text:
    PAETY — RECOGNIZANCE.
    [Cuyahoga (8th) Court of Appeals,
    June 1, 1917.]
    Pollock, Metcalfe and'Parr, JJ., of the Seventh Appeals District Sitting by Designation.
    Eva Lilliston v. State of Ohio.
    Action on Forfeited Recognizance Running to Municipality Improperly Brought in Name of State.
    The state of Ohio is not “the real party in interest” in an action on a forfeited recognizance running to the city of Cleveland taken in a prosecution in the municipal court of such city under a city ordinance.
    ERROR.

      G. W. Gurney, for plaintiff in error.

      Samuel Doerfier, pros cuting attorney, for defendant in error.
   METCALFE, J.

The plaintiff in error Eva Lilliston was arrested by an officer of the Cleveland police department, and under a city ordinance an affidavit was filed against her in the municipal court charging her with street soliciting.

Thereupon she appeared before the clerk of said court, with plaintiff in error G. W. Gurney, and entered into a recognizance for her appearance, the bond running to the city of Cleveland. The plaintiff in error Eva Lilliston failed to appear at the time set for trial and the recognizance was forfeited.

This action is brought in the name of the state of Ohio to recover the penalty. The question here is: ■ Can an action be maintained in the name of the state of Ohio on a recognizance running to the city of Cleveland taken in a prosecution in the municipal court of said city under a municipal ordinance?

We arc clear that such action can not be maintained in the name of the state. The case cited in the brief of counsel for defendant in error as Chandler v. Scioto Co. (Comrs.) 2 Dec. Re. 112 (1 W. L. M. 401), does not apply. In that case the prosecution was under a state law and the bond was taken in the name of the state of Ohio. Of course, in a prosecution under the law of the state, in a state court, the recognizance would run to the state of Ohio, and the state of Ohio would be the real party in interest in an action to recover the penalty of the bond. Here, however, the case is different. The prosecution was under a municipal ordinance in municipal court and the bond ran to the city of Cleveland.

Before the state could maintain an action on such a bond it would have to show either a statutory right or that it had in some way acquired the interest of the city.

The petition in this case does not show a cause of action in favor of the plaintiff, the defect would not be waived by a failure to demur, and a judgment on such a petition would be void. Weidner v. Rankin, 26 Ohio St. 522, and Spoors v. Coen, 44 Ohio St. 497 [9 N. E. 132].

The judgment is reversed.

Pollock and Farr, JJ., concur.


source: Caselaw Access Project

author: JONES (E. H.), J.

license: Public Domain

text:
    CHARGE TO JURY.
    [Hamilton (1st) Court of Appeals,
    December 6, 1915.]
    Jones, Jones and Gorman, JJ.
    Cincinnati Union Bethel v. John Edward Bryson Schy.
    1. Accuracy of Statement Required in Instructing Jury When Issues Are Close and Testimony Nearly Equally Balanced.
    While in some instances irrelevant matter may be incorporated into a charge to the jury without prejudice, such is not the case where the evidence is close and the. issues such that the parties are entitled to have the law applicable thereto stated without ambiguity or confusion with extraneous matter.

      2. Charge Limiting Jury to Consideration of Evidence of One Side or Preponderance of One Side’s Evidence, Erroneous.
    A charge which limits the jury to consideration of the evidence offered by one side only as to a certain issue, is erroneous and clearly prejudicial, as is also the statement that “if you find from a preponderance of the defendant’s evidence” that the plaintiff did so and so, “then he can not recover.”
    [Syllabus by the court.]
    ERROR.

      Fulton (S; Woost, for plaintiff in emu*.

      George J. Slaline and Matthews & Mattheivs, for defendant in error.
   JONES (E. H.), J.

This action was brought in the court below by Bryson Sehy, a minor, against the Cincinnati Union Bethel, for damages caused by the falling of a portion of the fire escape on a building known as the Anna Louise Inn, which building was occupied by and under the control, at the time of the accident, of the Cincinnati Union Bethel, the plaintiff in error in this court. There was a verdict for $1,500 in favor of the plaintiff, and upon a motion for new trial this was held to be excessive by the trial judge and was reduced to $1,200, for which sum the judgment was entered.

This proceeding in error is for the reversal of this judgment, and we find upon an examination of the record and the charge of the court, that the judgment should be reversed for error in the charge. In order to understand our action it will be necessary to point out briefly the. issue in the case.

The fire escape was constructed alongside of and attached to the building, and extended over the sidewalk. The lower section of the fire escape was held in a horizontal position by means of a wire rope to which was attached a weight. This portion of the fire escape was attached to the main fire escape by a joint, or hinge, at one end, and it was so balanced by said weight and wire rope that when occasion would arise to use the fire escape, those using the same, by stepping upon said suspended portion, would cause the same to gradually lower until the detached or unfastened end thereof would strike the sidewalk, thus permitting the person or persons using the same to reach the ground.

It is claimed that while passing along the sidewalk in company with two other boys, without any fault on their part this rope broke and thereby caused the fire escape, or said portion thereof so suspended, to fall and strike said Bryson Schy upon the head, inflicting a painful and serious injury.

The answer alleges that—

“Whatever injuries the plaintiff received, and of which he complains in this action, were received while trespassing upon the said fire escape and under and about the same, and directly in consequence of his illegal acts and trespasses in and upon the said building, and the illegal acts and trespasses of other boys then and there trespassing upon the said building, in which acts and trespasses the said Bryson Schy was then and there participating, and without any knowledge thereof on the part of the said defendant, and its officers, agents, or employes, and wore wholly caused by said plaintiff thereby.”

The iron fire escape had fallen, by reason of a defect in the rope, or some defect in its construction, or through the carelessness or mischievous conduct of the plaintiff and his associates in playing upon said fire escape, or in pulling down the same. The evidence upon this issue is conflicting. The plaintiff and one of his companions testify that they were doing nothing at the time except walking along the street, and that the fall of the fire escape was sudden and wholly unexpected. They attempt to explain this rather unaccountable fall by showing that a strong wind was blowing at the time. The third boy testified that he attended the same school as the other two boys, and that he on the night of the accident was going with them to the Bethel; that they found a stick in the alley east of the Anna Louise Inn; that the boys had it in their hands and stuck it up against the fire escape; it was about six feet long and had a nail or hook on the end of it. He said, “both of them got hold of it when they pulled it down.” Mrs. Ethel King testified that she had seen the boys with a long stick near the scene of the accident.

We will not quote further from the evidence, but we are free to say from an examination of the entire evidence^ that we have great doubt that the verdict of the jury is supported by sufficient evidence, and are strongly inclined to the opinion that the jury’s verdict was against the weight of the evidence. But we prefer to place the reversal of the judgment below upon the ground that the court erred in its charge to the jury, as before stated.

On page 148 of the bill of exceptions, the court charged the jury as follows:

‘ ‘ The plaintiff, Bryson Schy, as have all other citizens, had a perfect right to walk along the sidewalk at that place, and he would have a right to march along with a stick on his shoulder, provided he injured no person with it, or did not pull down such fire escape upon him.”

Now there was really no question raised by the pleadings or the evidence in the case as to the right of Bryson Schy, or other citizens, to walk along the street “with a stick on his shoulder.” The only complaint against Schy is that he and his companions were trespassing upon the property (fire escape) of the defendant and while so trespassing they carried a long stick; neither was there any charge that he had injured any person with the stick. The court cannot see the purpose of this language in the charge; it evidently had no function to fulfill. True it is that irrelevant matter may be inserted harmlessly in a charge, but in a close case upon the facts such as this was, the parties are entitled to have a clear and unambiguous charge stating the law applicable to the issues, the evidence and the facts to be determined by the jury. The inference to be drawn from this language of the court is that there was some issue as to the right of these boys to carry a stick along the street, which was not the case.

But we think this pararaph above quoted is followed immediately on the same page by language exceedingly prejudicial to the defendant, and more clearly erroneous. We quote:

“If you find by a preponderance of the defendant’s evidence that Bryson used a stick and pulled this fire escape down, and that was the proximate cause of his injuries, he cannot recover. But, on the other hand, if you find from that evidence that while Bryson was walking along the street with his companions, this fire escape fell and he was injured, he can recover, and it will be your duty to return a verdict for the plaintiff.”

In determining whether or not a stick was used the jury were not limited to the evidence of the defendant, as stated by the court in this portion of the charge. Furthermore, the plaintiff was required to make out his case by a preponderance of the evidence, and it was not incumbent upon the defendant to furnish a preponderance of the evidence that the stick was used. It may well be that some of the evidence offered on behalf of the plaintiff would be taken by the jury in determining that fact, or the plaintiff’s evidence may have raised some presumption of negligence on his own part. In any event, limitation in this portion of the charge to the defendant’s evidence, and especially the requirement that the defendant furnish a preponderance of evidence to support its defense, was erroneous and clearly prejudicial to the rights of the defendant in tho case. It will be noted that the trial judge carries that same error into the nest sentence when he says:

“But, on the other hand, if you find from that evidence” (which means defendant’s evidence) “that while Bryson was walking along the street with his companions', this fire escape fell and he was injured, he can recover,” etc.

This last sentence is prejudicial in two respects: first, as already indicated, in the use of the words “that evidence” thus placing the burden upon the defendant and excluding any benefit that might be derived from the plaintiff’s evidence; second, the language used is a statement of the doctrine of res ipsa loquitur, which no doubt applies in this case, but as in all eases this language should have been qualified by a charge to the effect that if the defect which caused the fire escape to fall was undiscoverable in the exercise of ordinary care or was one which a reasonably prudent person would not have seen or observed, then the plaintiff should not recover. We think the act of the trial judge in stopping with this strong statement in favor of the plaintiff without the necessary modification above referred to was clearly erroneous and prejudicial.

It is true that counsel for defendant, after the charge was concluded, requested an instruction from the court covering the above criticism, and the court said:

“I will say to you, gentlemen of the jury, that whei’e a corporation or a person builds a fire escape over the sidewalk, and if in the exercise of that care which prudent persons under those circumstances, where the public are continually passing underneath it, by the use of ordinary care in the examination of it would not discover any latent defect in it, and there was such latent defect, which they could not discover by the use of ordinary care, which caused it to break and caused the injury, then of course the plaintiff cannot recover.”

What the court here says should have followed, in more concise language, the paragraph before quoted. At the time this was given to the jury the general charge had been completed, and counsel for the defense made the request for this instruction when asked by the court for suggestions.

In view of the conflicting evidence in this ease and the doubt as to which side has the weight thereof, we hold that the error of the court in stating to the jury that if while Bryson was walking along the street the fire escape fell and he was injured he can recover, without any explanation of conditions immediately given or stated in the same connection, was prejudicial and influenced the jury in arriving at the verdict in this ease.

Judgment below will therefore be reversed for errors in the charge, as above pointed out.

Jones (O. B,) and Gorman, JJ,, concur.


author: FARR, J.

text:
    BASTARDS — EVIDENCE—WILLS.
    [Belmont (7th) Court of Appeals,
    December 5, 1917.]
    Pollock, Metcalfe and Parr, JJ.
    Carl S. LaRoche v. William F. LaRoche. Carl S. LaRoche v. Louis F. LaRoche et al.
    1. Deed of Share in Vested Remainder Conveys no Interest Upon Donee’s Being Divested by Death.
    Where by will a testator devises all of his real estate to his wife for the remainder of her natural life, or so long as she remains unmarried, and provides that in the event of her remarriage that she should have such portion of the estate as the law fixes for a surviving widow, and that the remainder be equally divided among his four children named in said will, and further that if any of them be deceased at the time of such remarriage, leaving no issue, that such share or shares be equally divided among his other children, and in a further item that at the death, of his said wife, should she remain unmarried until that time, that all of his estate real and personal should be then equally divided among his “sons aforesaid” and in the event that any were deceased at the death of the wife, then the share of such deceased son should go to his children and if no children living, then such share should be equally divided among his remaining children, or their heirs, such will vested in each child his proportionate share of said estate at the death of the testator, subject to being divested by the death of such child before the death of the widow and a deed or will made by such child for his share in said estate and prior to the death of the widow will not convey any title or interest in and to such share.
    2. Marriage of Pregnant Woman and Bequest to Child Recognition of Legitimacy.
    Where a man marries a pregnant woman who has preferred a bastardy charge against him and later a child is born in lawful wedlock and the putative father visits the mother and child soon after birth and afterwards makes a bequest to said child in his last will and testament, such recognition is a sufficient acknowledgement under favor of Sec. 8591 G. C. to render such son legitimate.
    3. Legitimacy of Child Begotten Before Marriage Shown by Preponderance of Proof.
    To establish status as heir or heirship of one begotten out of but born in lawful wedlock, it is not required that the proof be clear and convincing; such claim need be shown affirmatively only; that is, by a preponderance of the evidence, the burden being upon the one asserting such claim.
    4. Devise to Heirs of Child Born out of Wedlock and Treated a* Member of Testator’s Family Vests in Son of Such Child.
    Where a man marries a woman having a son bom out of lawful wedlock and such son is taken into their home and treated as one of the family, is given and known by the family name; is referred to in the last will and testament of the husband as one of his children, and as his son, and such will further pro vides that if, at the death of his surviving widow, who is bequeathed a life estate in his realty, any of his sons shall be deceased the children of such son are to have his share, such recognition and testamentary provision are sufficient to entitle the son of such person horn out of lawful wedlock, his father being dead, to take directly under the provisions of said will.
    5. Presumption from Birth in Lawful Wedlock Upon Right to Inhrrit. „ Proof of birth within lawful wedlock raises the presumption of the right of heirship or the right to inherit through the father.
    [Syllabus by the court.]
    Appeal.

      C..C. Sedgwick and Ileinlein, Spriggs tls James, for plaintiff.

      Kennon cf Kennon, for defendants.
   FARR, J.

The eases of Carl S. LaRoehe, plaintiff, against William F. LaRoehe, defendant, and Carl S. LaRoehe, plaintiff, against Louis F. LaRoehe et ah, defendants, were actions in partition filed concurrently on September 26, 1916, in the court of common pleas of this county. In the first case the plaintiff seeks the partition of lots numbered 19 and 73 in Harris’ addition to the city of Bellaire. In the second action partition is sought of certain real estate of which John LaRoehe, Jr., died seized. To each petition an answer was filed denying that the plaintiff had any right, title or interest in and to the premises sought to be partitioned and that title vested in defendants, and in the first case, it is sought by cross petition to quiet the title to the premises described in the petition.

Partition was ordered in the court below, from which order and judgment an appeal was taken to this court. Said causes were heard together here and.will be decided in like manner.

In the first ease the plaintiff, Carl S. LaRoehe claims an undivided one-third interest in and to the lots' above mentioned which the defendant denies and.alleges that he is the sole owner of said premises in fee simple. The plaintiff claims title by certain provisions of the last will and testament of John LaRoehe, Sr., hereinafter quoted. The defendant claims title by provisions of said will and tbe last will and testament of Fred LaRoche, deceased, and by reason of a certain deed made and delivered by said Fred LaRoche to him on or about October 8, 1888.

John LaRoche, Sr., died testate June 9, 1884, and his last will and testament was duly admitted to probate in this county June 30, 1884. Fred LaRoche died testate on or about October 21, 1888. John LaRoche, Jr., died intestate and without issue in 1890. Charlotte Schumacher LaRoche, widow of John La-Roche, Sr., died June 21, 1908. John LaRoche, Sr., and Charlotte Schumacher were married in Germany in 1852. At the time of said marriage said Charlotte Schumacher had a son, Fred, about two years of age, born out of wedlock who, ever after said marriage, made his home in the home of John LaRoche, Sr., until the time of his (Fred’s) death, on said October 8, 1888. A few days prior to his death Fred LaRoche, so known in the community, made a last will and testament and a deed of conveyance devising and conveying all of his estate to said John LaRoche, Jr., including any interest he might have in and to the estate of John LaRoche, Sr. Fred LaRoche, in 1879 was charged by one Samantha Roofer with being the father of her unborn child; their marriage followed at St. Clairsville on March 18 of that year and on May 16 following, about two months later, this plaintiff Carl S. LaRoche, was bom and he bases his right to partition herein upon the claim that he is the son of said Fred LaRoche, deceased, but elaims not herein from Fred LaRoche but directly from said John LaRoche, Sr., and under favor of the third, fourth and fifth items of the said last will and testament of John LaRoche, Sr., deceased, which read as follows:

“Item 3. I give and devise to my said wife all my real estate during her natural life or so long as she remains unmarried, she to have all the rents and profits, keep the same in repair and pay all taxes.
“Item 4. In ease my said wife shall marry again she shall then only have such share or portion of my estate as the law allows, and the remainder shall be equally divided among my four children, Fred, Louis, John and William LaRoche, and in case either or any of them should be deceased at such time leaving no children, the share of such one shall be equally divided among my other children.
‘ ‘ Item 5. At the death of my, said wife, should she remain unmarried until that time, it is my will that all my estate, real and personal, be then equally divided among my four sons aforesaid, and in ease any shall be deceaséd at that time his children are to have his share, and if he has no children living the same shall be equally divided among the remaining ones or their heirs.”

The determination of the issue here involves the construction of the foregoing items, and is simply this: did the interest or share of Fred LaRoche under said will vest in him absolutely during his life time so that he might devise it by will or convey it by deed ? If so Carl S. LaRoche has no interest and is not entitled to partition because Fred LaRoche, whom he claims was his father, sought to devise by will and convey by deed to defendant herein the property asked to be partitioned. If on the other hand said interest did not vest or vested subject to being divested upon the death of Fred LaRoche before the death of his mother Charlotte LaRoche, then Fred LaRoche had no interest to convey to John LaRoche, Jr., which he attempted to do by will and deed, as above stated.

In order that subsequent discussion may be better understood, the relation of the parties will be here considered.

It is urged in argument that Fred LaRoche, soealled, was not the son of John LaRoche, Sr., and therefore, Carl S. LaRoche, even though he be the son of Fred LaRoche, could not take directly from John LaRoche, Sr. It must be noted that said testator in item fourth provides as follows: “The remainder shall be equally divided among my four children: Fred, Louis, John and William LaRoche,” and again in item fifth the testator provides among other things that “all my estate real and personal be then equally divided among my sons aforesaid. ’ ’

It will be observed that in the foregoing said testator designates Fred as one of his “children,” also as his “son.” And having so provided, it must be so considered no matter whose son he was, though he be the son of a neighbor the testator might elect to include him as he did in his will with his children born in lawful wedlock, and he further provided that if Fred be deceased at the date of the death of his, testator’s wife, that his children should have his share. In any event Carl La-Roche may take under said will if he is Fred LaRoche’s son which will be discussed later.

However, the record discloses that the boy Fred was taken into the home of John LaRoche, Sr., upon his intermarriage with the mother and there reared and treated as one of the children until the time of his (Fred’s) death, when his body was laid in the family lot in Rose Hill cemetery, and his name inscribed on the “LaRoche” family monument and so paternal was the conduct of John LaRoche, Sr., toward Fred, that Louis LaRoche says that until he (Louis) reached the age of 15 years he considered Fred his older brother and John LaRoche, Sr., by and in that solemn instrument, his last will and testament, designates Fred as one of his “children” and as one of his “sons aforesaid.” May be the testator and his wife brought a secret from Germany which they prudently and properly enough, saw fit not to impart to others, but be that as it may, it is to the credit of John LaRoche, Sr., that whether or not he was the natural father of Fred, he did his full duty by him and fittingly and fully acknowledged him as one of the rightful objects of his bounty, and so far as the provisions of this will are concerned he may be treated as a son.

Objection is made to the testimony of William and Louis F. LaRoche in this and the court below which it is claimed is admissible under the last clause of Sec. 11945 G. C. Without taking time to discuss the issue fully, suffice it to say that said testimony is found to be incompetent in view of the provisions of said section, therefore, it must be practically eliminated from the consideration of this ease.

However, to maintain his right to partition herein, Carl S. LaRoche must be found to be the son of Fred LaRoche, deceased. Under pressure of the circumstances Fred LaRoche married Samantha Roofer in 1879. A little less than two months later, Carl was bom in lawful wedlock, and although Fred LaRoche never lived with his wife or family, yet having been bom in lawful wedlock a strong presumption obtains in favor of his legitimacy and it is so observed in Powell v. State, 84 Ohio St. 165 [95 N. E. 660; 36 L. R. A. (N. S.) 255], by Donahue, J., at page 168 as follows:

“ * * * a strong presumption always obtains that a child either born in lawful wedlock, or within the competent time after its termination is legitimate,”

and in Miller v. Anderson, 43 Ohio St. 474 [3 N. E. 605; 54 Am. Rep. 823], in the second paragraph of the syllabus it was held:

“2. By such marriage the man so marrying consents to stand in loco parentis to such child and is presumed in law to bo the father of the child, and this presumption is conclusive.” The foregoing is supported by Tiogo Co. v. South Creek Tp. 75 Pa. St. 453; State v. Romaine, 58 Iowa 46, 48 [11 N. W. 721]; State v. Herman, 35 N. C. (13 Ired.) 502; Parker v. Way, 15 N. H. 45; Page v. Dennison, 29 Pa. St. 420 [72 Am. Dec. 644]; Wigmore, Evidence, Sec. 134.

In addition to this presumption, a lady by the name of Mrs. Kate Naylor testified at the trial below that within about one hour of the birth of Carl, Fred LaRoehe was at the bedside of his wife. His presence there would seem to indicate a friendly interest at least in both mother and child. The record does not clearly disclose that he ever disowned the boy but on the contrary, provided in his last will and testament, a legacy of five dollars, though he tried to alien from the child all- of the remainder of his estate by said will and deed.

Section 8591 G. C. provides in part as follows:

“When, by a woman a man has one or more children, and afterwards intermarries with her, such issue, if acknowledged by him as his child or children, will be legitimate.”

The record, therefore fairly discloses that Fred LaRoehe recognized Carl as his son and by the required quantum of proof, that Carl S. LaRoehe is the son of Fred LaRoehe, deceased.

Coming now to construe said will it is fundamental that the controlling principle in its construction is to ascertain from the whole will the intention of the testator as therein expressed.

Linton v. Laycock, 33 Ohio St. 128; Barr v. Denny, 79 Ohio St. 358 [87 N. E. 267].

However, no specific rule or rules can be declared for the construction of wills because each must be construed largely in the light of its own provisions.

Governed by these principles, it is clear that the testator desired bis wife to have a life estate in bis estate during ber natural life or so long as sbe remained unmarried.

In tbe event that sbe remarried sbe should have tbe portion of bis estate provided by law, and tbe remainder be equally divided among bis four children including Fred, and in case any of them should be deceased at such time, without issue, such share should be equally divided among tbe surviving children. In tbe event that said widow should die, without remarriage, then the estate should be divided equally among bis “sons aforesaid” and in case any were deceased, at the time of tbe wife’s decease, and such deceased son left children, then such children should have the deeased parent’s share and if no children survived, then such share should be equally divided among the remaining children or their heirs. Clearly it was the desire of the testator that his “next of kin” should, in any event, be the beneficiaries of his estate, but can it be so held under the provisions of said will?

That depends, as above stated, whether said interest vested absolutely in Fred LaRoche at the death of testator or whether it vested subject to being divested by the death of Fred before his mother. The mother did not remarry and Fred preceded her in death by about ten years. He left his son Carl; therefore, it is clear that it was the intention of the testator as expressed in item five that the son Fred being deceased at the time of his mother’s death, that the son Carl should have his father’s share; that is to say that the grandson should have the son’s share, and which one would receive that share could only be determined by the situation at the time of the widow’s death.

The issue must be determined, therefore, by determining whether the estate vested absolutely in Fred LaRoche or whether it vested subject to being divested by his death before that of his mother. The distinction between a vested and contingent interest is clearly made in Richey v. Johnson, 30 Ohio St. 288, 294, and need not be here discussed. While it is true that under the common law, it was impossible to limit any estate after a fee, yet by the enactment of the “Statute of Wills” the doctrine of executory devises has been adopted, and it is now the law that there may be created by a will a vested estate in fee simple liable to be divested in favor of another estate. The controlling authority in this jurisdiction is Collins v. Collins, 40 Ohio St. 353. In this ease the testator devised his real and personal estate to his wife during her natural life with the remainder over to his two sons and their heirs. In the event of the death of either without issue, the estate should go to the survivor; it was held in the first paragraph of the syllabus as follows:

‘ ‘ 1. That by the will of their father each took a vested remainder in fee simple in one undivided half of the lands, de-feasible upon the contingency of the death of either, leaving no children at his decease, and leaving the other brother to survive him.”

The foregoing is supported in principle by Jeffers v. Lampson, 10 Ohio St. 101; 24 Am. & Eng. Ency. of L. 2nd ed. 431; 2 Cooley’s Blackstone, 172; Tiffany, Real Property, Sec. 134; Tiedman, Real Prop., Sec. 530.

It is urged that the law favors the vesting of estates in Ohio and so it is held in Linton v. Laycock, supra, as follows:

“3. The law favors the vesting of estates, and in the construction of devises of real estate, the estate will be held to be vested in the devise at the death of the testator, unless a condition precedent to such vesting is so clearly expressed that the estate can not be regarded as so vested, without directly opposing the terms of the will. To this end, words of seeming condition will, if they can bear that construction, be held to have the effect of postponing the right of possession only, and not the present right to the estate.”

The foregoing is supported by the weight of authority in this and numerous other jurisdictions, notable among which are the following eases :

McArthur v. Scott, 113 U. S. 380 [5 Sup. Ct. 652; 28 L. Ed. 1027]; Owen v. Eaton, 56 Mo. App. 569; Canfield v. Kallon, 26 Miss. 352 [57 N. Y. Supp. 149]; Wooley v. Paxen, 46 Ohio St. 307, 318 [24 N. E. 599]; Bolton v. Bank, 50 Ohio St. 290, 293 [33 N. E. 1115]; Johnson v. Johnson, 51 Ohio St. 446 [38 N. E. 61].

A case well in point is McCarthy v. Hansel, 38 O. A. & C. 608 (4 App. 425; 25 N. S. 283). The first paragraph of the syllabus reads as follows:

“1. The will of a testator contained a provision devising bis estate to bis widow for life and tbe following: ‘After tbe death of my wife, I give, devise and bequeath unto my children all of my estate, real or personal, of whatsoever kind and wheresoever situated, share and share alike; if any of my children should die previous to that time, leaving heirs of their body, then and in that ease such heirs to take the share or shares, which would have been due to their parent or parents, if living,1 Held: That the estate devised to each child was a vested remainder, subject to be divested by his death during the continuance of the life estate, and a deed made by such child during such time conveyed no interest in the property.”

The foregoing can scarcely be differentiated in any way or manner from the instant ease, and especially as to the facts which need not be discussed here.

In full accord with the above case and the ease at bar is that of Camp v. Cronkright, 13 N. Y. Supp. 307, the syllabus o£ which reads as follows :

“A testator devised to his wife certain property during ‘her natural life, and upon her death then I give and devise the same to my children, share and share alike, absolutely and forever, the child or children of any deceased child of mine to take the share which his, her or their parent would have taken if living.’ After testator’s death, but during the life time of his widow, C., one of his five children, conveyed an undivided fifth interest in the premises, and his grantee conveyed the same to defendant. Thereafter, and during the life time of testator’s widow, C. died leaving three children, surviving him. Held: That the will vested an undivided fifth interest in remainder in the premises in C., subject, however, to be divested by his death in the life time of his mother; that defendant’s title therein was subject to be divested by the same contingencies; and that upon the death of C. said fifth interest became vested in his surviving children.”

It is urged, however, that Anderson v. United Realty Co. 79 Ohio St. 24 [86 N. E. 644], is at variance with the foregoing. The second paragraph of the syllabus reads as follows:

“2. Where, in a will, there is a devise to a son, and if he dies without lineal descendants, living at the time of his decease, then over, these words are not, by themselves, without assistance from, other parts of the will, sufficient to create an estate by implication in the lineal descendants, but the son takes a fee de-feasible upon his death without lineal descendants, living at the tune of his decease, and in the event of lineal descendants living at the time of the son’s decease his fee becomes absolute and such descendants have no interest under the will as against his grantee. ’ ’

It will be observed that the principle issue under discussion in Anderson v. Realty Co. supra, is estates by “implication” which is not involved here. In the above case the son took a fee defeasible upou his death without lineal descendants, which indicates a similar view to that held in the above case of McCarty v. Hansel, supra, and so it is further disclosed by the discussion of the cause by Summers, J., at page 50. It follows therefore that said cause is not particularly helpful in determining the issue here, which however is practically determined by the cases above mentioned, and it must be held that the share or interest of Fred LaRoche vested in him at the death of testator John LaRoche, Sr., subject to being divested by the death of Fred before his mother, which so happened; therefore Carl S. La-Roche, plaintiff, being the son of said Fred LaRoche and who survived him, also the widow Charlotte LaRoche, the plaintiff takes his father’s share but directly under the will of John LaRoche, Sr. Therefore, the will and deed made by Fred La-Roche to defendant William F. LaRoche were ineffectual to convey title to his interest in the estate of John LaRoche, Sr.

An order of partition will be granted and the same commissioners named as appointed by the court below unless some change is desired.

The answer and cross petition filed by defendant William F. LaRoche in the court below asked the reformation of said deed because it recites the wrong lot numbers. In view of the finding herein, reformation will not be necessary so far as the property here involved is concerned; yet if it be considered advisable or desirable to direct such reformation in order to remove any possible inference or suspicion of cloud from the property of such person or persons as may hold title to the lots numbered in said deed, a proper decree may be entered for that purpose.

In the next case partition is sought by plaintiff of an estate by purchase owned by John LaRoche, Jr., at the time of his decease intestate and without issue in 1890. The plaintiff’s right to partition in this case is based upon his claims that Fred La-Roche was the brother of John LaRoche, Jr., and that he, plaintiff, is the son of said Fred LaRoche.

It is urged that since the legitimacy of the said Carl S. LaRoche is raised here, that proof of his right to inherit through his alleged father Fred LaRoche must be clear and convincing because it is claimed that the rule as to the presumption or legitimacy arising from the marriage of Fred LaRoche and Samantha Roofer prior to the birth of the boy, while applicable under the bastardy statute, is not applicable to actions where questions of heirship and inheritance are involved, and so it is held in Miller v. Anderson, 43 Ohio St. 474 [3 N. E. 605; 54 Am. Rep. 823], third paragraph of the syllabus; which case can be easily distinguished, however, from the case at bar since the facts are quite different. In the above case Emiline Miller was married to one Riddlemoser while enciente said marriage occurring about six months after pregnancy, and of which Riddlemoser was fully aware but married her with a full knowldege of her condition. The child was born in their home and was cared for by them jointly during some two and a half years until Riddle-moser’s death. A child was bom to them about sixteen years after the birth of the first child and some thirteen years after Riddlemoser’s death, the said Emiline Miller filed a complaint in bastardy against one James M. Anderson charging him with the paternity of the first child. The court held, and quite properly, that all the facts being known to Riddlemoser at the time of marriage that he had consented to stand in loco parentis to said child which, having been bom in lawful wedlock, was conclusively presumed to be legitimate but as above stated, this presumption was held to have no application to actions where questions of heirship and inheritance are involved and the reason is obvious; another child had been bom whose rights as an heir-at-law could not be aliened by the father’s election to stand in loco parentis to the unborn child of the woman whom he married and whose condition he well knew at the time. It is somewhat interesting to contemplate the paragraph of the syllabus under discussion here in view of the fact that but a single statement is made in relation thereto in the opinion by Atherton, J.., at page 480 as follows:

“As recognized in that ease, we do not affirm this rule holds good on questions of heirship. There the rights of others are involved outside of the husband and the alleged bastard child.”

In the foregoing discussion reference is made to the case of State v. Shoemaker, 62 Iowa 343 [17 N. W. 589; 49 Am. Rep. 146], which is quite similar to said case of Miller v. Anderson and in the latter case Judge Atherton observes at page 479 as follows :

“He chose to marry her and thus legitimate her issue and make it his own; the act would have made the child heir to his estate, and being made so by his act, can the inhuman mother, by her uncorrobated testimony, make it a bastard?”

And again as follows:

“Can they be bastardized by proving somebody else begat them, and especially can their mother bastardize them and take from them the rights they acquired by the marriage of their mother with the man that acknowledged them to be his own?”

It is true that the- syllabus is the law of the case but it is very difficult here to harmonize the dictum with the third paragraph of the' syllabus. However, it must be noted that said paragraph does not sustain the contention here, that where the claim of heirship is made in such case that the proof must be clear and convincing; far from it; it merely holds that a presumption of legitimacy arising from birth within lawful wedlock has no relation to actions where questions of heirship and inheritance are involved; that is, such presumption could not obtain in such cases conclusively against facts to the contrary. However, the modem tendency of courts is to relax this rule somewhat, as stated in Wilson v. Wilson, 39 O. A. & C. 393 (28 N. S. 309), a well considered case, the first paragraph of the syllabus of which reads as follows:

“1. A decree of divorce between parents of an unborn child-does not affect the legitimacy of the child, even though such legitimacy was effected by the parents marrying after this child was conceived. Such child therefore, is an heir at law of the father and as such has an interest to contest his will.”

Kunkle, J., in discussing the above case of Miller v. Anderson, observes at page 396 as follows:

“We think this discussion applies to heirship and the right of inheritance, although the issue in that case was limited to proceedings under the bastardy statutes. ’ ’

The most, therefore, that can be said for the above case of Miller v. Anderson, is that it holds in effect that in such cases, proof of heirship or the right to inherit must be proven as any other fact; that is, affirmatively or by a preponderance of the evidence, the burden being upon one asserting such claim, and so it is held in Hall v. Wilson, 14 Ala. 295; Payne v. Payne, 29 Vt. 172 [70 Am. Dee. 402]; 4 Ency. of E. 576. In the case at bar, Fred LaRoche charged with the paternity of the son Carl, married the mother Samantha Roofer, who declared in court upon the trial of this cause that Fred LaRoche was the father of Carl; about two months after the marriage, the child was born and within about one hour Fred LaRoche was at the bedside, so Mrs. Naylor states, and it is not denied; a strange and most unusual place for an innocent man, especially if compelled to marry the woman against his will and convinced of his own innocence. Careful examination of the record fails to disclose that he ever expressly denied the paternity of the child, while in some ways, at least, his conduct betokens the fact that he recognized his share of the responsibility for this boy. True, he tried to alien the greater part of his property by deed and by will to his brother William, all but a bequest of $5.00 to Carl, and thereby deprive this boy of any interest in his estate; however this is not conclusive of a refusal to acknowledge him as a son because it is by no means unusual for a parent for some real or fancied grievance to disinherit or deprive a natural child of acknowledged legitimacy, of any share or portion in such parent’s estate.

Therefoi’e, adopting here the discussion of these matters in the first case, so far as it may be of value, it follows that it must be held that Fred LaRoche was the brother of John LaRoche, Jr., and that the record shows affirmatively and by a fair preponderance of the evidence, as above stated, that Carl S. LaRoehe is the son of Fred LaRoehe, deceased and is therefore entitled to partition in this cause, and the same order will be made as to the appointment of commissioners as made in the court below. An accounting as to rents and .profits was made in the court below, and that issue is certified back for determination in said court. Partition ordered in both cases.

Pollock and Metcalfe, JJ., concur.

       Motion to certify overruled by Supreme Court, LaRoche v. LaRoche, 63 Bull. 398


author: HOUCK, J.

text:
    ADVERSE POSSESSION.
    [Licking (5th) Court of Appeals,
    March Term, 1918.]
    Powell, Houck and Shields, JJ.

      Ethel Pratt Simpson et al. v Johnstown (Vil.)
    Title to Streets Acquired by Adverse Possession.
    Where an abutting owner on a platted street or alley takes possession of that part of the way upon which his premises front and includes it within the boundaries of his land and exercises all the rights and privileges incident to ownership for a period of more than twenty-one years, title ripens in him and an action lies restraining the municipality from interfering with his possession.
    [Syllabus by the court.]
    Appeal.

      Kibler & Kibler and Fitsgibbon, Montgomery & Black, for plaintiffs.

      Stasel & Cornell, for defendant.

      Motion to certify overruled by the Supreme Court, June 11, 1918, Johnstown v. Simpson, 63 Bull. 196.

   HOUCK, J.

The plaintiffs bring this action against the incorporated village of Johnstown, in which they seek to restrain said village from taking possession of and opening up certain alleys and streets in said village.

The plaintiffs set forth in their petition that they are the owners of the alleys and streets in question by reason of the fact that they and their predecessors in title have had the open and uninterrupted possession of them for more than twenty-one years. In the answer there is a general denial of all the material allegations in the petition, and further, as an affirmative defense, the answer says that by reason of certain plats filed by the original owner of said land prior to the year 1840, as well as by certain acts of the legislature of Ohio, the title in and to said alleys and streets claimed by plaintiffs now vests in the state of Ohio, and therefore the statute of limitations, as claimed by plaintiffs, can not be invoked.

We have reviewed the evidence in this case with much care, and we are of the opinion that the claims made by the defendants are not borne out by the evidence in the case. On the other hand, we find from the evidence that the alleys and streets in question Avere never used by the public, and that for a period of more than sixty years they have been used and occupied, and fenced in, by those who Avere the holders of the paper title to said lots, and that in a number of instances buildings have been constructed upon the alleys and streets claimed by plaintiffs.

We further find the evidence to be clear and convincing that the plaintiffs and their predecessors in title, for many years beyond the period of twenty-one years, have been in the possession of said streets and alleys. We think the laAV in this state is well settled that the occupation by abutting owners of a street, by taking possession of the whole, including it with the boundaries of their land, using it and occupying it as a part of their premises, cultivating and tilling the same, exercising all of the poAvers incident to OAvnership thereof, and selling and conveying the same to purchasers for a valuable consideration, establishes adverse possession, and if such possession has been for a period of more than twenty-one years, it ripens into title. If this be the law, and if we apply it to the conceded facts in the ease in hand, we are bound to find for the plaintiffs. Sec. 11220 G. C. provides:

“If a street or alley, or any part thereof, laid out and shoAvn on the recorded plat of a city or village, has not been opened to the public use and occupancy of the citizens thereof, or other persons, and has been enclosed with a fence by the owner or oAvners of the inlots, lots or outlots lying on, adjacent to or along such street or alley, or part thereof, and has remained in the open, uninterrupted use, adverse possession and occupancy of such otraer or owners for the period of twenty-one years, and if such street, alley, inlot or outlot is a part of the tract of land so laid out by the original proprietor or proprietors, the public easement therein shall be extinguished and the right of such city or village, the citizens thereof, or other persons, and the council of such city or village, and the legal authorities thereof, to use, control or occupy so much of such street or alley as has been fenced up, used, possessed and occupied, shall be barred, except to the owners of such inlots or outlots lying on, adjacent to or along such streets, or alleys who have occupied them in the manner aforesaid.

From an examination of this section of the statute, we are fully convinced that it is clearly applicable to the proven facts in the case at bar and is decisive of the case.

It therefore follows, from what we have already said, that the plaintiffs are entitled to the relief prayed for in their petition.

Decree and judgment accordingly.

Powell and Shields, JJ., concur.


author: RICHARDS, J.

text:
    FIRES — PARTIES—RAILWAYS.
    [Lucas (6th) Court of Appeals,
    June 24, 1918.]
    Chittenden, Richards, and Kinkade, JJ.

      Toledo Term. Ry. v. Clinton A. Mauk et al.
    1. Joinder of insured and Insurers Proper Parties Plaintiff to Recover from Railway Losses Accruing from Sparks from Passing Locomotive.
    Section 8970 G. C. creating an absolute liability against a Talhvay company for loss of property by fires on evidence showing that the fire originated from sparks from an engine, passing over its tracks, inures both to the owner of the property destroyed and by way of subrogation to insurance companies making payment to the owner under policies of insurance issued by them for such loss, and the owner and insurance companies may join as parties plaintiff in an action to recover losses so originating.
    2. Evidence that Other Locomotives Emitted Sparks not Prejudicial Locomotive Causing Fire Is Identified.
    Under the rule allowing the owner of property, destroyed by fire from sparks from passing locomotives, considerable latitude in showing the particular circumstances existing from which the fire is caused, evidence that more than one locomotive of the defendant company emitted sparks on various occasions is not prejudicial in an action under Sec. 8970 G. C. to recover for fire loss from sparks emitted by a locomotive sufficiently identified as being in fault on the occasion in issue.
    3. Experiments of Noncombustibility of Railway Right of Way Incompetent.
    Evidence in an action for fire loss from sp.arks from a locomotive, of experiments made by expert witnesses, called by a defendant railway, to establish that certain substances placed along its right of way would not take fire from sparks, when not under conditions similar to those existing at the time of the fire complained of, is properly excluded.
    [Syllabus approved by the court.]

      Potter & Carroll, for plaintiff in error.

      Elmer E. Davis, J. W. Mooney and G. E. Bibbee, for defendants in error.

      Motion to certify overruled by Supreme Court November 19, 1918, See Toledo Term. Ry. v. Mauck, 63 Bull. 445.

   RICHARDS, J.

Clinton A. Mauk was the owner of a large quantity of lumber and the operator of a lumber yard all situated in the northerly part of the city of Toledo, most of the lumber being in two large sbeds owned by the Ann Arbor Ry. and a portion of the lumber being in another shed owned by Mr. Mauk. These sheds were located near various switching tracks of the Toledo Terminal Ry. and other switching tracks of the Ann Arbor Ry. The property was destroyed by fire on the night of October 15, 1916, the fire resulting in nearly a total loss. The property owned by Mr. Mauk was insured in several insurance companies to the amount of $38,000 and this amount was paid by these companies to him. Thereupon Mr. Mauk and the nine insurance companies united as plaintiffs in an action against the Toledo Terminal Ry. to recover the value of the property destroyed by fire, the insurance companies claiming to be sub-rogated to the rights of Mr. Mauk to the extent of the sums paid by them severally. The petition was met by a motion to separately state and number the causes of action and to make more certain and definite, which motion was overruled by the court. Thereupon the defendant filed a demurrer to the petition on the grounds of a misjoinder of parties plaintiff and for the reason that several causes of action were improperly joined and for want of facts. This demurrer was overruled and an answer filed by the defendant. A trial of the case resulted in a verdict and judgment being rendered in favor of the plaintiffs in the amount of $70,000. ¥e are asked to reverse this judgment for various reasons, but chiefly because it is claimed that the court erred in overruling the motion and demurrer, and because the judgment is not sustained by sufficient evidence, and because the court erred in the admission and exclusion of evidence and in the charge to the jury. •

We have no difficulty in reaching the conclusion that the petition sets forth but one cause of action and that the same is set out with sufficient certainty. There was but one fire pleaded and that is averred to have been caused by sparks emitted from an engine of the railroad company. The cause of action was based on a single wrongful act. The owner of the property was, of course, the primary sufferer by reason of the fire and no doubt can exist but that the insurance companies upon making payment under the policies issued by them became sub-rogated to the rights of the assured to the extent of the payments so made. The averments of the petition show that the loss largely exceeded the amount of the insurance and it is, therefore, clear that not only the owner, but the insurance companies were interested in maintaining a suit against the defendant.

"While there are some differences in detail between this ease and the ease of the Lake Erie & W. Ry. v. Falk, 62 Ohio St. 297 [56 N. E. 1020], and while there has been some change in the statute since the announcement of that decision, yet the principles therein set forth indicate very clearly the rules which should govern in the case at bar. It is, claimed that under the statute, as it now reads, Sec. 8970 G. C.. the railroad company is liable to the owner of the property absolutely, but that the liability to the insurance company arises only on averments and proof of negligence on the part of the railroad company. It is true that the statute cited provides that the company shall be liable for all loss or damage by fires originating on adjacent lands caused in whole or in part by sparks from an engine passing over such railroad, and the exercise by such company, or receiver of such company, of due care in equipping and operating such engine shall not exempt such company, or receiver of such company, from liability. This statute does create as against the railroad company an absolute liability on evidence showing that the fire originated from sparks from an engine passing over its railroad, but when an insurance company, having a policy upon property destroyed by fire from sparks eoming from an engine passing over a railroad adjoining the property, has made payment under its policy, it is by general principles of equity subrogated to the rights of the assured and that sub-rogation is to all the rights of the assured as against the railroad company to the extent of the amount paid by the insurance company. It would seem clear, therefore, that the statute inures to the benefit of the insurance company so making payment as well as to the assured.

Manifestly all the rights given by the statute could be secured by the owner bringing an action against the railroad company, which is claimed to have caused the fire, in which action, whether he had received the amount of the insurance on the property or not, he would be entitled, if the proof showed liability, to recover the full value of the property destroyed and this would raise an equity in favor of the insurance companies against the assured in the fund received by him from the railroad company.

Furthermore, a person whose property is insured and who suffers loss by reason of a fire has a right to assign his cause of action and the assignee would be entitled to all the benefits conferred by the section above cited and clearly whatever rights could be acquired and enforced indirectly may be enforced directly in an action by the assured and the companies which have made payment under their policies. In truth, the action at liar is an action by the owner of the property to recover the full amount of the loss from the railroad company and the fact that the insurance companies are united with him as coplaintiffs can in no manner prejudice the rights of the railroad company, but enables the court to adjust the equities of the plaintiffs among themselves.

The rule is stated in Clement, Fire Insurance, 369, as follows :

“When a statute .or code of practice authorizes suit in name of real party in interest, and a number of insurance companies are subrogated as equitable assignees of rights of insured as against a railroad company, they may properly be joined as plaintiffs in an action against the latter to recover the loss or damage. If the insured has an interest or his whole loss was not paid by the insurance companies, he should be also joined as a party to the action, either as a plaintiff by his consent or as a defendant if he refuses.”

We hold in view of reason and authority that the owner and the insurance companies which have made payment may unite in an action against the railroad company where the total loss suffered exceeds the amount of the insurance on the property. It follows that the court committed no error in overruling the motion directed to the petition, nor in overruling the demurrer thereto.

A large mass of evidence was.taken in this ease bearing upon the manner in which the fire originated which caused the destruction of the property. The evidence shows that the fire originated in or near what is known as shed No. 1, one end of which was located within twenty-five or thirty feet of the tracks of the Toledo Term. Ey. and the fire spread from this shed to the other two resulting in'the destruction of all of them. These sheds were constructed of lumber and Shed No. 1 had an open unboarded space about nine feet from the ground extending the entire distance around it.

The fire started about midnight on the night of October 15. .It is in evidence that there had been no fires in these sheds during that fall, and although there was a stove in one of them, no fire had been built therein since the preceding spring. Shortly before twelve o’clock on the night in question a switching engine belonging to the Toledo Term. Ey. passed back and forth by this property several times, part of the time hauling a train of ears and part of the time without any load. The engine was observed by a watchman, located in the vicinity, who testifies that when loaded the engine continually threw sparks; that he observed it on that night and had on numerous occasions prior to that time; and that the terminal engines all threw sparks when “working heavy and exhausting.”

The evidence shows beyond question that the wind on that night was blowing at the rate of fourteen to fifteen miles per hour and in the general direction from the terminal tracks toward these lumber sheds. The evidence discloses that the Ann Arbor Ey. had no engine in operation during that day or night in this neighborhood except a passenger engine which travelled along the main track, many hundreds of feet distant from the shed in which the fire originated, and that engine passed some hours before the fire was seen. There is no evidence in the record showing any fires in that neighborhood during the day or night of October 15 except the sparks flying from the engine of the terminal railroad company. It also appears that an employee visited the yards at four o’clock on the afternoon before the fire and found the buildings locked. We have no hesitancy in reaching the conclusion that the jury was entirely justified in finding that the fire originated from sparks coming from this engine. Indeed, we do not see how they could have reached any other result .from the evidence contained in the record.

In the .case of Lake Shore & M. S. Ry. v. Anderson, 27 O. C. C. 577 (7 N. S. 17), the circuit court held that a jury is warranted in finding that a fire originating on land adjacent to the railroad company’s right of way was started by sparks emitted from locomotives when the evidence shows that it originated very quickly after two locomotives had passed along, that the day was windy, with the wind blowing from the railroad toward plaintiff’s land and of sufficient force to carry sparks thereon and that there were no other fires in the particular neighborhood at the time. All of the requirements mentioned by the court in that case exist in the case at bar and we are not, therefore, able to say that the verdict is not sustained by sufficient evidence.

It is said, however, that the verdict against the railroad company was produced because the court permitted the plaintiffs to introduce certain incompetent evidence and excluded from the jury certain competent evidence offered on behalf of that company. The evidence which the court allowed to be introduced, and against which objection is especially made, related to the engines of the terminal railroad company throwing sparks on other occasions within two or three weeks prior to the time of this fire. In view of the fact that the particular engine which passed along this track on that night was identified, we see no necessity for the plaintiff to introduce evidence that was broad enough to include any other engine than that one, but the evidence which was introduced did, in fact, include engine number seven which was the one that passed the sheds on the occasion, and we can see no prejudice resulting to the railroad company by. the inclusion of evidence showing that other engines of the company also emitted sparks.

The courts have frequently indicated that in an action brought by a land owner to recover for destruction of his property by fire claimed to have been caused by sparks from passing engines considerable latitude should be allowed because of the usual inability of the plaintiff to specifically show the particular circumstances existing which caused the fire. This principle is stated in the Lakeside & M. Ry. v. Kelly, 6 Circ. Dec. 555 (10 R. 322), and was recognized by-this court in the Hocking Val. Ry. v. James, 38 O. A. & C. 507 (18 N. S. 210; 1 App. 335). The ease of the Hanover Ins. Co. v. Cincinnati, H. & D. Ry. 38 O. A. & C. 511 (18 N. S. 502; 2 App. 136), decided by this court contains nothing inconsistent with what has just been stated. In that case, as in this, we recognize that there should be either direct proof of facts establishing the plaintiff’s case or proof of facts from which liability may be reasonably presumed and that there can be no guessing by either court or jury.

The trial court excluded evidence of the results of certain experiments made by expert witnesses called by the railroad company to establish that certain substances placed along the right of way would not take fire from sparks emitted from passing engines. An examination of the evidence and offers to prove contained in the bill of exceptions shows that the experiments sought to be proven were not made under conditions sufficiently similar to those existing at the location of this fire and at the time of its occurrence to render the results, of the experiments competent evidence. The inherent difficulty of reproducing conditions similar to those existing at the time and place of the fire made it practically impossible to render these experiments of value to the jury in ascertaining whether the propei'ty of Mr. Mauk was set on fire by sparks from the railroad company’s engine. It is said in Jones, Evidence, 1913 Ed., See. 410, that testimony ought not to be received as to experiments unless it shows they were under such conditions as to fairly illustrate the point in issue; and that from the nature of the case the decision of this question must rest largely in the discretion of the trial judge. We find no prejudicial error in excluding evidence of the results of experiments made by these witnesses.

The railroad company sought to offer evidence that the lumber yards of Mr. Mauk had been, before the occasion of the fire, frequented by tramps and loafers and that fires had been seen in the yards on various occasions. This evidence was excluded by the trial court and is assigned as error. It must be noted that the trial judge did not exclude evidence as to whether any person had been in or about the yards or buildings on the day or night when the property was destroyed by fire. On the contrary, the trial judge allowed evidence of some -unknown man passing along a path through the Mauk lumber yards at about the hour of eleven o’clock on the night of October 15. The evidence excluded related to occasions' prior to the day of the fire and no offer was made to show the existence of any fire in or adjacent to the yards on October 15, or of tramps or other persons being in or about the same on that day. Furthermore, the railroad company did not offer to show the character or extent of any fire which had been theretofore seen in the lumber yards nor that the same was caused by any improper person; for aught that appears in the questions and offers to prove, the fires which were seen may have been started by Mr. Mauk himself or his employees in cleaning up the lumber yards and may have been, and doubtless were, entirely under control. If all the evidence which was offered by the railroad company on this branch of the case had been received it would only have shown that on prior occasions tramps and loafers had been seen, in the lumber yards and fires had been seen there prior to October 15 and from this evidence the jury could only have been asked to guess that the fire which destroyed the property might have originated from tramps or loafers starting fires on the premises. We think such evidence Avould not tend to show that the fire which originated on the night of October 15 was caused in that manner. A test of the admissibility of such evidence may be made by applying the rule to the plaintiffs in the trial court if we assume that the plaintiffs had been able to show only that engines of the railroad company were accustomed to emit sparks when hauling loads through these yards and on these switch tracks but were not able to show that any engine had passed along the track near these yards on that day or evening. The plaintiffs manifestly would have fallen far short of making a case and the jury could have only rendered a verdict in favor of the plaintiffs on such a showing by guessing as to the origin of the fire. For all these reasons we find that the trial court committed no error in excluding the class of evidence mentioned.

The defendant railroad company introduced evidence showing that the engine crew of the railroad company after observing the fire, went on the engine to the vicinity of the fire and the court permitted them to describe the conditions that they found existing at the time of their arrival, but excluded evidence of the purpose for which they had come. The offer made shows that the company desired to prove that they had come to the fire with apparatus attached to their engine for the purpose of aiding in extinguishing the fire but were unable to use the same because the fire was then in the end of the shed most distant from the railroad tracks. The trial court committed no prejudicial error in excluding the purpose which the engine crew had in mind in going to the fire, for that purpose could not aid the jury in ascertaining the liability or nonliability of the railroad company. The particular location of the fire was permitted to be shown by all witnesses who had knowledge of the same. It is not controverted that the shed in or near which the fire originated was three hundred fifty feet in length and if the fire were, as claimed by the railroad company, in the farther end of the shed, it, of course, could not have been reached by the hose attached to the locomotive engine and the purpose of the engine crew was immaterial.

Finding no prejudicial error, the judgment will be affirmed.

Chittenden and Kinkade, JJ., concur.


text:
    JURY — EMINENT DOMAIN.
    [Morgan (5th) Court of Appeals,
    June 17, 1918.]
    Powell, Houck and Shields, JJ.
    F. B. Smith et al. v. Carrie E. Craig et al.
    Compensation in Appropriation of Land May Be Assessed by Nine Jurors.
    The three-fourths jury law applies to verdicts assessing the value of land taken for a county road.
    [Syllabus by the court.]
    ERROR.

      G. O. McGonagle, C. H. Fonts and M. E. Dunford, for plaintiffs in error.

      John Q. Lym and T. E. McElliiney, fo-r defendants in error.
   HOUCK, J.

On December 4, 1916, the plaintiffs here began a proceeding before the county commissioners of Morgan county, in which it was sought to have a county road established. The usual petition having been filed, and hearing had, the road was established by order of the county commissioners, and compensation and damages awarded certain land owners.

To the findings and orders of the county commissioners an appeal was taken to the probate court, trial by jury had, and a verdict returned against the establishment of the road. Only nine jurors concurred in the verdict. A motion for a new trial was overruled, and judgment entered accordingly. Error was prosecuted to the common pleas court, and the judgment of the probate court was affirmed.

But one question is raised by counsel for plaintiffs in error, namely: Was the verdict of the jury, which was signed and returned by nine of the twelve jurors, a valid, legal and constitutional verdict 1

The claim of counsel for plaintiffs in error is: that under Art. 1, Sec. 19, of the constitution of Ohio, the taking of private property for the making or repairing of roads must be compensated for to the owner in money, the amount to be fixed by a jury, which must be composed of twelve men, and all must agree in the verdict returned.

True, the basis of the suit under review was the appropriation of land for road purposes and the section provides “and such compensation shall be assessed by a jury.” But nowhere in the section and article of our constitution relied upon by learned counsel does it fix the number of jurors necessary to concur in a verdict. Therefore, we must and are bound to look to some other constitutional or státutory provision to determine this question.

Article 1, Sec. 5, of the Ohio constitution, as amended September 3, 1912, reads:

“The right of trial by jury shall be inviolate, except that, in civil cases, laws may be passed to authorize the rendering of a verdict by the concurrence of not less than three-fourths of the jury.”

Section 11455 G. C. reads:

“In all civil actions a jury shall render a verdict upon tiie concurrence of three-fourths or more of their number. ” * *

Section 11212 O. C. reads: ,

“The provisions of a law governing civil proceedings in the court of common pleas, so far as applicable, shall govern like proceedings in the probate court, when there is no provision on the subject in this title.”

To us it seems clear that the makers of our constitution and the members of our legislature have clearly settled and determined the question involved in this case, and by so doing have saved the courts much trouble and labor. We think the constitutional and statutory provisions just referred to are clear and plain of meaning, and when applied to the facts in the case at bar only one conclusion can be reached, and that is that the judgment in this case, as entered by the probate and common pleas courts, is right.

Said constitutional amendment provides that, in civil cases, laws may be passed authorizing the rendering of a verdict by the concurrence of not less than three-fourths of the jurors. The action of the makers of our constitution left it to legislative enactment, and that body has seen proper to act, and we must follow the constitution and the law as we find the same.

If we were to adopt the theory, as advanced by plaintiffs in error, we would find ourselves much confused in our endeavor to determine in just what cases the three-fourths rule Avould apply, and we think the view of counsel in this regard entirely too narrow.

Judgment affirmed.

Powell and Shields, JJ., concur.


author: METCALFE, J.

text:
    FORCIBLE ENTRY AND DETAINER — JUSTICE OF THE PEACE.
    [Mahoning (7th) Court of Appeals,
    1918.]
    Pollock, Metcalfe and Farr, JJ.
    Marko Bucilli et al. v. Emil J. Hoffman et al.
    1. Forcible Entry and Detainer Trial in Township Electing Justice of Peace.
    In actions of forcible entry and detainer the jurisdiction of the justice of the peace is co-extensive with the county, but such jurisdiction must be exercised in the township in which he is elected.
    2. Judgment in Forcible Entry and Detainer Case Tried Outside Township Electing J. P. Is Void.
    Where a justice of the peace issues summons in a case of forcible entry and detainer, returnable in a township of the county other than the one in which he is elected and hears the case and renders judgment in such other township, the judgment is void.
    [Syllabus by the court.]
    Error.

      J. M. Moderrelli, for plaintiff in error.

      David Steiner, for defendant in error.
   METCALFE, J.

The plaintiff in error seeks to obtain an injunction against the defendants in error to prevent the enforcement of a judgment of eviction in a ease of forcible entry and detainer, claiming that the judgment is void for want of jurisdiction in the justice of the peace to render the same.

The plaintiffs are lessees of the property in question, which is situated in the township and city of Youngstown, and the defendant, Hoffman, is the lessor. This action was brought by Hoffman in the court of the defendant Brown, a justice of the peace. Brown was elected to such office of justice of the peace in the township of Boardman, Mahoning county, but maintained an office in the city of Youngstown.

The summons in this case was issued by the justice return able at his office in the city of Youngstown, and the case was tried and judgment rendered therein in the city of Youngstown, and not within the limits of the township of Boardman.

The only question we have here is: Did the justice of the peace, in an action in forcible entry and detainer, have the right to hold court and render judgment in a township other than the one in which he is elected? This court has held in the case of Railway Co. v. Skipp (not reported), that he may do so in a criminal case, and the Supreme Court have decided the same thing in Steele v. Karb, 78 Ohio St. 376 [85 N. E. 580], in both of which cases it is held that in criminal cases the jurisdiction of the justice is eo-extensive with the county containing the township in which he was elected, and that he may hold court anywhere wúthin the county. His power is granted under Sec. 13422 Gr. C., which provides that he shall be a conservator of the peace, and that he may upon view or information cause the arrest of a person and issue a warrant commanding him to be brought before himself or before some other justice of the peace within the county.

' We do not think, however, that such is the case in any civil action. By See. 10223 it is provided:

“Unless otherwise directed by law the jurisdiction of justices of the peace in civil eases is limited to the township wherein they were elected and wherein they reside. No justice of the peace shall hold court outside of the limits of the township for which he was elected.”

This provision is perfectly clear and prohibits a justice from holding court in all civil cases outside of the limits of the township for which he ivas elected, unless otherwise directed by law.

It is claimed here that he is otherwise directed by See. 10224 G-. C., paragraph 5, which confers upon the justices of the peace jurisdiction to try forcible entry and detainer cases throughout the county, that is to say, his jurisdiction to try that class of eases is co-extensive with the county, but that does not confer the right upon him to go outside of his township, issue summons outside, returnable outside, and hold court and render judgment outside in view of the explicit provisions of Sec. 10223 that no justice shall hold court outside of the township in which he is elected.

We think that such action is entirely unwarranted and that the defendant, Brown, could not exercise the jurisdiction of a justice of the peace outside of the township in which he was elected, but plainly has the right to bring the defendant in such case into the township where he was elected.

Judgment for plaintiff.

Pollock and Farr, JJ., concur.


author: By the Court.

text:
    DIVORCE AND ALIMONY.
    [Hamilton (1st) Court of Appeals,
    April 29, 1918.]
    Jones, Wilson and Hamilton, JJ.
    Dora Bruner v. John E. Bruner et al.
    1. Application for Reduction of Alimony in Form of Motion Sufficient,
    It is immaterial that the application for reduction of an allowance of alimony is made in the form of a motion rather than a peti- ■ tion, when the motion has been regularly filed and sets forth the grounds upon which a modification of the original order is asked.
    2. Presumption Hearing for Modification of Alimony Based on Evidence.
    At the hearing of such an application a presumption arises, in the absence of a bill of exceptions containing all of the evidence, that the court had before it evidence as to property out of which an allowance could be made and that the allowance was made in accordance with law.

      3. Changed Conditions Justifying Reduction of Alimony but not Discontinuance.
    Changed conditions which justify a reduction of the original allowance may not justify a discontinuance of the allowance altogether.
    ERROR to insolvency court.

      Frank II. Kunhel, for plaintiff in error.

      Alfred G. Allen and Lorbaeh & Garver, for defendant in error.
   By the Court.

On February 19, 1910, a divorce was granted plaintiff in error, and a decree for alimony of sixty dollars per month payable monthly was allowed, which alimony was regularly paid.

On June 11, 1917, a motion was filed by defendant ashing for a modification of the decree for alimony, setting forth changed conditions claimed to justify same together with an affidavit in support of said motion. On October 6, 1917, after the hearing of same said motion was sustained and a decree was entered terminating the payment of alimony. The petition in error here seeks to obtain a reversal of the order terminating the alimony.

It is urged by plaintiff in error that the question of modification could not be raised by motion but should be by petition only. We are of the opinion that the motion, having been regularly filed, setting forth the ground upon which the modification is asked and setting forth the changed conditions, is sufficient to give the court jurisdiction to hear and determine the question. The mere naming of the paper writing a “motion'’ instead of a “petition” could not deprive the court of such jurisdiction.

The question as to the amount of property owned by the defendant at the time of the granting of the divorce is not properly raised here. In the absence of a bill of exceptions containing the evidence introduced at the original hearing of the divorce ease, this court will presume that the trial court had before it evidence of property out oí which said court could order the allowance made at that time, and it will be presumed that it made the award in accordance with the law. Lape v. Lape, 40 O. A. & C. 94 (28 O. C. A. 108).

The right to modify the decree for alimony would therefore rest upon the ground of changed conditions. We hold that the evidence shows such changed conditions as to. justify the lower court in sustaining the motion to modify the decree, but it does not justify the termination of the decree for alimony as a whole. The court would have been justified in reducing the alimony, under the changed conditions, to the payment of the amount of thirty dollars per month.

The judgment of the insolvency court will be modified and the payments of alimony continued from and after October 6, 1917, in the sum of thirty dollars per month, payable monthly.

Jones and Hamilton, JJ., concur.


author: POWELL, J.

text:
    HEALTH.
    [Morrow Court of Appeals,
    May Term, 1918.]
    Powell, Houck and Shields, JJ.
    Adam Clouse et al. v. James Coykendall.
    1. Necessary Allegations and Proof to Establish Liability for Destruction of Goods Destroyed in Contagion.
    In an action against a board of health for the value of goods or property destroyed to prevent the spread of any contagious disease, it is necessary to both allege and prove by a preponderance of the testimony that the property destroyed was infected, and that it could not be made safe by disinfection, and that it was destroyed at the expiration of the quarantine period by the board of health, either individually or in accordance with orders issued by them.
    2, Character of Property Which May Be Destroyed.
    Liability does not arise for property- destroyed where it is of such a nature that it could have been cared for without permitting it to become infected.
    I Separate Issues of Fact and Law Defined.
    Failure of a trial court to separate the issues of fact from the issues of law in its charge to the jury, and to properly define such issues, constitutes reversible error.
   POWELL, J.

The parties to this proceeding in error stand in the inverse order to that in which they stood in the court below; the plain-tiil's in error were defendants in that court and the defendant in error was plaintiff.

The right to a recovery is based upon the provisions of Sec. 4434 G. C., providing for the care of persons afflicted with any contagious disease. The case presents two principal contentions, and we are asked to reverse the judgment of the court below upon such contentions:

First: The charge of the court is complained of. Whether or not it complies with the requirements of the statutes and decisions relating to court procedure. And—

Second. Whether or not a ease which would entitle the plaintiff to recover is set out in the pleadings and proved by the evidence offered.

The petition, as it was said above, was based upon the provisions of Sec. 4434 G. C., which reads as follows:

* ‘ Section 4434. Such board may destroy any infected clothing, bedding, or other article which can not be made safe by disinfection, and shall furnish to the owner thereof a receipt, of which it shall keep a full and accurate copy, for articles destroyed, which receipt shall show the number, character, condition and estimated value of the articles destroyed.” * * *

This act is an attempted exercise of what is generally designated as the police power of the state, and is intended to protect the general public from the evils growing out of infectious or contagious diseases; it prescribes a plan of procedure and designates the tribunal to carry the plan into effect. This tribunal is the board of township trustees, who become by virtue of that office the board of health for so much of the township as lies outside of any municipality. Each municipality is supposed to have either a board of health or a health officer of its own, while the duties belonging to a board of health outside of such municipality are placed by statute upon the township trustees. This suit is based on the alleged action of the board of health in destroying cream of plaintiff of the value of $70, and one hundred dozen eggs of the value of $30. There is a second cause of action set up in the petition by which plaintiff claims the sum of $50 from the said defendants for care, boarding and. nursing furnished one Flossie Waters, while quarantined in his house during the prevalence of the disease of small-pox, and for money paid for her doctor bill while so quarantined. It appears from the averments of the petition and the proof, that the said Flossie Waters was without means to care for herself or to pay her doctor bill, and that the care, nursing and boarding was furnished her by the plaintiff and that he paid her doctor bill while so quarantined. In the opinion of the court the second cause of action is well pleaded and sufficiently proved. The evidence, however, as we think, fails to sustain the first cause of action. There is no averment and no testimony of any sort, that the property destroyed was infected with small-pox, or that it could not be made safe by disinfection: neither is there any proof that the property, -was destroyed by the board of health individually, or under its direct order. In order to make a cause of action these things should both be alleged and proved by a preponderance of the evidence. The court is of opinion that the first cause of action is not sustained by sufficient proof.

The second contention insisted upon is that the court did not state the issues presented by the pléadings with that particularity required by law, and that as given the charge is misleading and for want of more particular statement is prejudicially erroneous.

On examination of the charge, the court is of the opinion that the same was incomplete in' that it does not define to the jury what the issues to be tried really were, nor were they property instructed as to the proof necessary to maintain such issues. We think such instruction as was given, was property given, but that the application of the same to the issues was not made by the court in its charge to the jury. The Supreme Court has held that it is the imperative duty of the trial court to separate issues of fact from issues of law and define the same and that'proper instructions be given as to the proof necessary to sustain any such issue so presented. In this case the issues are made up by a general denial of the averments of the petition. If the petition states a cause of action, it shows that the property alleged to have been destroyed :

First. Was infected with small-pox contagion.

Second. That it could not be made safe by disinfection; and

Third. That it was destroyed by the board of healtli, or under its orders.

Those constitute, as we think, three distinct issues to be presented to the jury and tried by them under proper instructions from the court. The court is of the opinion that because the first and second of these issues were not defined or stated to the jury separately in the general charge, the same was erroneous and misleading. Baltimore & O. Ry. v. Lockwood, 72 Ohio St. 586 [74 N. E. 1071].

In addition to what is said above it seems to the court that an issue of law is presented by these pleadings, as to whether or not plaintiff was entitled to recover at all without showing that the property so claimed to be infected was destroyed by the board of health, or by its order, at the expiration of the time of quarantine, that being the time prescribed by law, when the infected property should be fumigated or destroyed. It appears by this record that when the quarantine card was first placed upon the residence of the plaintiff some conversation was had as to what should be done with the eggs and the cream; that the members of the board of health at that time said that it was unlawful to sell the same, but did not make any provision, however, that they should be cared for, or looked after by persons other than the plaintiff or his family, most of whom were during the time of quarantine afflicted with the disease of.small-pox; and acting upon this advice the plaintiff fed the cream, or so much of it as was not needed for his own family use, and the eggs, to his hogs.

The court is of the opinion that it is not the intention of the law that property of this kind, that can be cared for without becoming infected, should be cared for otherwise than by being destroyed while it is accumulating; and then it is a question of doubt as to whether or not in such circumstances the board of health would be liable for the value thereof. This question arises solely upon the weight of the evidence, as no question of this kind was made by the pleadings.

It was further said in argument that the verdict of the jury and the judgment ought to be sustained under the provisions of Sec. 11364 G. C., as the record shows that by such judgment substantial justice had been done. The provisions of this statute are often misapplied and a court can easily usurp the functions of the trial court and a jury, by simply certifying that substantial justice has been done. In a case like the one at bar, it is wholly the province of the jury to determine what is substantial justice between the parties on the acts presented. They must do this, however, on a fair and impartial trial under the rules of legal procedure. "When this has been done the verdict ought to stand, or if the facts are practically agreed on the court may determine upon its own initiative that substantial justice has been done. We think on the record as presented in this ease, that on the second cause of action substantial justice was done, and if it stood alone it would be affirmed upon that ground. But upon the first cause of action the court can not certify that substantial justice was done as between the plaintiff and the general public represented by the board of health.

For the reasons stated the court is of opinion that the judgment should be reversed and that the cause should be remanded •to the court of common pleas for a new trial and such other proceedings as are authorized by law.

Judgment reversed.

Houck, and Shields, JJ., concur.


author: WILSON, J.

text:
    MORTGAGES.
    tHamilton (1st) Court of Appeals,
    June 24, 1918.]
    Jones, Wilson and Hamilton, JJ.
    East End Loan Assn. Co. v. Methodist Book Concern.
    Lien of Judgment Creditor Subsequent to That of a Later Mortgagee.
    The fact that a judgment, by relating back to the first day of tha term during which it was rendered antedates the execution of a mortgage, does not give the judgment creditor a prior lien, where the proceeds of the mortgage were, by agreement with mortgagor, used in liquidating previously existing liens, and the mortgagee thereby became subrogated to the rights oí said former lienholders.
    [Syllabus by the court.]

      M. W. Conway and David Davis, for plaintiff.

      Wolf <& Bailey, for defendant.
   WILSON, J.

This action was brought in the court below by the Methodist Book Concern, a corporation, against Mary B. Corwin, the Bast End Loan Association Co. et al., to enforce the collection of a judgment, marshal liens and for the sale of real estate, the judgment having been recovered on Januaray 11, 1917, and by force of statute related back to the first day of the term of court, to wit, January 2, 1917.

The defendant, the East End Loan Association Co. filed a second amended answer and cross-petition therein alleging that on January 9, 1917, it loaned to Mary B. Corwin the sum of $2,000, secured by a mortgage of that date on the property described in plaintiff’s petition, and further alleging that said money was applied by it at the request and direction of Mary B. Corwin to the payment of a $1,500 mortgage on the property held by the Southern Ohio Loan & Trust Co. dated February 7, 1913, and a $500 obligation of Mary B. Corwin to Edward B. Quinn secured by a conveyance by way of deed, of the legal title to said property to said Quinn, dated August 26, 1916, with a lease back containing a privilege of purchase for the sum of $500; that said obligations were paid on said January 9, 1917, and said property was then and there conveyed by said Quinn to Said Mary B. Corwin, who thereupon executed the mortgage to said loan association company. Said company by reason of the facts so alleged claimed a right to be subrogated to the rights of the lienholders so paid by it and prayed that it might be so sub-rogated and declared to have the first and best lien on said property prior and superior to the lien asserted by the plaintiff.

To this answer and cross-petition the plaintiff demurred on the ground “that it does not state facts sufficient in law to entitle it to priority over plaintiff’s judgment lien.” The court below sustained the demurrer and entered a judgment in favor of plaintiff, holding that it had a prior and superior lien to the mortgage of the East End Loan Association Company, to wbicb the said company excepted.

The question presented for the consideration of this court is as to whether or not the facts alleged, if proven, would entitle the said defendant, the East End Loan Association Company, to be subrogated to the rights of the prior lienholders whose secured claims were so paid by the said company at the request and direction of the mortgagor.

It will be observed that on January 2, 1917, when it is claimed the plaintiff’s lien attached to the property, the two liens of the Southern Ohio Loan & Trust Co. and Edward B. Quinn aggregating $2,000 were then subsisting liens on the property, so that if the East End Loan Association Co. is sub-rogated to the rights of said two lienholders, it will work no injustice to the rights of the Methodist Book Concern, as its security remains the same as when the lien attached and its position will in no way be changed for the worse on account thereof.

The right of subrogation is founded in equity, and will be invoked only when necessary to secure some equitable right and without which an injustice will be done.

In Straman v. Rechtine, 58 Ohio St. 443 [51 N. E. 44], the court say:

“Where money is loaned under an agreement that it shall be used in the payment of a lien on real estate, and it is so used, and the agreement is that the one who so loans the money shall have a first mortgage lien on the same lands to secure his money and through some defect in the new mortgage or oversight as to other liens, the money can not be made on the last mortgage, the mortgagee has a right to be subrogated to the lien which was paid by the money so by him loaned, when it can be done without placing greater burdens upon the intervening lienholders than they would have borne if the old mortgage had not been released.”

To the same effect are the cases of Amick v. Woodworth, 58 Ohio St. 86 [50 N. E. 437]; Joyce v. Dauntz, 55 Ohio St. 538 [45 N. E. 900].

The court is of the opinion that the facts alleged in said answer and cross-petition, if proven, will entitle the loan association to be subrogated to the rights of tbe lienholders so paid by it out of said $2,000, and that the allegations contained in said answer and cross-petition are sufficient to state a cause of action for such relief, and that the court below erred- in sustaining said demurrer.

“An answer which seeks affirmative relief must be treated as a cross-petition, and if the facts therein set forth entitle the defendant to any relief, the defense thus set up is good as against a general demurrer.” Cincinnati & Columbus Trac. Co. v. Jewett Car Co. 30 O. C. C. 675 (11 N. S. 189).

This court has some doubt as to the right of the court below to entertain and pass upon said demurrer by reason of the fact that it does not conform to the requirements of the code. However, it appears upon inspection of the record that the court below, while sustaining said demurrer and the said defendant having declined to further plead, did proceed on final distribution as though said demurrer had not been sustained, to determine the rights of said loan association company, although said company was not in court with any pleading, and ordered it to pay a portion of the costs, and further ordered paid to it out of the proceeds of the sale the sum of $516.99 on account of its distributive share of said proceeds. The court having found the lien of the Methodist Book concern to be the first lien on the fund so realized, and entitled to be paid before the claim and lien of the East End Loan Association Co., ordered its claim paid in full out of the proceeds of said sale, to all of which said company excepted.

By reason of the erroneous action of the court below in sustaining said demurrer and in adjudging and decreeing that the lien of the Methodist Book Concern was prior and superior to the lien of the East End Loan Assn. Co. and distributing the proceeds of the sale in the manner it did, prejudicial to the rights of the loan association company, this court orders the judgment of the court below in sustaining said demurrer, and the finding, judgment and decree of the court in determining and marshaling the liens on said property and distributing the proceeds thereof be reversed, and that this cause be remanded to the court below for further proceedings according to law.

Jones and Hamilton, JJ., concur.