upon his rights, and take no action to have a proper determination of his rights and a formal holding of a court of a competent jurisdiction that the property was held in trust for the benefit of creditors.

Section 11103-1, above set out, provides, among other things, . that “any purchaser, transferee or assignee, who shall not conform to the provisions of this act, shall at any time within ninety days after such sale upon application of any of the creditors of the seller, transferrer, or assignor, become a trustee and ■be held accountable to such creditors for all the goods, wares, merchandise and fixtures that have come into his possession by virtue of such sale,” etc. This word “application” does not mean an application to the purchaser, because the language of the statute does not say “upon application to the purchaser,” but says “upon application of any of the creditors.” We hold that this “application” means an application to the court in some formal manner to bring the matter before a tribunal that will have the power and jurisdiction to pass upon the question and declare the trust.

No such proceedings were taken in this case within the ninety days after the sale, and because of the failure of the creditors, the plaintiff in this case or any other creditor, to take such proceeding within the ninety days we hold that the plaintiff has failed to establish a case calling for the interposition of a court of equity to hold the defendant, Blanche Faueett, a trustee for the benefit of the creditors of the Eleooks.

We have been unable to find a case in which this question has been considered, but upon a fair construction of the statute, and upon reason, we think that the statute should be so construed as to require the creditor to bring some proceeding in a court of competent jurisdiction within the ninety days provided for in Section 11103-1, General Code.

There appears to be no good reason why in this case an action could not have been brought within the' ninety days after the sale. The creditors had ample time to ascertain whether or not the goods had been sold as an entirety; the legislature has given them ninety days within which to ascertain whether or not the goods have been sold. Neither equity nor law favors delays, and those who have rights to assert them promptly and speedily. In this case the creditor has been woefully lax in asserting its claim, waiting for nearly eighteen months after the sale before bringing a proceeding in the common pleas court. It is no hardship upon creditors who have claims to assert against a seller of goods in bulk to require them to bring actions speedily if the claims are not paid.

For the reasons stated we hold that the plaintiff failed to establish a case calling for the exercise of the equity powers of this court under the statute; and the petition of plaintiff will therefore be dismissed at plaintiff’s cost.

Petition dismissed.

J ones, P. J., and Hamilton, J., concur.


author: Dunlap, P. J.

text:
    LIABILITY OF INNKEEPER FOR LOSS OF WEARING APPAREL.
    Court of Appeals for Summit County.
    Garman-Loomis Co. v. Ryan.
    Decided, October 6, 1919.

      Innkeeper — Common Law Rule of Liability Still in Force in Ohio— Possession of Key by Guest Does not Relieve Innkeeper from Lieubility for Loss of Wearing Apparel.

    1. The common-law rule of liability upon the part of an innkeeper for the loss of ordinary wearing apparel, left by a guest in his room, still exists in Ohio, notwithstanding the provisions of Sec. 5983, General Code.
    2. Where a guest is given possession of a key to his room upon the deposit by him of the value of the key, which' deposit is to be returned when he returns the key, the innkeeper tacitly consents to the guest's retention of the key when he is temporarily absent from the hotel, and the mere failure of the guest to return the key to the innkeeper during his temporary absence from the hotel during which time his room is entered and wearing apparel taken, will not relieve the inkeeper from his common-law liability, where the foregoing circumstances are shown and is admitted that another key was already in the possession of the innkeeper or his servants.

      Kinder & Huffman, for plaintiff in error.

      Burch & Adams, for defendant in error.
    Heard on error.
   Dunlap, P. J.

The supreme court of Ohio has announced, by syllabus to Palace Hotel Co. v. Medart, 87 Ohio St., 130, that the common-law rule of liability upon the part of an innkeeper for the loss of ordinary wearing apparel, left by a guest in his room, still exists in Ohio, notwithstanding the provisions of Sec. 5983, G. C. This conclusion, officially announced and sanctioned by the syllabus, is fully warranted and supported by the learned and searching opinion of Mr. Justice O’Hara, which ably presents the arguments and reasoning leading thereto. Little further need be added to show that this conclusion of the Supreme Court is decisive of the case at bar.

The only distinction, ably argued and contended for here, is that it is admitted that the plaintiff, the guest, kept possession of a key to the room during the day in which the apparel was taken from the room; but this admission is coupled with the undisputed evidence that such key was safely in his possession during the whole of the day during which he was wholly absent from the hotel, and in his possession when he returned to the hotel and opened his room and discovered and reported his loss, and that he had made a deposit of the value of the key with the innkeeper which was to be returned to hfm when he returned the key.

It is not claimed that he was not a guest, and it is admitted that there was at least one other key to the room in the possession of the innkeeper or his servants.

We hold, under the authority cited, that the evidence adduced was sufficient to make a prima facie case, and having made his prima facie case its sufficiency and the sufficiency of the defense were for the determination of the jury, whose verdict must be conclusive.

We find no reversible error in the record of this ease and the judgment will be affirmed.

Judgment affirmed.

Washburn and Vickery, JJ., concur.


author: Houck, J.

text:
    LIMITATIONS AFFECTING NUNC PRO TUNC ENTRIES.
    Court of Appeals for Morrow County.
    Juanita Johnson v. H. H. Harlan, as Executor of the Estate of Prudence Loren, Deceased.
    Decided May 21, 1920.

      Purpose of a Judgment Nunc Pro Tunc — 8uch a Judgment Does Not Embody a New Finding — But Journalises Action of the Court Previously Taken.

    1. An order or judgment will not he entered nunc pro tunc where n will in any way prejudice intervening rights of innocent parties.
    2. When such an entry is made it relates hack, so far as the rights of the original parties to the action are concerned, to the date when the judgment was actually rendered, hut it will not he permitted to affect those who were not parties to'the original suit.

      T. B. Mateer and W. H. Kaufman, for plaintiff in error.

      J. W. Barry and H. H. Harlan and Benj. Olds, contra.
   Houck, J.

This case is here on error from the common pleas court of Morrow county, Ohio.

The parties here stand in the reverse order from where they stood in the court below.

The plaintiff 'below recovered a judgment against the defendant below in the sum of $425.85 for land rental.

The case was submitted to the trial judge on the- pleadings and evidence, without the intervention of a jury.

Plaintiff in error seeks a reversal upon numerous grounds, as set forth in the petition in error, but in oral argument relies upon the following:

(a) The trial judge erred, on the 2d day of March, 1920, in entering a nunc pro tunc order overruling a motion for a new trial as of the date of June 16, 1919.

(b) The trial judge erred in not setting aside nunc pro tunc order and in overruling said motion for a new trial.

(c) That the judgment of the common pleas court is not sustained by the evidence and is contrary to law.

We have read the record in this case with much care, and examined same with a view of ascertaining whether or not any of the claimed errors of plaintiff in error were well taken.

An examination of the transcript of docket and journal en-' tries in this case, and the entry of judgment, show that on June lGth, 1919, the trial judge made the following finding:'

“* * * it is therefore considered by the court that said plaintiff recover from said defendant the sum of $425.85, with interest from May 5th, 1919, and plaintiff's costs herein taxed at $-.”
“June 17th, 1919, Motion for a new trial filed.”
“March 2, 1920, Nunc pro tunc entry, by trial judge overruling motion for a new trial as of the 16th of June, 1919.”
“March 2d, 1920, Bill of exceptions filed.”
“March 17, 1920, Petition in error filed.”

Questions:

(1) Has this court jurisdiction in the premises ?

(2) Are there any errors in the record that would warrant or justify a reviewing court to reverse the judgment of the common pleas court?

The first question must be determined by the force and effect of a nunc pro tunc order and the date from which it speaks.

The order now before us was made on the 2d day of March, 1920, and as to the motion for a new trial, which is the basis of this proceeding in error, the journal entry is:

“It appearing to the court that heretofore at the May Term, 1919, of the common pleas court of Morrow county, Ohio, to-wit: June 16th, 19l9, a finding and judgment in favor of the plaintiff (H. H. Harlan, as executor of the estate of Prudence Loren, deceased), was entered, and a motion for a new trial filed and overruled, but that the overruling of said motion for a new trial was, through inadvertence, not entered at said time, and the court now orders that said order overruling said motion be now entered by the clerk of this court upon the journal of this court as of the said May term, 1919, to-wit: June 16, 1919.”

The rule in Ohio seems to be that an entry of an order or judgment nunc pro tunc will not be made where it will in any way prejudice intervening rights of innocent parties; and it relates back to the time when it was actually rendered so far as it affects the rights .of the original parties to the controversy or suit, but not so as to affect those not parties to the original suit.

The plaintiff in error was an original party and therefore is bound by the finding and order of the trial court as of the date of the overruling of the motion for a new trial as of the 16th of June, 1919, as found by the court and as set forth in the journal entry.

The purpose of a judgment nunc pro tunc is not the rendering or entering of a new judgment nor is it the ascertainment or fixing new rights between the parties, but its only purpose and in fact the effect of same is simply placing in proper form, on the journal or record of the court, the judgment that has been previously rendered, which is done to make the records of the court speak the truth.

In fact and law a n/imc pro tunc entry is one made now of something which was (actually), previously done, to have effect as of the former date; and such entry and its legal effect, as between original parties, is retrospective. It has the same force and in law is the same as though it had 'been made of record at the time when the original judgment was entered.

We think the rule herein laid down is fully sustained by Black on Judgments; also by the reasoning of Judge 8'pear in the case of Coe v. Erb et al, 59 Ohio State, page 265.

We find no prejudicial error, in the record, with reference to the judgment of the common pleas court as to the nunc pro tunc order and all proceedings relating thereto. .

In passing we will say, as to the second question, that the judgment of the trial court, on the merits, is fully sustained by the evidential facts and the law applicable to same. We reach this conclusion after carefully reading all of the evidence as contained in the bill of exceptions.

Further comment is unnecessary except to say we are of the unanimous opinion that the bill of exceptions was not filed within the time required by the General Code of Ohio, and the same is hereby stricken from the files of this court and the petition in error dismissed.

Shields, J., and Patterson, J., concur.


text:
    VALIDITY OF A TRANSFER FROM AN INSOLVENT HUSBAND TO HIS WIFE.
    Court of Appeals for Morrow County.
    Edward J. Gould v. Joannah Cooper et al.
    Decided July 11, 1919.

      Debtor and Creditor — Conveyances Not Subject to Attack Because One Creditor Has Been Preferred Over Another, When — Bona Pides of the Transaction — Knowledge of the Tendee — Section 11106.
    1. A conveyance by a debtor to a creditor in payment of a valid claim is not invalidated by the fact that it was made with intent to delay, hinder or defraud other creditors, where such intent was not known to or in any way participated in by the vendee.
    2. A conveyance by a husband to his wife, in payment of a debt owing to the wife, may excite suspicion and become the subject of scrutiny where there are other creditors than the wife at the time the transfer is made, but if made in good faith in payment of a bona fide indebtedness then existing and the excess in the value of the property over her claim is not such as to charge her with notice of a fraudulent transfer on the part of the husband, no presumption of fraud will be inferred on account of the relationship.

      8. G. Kingman, J. C. Williamson .and Ingle A. Morris for plaintiffs and cross-petitioners except tbe Buckeye State Building & Loan Company.

      Wilson & Hector for tbe Buckeye State Building & Loan Company.

      W. P. Maloney for tbe defendants, Cooper et al.
   Houck, J.

This ease is bere on appeal from tbe common pleas court of Morrow county, Obio.

Tbe defendants, Ellsworth E. Cooper and Joannab Cooper, are husband and wife and were at-the time of tbe transactions hereinafter referred to.

Tbe plaintiffs and cross-petitioners aver that on and prior to the 22d day of July, 1916, the defendants, Ellsworth E. Cooper and Harry Cooper, were indebted to them in the sum of about $1,400: that on said 22d day of July, 1916, the said Ellsworth E. Cooper was the owner of 100 aeres of land, the same being situated in Congress township, Morrow county, Ohio; that on said 22d day of July, 1916, he, the said Ellsworth E. Cooper, conveyed to his wife, Joannah Cooper, said land, for the purpose and with the intent to hinder, delay and defraud the creditors of the said Ellsworth E. Cooper, and especially these plaintiffs and cross-petitioners (save and except the defendant and cross-petitioner, The Buckeye State Building & Loan Company).

We find no answer of the defendants, Ellsworth E. Cooper, Joannah Cooper and Harry Cooper, or either of them, on file, and therefore in the trial of said cause the defense of each and all of them was considered in the nature of a general denial.

The evidence presented is before us in transcript form, and we have read same with care.

The burden of proof in this case is upon the plaintiffs. They must establish by the weight of the evidence each and all of the material allegations in their petition. This they have not done. The material and essential allegations in the petition are:

(a) Was the transfer made without a legal consideration?

(b) Was the transfer of the property in question made for the purpose and with intent to defraud the creditors of the said Ellsworth E. Cooper?

(c) Did the purchaser, Joannah Cooper, know of the other indebtedness of Ellsworth E. Cooper, or did she have knowledge of any intention on his part to defraud his creditors at the time said deed was executed and delivered to her?

These questions must be answered in the light of the evidence and the law applicable to same..

The weight of the evidence is clearly in favor of the defendant, Joannah Cooper.

The law applicable to the proven facts, leads us to but one conclusion, and that is, that there is an absolute failure, on the part of plaintiffs to establish the claims made by them, or either of them.

We hold the rule of law in this state is well settled that a conveyance by a debtor to his creditor, in payment of his claim, is not invalidated by the fact that it was made with an intent on the part of the vendor to delay, hinder, or defraud the creditors of said vendor, where such intent' was not known to, or in any way participated in by the vendee.

The evidence offered fails to show any knowledge on the part of Joannah Cooper of any fraudulent intent on the part of her husband at the time he deeded her the farm now in controversy.

It follows, that unless the evidence shows that Cooper made this conveyance to his wife with the design, intent and purpose to prefer one or more creditors to the exclusion in whole or in part of others, or that it was a transfer made by Cooper with intent to hinder, delay or defraud creditors of the said Cooper, and that his wife, the transferee, knew these facts at the time same ivas made, the deed in question must be held good. ■

We hold, that applying the provisions of Section 11105. of the General Code of Ohio to the conceded facts, in the present case, that it is decisive of it in favor of the defendant, Joannah Cooper.

While the transaction complained of is between husband and wife, yet under our statutory law, in Ohio, a husband or wife may enter into any engagement or transaction with the other, or with any other person, -which either might if unmarried.

And a deed, conveying real estate, máde by a husband to his wife, based upon an alleged indebtedness from husband to wife, where there are other creditors than the wife, at the time of such transfer, as in the present case, miay excite some suspicion and thus cause a court to carefully scrutinize it, yet from such relationship alone no presumption of fraud can or will be inferred.

A husband may convey property to his wife to pay a debt to her, in preference to his other creditors. And the only restriction on such preference is that it must be made in good faith, in payment of a tona fide indebtedness then existing between said husband and wife.

And, the bad faith on the part of the husband, at the time of such transfer, if any existed, must be unknown to the wife, otherwise it invalidates the conveyance made under such circumstances.

The undisputed evidence, in the case now under consideration, is that at the time of the execution of the deed, from Cooper to his wife, that he owed her about $4,500; that a mortgage for $3,500 ivas held by the Buckeye State Building & Loan Company, and that- the Avife assumed this mortgage. The value of the property conveyed was about that of the indebtedness of Cooper to his wife and the mortgage assumed by her, the same being, as claimed by the wife, to be the consideration for said one hundred acres of land described in said deed.

However, the mere fact that property conveyed to a wife, under such state of facts and circumstances, as in this case, although the value of said property may be in excess of the claimed consideration paid, where there is not such an excess in value as would have a tendency to affect her with notice of any fraudulent intent on the part of her husband, she can not be charged with such notice as the laAv requires in such cases.

Upon the facts and the law, the issues in this case are found in favor of the defendant, Joannah Cooper, and judgment is here entered in her favor.

The petition of plaintiffs is dismissed; also the cross-petitions filed' herein are dismissed. The costs are taxed against the plaintiffs and cross-petitioners herein, save and except the Buckeye State Building & Loan Company.

Judgment and decree accordingly.

Shields, J., and Patterson, J., concur.


author: Washburn, P. J.

text:
    FAILURE TO ISSUE SUMMONS IN ERROR PROCEEDINGS IN A COURT OF APPEALS.
    Mary Albertoni v. Hyman Shaffer, Barney Snyder and Yale Cohen.
    Court of Appeals for Summit County.
    Decided, December 10, 1921.

      Jurisdiction — Construction of the Seventy Days Limitation for Wiling JSrror Proceedings in Court of Appeals — Not an Ordinary Statute of Limitations, hut a Condition Requisite to Confering of Jurisdiction.

    1. In a proceeding in error to the court of appeals in which there has been a failure to obtain jurisdiction by causing summons to issue or by obtaining a waiver of summons from the defendant in error, the mere fact that the defendant in error, without being aware that .proceedings in error had not been “commenced,” filed a brief in the case in reply to a brief filed by the plaintiff in error after the limitation period for the commencing of such a proceeding had expired, does not prevent the defendant in error from thereafter filing a motion to dismiss for want of jurisdiction. Submission of such a motion, after the filing of a brief on the merits, does not under the circumstances work an estoppel against the defendant in error on the ground that such action constitutes trifling with the court.
    2. The fact that jurisdiction of the courts of appeals is now conferred by the Constitution does not render Section 12270 — limiting the time for filing error proceedings in those courts to seventy days— a mere limitation on the remedy which, like an ordinary statute of limitations, is waived if not pleaded. On the contrary Section 12270, being in force with a settled and well-established construction at the time the new Constitution was adopted, became a condition attached to the exercise of jurisdiction, and no jurisdiction vests where a proceeding in error is not “commenced” within the seventy day period.
    Musser, Kimb&r <& Huffman, for plaintiff in error.

      Stahl & Andree, for defendant in error.
   Washburn, P. J.

The court has reached the conclusion that the motion in this case should be granted, but the members of the court are not in entire accord as to the reasons for such action of the court. This opinion sets forth the reasons of one member of the court, and is in no manner binding on the other members of the court except as' to the result reached.

This controversy is before the court on a motion in which the defendants, “appearing solely for the purpose of this motion and for no other purpose/'’ ask the court to dismiss “the alleged petition in error” because the court is without “jurisdiction of this controversy or of the persons” of defendants.

The judgment below was entered on May 28, 1921. A petition in error and precipe for summons was filed in this court on June 29, 1921, but no summons was ever issued or served. It is, however, claimed that the defendants are estopped to deny the jurisdiction of this court, because on October 21, 1921, they filed a brief in this court on the merits of the controversy in answer to the brief of plaintiff in error, filed September 12, 1921.

The case was assigned in this court for trial on October 17, 1921, and after such assignment and before the day set for trial, the defendants on October 14, 1921, filed their said motion to dismiss.

There is no claim that the defendants promised to waive service of summons or were in any manner responsible for plaintiff’s failure to have summons issued and served within the period for the commencement of an action in this court, and at the time that defendants filed their brief, the seventy days limitation provided by G-. C. 12270 for the commencement of an action in this court had long since elapsed. General Code, Section 12270 provides that:

“No proceedings to reverse, vacate or modify-a judgment or final order shall be commenced unless within seventy days after the entry of the judgment or final order complained of.”

An action is deemed commenced at the date of the summons which is served on the defendant. (General Code, Section 11231.)

“A proceeding in error is not deemed commenced, within the meaning of Section 12270 of the Code, upon the mere filing of a petition in error in the proper court.” Robinson v. Orr, 16 O. S., 285.
“A proceeding in error to reverse, vacate or modify a judgment or final order, is not commenced, within the meaning of Seetion 12270 of the Code, unless the petition in error is filed, and the appearance of the defendants in error effected by service of summons or otherwise.
‘ ‘ Where it appears from the record, that the petition in error has been filed, but service of summons has not been had, or the appearance of defendant otherwise'effected “within the time prescribed by statute, a motion to strike the case from the docket is a proper mode of proceedure, and will be sustained.” Bowen v. Bowen, 36 O. S., 312.

In the above ease, the petition in error was filed within the" time prescribed by law as in the case at bar, but in neither case was there any summons issued or served within the period of limitátion.

The ease at bar differs from the above case of Bowrn- v. Bowen, only in one particular, and that is that in the case at bar, while the defendants did nothing whatever, during the limitation period to enter their appearance, they did file a brief after the limitation period and when it was too late for the plaintiff to “commence” an action against them. *

If the principles announced in the foregoing and those later cited are to govern, then at the time defendants filed their brief they could not by voluntary appearance confer jurisdiction upon the court to hear and determine a proceeding in error which had not been “commenced” and which, because of the limitation statute, could not then be ‘ ‘ commenced. ’’ Scooner Marinda v. Dowlin, 4 O. S., 500; Little Miami Ry. Co. v. Hopkins, 19 O. S., 279, Railway Company v. Wide, 35 O. S., 247; Piatt v. Sinton, 35 O. S., 282; Bowen v. Bowen, 36 O. S., 314.

But this principle, which seems to be so firmly established in the jurisprudence of our state can not be invoked under certain circumstances.

It seems that even where there has been no service or appearance within the limitation period, still if the defendant appears after the time and has the case set for oral argument and after-wards partially argues the case on its merits, he will be estopped from objecting to the jurisdiction of the court, because, as is said, to permit him to do so would enable him to trifle with the court. C. C. & C. R. R. v. Mara, 26 O. S., 185.

Or if he promises the other party to waive issue and service of summons and both proceed in the preparation of the case for final hearing upon the theory that such appearance has been made and in the belief that the proceeding has been duly commenced and is actually pending, he is •'estopped, after appearing and submitting the ease, either upon oral arguments or printed brief, to question the jurisdiction of the court, either of the parties or subject matter, upon the ground that no summons in error was ‘issued or served.” King v. Penn.; 43 O. S., 57.

The question is, do the facts in the case at bar bring it within the principle of these cases so as to estop the defendants.

They did nothing during the limitation period and simply filed a brief after that time; they did not argue or submit the case on its merits; when served with a copy of a brief by plaintiff, not knowing that the ease was not ''‘commenced,” they filed an answer brief to comply with the rules of the court, and then before the date set for trial and before plaintiff had done anything further, defendants discovered the lack of jurisdiction and promptly filed their motion to dismiss,

I do not see wherein the defendants in any way trifled with the court or misled or even influenced in any particular the conduct of plaintiff; and therefore, if the authorities heretofore cited are to govern, defendants are not estopped from objecting to- the jurisdiction of the court. But it is said that the fact that the jurisdiction of the Court of Appeals is now conferred by the Constitution, instead of by statute as it was prior to 1912, renders obsolete the authorities hereinbefore cited, because the Constitution now grants jurisdiction of the subject matter and nothing is lacking except jurisdiction of the parties, which may be acquired as well by waiver afterwards as by service before the lapse of the period of limitation, The Constitution provides that the Courts of Appeals shall have jurisdiction “to review, affirm, modify, or reverse the judgments of the Court of Common Pleas, Superior Court and other courts of record within the district as may be provided by law.”

Construing this constitutional provision, it is settled that the jurisdiction of the Court of Appeals is conferred by the Constitution, and that “the General Assembly has no power to enlarge or limit the jurisdiction conferred by the Constitution of the state, but may provide by law for the method of exercising that jurisdiction. ’ ’ Cincinnati Polyclinic v. Balch, 92 O. S., 415.

The argument is that since the jurisdiction of the court is conferred by the Constitution, Section 12270, General Code, becomes a mere limitation on the remedy and is the same as the ordinary statute of limitation which is waived if not plead and in that sense does not affect the jurisdiction of the court.

Speaking for myself, I do not see how the amendment has in any way affected the question. The constitutional provision conferring the jurisdiction contains the clause “as may be provided by law,” and when the Legislature under that express power fixes the limitation, it seems to me that it is the same as if the limitation was in the Constitution itself, and that the jurisdiction granted and the condition imposed go together. The effect is the same as if the Constitutional provision was that the Court of Appeals should have jurisdiction to affirm, reverse or modify the judgments of inferior courts of record in such cases as may be commenced in the court of appeals within the period and in the manner fixed by the Legislature; and that the Legislature having exercised the power conferred by the Constitution and enacted General Code, Section 12-270, then one of the conditions attached to the exercise of the jurisdiction conferred by the Constitution, and the right to call it into exercise, is that the proceedings be instituted or commenced within seventy days. In that view of the matter, time is of the essence of the power and right, and lapse of time operates to extinguish both, rather than as a mere bar to a remedy.

The seventy day limitation is not wholly for the benefit of the defendant in error, but partly, upon considerations of public policyj to expedite the business of courts, discourage frivolous and vexatious litigation and prevent the evils incident to delay in finally fixing the rights of parties to litigation; and it might fairly be said that the subject matter of a- suit in error in the Court of Appeals is a complaint of error made within seventy days, and that when the seventy days has elapsed, there is no subject-matter to which the jurisdiction can attach. Therefore, if the proceeding is not commenced within the period of limitation, then the court has no jurisdiction, and jurisdiction can not be conferred by mere entry of appearance after the limitation period, although now as before, one may do that which estops him from denying the jurisdiction of the court. Now, as before the amendment to the Constitution, if one, after the limitation period without objection submits his case or otherwise conducts himself so as to trifle with the court or if he misleads the other party into not making service, and after the period of limitation does that which if done before the period would amount to an appearance, he will be estopped from objecting to the jurifediction of the court, but where there has been no trifling with the court and no misleading of the other party before or after the limitation period, the mere filing of an answering bri'ef after the expiration period will not estop the party filing such brief from objecting to the jurisdiction of the court if he does so before anything further is done in the case.

Moreover, there is this further consideration which seems to support the conclusion wc have reached in this case. 'Section 12270 was in force at the time the Constitution was amended in 1912 and it has not since then been amended except to shorten the period of limitations; it was in force then with a settled and well established construction, making it not an ordinary limitation statute that could be waived, but a condition attached to the exercise of jurisdiction. That being the situation, the constitutional amendment, in the schedule adopted as a part of the Constitution, expressly provided that “all laws then in force, not inconsistent therewith shall continue in force until amended or repealed;” and it would seem to follow that by adopting the Constitution including the schedule, the intention was not only that Section 12270 should remain in force, but that the settled construction given to it should continue.

The motion of defendants .is granted, and the proceedings are dismissed for want of jurisdiction to- hear the same.

Treash, J., and Pardee, J., concur in judgment.


author: S'HOHL, P. J.

text:
    RIGHTS UNDER A DEFECTIVELY EXECUTED LEASE.
    Court of Appeals for Hamilton County
    Schloss v. Brown et al.

    Decided, May 20, 1920.

      Equitable Estate Created by a Defective Lease — Purchaser of the\ Property with. Knowledge of the Lease — Tahes it Subject to Rights of the Lessee.

    1. A lease of real property for a term of five years, properly signed by tooth parties, but acknowledged by the lessee only, operates to create an equitable estate in the lessee.
    2. One who purchases realty which at the time is in the possession of a lessee under a defectively executed lease, and who at the time of the purchase is aware of the possession of the premises by such lessee, acquires the ownership from the vendor subject to the equitable rights of the lessee in possession.

      Andrews & Andrews and Benton S. Oppenheimer, for plaintiff.
    P. P. Boli and W. C. Shepherd, for defendants.

       Error not prosecuted.

   S'HOHL, P. J.

The plaintiff, Alfred J. Schloss, was the tenant of one John A. Holzberger, occupying a store room in High street in the city of Hamilton. He had occupied the premises for a ;number of years, during the last five of which he had a lease, expiring December 31, 1917. Shortly after the expiration of the lease, the parties, on February 25, 1918, agreed to renew the lease for five years, and a written instrument was drawn up and duly signed by the parties. Plaintiff acknowledged it before a notary public in Hamilton county, but Holzberger never acknowledged it. It was recorded, however, on May 15, 1918. Eight days prior to the recording of the document, Holzberger sold the property to defendant, Walter S. Brown. A dispute arose as to whether Brown was bound by the terms of the lease, and Schloss filed this action for specific performance, joining his landlord and Brown, the transferee.

The plaintiff had occupied the store room continuously up to and including May 7, 1918, when Brown acquired a deed for it, and Brown for years was aware of his occupancy.

There was a conflict of testimony as to whether Brown had actual knowledge of the transaction between Holzberger and Schloss at the time he took his deed and paid the money. The evidence was taken partly in open court, and there is also a transcript of the testimony heard at the trial in the court of common pleas. In view of the conclusions of the court on certain legal propositions it has not been found nceessary to pass upon the question of fact presented. The lease to Schloss, though not attested as required by 'Section 8510, General Code;, was good between the parties as a contract. An imperfectly executed lease may operate to create an equitable estate in the lessee, if it be plainly shown that the instrument was intended as a lease and was accepted and treated as such by the lessee. Lessee of Foster v. Dennison, 9 Ohio, 121; Williams v. Sprigg, 6 Ohio St., 585; Holden v. Belmont, 32 Ohio St., 585; Lithograph Bldg. Co. v. Watt, 96 Ohio St., 74, and Allegheny Oil Co. v. Snyder, 106 Fed. Rep., 764, 769.

Under Section 8543, General Code, a lease for five years is deemed fraudulent until it is recorded, or filed for record, in the office of the recorder, so far as relates to a subsequent bona fide purchaser having at the time of purchase no knowledge o.f the existence of such lease. If Brown was not a bona fide purchaser, he would take the property subject to the equitable right which is now admitted to have existed against Holzberger. It is the settled rule in Ohio that a purchaser of land which is in the actual possession of a third party, known to him, is chargeable with notice of any equitable right of the party in possession whatever the same may prove to be. McKinzie v. Perrill, 15 Ohio St., 162; Kelley v. Stanbery, 13 Ohio, 408; Williams v. Sprigg, 6 Ohio St., 585, 594; Ranney v. Hardy, 43 Ohio Ohio St., 197; Columbus, S. & H. Rys. Appeal, 109 Fed. Rep., 177, 206, and note 13 L. R. A., N. S., 49, 66, 73 and 96.

The undisputed evidence shows that Brown was aware of the possession of the premises by Schloss. He, therefore, acquired .the ownership from Holzberger subject- to the equitable rights of S'chloss arising under the contract of lease.

The prayer of the petition for specific performance will be granted.

Judgment for plaintiff.


text:
    SPECIAL FINDINGS IRRECONCILABLE WITH GENERAL VERDICT.
    Court of Appeals for Wayne County.
    Elizabeth Steele v. The Baltimore and Ohio Railroad Company.
    Decided, February 4, 1921.

      Findings as to Cause of the Damage Alleged — Inconsistent with Verdict Awarding Damages — Former Controls — Unprecedented Flood an Act of God — Application of Section 11464.
    1. In an action for damages to plaintiff’s land from the overflow of a stream, alleged to have been caused by the building of piers for a bridge, testimony to the effect that the damage occurred during an unprecedented flood denotes that the overflow was an act of God for which no recovery in damages can be had.
    2. Where special findings of fact made in such a case are to the effect that the flood was unprecedented and that there had been no overflow of plaintiffs land prior to that time, and these findings are clearly supported by the evidence, but a verdict has been returned awarding damages because of such overflow, the court is justified in disregarding the verdict on the ground of inconsistency and may grant judgment for the defendant.

      A. D. Metz, for plaintiff in error.

      Taylor & Tiling, contra.
   Houck, J.

The plaintiff in error here was the plaintiff below and the defendant in error here was the defendant below, and hereafter in this opinion they will be referred to as the plaintiff and defendant.

The evidential facts in this case are known to the parties hereto, the counsel and court, and therefore need not be restated in this opinion.

The plaintiff recovered a judgment in the court below aganist the defendant in the sum of $565 for alleged damages to plaintiff’s lands caused by defendant placing piers under its bridge over a certain ditch or a stream of water, thereby diverting the water therein from its regular course and causing it to overflow over the lands of said plaintiff.

The jury at the time it returned the general verdict answered a number of special interrogatories which were presented by the defendant.

The trial judge sustained a motion of the defendant for a judgment on the special findings of fact because they were inconsistent with the general verdict.

Question: Did the court below err in sustaining said motion? In order to properly pass upon the question here raised, we deem it necessary to refer to but one of the special findings of fact, namely (No. 11), Was the flood of 1913 in the township of Milton, Wayne county, Ohio, where the plaintiff’s lands are located, an extraordinary and unprecedented flood? Answer: Yes.

Edgar L. Steele, the husband of the plaintiff, testified as follows:

Q. In 1911 and 1912 was there any overflow on the land of Mrs. Steele, the plaintiff?

A. No I don’t think so, the most overflowing was in 1913, 1914, 1915 and 1916.

Q. Was it in 1913?

A. That was the time of the big flood, yes sir.

Q. From what stream was her land overflowed?

A. From the Big Chippewa.

Q. What effect did it have at the time of the high water in 1913.

A. It went all over the land.

Q. I understand you now to say that prior to 1913 you never had any debris thrown over there by the flood, no Canadian thistles, no briers?

A. No sir.

Q. What year prior to 1913 did yon have any flood over Mrs. Steele’s land?

A. There was a time or two that the water would back up or something of that kind.

Q. You had a backing up of the water even before the bridge was built?

A. Yes, that is when we had it.

Q. Didn’t you say you did not have any except a little backing water until 1913?

A. Yes sir, I say so yet.

Q. Didn’t you answer to Mr. Metz that there was no flooding in 1912?

A. I don’t know.

Q. If you did, was it true?

A. If I said so it was true — I am not here to lie.

Q. Now we will come to .1913. Had you known such a flood as 1913 in any year from 1905 to 1913?

A. 1913 was the highest water.

Q. The fact is that a large portion of Mrs. Steele’s farm was under water in 1913?

A. Yes sir.

Q. When you come to 1913 and that flood you say that those embankments were softened and destroyed and were washed over to your wife’s land?

A.- Yes sir.

Section 11464 General Code provides:

“When a special finding of facts is inconsistent with the general verdict, the former shall control the latter, and the court may give judgment accordingly.”

Thus as in the instant case where the special finding of fact by the jury is in conflict with the general verdict and is upon a question material to or decisive of the ease, it is proper to enter a judgment that is responsive to tbe finding of fad, notwithstanding the general verdict. But unless the special finding of fact is so irreconcilably in conflict with the general, verdict as that both can not stand, then the motion must be overruled without regard to the evidence.

In the present ease the evidence clearly supports the finding of fact that the flood of 1913 was unprecedented,, and further that prior to said time the water from the ditch in question never overflowed the land of plaintiff to her damage. We think the case of Davis v. Turner, 69 O. S., page 102, third syllabus, is decisive of the question here raised.

“To be inconsistent with the general verdict as contemplated by Section 11464. General Code, it must appear that the special findings are irreconcilable in legal sense with the general verdict, and to justify the court in setting aside or disregarding the general verdict on the ground that it is inconsistent with such special findings the conflict must be clear and irreconcilable.”

The damage to the lands of plaintiff, if any, was caused by an unprecedented flood in the year 1913. This was an Act of God, for which in law no recovery in damages can be had. The Act of God denotes natural accidents; su'ch as floods, earthquakes and tempests, and not accidents arising from the negligence of or any act of man. Tlie expression means something in opposition to the act of man.

It follows from what we have already said that it is the opinion of this court that we find no prejudicial error in the judgment of the common pleas court and that it should be affirmed.

Judgment affirmed.

Shields, J., and Patterson, J., concur.


author: Cushing, J.

text:
    CANAL WATER LEASES TERMINATED BY ABANDONMENT OF THE CANAL.
    Court of Appeals for Hamilton County.
    The City of Cincinnati et al v. John C. Rogers, a Taxpayer, etc.

    Decided, January, 1922.

      Water Rights — Leases for Surplus Water Taken from a State Canal— Not a Conveyance of a Vested Interest — Lessees not Entitled to Compensation for Failure of Water Supply through Abandonment of Canal.

    Leases entered into between the state of Ohio and private parties for the use for milling purposes of surplus wafer from the Miami and Erie canal created no vested rights in the lessees against the city of Cincinnati, and abandonment by the state of that part of the canal running through the city of Cincinnati gave no right of action against either the state, or city to which that part of the canal has been transferred, because of the failure of the water privilege; and an arrangement entered into by a municipal board whereby the claim of the owners of said leases were to be compensated because of the diversion of their water supply was without authority of law and is not enforcihle.

      Saul Zielonka, for City of Cincinnati, George P. Carrel, Auditor, and Alexander Patterson, Treasurer.

      Frederick S. Spiegel, for the Board of Rapid Transit Commissioners.

      Frost <& Jacobs, for the Atkins & Pearce Manufacturing Company.

      Waite, Schindel & Bayless, for Carrie M. Fagin.

      Joseph Heintsman, for Bayard L. IQlgour and Alfred J. Beeht, Executors and Trustees.

      Grosley & Rogers, for defendant in error.

       Affirming Rogers v. Cincinnati, 23 N.P.(N.S.), 257.

   Cushing, J.

The original action in the court of common pleas was brought by a taxpayer to enjoin the Rapid Transit Commission and the city of Cincinnati from paying $60,483 to the Atluns & Pearce Manufacturing Company, Carrie M. Fagin and the Kilgour estate.

The City and the Rapid Transit Commissioners, the Atkins & Pearce Manufacturing Company,, Carrie M. Fagin, and the Kilgour Estate are plaintiffs in error. In this opinion The Atkins & Pearce Manufacturing Company, Carrie M. Fagin, and the Kilgour Estate-will be referred to as plaintiffs in error.

Plaintiffs in error claim the right to the money in question on two- grounds. That they have a vested right to the flow of surplus water, as hereinafter described, and tha¿ the city and the Rapid Transit Commission entered! into a contract of settlement with them, and they are now claiming the money by contract.

Plaintiffs in error claim that on March 26, 1836, the State entered into a contract in writing, by which it agreed to sell or to lease to Clark-Williams, subject only to the restrictions, limitations and conditions therein provided, for ninety-nine years, renewable forever, the surplus'water for milling purposes, owned by the State at the locks of the Miami and Erie Canal, east and south of the east side of Broadway in the city of Cincinnati, and that they are the successors in title to Clark Williams in the right to said surplus water. At the time the lease was entered into the Canal extended from north of the city of Cincinnati to the Ohio River. Between the east side of Broadway and the Ohio River there were at that time nine locks.

On April 28, 1863, pursuant to an Act of the General Assembly, passed March 24, 1863, the city entered upon, occupied and improved, for street and sewer purposes, that part of said Canal from the east side of Broadway to the Ohio River. One of the considerations for the grant was, that the city was required to, and did construct, under what has since been known as Eggleston avenue, an aqueduct, as an outlet for the surplus water of the canal, north and -west of the east side of Broadway.

After the completion of the aqueduct, it was accepted, occupied and used by the State for its purposes from that time until about October 22, 1919.

As a part of the improvement, the city constructed a sewer undier Eggleston ayenue, filled in the Canal, and used the surface for street purposes. The State used the canal west and north of Broadway for transportation purposes, and the aqueduct as an outlet for the surplus water in the Canal.

On May 15, 1911, the General Assembly passed an Act, authorizing the Governor of the Statie to enter into a contract of lease with the city for the part of the Canal commencing at the east side of Broadway in said city, and extending west and north thereof to a point 300 feet north of Mitchell Avenue. The statute authorized the city' to use that part of Canal for street, sewer, boulevard and subway purposes, and as a part of the consideration for the grant the city was obliged to construct an outlet for the surplus water of the Canal at a point several miles north of the east sidle of Broadway, by which the surplus water in the part of the Canal not abandoned was to be turned into Miller eek. The outlet was constructed. The city entered upon the part of the Canal so abandoned, and since that time no water has passed through said aqueduct.

The Canal was constructed by the State for transportation purposes. Clark Williams ’ lease, or license, was only for the use of the surplus water, for milling purposes, that passed the locks in the part of the Canal abandoned by the Act of 1863.

For the purpose of clarity, it is conceded by the parties to this action that neither Clark Williams, nor any person claiming under him, acquired or had any right to said surplus water, that could not be terminated by the -State at will; that the State in leasing or abandoning the Canal might create such restrictions, conditions and reservations as its discretion dictated; and that such restrictions, conditions and reservations must be stated in the Act authorizing the lease, and, if not so stated, they do not exist.

Hubbard v. Toledo, 21 O. S., 379.

. Elevator C,o. v. City of Cincinnati, 30 O. S'., 629.

Fox v. City of Cincinnati, 33 O. S., 492.

It is claimed by plaintiffs in error that by the Act of 1863 they acquired as against the city a vested right in and to the use of the surplus water in the Canal, and to have it pass through the aqueduct.

The Act of 1863 gave the city the right to use the surface of the landi owned by the State, and occupied by the Canal for but two purposes, the surface for street purposes, and so much of the part below the surface as was necessary for a sewer. The city at no time owned, used or controlled the locks, the aqueduct in question, or the surplus water that might pass through the aqueduct from that part of the Canal not abandoned. In the absence of any ownership in, or control over the aqueduct or the surplus water from the Oanal, a vested right as against the city could not' arise from either grant-or by prescription.

The claim to a vested right by statute, can be determined only from a consideration of the Act itself.

The Act of 1863 has been 'before the Supreme Court in several cases. The reasoning of that court in tbe case of Fox v. City of Cincinnati, supra, settles the question of vested rights under the Act. It was held that when the 'State exercised its reserve right to abandon the Canal, and thus cut off permanently the supply of water, there was no right to damages against the State, nor was any liability imposed on the city by accepting the grant. A right or claim that did not subsist against the State could not accrue against the city. Therefore, the plaintiffs in error must rely upon their lease of 1863, and the reservations in the Act of 1911 as a basis for their claim, and if none exists they must fail in this action.

'The Act of 1911 authorizing the lease to the city specifically provided for the construction of an outlet for the surplus water in the remaining part of the Canal, as above stated, several miles north of the east side of Broadway. The act of 1911 contained three conditilons. A general provision that the city should protect outstanding rights or claims, if any, and two special conditions that will hereinafter be considered.

Adhering to the rule of construction that ih case of a conflict or inconsistency between general and special provisions, reservations or conditions of an Act of the General Assembly, the special will control or modify the general reservations and conditions, we come to a consideration of the Act of May 15, 1921.

The general condition in that Act is stated in the- language used in the Act of March 26,1864, as follows:

‘1 Subject to all the outstanding rights or claims, if any, with which it may conflict.”

This provision was before the Supreme Court in the case of Hubbard v. Toledo, supra. In that ease the court reached the conclusion that the lease so called was a mere license to take, and not an obligation on the part of the State to furnish surplus water.

Another rule of construction is that where the provisions of a statute have been ascertained and made definite by judicial construction in using the same language in a subsequent act, it will be presumed that the General Assembly intended to use the language in the same sense, unless enlarged or restricted by the context of the Act. We do not find in this Act any provision that would warrant us in giving a different construction to the language from that stated by the Supreme Court.

The two special conditions in Section 2 of the Act obligated the city to construct an outlet for the surplus water of the Canal, and'to construct proper works, so that the State could carry out its contracts with the users of water along the portion of the Canal t,o be abandoned.

The provision with reference to the construction of the outlet is, that the city shall construct a suitable and sufficient outlet for the water in the Canal at a point 300 feet north of Mitchell avenue, so as not to obstruct the flow of water through the remaining part of the Canal, nor destroy nor injure the present supply of water for mechanical or commercial purposes. In answer to the contention of plaintiffs in error that this language secures to them a continuation of the flow of surplus water through the aqueduct east and south of the east side of Broadway, it should be observed that the first paragraph of Section 2 of the Act relates only to the construction of an outlet for the water in the Canal. That part of the Act relates to the manner in which the outlet shall be constructed — it shall be suitable and sufficient, and it shall not interfere with the supply of water for mechanical or commercial purposes in the part of the Canal not abandoned. The location of the phrase, the subject-matter with which the General Assembly was dealing, as well as the punctuation, all tend to the conclusion that it was the water in the part of the Canal north of Mitchell avenue.

The reservation and conditions imposed with reference to the part of the Canal to be abandoned were treated separately. This provision had to do with the water in the Canal,, and not with the surplus water that had theretofore passed through the aqueduct, in which plaintiffs in error claim a property right. The language used in the act is:

“The city shall adopt and construct appropriate works.for the purpose of supplying water to the lessee users of said water along the portion of the Canal to be abandoned, in .order to and for the purpose of enabling the state to fully carry out and discharge all obligations now resting upon it by virtue of certain contracts subsisting and in force between it and said lessee water users.”

The plain import of this provision is, that the appropriate works were to be constructed for aud used by the State in the discharge of its obligations to the persons or firms with which it had contracts. The State has not, and we assume that it will not require the city to construct such works, as it is admitted that all the leases along the part of the. Canal to be abandoned have expired. The argument that this provision of the Act was intended to apply to and protect the water users along the aqueduct east and south of the east side of Broadway is not tenable. The construction of the outlet north of Mitchell avenue, and its use by the State was an abandonment of the aqueduct east and south of the east side of Broadway for all purposes.

The conclusion is, that the language of the Act “the part of the Canal to be abandoned” referred only to the part between the east side of Broadway and the point 300 feet north of Mitchell avenue, and that the plaintiffs in error have no claim against the state nor the city on account of the abandonment by the state of the -aqueduct.

The remanding contention of plaintiffs in error is, that they presented to the Rapid Transit Commission claim for damages against the city for a diversion of the surplus water in the canal, aggregating about $152,000.00 and that sometime in October, 1919, they and said Commission entered into a contract, by which it was agreed that the City should pay them the sum of $60,483.00, in full settlement of their loss or damage, and that having entered into that contract they have a binding claim against the city for said sum.

We have already determined that the plaintiffs in error did not have a claim against the city, and it is difficult to understand what consideration there was for the payment of so large a sum of money in settlement of an alleged claim or right.

The other question growing out of this contention is, did the Rapid Transit Commission have authority to enter into such a contract? That Commission was organized pursuant to the authority given by an Act of the General Assembly passed May 17th, 1915. Its authority to acquire property was contained in the following provision of that Act:

“The Board of Rapid Transit Commissioners is hereby given power to acquire by purchase, or to appropriate, enter upon and hold any real estate of easements, partial or otherwise, therein, thereon, thereunder, or thereover, or any interest therein, both within and without the limits of the municipality, which it is . deemed necessary for the purposes above specified. Such power to be exercised in manner provided by law for the acquisition and appropriation of property by municipal corporations. ’ ’

It is contended that the language “is hereby given power to acquire by purchase, ’ ’ is broad enough to authorize the Commission to enter into this contract of settlement. Two eases are cited in support of this contention, Springfield v. Walker, 42 O. S., 543, and New Orleans v. I. & N. R. R. Co., 109 U. S., 221.

The law of Ohio is that statutes conferring authority on municipalities, boards and commissions are to be strictly construed. The cases cited are, in our opinion, not applicable here.

In the case of Springfield v. Walker, Walker had commenced an action in the Court of Common Pleas of Clark county 'against the city of Springfield to recover damages for personal injuries caused, as it was alleged, by the negligence of the city. Before the ease was for trial, the city and Walker entered into a statutory arbitration under the direction and supervision of the court of common pleas. The award of the arbitrators was returned into that court, and the court entered a judgment thereon. The city excepted to the judgment and prosecuted error to the Supreme Court. The claim was made that the city was not a “person” within the purview of the statute authorizing arbitration. The judgment of the court of common pleas was affirmed. The agreement of arbitration was made pursuant to authority in the statute. This was not a settlement between the parties, and the court held that the words “person” used in the Act authorizing arbitration was broad enough to include a municipality.

In the case of New Orleans v. L. & N. R. R. Co., the Board of Liquidation of Debts of the city of New Orleans was specially authorized by the act creating the board to dispose of the property in question on such terms and conditions as may be deemed favorable. Construing that statute, the Supreme Court of the United States held that under the act in question said board was vested with authority to sell the property. No such authority is found in the act creating the Rapid Transit Commission. That act limits the powers of said commission in the following language, “such power to be exercised in the manner provided by law for the acquisition and appropriation of property by municipal corporations.” Division 3 of Chapter I of the General Code sets out in detail the steps to be taken in the acquisition or appropriation of property by municipalities of the State. Whether the claim for damages arises from the taking of property or the appropriation of the property right, neither the Rapid Transit Commission nor the city followed the provisions of Sections 3681 and 3689 of the General Code, in determining whether or not the plaintiffs in error had a property right, and if they had, its value.

The conclusion is that the plaintiffs in error did not have a vested right as ¡against the city to have the surplus water of the Canal pass through the aqueduct east and south of the east side of Broadway, nor have they any claim for damages against the city growing out of the abandonment of said aqueduct by the State; that there was no consideration for the alleged contract under which plaintiffs in error claim the sum of $60,483.00, and that the Rapid Transit Commission did not have authority to enter into such a contract.

The judgment of the court below will, therefore, be affirmed.

Hamilton, P. J., 'and Buchwalter, J., concur.


text:
    WORKMAN’S EYESIGHT INJURED WHILE ON DUTY DURING A HAIL STORM.
    Court of Appeals for Delaware County.
    Eugene Eversole v. The Industrial Commission of Ohio.
    Decided October 14, 1919.

      'Workmen’s Compensation — Spirit of the Act — Must he so Construed as to Carry Out Its Humanitarian Purpose — Injury to a Milk ■ Wagon Driver During a Storm.

    Where an employee is injured while about his master’s business, doing the work and peforming the duties assigned to him, he comes within the legislative purpose and intent in the enactment of the state compensation law, and is entitled to an award because of such injury.

      Eugene Carlin, for plaintiff in error.

      John G. Price, Attorney General, D. M. C,upp, Assistant Prosecuting Attorney, and B. W. Gearhart, contra.
    Heard on error.
   Houck, J.

Plaintiff in error here was the plaintiff below. The material part of the petition necessary to determine the question involved in this case is as follows:

“Plaintiff states in his petition that on the fourteenth day of February, 1916, he was a regular employee of the Westerville Creamery Company, which had complied with the workmen’s compensation law by paying the required amount of premiums into the state insurance fund, and that on said date while in the course of his employment he was driving a milk wagon for said employer, and while so engaged in the course of his employment sustained an injury to his right eye by particles of hail •or sleet striking him, in the same, which caused a loss ofl vision in said right eye.”

A demurrer was tiled to this petition and sustained by the trial judge.

Question: did the trial judge- err, to the prejudice of the plaintiff in error (the plaintiff below), in this holding 1

This question must 'be determined in the light of the proper construction placed upon Section 21 (General Code, Section 1463-68) of the workmen’s compensation act, and then properly applied to the facts stated in said petition.

Said section reads:

“Every employee mentioned in subdivision two of section fourteen hereof, who is injured, and the dependents of such as are killed in the course of employment, wheresoever such injury has occurred, provided the same was not purposely self - inflicted, on and after January 1, 1914, shall be entitled to receive, either directly from his employer as provided in section twenty-two hereof, or from the state insurance fund, such compensation for loss sustained on account of such injury or death, and such medical, nurse and hospital services and medicine, and such amount of funeral expenses in case of death as is provided by sections thirty-two to forty inclusive of this act.”

Counsel in support of the demurrer insist that the injury of which Eversole complains was not received by him in the course of his employment, and that it was caused outside of and disconnected with same. Is this claim sound or unsound as measured by the intent and purpose of the Legislature in the enactment of the workmen’s compensation law, and in its use of the words, “in the course of his employment?”

What do these words mean, and what was the legislative purpose of same?

It is presumed that the Legislature had some aim, object and purpose in the passing of this law, and to us it seems clear and plain that the one purpose was to protect and care for the one who “earns his bread by the sweat of his brow,” the one who has not the means to carry indemnity insurance that is expensive and beyond his “purse strings.” Yes, and in ease of death to provide a fund to furnish food, clothing and shelter to the widow and children left behind.

We know of no more humanitarian law. Every word, sentence and line of this act bespeaks such an interpretation, and it must and does follow that it should be liberally construed in favor of a claimant under it.

Counsel for defendant in error rely upon the decision in the case of Fassing v. State, ex rel Turner, Attorney General, 95 O. S., page 232. We have carefully examined this ease, and do not think it decisive of the instant case for the reason that the real question at issue was not presented to the court or passed upon by it. The question here to be determined is: was tbe injury complained of received “in the course of his employment”

In the case of State, ex rel People’s Coal & Ice Co., v. District Court of Ramsey County, 129 Minn., 502, it was held:

“That where an ice man, who was required to follow a fixed route in substantial disregard of weather conditions, when a severe rain storm was in progress left his team and went to a tall tree just within the lot line, either for protection or in the performance of his duties in soliciting orders, and lightning struck the tree and killed him, that his dependents were entitled to the benefits of the workmen’s compensation act.”

In our examination of similar acts in other states, and upon which many of the adjudicated cases base their decisions, the language used in the law is: “that where an injury arises out of and in the course of employment,” etc., but in our act the language used is, “in the course of employment.”

We think that a fair and proper interpretation of the latter language means that if one is about his master’s business, doing the work and performing the duties assigned him, and while thus engaged is injured, he comes within the purpose and intent of the legislative purpose of the act now before us for interpretation and construction. Any other construction it seems to us would be too narrow, and would, in effect, set aside and abrogate the real purpose of the law and what was contemplated and intended by its framers.

If we give to the language in question its natural and ordinary meaning, ever keeping in mind the humanitarian purposes of the makers thereof, we can reach but one conclusion, namely, that the claimant is entitled to compensation.

In the ease of Industrial Commission of Ohio v. Roth et al, 98 O. S., page 39, the court, through its learned Judge Donahue, says:

“In the construction of a law it is the duty of a court to give the words their usual and ordinary meaning, such meaning as they import to mankind in general, and not a forced or unusual definition (or construction), which may in its last analysis be technically correct, but wholly at variance with the common understanding of man.”

If we apply this rule to the language and act now under review, we are bound to find for the plaintiff in error.

The case of Industrial Commission of Ohio v. Anna Pora,, 100 Ohio State, page 218, while not decisive of the case at bar, yet it strongly points in that direction, and especially the rule of construction of the act now under discussion.

The Chief Justice says:

‘ ‘ The real spirit of this act is to measurably banish technicality and to do away with the nicety of distinction so often observable in the law, and commands a liberal construction in favor of employees.”

The court is unanimous in its judgment in finding error in the record prejudicial to the rights of the plaintiff in error: and having so found, the judgment of the common pleas court is reversed, and it is ordered that this case be remanded to the court below, with instructions to overrule the demurrer to the petition in this ease.

Judgment reversed and case remanded.

Shields, J., and Patterson, J., concur.


author: Richards, J.

text:
    APPLICATION OF THE STATUTE OF LIMITATIONS TO AN ORAL CONTRACT WITH A DECEDENT.
    Court of Appeals for Lucas County.
    Southard, Admr., v. Curson.

    Decided, January 30, 1920.

      Action for Recovery from Administrator — For Services Rendered Decedent — ■Conversation Between Plaintiff and Decedent Inadmissible, When — Application of the Statute of Limitations to Contract for Such Services.

    1. In an action against the administrator of an estate to recover on an oral agreement claimed to have been made with the decedent for the rendition of services on his farm it is error to permit the plaintiff to testify that he had a conversation with the decedent with reference to doing work on his farm, where the fact' that a conversation was held, and the terms thereof, are denied by the answer.
    2. The statute of limitations does not begin to run on 'an oral agreement to compensate the plaintiff for services to be rendered on a farm, by making a will devising to him the farm, until the death of the promisor and the' appointment and qualification of his administrator.

      Marshall & Fraser; Southard & Rowe, and O. W. Nelson, for plaintiff in error.

      Geer c% Lame, for defendant in error.

       Motion to require Court of Appeals to certify its record in this case overruled by the Supreme Court, April 20, 1920.

   Richards, J.

Samuel Curson was plaintiff in tibe court of common pleas, in which court he set forth in his petition a claim to recover $5,000 as the reasonable value of services alleged to have been rendered by him for William Bevins, now deceased. He averred in substance that at the request of William Bevins he had-performed labor for the purpose of assisting in the farming of a certain described tract of land owned by Bevins, that these services continued for a part of each year from 1882 to 1907, and that Bevins had agreed that if plaintiff would perform such sendees he would make a will giving plaintiff the farm described in the petition. He further alleged that William Bevins died intestate on August 25, 1917.

The trial resulted in a verdict and judgment for $4,000 in favor of the plaintiff, and this proceeding in error is brought to reverse that judgment.

While the allegations of the petition are quite meager this court is of opinion that under the liberal construction which should -be given to pleadings the petition is sufficient to state a cause of action and is not justly assailable by demurrer.

The plaintiff himself was the first witness called to substantiate his claim, and in the course of his examination was asked this question:

• “You may state now, Mr. Curzon, whether or not you ever had any conversation with Mr. Bevins — William Bevins — with reference to your doing work on his farm?”

The defendant objected to the .question and the court stated that the witness might answer “yes” or “no.” To this ruling the defendant excepted and the witness thereupon answered “yes.” He was then asked to state what that conversation was, and, on objection being made, he was not pexmxitted to state the coxxversation, the court holding that the ease fell within the terms of Section 11495, General Code. It is now insisted by counsel for plaintiff in error that it was prejudicial error to permit the witness to testify against the administrator of a decedent that he had a eoxiversatioxx with the decedent in reference to doing work on his farm axid that it was also error prejudicial to the rights of the plaintiff in error for eouxisel to press the qxxestion as to the terms of that conversation. By the plain provisions of the section of - the General Code cited, Cui-son was disqualified as a witxxess and was prohibited from testifying except as to “facts” which occurred after the death of William Bevins. If he had a conversation with Bevins with regard to the performance of the work on his farm, that woxxld manifestly be a “fact” within the language of the statxxte, and that kind of fact which he is prohibited from stating. Curzon was relying upon an oral promise claimed to have been made by Bevins in his lifetime, and, if such promise were made, it would be the result, in the ordinary axxd usual course of events, of a conversation betweexx the parties. To permit plaintiff, by his own testimony, to establish the fact of the conversation is permitting him to take one' step toward establishing by the aid of that testimony a fact material to his case. Other witnesses subsequently called testify as to what was said in the conversation, and their evidence would be, in a measure, corroborative of the statement which the plaintiff was permitted to give that he had in fact had the conversation with Bevins. The course taken puts before the jury, by the testimony of the plaintiff against the estate of a deceased person, the fact that he had had a conversation on the subject involved in the litigation, thereby opening the door to what was said and to the promise claimed to have been made.

Authorities have been cited shedding more or less light upon the question under consideration, but their weight must depend very much upon the terms of the statutes under which the rulings were made. Our attention is called to Hier v. Grant, 47 N. Y., 278, and Maverick v. Marvel, 90 N. Y., 656, but the provisions of the New York statute are not the same as the Ohio statute. See also Sheldon v. Thornburg, Admr., 153 Ia., 622.

We have no difficulty in reaching the conclusion that it is error in this kind of a case, brought against the estate of a decedent, to permit the testimony that was allowed to be given to the jury, and, in view of the other evidence contained in the bill of exceptions, it is manifest that the introduction of this evidence was highly prejudicial to the rights of the defendant below.

Among other defenses the administrator relied on thé statute of limitations. It appears from the averments of the petition that the services which were rendered terminated in 1907 and that William Bevins lived for a period of ten years thereafter. For this reason we are urged to hold that whatever claim the plaintiff had, if he had any, is barred by the statute of limitations of six years. The claim as set forth by the plaintiff and as attempted to be sustained by his evidence was based on an oral contract by which he was to perform labor in and about the handling of a certain farm owned by Bevins, and for this he was to be compensated by will giving him the farm. Manifestly this compensation was not to be furnished until the death of Bevins, and as that event did not occur until 1917 the plaintiff’s cause of action would not accrue until that time. It is insisten that the agreement if made was absolutely void because of the statute of frauds. The books are full of uncertainty and inaccuracy in the use of the words “void” and “voidable” and many contracts have frequently been spoken of by the courts as “void” when they were in law only “voidable.” Clearly no recovery could be had upon this oral agreement, and it was, as such, unenforceable, but a contract can not properly be said to be “void” unless it is a mere nullity and not susceptible of ratification.

In Walters, Admr., v. Heidy [19 C.C.(N.S.), 252; 1 Ohio App., 66], the court of appeals of the seventh district held that the statute of limitations' on an agreement in all essential particulars like the one at bar did not commence to run until the appointment of an administrator of the decedent. "While the authorities are not uniform on this question, yet it is apparent that a great majority of them sustain the conclusion reached in the case just cited. To this effect are the following: Blair v. Hager, Exr., 97 App. Div. (N. Y.), 358; Goodloe v. Goodloe, 116 Tenn., Beardsley, Exr., 83 Conn., 34, and Norris, Admr. v. Clark, 7 Dec. Rep., 564.

The general rule applicable in such cases is stated in 40 Cye., 1071, to be that the statute of limitations does not begin to run before the promisor’s death.

The contrary doctrine is maintained in Wisconsin, as announced in Martin v. Estate of Martin, 108 Wis., 284.

The question is indeed a debatable one and much may be said in behalf of either view, but we are disposed, after mature consideration, to follow the decision announced by the court of appeals of Ohio in the authority already cited.

For the reasons given, and upon the authorities cited, we hold that the claim of the plaintiff is not barred by the statute of limitations.

We hold, however, that it was prejudicial error for the trial court to admit the evidence of Curzon as to his having a conversation with Bevins on the subject involved in this litigation, and that in view of the other evidence contained in the bill of exceptions this error is so prejudicial as to require a reversal of the judgment.

Judgment reversed, and cause remanded for new trial.

Kinkade and Chittenden, JJ., concur.