text:
    FAILURE OF BENEFICIARY AND DESIGNATED HEIRS IN MUTUAL BENEFIT ASSOCIATION.
    [Circuit Court of Cuyahoga County].
    Carl Halle et al v. District Grand Lodge No. 2, I. O. B. B.
    Decided, April 3, 1903.

      Mutual Benefit Associations — Designated Beneficiaries and Heirs at Law-Lapsing of Benefits.

    1. Where the by-laws of a mutual benefit association require a member to designate a beneficiary, and upon his failure so to do provide that the benefits shall be paid to certain heirs in the order named, the association has the right to say what shall be done with the benefits in the event of neglect on the part of the member to designate a beneficiary, and of failure of such heirs as are specified in the by-laws.
    2. The fact that the association may elect in such a case to treat the benefits as having lapsed, which is contrary to the spirit of the statute, does not entitle heirs at law who are not specified in the by-laws to recover the fund.
    Error to tbe Court of Common Pleas of Cuyahoga County.
    Winch, J.; Hale, J., and Martin, J., concur.
   Carl Halle, Manuel Halle, Moses Halle, Bertha' Goldsmith, Regina Rheinhand, Caroline Shall and Minnie Goldsmith, alleging that they are the sole heirs at law of Aaron Halle, deceased, brought their action in t'he court below against District Grand Lodge No. 2, I. O. B. B., to recover certain benefits which thev claimed to be due from said lodge, alleging that the lodge is a corporation organized under the laws of the state of Ohio for the purpose of mutual protection and relief of it's members and for the payment of stipulated sums 'of money to the families or heirs of deceased members of such association, and that it has certain powers, etc.

The language of the allegations regarding the objects of the order is taken from the act of April 20, 1872 (69 O. L., 82). Although this act has been amended since 1872, we have taken it that that act controls in this case, as there is no allegation or proof that subsequent amendments of the law have been taken advantage of by the association.

The petition states that Aaron Halle became a member of the defendant association in 1874 and remained such until his death in 1897; that in 1874 he became a participating member of its covenant and endowment fund, paid all dues and assessments, and died on April S3, 1897, at Cleveland, in good standing, never having designated who should be his beneficiary, and leaving no widow, nor children, nor grandchildren. Due notice of his death was given and proof thereof was made according to the printed rules and regulations of the order.

Section 11 of the by-laws of the order provides in substance that each member shall make a designation as to whom his endowment money shall be paid at his decease.

Section 12 of the by-laws provides who may be thus designated, to-wit: “A member or members of his family, blood relatives, or a dependent or dependents of such participating member, or charitable or benevolent institutions or associations, including a lodge of this order for some specific benevolent purposes.”

Section 13 of the by-laws construes the designation “wife and children” or “family,” and provides who shall receive the benefits upon the prior decease of a designated beneficiary and directs upon the prior death of all designated beneficiaries the money shall'pass to the emergency fund under Section 18 of the by-laws and be controlled by the provisions of such section, and, if not distributed thereunder, shall lapse and become a part of the reserve fund.

Section 14 of the by-laws provides that in case the member fails to make any designation as 'to whom his endowment shall be paid, the endowment shall be paid to his wife and, in case there be no wife, then to his children, then to his grandchildren, 'and in case there be no wife, children nor grandchildren, no endowment shall be paid, subject, however, to the provisions of Section 15 of the by-laws.

Section 15 provides that any member who may be a member of a home for aged or infirm or of any similar charitable institution may designate such home or institution as a beneficiary, shall not be entitled to make any change, etc.

Section 18 provides that in any case where there may be no one entitled to demand payment as beneficiary on the death of any member, the trustees of the endowment fund may pay over the endowment on such death, or such part thereof as they may deem advisable, into a fund which shall be known as the emergency fund and the trustees are empowered to pay from that fund to such members of the family, or blood relatives of the deceased member so dying without valid designation, or such charitable institution which may have assisted him, as the trustees may deem worthy of relief, and any portion of said fund not so applied by the trustees shall lapse and pass into and become part of the reserve fund.

A reserve fund is provided for in Section 9, from which endowments shall be paid whenever they exceed the current receipt's.

A general demurrer to the petition was sustained by the common pleas court.

Attention is called to the fact that the plaintiffs’ claim to be the sole heirs at law of the decedent member, but they do not claim to be the wife, children or grandchildren, or any of the heirs at law designated in the by-l'aws as entitled to be beneficiaries under the designation of members.

It is contended by plaintiffs that Aaron Halle having died without designating any beneficiary, they are entitled to his endowment because the law under which the order is organized provides that it may pay “stipulated sums of money to the families or heirs of deceased members,” and that they are the heirs of Aaron Halle within the purview of said statute, and he had no family. They claim that the law and the by-laws of the order make a contract in their favor and that the by-laws of the order can not be in conflict Avith the law, anid if they are, the statute prevails. They claim that in so far as the by-laws limit the payment of benefits, upon failure of designation, to certain heirs, excluding nephews and nieces, for instance, such as they are, the by-laws are invalid.

It is well settled in this state that the scope of the by-laAAjs can not be greater than that' of the law. State, ex rel, v. People’s Mutual Benefit Assn., 42 O. S., 579.

The authorities cited by counsel for plaintiff hardly bear out their contention that the association can not decline to take the benefit of the whole law, and can not limit the classes who may be designated by the members as beneficiaries or Avho may receive benefits where no valid designation is made. They are rather in line Avith the case above referred to, for instance:

In the ease of The Supreme Council American Legion of Honor v. Perry, 140 Mass., 580, under a statute authorizing the creation of corporations, for the purpose of assisting the widows, orphans, or other relatives of deceased members or persons dependent upon deceased members, it was provided in the by-laws that in the event of no designation the benefit was to go to the dependent heirs of the deceased member, and it was held that a member could not direct by will that a person not' within the class contemplated by the statute should receive the benefit of a certificate issued to him. even if the terms of the certificate permit such disposition to be made. In this case the benefit fund was bequeathed by the member to a person to whom he was engaged to be married, but to whose support he had contributed nothing and who was not dependent upon him.

In the case of Britton v. The Supreme Council of the Royal Arcanum, 46 N. J. Eq., 102, the same law of Massachusetts was under consideration and the court held that a member could not designate a creditor in no wise related to or dependent upon him as his beneficiary, and having done so, there was such failure to designate that the fund would go to the “legal heirs” mentioned in the by-laws who were construed to be the next of kin of the member.

In the case of Alexander v. Parker, 144 Ill., 355, the statute regulating the organization of such corporations “for the purpose of assisting the widows, orphans, or other persons dependent upon deceased members,” and the by-laws providing for the payment of benefits to a member’s wife, children, etc'., and lastly, to any other person dependent upon him, it was held that.a member could not designate as his beneficiary his affianced wife who was not dependent upon him.

To .the same effect is the case of Baldwin v. Begley, 185 Ill., 180, where the claimant was a niece of the deceased member’s wife and the by-l'aws provided for the payment of benefits only to the families, heirs, blood relatives, affianced wife of, or persons dependent upon the member.

We are satisfied that while members of mutual benefit associations can not designate as beneficiaries persons outside the classes specified in the statutes regulating such associations, and while such associations can not provide for the payment of benefits to persons outside the.classes mentioned in the statutes, such associations may limit the payment of benefits within the classes designated by law. If the law provides that benefits may be paid to heirs, generally, the by-l'aw may specify what heirs and limit and restrict the beneficiaries to certain heirs.

Defendant claims not only that plaintiffs are not the wife, children or grandchildren of the deceased member, within the meaning •of the by-laws, and so not entitled to any benefits, but that there being no wife, children or grandchildren, all benefits have lapsed and it is indebted to no one by reason of the endowment membership of Aaron Halle. Plaintiff claims that the by-laws providing for the lapsing of benefits are invalid, being contrary to the .spirit of the statute and in an indirect manner provide for the payment of benefits t'o institutions beyond the purview of the statutes. We do not see how plaintiffs’ claims t'o the fund are better established by showing that some other payment provided for under the by-laws is unlawful.

If plaintiffs have no right to the fund that settles this case, whether the association may afterwards make unlawful use of the money or not. Order of Mutual Companions v. Griest, 76 Cal., 494. By-law 14 provides that if there is no wife, and no children or grandchildren, no endowment shall be paid, subject to the provisions of Section 15 authorizing the member to designate a charitable institution as his beneficiary. Section 18 directs that in any case where there may be no one entitled to demand payment as beneficiary the money may be paid into the emergency fund, from which payments may be made to needy members of the •deceased member’s family, blood relatives, or a charitable institution, if the trustees deem them worthy, and any portion not so paid by the trustees shall lapse and go into the reserve fund, from which other endowments are paid when the receipts are inadequate for their payment.

The authorities seem to hold that where the by-laws of a mutual benefit association require the member to designate a beneficiary, and upon his failure to do so, provide that the benefits shall be paid to certain heirs in an order named, upon failure of the member to designate a beneficiary and there being no such heirs as are specified in the by-laws, the order has the right to designate what shall be done with the endowment. Arthur v. Odd Fellows Beneficial Association, 29 O. S., 560; Hellenberg v. District No. 1, I. O. B. B., 94 N. Y., 580; Maryland Mut. Ben. Society v. Clendinen, 44 Md., 429; Order of Mutual Companions v. Griest, 76 Cal., 494; Eastman v. Provident Mutual Relief Ass’n, 62 N. H., 555; Loewenthal v. District Grand Lodge No. 2, I. O. B. B., 19 Ind. App., 377.

.8. A. Grossner and H. Preusser, for plaintiffs in error.

Horr & Loewenthal, for defendant in error.

Following these authorities we find that the demurrer was properly sustained and there is no error.

Judgment affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    NOT APPEALABLE.
    [Circuit Court of Hamilton County.]
    Wilder v. Wilder et al.
    An appeal does not lie to the overruling of a motion in a partition case.

      W. S. Little, for the motion.

      Thús. L. Michie, contra.
   Per Curiam.

The motion filed in this cause to dismiss the appeal should be granted.

The action in the court of common pleas was one in partition. On the issues joined between the parties the court' rendered a final decree determining the rights of the parties on March 28, 1900. From this decree an appeal might have been taken. 49 O. S., 374.

On January 22, 1903, Heilker & Heilker filed a motion in said cause for an 'allowance of attorney fees. This motion was overruled by the court on March 17, 1902; from the overruling of this motion, Heilker & Heilker prosecute this appeal. An appeal does not lies from the action of the court on a motion in an action of this character. Error is the only remedy.


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    THE CENTRALIZATION OF TOWNSHIP SCHOOLS.
    [Circuit Court of Ashtabula County].
    Ohio, ex rel Rogers, v. Board of Education of Colebrook Township et al.
    Decided, January Term, 1903.

      Sections 3927-1-2-3-4 and 5 — Mandamus Against Board of Education— Centralization of Public Schools — Duty of Board in Face of Adverse Vote as to Levying Tax for Buildings.

    1. Where the electors of a township vote against the levying of a tax for the purchase of a site and erection of a building for a centralized school, the board of education is not bound to take any steps whatever toward centralizing the schools.
    2. Neither would a board of education be justified in accumulating money year by year in anticipation of centralizing the schools at some future date, on account of the danger that the funds thus accumulated may be squandered illegally.
    Cook, J.; Burrows, J., and Laubie, J., concur.
   This action comes into this court by appeal, and is a proceeding in mandamus to require the board of education of Colebrook township t'o proceed and centralize the schools of such township under the provisions of Sec. 3927 — 1, Rev. Stat., et seq.

Previous to April 6, 1901, more than one-fourth of the qualified electors of Colebrook township petitioned the then existing school board to submit the question of centralization of schools under sections of the law referred to.

The school board passed a resolution to submit the question on April 6,1901, and also resolved that it was necessaryto issue bonds to purchase a site and erect a building for the purposes of such centralization, in the sum of $5,500: and it was also determined to have but one building.

On April 6, 1901, the election was held. There was printed upon the ballots voted by the electors:

“For Centralization — Yes. For Centralization — No.
“For levying a tax to purchase a site 'and erecting a building for centralization of schools, not to exceed $5,500 — Yes.
“For levying a tax to purchase a site and erecting a building for centralization of schools, not to exceed $5,500 — No.”

Upon the first proposition to centralize the schools there Was a small majority in favor of it, but upon the second proposition to levy a tax to purchase a site and erect a building for the purpose of centralizing the schools, there was a small majority against it.

The board of education again submitted the question of levying ■a tax in May of the same year, to the amount of $5,000, and it was defeated by an increased majority. The board again submitted the question of levying a tax in the following November, to the amount of $3,000, which was again defeated by a still increased majority.

The board that then had control of the schools were in hearty sympathy with the plan of centralizing the schools, and did all in its power to accomplish it. It levied the maximum amount of ta.x, ten mills, for school purposes, and by April, 1902, had in the 'treasury $3,000, at least two-thirds of which could be used for the purpose of centralization. It also purchased a site at a cost of $150.

At the spring election in April, 1902* an entirely new board was elected under Sec. 3927 — 5, Rev. Stat., for the purpose of governing and controlling the centralized schools, and the old board disbanded and took no further charge of «the schools. The new board was elected upon a platform of opposition to the centralization of the schools, and it was determinedly opposed to centralization. It reduced the levy to five mills, which was not much more than one-half the amount required to sustain the schools, and conducted the schools under the subdist'rict plan as before the election upon centralization. The surplus that was in the treasury was exhausted, and the expenses of running the schools increased from $1,800 in 1901 to $2,200 in 1902. '

After the alternative writ of mandamus was issued the present board, who are the respondents in this proceeding, submitted to the electors the question of levying a tax to procure a site and erect a building in the sum of $6,000. This was nearly unanimously voted down by the electors that attended the election, but it is shown that those favorable to centralization generally did not attend the election; the board of directors being so much opposed to centralizing the schools, and at the election, they as individuals, exerted all their influence against carrying the proposition.

On behalf of the relators it is claimed that it is the duty of the board to proceed with centralization as far as possible, notwithstanding the adverse vote on the question of levying a tax t'o pay the bonds that might be issued. That is, it is at least the duty of the board to continue the maximum levy of ten mills until such time as sufficient funds were provided to erect the building, which would take only a few years.

On behalf of the respondents it is claimed that the electors having .voted against levying a tax t'o procure a site and erect a building, that they are not required to take any steps whatever toward centralizing the schools; and especially they are not required to make the maximum, levy of ten mills, as that' is a matter of discretion so long as they keep the schools properly provided for as they now exist.

We think the respondents are right upon both propositions»

Section 3927 — 2, Eev. Stat., provides:

(3927 — 2) Sec. 2. (Submission of question of centralization.) “A township board of education may submit the question of centralization, and upon the petition of not less than one-fourth of the qualified electors of such township district, must submit such question to 'a vote of the qualified electors of such township district, and if more votes are cast in favor of centralization than against it, at such election, it" shall then become the duty of the board of education, and such board of education is required to •proceed at once to the centralization of schools of 'the township and if necessary, purchase, a site or sites and erect a suitable building or buildings thereon; 'provided, that if, at the said election, more votes are east against the proposition for centralization than for it, the question shall not again be submitted to the electors of said township district for a period of two years.” (94 O. L., 317).

Section 3927 — 3, Eev. Stat., provides:

(3927 — 3) See. 3. (Conduct of election.) "All elections ordered by a board of education in pursuance of section 2 of this act shall be held at the usual place or places of holding township elections, at a regular or special election as may be determined by the board, and notice shall be given and the election conducted in all respects as provided by law for the election, of township officers, and the ballots shall have printed thereon: ‘For centralization'— Yes/ ‘For centralization — No/” (94 O. L., 317.)

Section 3927 — 4, Eev. Stat., provides:

(3927 — 4) Sec. 4. (Submission of question of issuing bonds.) “Should the board of education deem it necessary to issue bonds to purchase a site or sites or erect a building or buildings for the purposes of such centralization, then the election shall be conducted as provided in section three of this act, but in such case the ballots shall have printed thereon: ‘For levying a tax to purchase -site (or sites) and erect-building (or buildings) for the centralization of schools at a cost not to exceed $-, Yes/ ‘For levying a tax to purchase-site (or sites) and erect - building (or buildings) for the centralization of schools at a cost' not to exceed $-, No/ and if more votes are cast in favor of levying said tax for said purpose than against said proposition, at such election, it shall be the duty of the said board of education, and the board of education is authorized to issue bonds and sell the same as provided by law and t'o levy a special tax to provide for the payment of the same together with interest thereon; provided, said levy shall not in any one year exceed five mills on the dollar valuation and said bonds shall not bear more than six per cent, interest and shall not be sold at less than their face value.” (94 O. L., 317.)

It will be observed that Sec. 3927 — 4, Eev. Stat., provides: “Should the board of education deem it necessary to issue bonds to purchase a site or sites or erect a building or buildings for the purposes of such centralization, then the election shall be conducted as provided in section three of this act, but in such ease the ballot shall have printed thereon; ‘For levying a tax to purchase -site (or sites) and erect-building (or buildings) for the centralization of schools at a cost not to exceed $-, Yes/ ” and then the same with answer no — so that when the board of education determined it was necessary to issue bonds and levy a tax t'o pay the same to obtain a site and erect a building, that was the proposition that should have been submitted to the electors of the township, and for centralization and against' centralization should not have been upon the ballots at all; and the vote being in the negative upon the question of levying a special tax it was equivalent t'o voting against centralization. But if we were wrong in this construction of the statute, still the writ should not issue In State v. Shelby Co. (Comrs.), 36 Ohio St., 326, it is said in the opinion on page 331:

Hiram E. Starhey, for plaintiff.

E. J. Batts and A. C. White, fox defendants.

“Mandamus will lie only where there is a plain dereliction of duty upon the part of public officers, and can never be invoked to control discretion which is being exercised in good faith and with a sole view to the public welfare.”

While the respondents were determinedly opposed to centralization and did all they could to' defeat it', yet no bad faith is shown on the part of the board. The statutes require that the old board should proceed at once to the centralization of the schools, but it' could not do so for the want of funds except in the purchase of a site costing $150. The new board was met with the same difficulty. The electors had said centralize if you can do so with what money you can raise with the regular levy; that could not be done except by waiting for a number of years; the board would not be justified in accumulating money year by year for a number of years which was liable to be squandered illegally. Such an act, instead of being “in good faith and with a sole view to the public welfare,” would have been in bad faith. The writ of mandamus must be refused, and the petition of plaintiff dismissed at his costs.


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    THE ENTERING OF JUDGMENT UPON A VERDICT UNDER THE NEW AND OLD LAW.
    [Circuit Court of Cuyahoga County],
    D. W. Dellenbarger v. C. F. Hunger and C. E. Dellenbarger.
    Decided, May 25, 1903.

      Construction of Section 5326 as Amended — Remedial Statutes — Pending Actions — Time for Entering Judgment.

    1. The amendment to Section 5326, adopted May 2, 1902, is strictly a remedial measure.
    2. Under the provisions of Section 79, R. S., this amendment does not apply to pending actions, and there is no prejudice to the defeated party where, subsequent to the entering of judgment immediately after the return of the verdict, a motion for a new trial was filed which was heard by the court
    Winch, J.; Hale, J., and Marvin, J., concur.
    Error to the Court of Common Pleas.
   May 2, 1902, 'the Legislature amended Section 5326 of the Revised Statutes, to read as follows:

"That when a trial by jury has been had, judgment must be entered by the clerk in conformity to the verdict, unless the verdict is special, or the court order the case to be reserved for future argument or consideration immediately after the time allowed by law for the filing of a motion for a new trial, if such motion has not been filed; if a motion for a new trial has been filed then such judgment shall be entered only ivhen the court has sustained such verdict by the overruling of such motiohi for a new tidal and shall upon such overruling of said motion be then immediately entered

The amendment consisted in adding the words in italics.

Under the old law the Supreme Court has held that the clerk might enter judgment on a verdict before the time for filing a motion for a new trial had elapsed.

Young v. Shallenberger, 53 O. S., 291.

May 9,-1902, a jury in the common pleas court rendered a general verdict' in favor of C. F. Hunger and against D. W. Dellenbarger and C. E. Dellenbarger in a suit which had been pending in said court since 1900.

On the same day .judgment was entered on the verdict.

May 10, 1902, D. W. Dellenbarger filed his motion for a new trial.

July 11, 1902, the motion for a new trial was overruled.

December 22, 1902, D. W. Dellenbarger filed his motion to vacate and set aside said judgment because of mistake of the clerk and irregularity in the proceedings of the court. The mistake and irregularity alleged is the entering of the judgment immediately after the rendition of the verdict and before the overruling of the motion for a new trial. •

January 20, 1903, the motion to vacate and set aside the judgment was overruled, and to reverse this ruling petition in error was filed in this court.

The only question involved in this ease is whether the old statute applies or the new one. The clerk entered up the judgment in accordance with the old statute, and he made no mistake and there was no irregularity if the old -statute applies. But the Legislature, seven days before the verdict was rendered, amended the statute, and if the amended law is to be applied to this case the entry of judgment was premature and the trial court • should have vacated the judgment and first heard the motion for a new 'trial.

The act of May 2, 1902, provided that it should take effect and be in force from and after its passage. It is strictly a remedial statute; that is, it affects the remedy only and not the cause- of action. It changes the procedure in court and does not affect the rights of the parties; it regulates the action of the court and its officers in determining -the rights of the parties.

The action was pending between the parties for nearly two years before the statute was amended. Such contingency is provided for in Section 79, R. S. O., the first part of which reads as follows:

“Whenever a -statute is repealed or amended, such repeal or amendment shall in no manner effect (affect) pending actions, prosecutions, or proceedings, civil or criminal, and when the repeal or amendment relates t'o the remedy, it shall not effect (affect) pending actions, prosecutions, or proceedings, unless so expressed.”

M. J. Beclcley and T. II. Jcflmson, for plaintiff in error.

Frank Iligley and Treadway & Marlatt, for defendants in error.

It not being expressed in the act of May 2, 1902, (95 O. L., 351), regulating the time of entering judgment on a verdict, that said act shall apply to pending actions, prosecutions and proceedings, it does not apply to 'actions pending at the time .of its passage. In such pending actions judgment should be entered according to the old law; in actions begun since the passage of the amendment', judgment should be entered according to the new law.

The- case at bar was a pending action within the meaning of Section 79, R. S. 0., at the time of the passage of the amendment of May 2, 1902, and we find no error in the overruling of the motion to vacate and set aside the judgment.

It does not' appear that the plaintiff was in any manner prejudiced or deprived of any rights by the premature rendition of judgment on the verdict. He filed his motion for a new trial and the court heard it. If the court had refused to hear the motion for a new trial; or if, hearing and granting it', the court had refused to set aside the judgment, there would have been such error as to entitle plaintiff in error to relief in this court.

The judgment is affirmed.


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    ASSESSMENTS AS TO LOTS ABUTTING ON TWO STREETS.
    Fridman et al v. Village of Norwood.
    Decided, December 1, 1902.
    1. In fixing the amount of a street assessment against a lot which abuts on a street on both sides, tbe lot must be treated as having but one front, and tbe principle of the Haviland case applies.
    2. Fifteen per cent. ($10,000) was retained for five years from the contract price for the improvement of a street. Held, thxt this sum represents guaranty for quality of work performed, and costs of maintenance and repairs during the five year period; that the first element may be included in the assessment against the property, but the second element can not be included; and that, following the rule in a large .majority of similar contracts where the guaranty fund is fixed at ten per cent, for two years, the proportion which may be properly designated in this case as for guaranty is $2,666.66. 22 C. C. followed and approved.
    3. Whatever of premium or surplus is yielded from the sale of bonds by a municipality for payment of a street improvement should be credited back 'u the assessments of those who have the principal and interest of the debt to pay.
    4. A lot should be assessed upon its actual abutting front feet, notwithstanding its sides may not be at right angles to the street improved.
    Jelke, J.; Swing, J., and G-ieeen, J., concur.
   Mr. Brengleman’s lot abuts 73.43 feet on Carthage avenue. It has but one front, that of 68.44 feet on the Montgomery pike.

Under the Haviland case an assessment by the front' foot must have regard to the real front of the property. We see no reason why the principle or fiction of that ease should not apply equally to the rear as to the side of a lot. Sixty-eight and forty-four hundredths feet' on Carthage avenue can be assessed. 50 O. S., 471.

Advertising. — The advertising in the Times-Star and Post in the matter of the improvement was apptoved by this court in the case of Davis v. Norwood, affirmed by the Supreme Court. 50 O. S., 716.

As to the defense that' the Brengelman lot has not been benefited, we find that it has.

Is the fifteen, per cent, retained for five years for. repaire and maintenance, or for guaranty on the part of the contractor as to the quality of his work?

We are thoroughly in accord with the principle of the McGlynn v. Toledo case, 22 C. C., 34-48. If it is a guaranty it is properly a part of the original contract and is not 'deductible from the assessment; if it is for maintenance and repairs it should not be added into the assessment and can not be assessed against the abutting property.

In the case at bar what is it in fact ? The most perfectly constructed macadam surface will not wear five years; it will hardly wear one year without mending. The contractor can hardly be considered to have guaranteed the impossible.

Again, fifteen per cent, is an unusually large percentage to retain for guaranty merely. We have no doubt that both ideas were present in the minds of council and -the contractor. We feel sure that some of the fifteen-per cent, was for maintenance and the repair of the inevitable wear and tear which must begin on a macadam street as soon as open to travel. It goes without saying that the better the job the fewer the repairs.

On the evidence before us we can not measure or divide the percentage retained between the two purposes. The presence, however, of the unlawful element in the fifteen per cent, so vitiates it that the burden is on the village, if expert witnesses can be had to enable the court to divide it with reasonable certainty, to furnish such evidence.

Damages paid to abutting property owners for the appropriation of property, property rights and change of grade and the cost of excavation occasioned by change of the grade, can not be assessed back upon the abutting property. Thale v. City, Court Index, February 4, 1902; Dayton v. Bauman, 66 O. S., 379; C. L. & N. Ry. v. Cincinnati, 62 O. S., 465.

As to the premium on bonds. — The law authorizes the corporation to borrow upon credit money sufficient to pay the estimated cost and expense of the improvement. The annual installments are figured so as to ultimately pay these bonds and the interest thereon. These installments differ in this respect from installments of sewer assessments on which the law fixes the rate of interest on the unpaid portions thereof. In these street assessments, if levied correctly according to principle and theory, the amount borrowed upon which interest is paid and which is ultimately repaid, should be exactly recovered from the assessments, no more and no less.

Practically it is impossible to figure this exactly in advance. But under the limitation against selling below par, too little need never be borrowed and probably never is. There is always an excess or surplus or premium on account of the good credit of the municipality. But it' is not part of .the municipal functions to do a banking business, to finance or underwrite improvements of this nature at a profit. To even things up, whatever of a premium or surplus is yielded should be credited back on the assessments of those who have the principal and interest of the debt' to pay.

As to front feet of lot abutting at an angle not a right angle.— Assessment by the front foot is but a rule-of-thumb resorted to for the measurement of special benefits upon which the whole right to assess must rest. Where this rule has been in good faith adopted the courts have stuck to the literalism of the term even to the extent of resorting to a legal fiction to preserve it, as in. the Haviland ease. This being so, we see no reason why the front feet of a lot, the sides of which are not at right angles to.the road, should be measured by the distance between the sides, or in any other manner than by actual abutting front feet.

The above principles are applicable to the Brengelman, Fridman, Cadwallader, Chappel and Potter eases.

Subsequently the village offered certain evidence and there was a partial re-hearing, after which the court said:

Upon further consideration we continue satisfied with out opinion.

We have since heard evidence offered by the village of Norwood in an effort to apportion $10,000 held by it between t'he two purposes of guaranty on the one hand and maintenance and repairs on the other.

The evidence is meager and not very satisfactory. However, in our endeavor to find what is equitable and fair between the village -and the property owners, and remembering that we are to be guided by what commends itself to the chancellor’s conscience rather than by a strict measure of legal proof, we have concluded to make the division on the following principle:

A. L. Herrlinger, Fm. E. Bundy, L. C. Black, ~W. M. Fridman, W. W. Symmes, for plaintiffs.

Fro. B. Collins, for defendant.

We find that in the large majority of contracts of this kind a guaranty fund of ten per cent, for two years is provided, and that these contracts have been sustained on the ground that such fund was an indemnity provided against structural defects and bad material and workmanship.

Adopting this as a reasonable reserve for guaranty, and scaling down the $10,000 to such reserve, we find $2,666.66 is the proper amount to be set aside for guaranty, and the balance must have been for repairs and maintenance, and is, therefore, invalid.

This issue as between an abutting property owner subject to an assessment and the village of Norwood was not submitted in the case of Davis v. Norwood, which was a suit by a taxpayer, conducted for the benefit of the contractor, and is not adjudicated here. Neither do we want anything here said to be construed as passing upon any of the issues pending elsewhere between the village and the contractor.

On the question as to street intersections we are, of course, controlled by the holding of the Supreme Court in Creighton v. Scott, 14 O. S., 438, and understand that counsel for plaintiffs only hope to prevail on this point by persuading the Supreme Court to change this, its former holding.

Decrees accordingly.


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    APPEAL IN SUITS PENDING PRIOR. TO MARCH 25, 1902-METHOD OF APPEAL.
    [Circuit Court of Franklin County],
    Hays v. Olentangy Park Company.
    Decided, January Term, 1903.

      Pending Actions — Appeal—Section ¡227 Before and After Amendment— Application of Section 79 — Notice of Appeal and Entry Thereof.

    1. A suit is a “ pending action ’ ’ within the meaning of Section 79, R. S.; an appeal is a continuation of the suit; and, except in cases where an amended or repealing statute is made applicable by express terms, the manner of taking an appeal is controlled by the statute as it stood at the time the suit was brought.
    2. Section 5227, R. S., as it read prior to the amendment of March 25, 1902, is applicable to actions pending on the date of the amendment.
    3. A written notice of appeal, signed by the attorneys for defendant but not by the defendant himself, was filed within three days after the entering of the decree. This notice was not entered upon the journal, but the fact and date of the filing were noted on the appearance docket. Field: That this notice was an entry of notice of appeal, and it was the duty of the clerk to enter it upon the journal, and so far as the right of appeal is involved it will be considered as entered.
    Summers, J.; Wilson, J., and Sullivan, J;, concur.
    On motion to dismiss appeal.
   This action was pending in the court oí common pleas on March 25, 1902, when Section 5227, Rey. Stat., 95 O. L., 66, was amended to read:

“Section 5227. A party desiring t'o appeal his cause to the circuit court shall, within three days after the judgment or order is entered on his docket by the trial judge, file a written notice (1) of such intention, and, within thirty days after the entering of such judgment or order by the trial judge, (2) give an undertaking, with sufficient surety, to be approved by the clerk (3) of the court or a judge thereof, as hereinafter provided.”

Subsequently on August 2, 1902, a decree against t'ho defendant was entered, and on August 5,1902, written notice of appeal signed by the attorneys, but not by the defendant, was filed. This notice has not been entered upon the journal, but' the fact and date of filing were noted upon the appearance docket.

The plaintiff moves to dismiss the appeal on the ground that notice of intention to appeal was not entered on the journal within three days, the contention of his attorney being that the section as it read prior to the amendment controlled, and that if the amended section controlled then the notices are not' good, because not signed by. the party appealing, but by his attorney.

Counsel for the defendant contends that the notice is good under either the unamended or amended section.

The question to be determined is whether the defendant has prolonged the life of this action by a compliance with the provisions of the statute upon which it is conditioned.

Section 79, Rev. Stat., reads as follows:

“Whenever a statute is repealed or amended, such repeal or amendment shall in no manner effect [affect] pending actions, prosecutions, or proceedings, civil or criminal, and- -when the repeal or amendment relates t'o the remedy, it shall not effect [affect] pending actions, prosecutions, or proceedings, unless so expressed; nor shall any repeal or amendment effect [afeci'\ causes of such action, prosecutions, or proceedings, existing at the time of such amendment or repeal, unless otherwise expressly provided in the amending or repealing act.’"'

Repeals and amendments, because of their effect on existing rights and remedies, invited abuse akin to that arising from retrospective legislation. In Travelers Ins. Co. v. Myers, 59 Ohio St., 332, 333, Minshall, J., says:

“This section of the statutes -was adopted for the reason, that', though the Legislature is denied by the Constitution the power to pass retroactive laws, it' has been held that this did not include laws relating to the remedy; and so to prevent abuses, of which there were many and somew'hat discreditable instances, it was provided that where, law's relating to the remedy were adopted they should not affect pending actions, prosecutions, or proceedings, * * * unless otherwise expressly made so, in the amending or repealing act.”

It is apparent from the original section and its several amendments that-the Legislature intended thereby to make all amendments and repeals of statutes prospective in their operation upon rights and wrongs and the remedies for their enforcement and redress, unless otherwise expressly provided in the amending or repealing act.

The first act was passed in 1856 (53 O. L., 153; 1 S. & C., 60), and provided:

“That whenever a statute is repealed, such repeal shall in no manner affect pending actions founded thereon, nor causes of action not in suit that occurred prior to any such repeal, except as may be provided in such repealing statute.”

This was amended in. 1866 [63 O L., 22] to read:

“That whenever a statute is repealed or amended, such repeal or amendment shall in no manner affect pending actions, prosecutions or proceedings, civil or criminal; nor cause" of such action, prosecutions or proceedings, existing at the time of such amendment or repeal, unless otherwise expressly provided in the amending or repealing act.”

This was again amended in 1880 and carried into the revision of the statutes as Section 79, Rev. Stat., above quoted.

The course of legislation was as follows: First, it was provided that repeals should not act retrospectively, then that repeals and amendments should not so act in either civil or criminal matters, and finally in 1880, the courts having held (Westerman v. Westerman, 25 Ohio St., 500; Rouse v. Chappell, 26 Ohio St., 306; Warner v. Railway Co., 31 Ohio St., 265) that a change in the statute, affecting merely the remedy, did not affect the pending action, prosecution, or proceeding, within the meaning of the statute, and that an amended statute of that character applied as well to cases pending and causes of action existing at the date of its taking effect; as to -future cases and causes of action, it was provided: “When the repeal or amendment relates to the remedy it shall not affect pending actions, prosecutions or proceedings unless so expressed.”

This section, so amended, was interpreted by the Supreme Court in the same year, the court saying in Cincinnati, S. & C. Ry. Co. v. Belt, 35 Ohio St., 479, 481:

“In every case the inquiry is as to the intention of the law-making power; and that the Legislature intended the rule prescribed in. Sec. 79, Rev. Stat., should be applied to the statutes mentioned in and repealed by Section 7437 of the revision, and hence that the intention was to save matters of every sort pending when the Revised Statutes took effect, we entertain no doubt.”

The same interpretation is applicable now, for the section is not limited to the statutes mentioned in and repealed by Section 7437, Rev. Stat., but is of continuing operation.

However, the intention of the Legislature seems to have been in a measure defeated by the language used to give it expression. Instead of using general terms, particular terms were used, and in Westerman v. Westerman, supra, p. 507, Welch, J., says:

. “By the word ‘proceeding’ in the last named act, is meant not the stops taken or form of proceeding in an action, but a certain description of suit which is not properly denominated an action.”

In Lafferty v. Shinn, 38 Ohio St., 46, Okey, C. J., says that the remedy by error is a proceeding, and that the right to hie a petition to reverse a judgment is a cause of proceeding, and it is there ruled that an amendment reducing the period within which a proceeding in error may be commenced from three t'o two years does not 'apply to judgments rendered prior to the time the amendment took effect, because Section 79 saved a cause of proceeding.

And in Travelers Ins. Co. v Myers, supra, it is ruled that the amendment of Section 6710, Rev. Stat., limiting the jurisdiction on error of the Supreme Court to cases in which the judgment was not less than $300, did not apply to pending proceedings in error, nor to existing causes of such proceeding, although expressly made applicable to .all causes of action existing and to actions pending in all courts inferior to the Supreme Court, because by the terms of Section 79, Rev. Stat., pending proceedings and existing causes of proceedings were saved.

True, the court ruled that a right' to prosecute error to the Supreme Court to a judgment rendered in the circuit court subsequently to the adoption of the amendment was not affected by the amendment, presumably on the ground that the proceeding in error in the circuit court was a pending proceeding, and overlooking the fact t'hat the proceeding in error subsequently commenced in the Supreme Court was not the same proceeding that was pending in the circuit court, for it overruled Curry v. Homer. 40 Bull, 303, and vacated the order of dismissal. In that case a judgment had been rendered for less than $300, and a proceeding in error was pending in the circuit court' at the time the amendment was adopted; a judgment of affirmance was subsequently rendered by the circuit court and a proceeding in error commenced in the Supreme Court, where a motion to dismiss was sustained on the ground that the amendment applied to actions pending in the circuit court.

It is apparent from the course of decisions in the Supreme Court that the dismissal was correct, though for a wrong reason. The proceeding in error, subsequently commenced in the Supreme Court" was not a pending proceeding, but a proceeding commenced after the amendment went into effect and based upon a cause of proceeding, to-wit, the judgment of the circuit court, arising after the amendment took effect, and, consequently, subject to it, because Section 79, Eev. Stat., does not save future proceedings or causes of proceeding, and the amendment applied to such proceedings and causes of proceeding without any provision expressly declaring it applicable.

This is more clearly demonstrated in the opinion by Smith, J., in McAlpin v. Clark, 1 N. P., 195.

The act amending Section 5227, Rev. Stat., does not provide that it shall apply to pending actions, and the question now arises whether the steps necessary to an appeal are proceedings in a pending action and within the saving clause of Section 79, Rev. Stat., or is the pending action terminated by decree, and must' the appeal be effected in accordance with the law in force when the decree is entered.

The code has abolished actions at law and suits in equity and substituted ’a civil action, but it has not, as has been done in many states, provided a common form of appellate proceeding, but has, in a measure, preserved the distinction that formerly existed between them so that errors of law are brought up by petition in error, while an appeal, generally speaking, brings up the whole-case for a trial in the higher court upon the facts as well as the law. In Macklin v. Allenberg, 100 Mo., 337, Black, J., says that in that state the distinction between appeals and writs of error is still preserved, and that an appeal'is a continuation of the suit, while a writ of error is a new action. The same reasons apply here. An appeal must be effected at once, notice be given within three days, while at one time error might have been prosecuted within three years. The time is now four months, and summons in error must be served or appearance be entered.

The distinction seems to be conceded in Taylor v. Boyd, 3 Ohio, 337, 354, and in Ludlow v. Kidd, 3 Ohio, 541, 547, Sherman, J., says:

“Appeals, in chancery proceedings, from an inferior to a superior tribunal, have been long established in our system of jurisprudence, and one of familiar and daily occurrence in our practice, and it has never been supposed that the appeal was anything rather than a proceeding in the original cause. * * * The appeal has the effect of continuing the cause and suspending or vacating the decree of the inferior tribunal until the cause is heard in the appellate court.”

The ruling in Thompson v. Building Assn., 7 Circ. Dec., 68, followed in Blymyer v. Meador, 9 Circ. Dec., 173, and in Heberger v. Sabbert, 48 Bull., 12, are to the same effect. And in Bode v. Welch, 29 Ohio St., 19, 22, decided in 1875, before the amendment of 1880, Welsh, C. J., says:

“Whether such right of appeal is to be regarded as a subsisting ‘cause’ of action or proceeding, or whether the case in which it exists is to be regarded as a pending ‘action’ or ‘proceeding’ within the purview of the act of 1856, matters not. Tu whichever character it is to be regarded, we think it comes 'fairly within the saving clauses of the act.”

It follows that Section 5227, Rev. Stat., as it read prior to the amendment, applies, and the remaining question is whether the defendant has complied with its provision.

That section, previous to amendment, provided that the party desiring to appeal should, within three days after the judgment or order was entered, enter on the record notice of such intent.

The written notice that was filed was styled and endorsed simply notice. Had it been styled and endorsed entry of notice of appeal, there would be apparently little room to question that it was a joroper notice of appeal to be entered on the journal, or that it would be the duty of the clerk to enter it. The clerk did not bo enter it, but merely noted on the appearance docket: “1902, Aug. O. Defts. notice of appeal to circuit court filed.”

G. H. Steiuart, for plaintiff.

T. J. Keating and Dusenbury & Dusenbury, for defendant.

Conceding that the right of appeal is wholly statutory, and that compliance with the provision of the statute is jurisdictional, and that in this respect the statute is to be strictly construed (Browne v. Wallace, 66 Ohio St., 57), still we are of the opinion that the written notice that was filed was an entry of notice cf an appeal and that it was the duty of the clerk to enter it upon the journal. This being so, we think it must be, so far as the right of appeal is involved, considered as entered. In Miller v. Albright, 12 C. C., 533, it is held that notice of appeal is, in law, for all ¡rarposes of appeal, entered upon the record at the time it is given to the clerk to be entered.

This has been the practice. Moreover, the statute requires only that the notice be entered within three days after the judgment or order is entered. We know that many orders are not entered until long after the day they are filed. And yet they are entered on the journal as of the day they are filed, and in practice they are treated as entered on the day they are filed, and the time within which the notice of appeal must be given is computed from that day, and if it were otherwise and the entry must be not only filed, but actually entered, then there would be no certaintj1', but many contentions as to when the clerk actually entered the order and notice, and the appeal might be lost by the failure of the clerk to perform his duty.

The motion is overruled.


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    CONTRACTS IN RESTRAINT OF TRADE WITH A DUAL FEATURE.
    [Circuit Court of Summit County.]
    McCausland Brothers v. Alfred Akers.
    Decided, April Term, 1903.

      Account Stated — Combinations Contrary to Public Policy — Valid Contracts of, with Agents Enforceable where Beparatable.

    Where a contract'is dual in its nature, one part relating to the organization of an association alleged to be in restraint of trade and another and separable part relating to an agreement between the association and its selling agency, a claim of one of the members of the association against the common agent on an account stated for goods sold under the general agreement is enforceable at law.
    Winch, J.; Hale, J., and Marvin, J., concur.
    Error to the Court of Common Pleas of Summit County.
   The plaintiffs in error brought ’a suit' in the court below against Alfred Akers, as successor to and sole owner of a partnership doing business under the firm name of the Akron Brick & Tile Company, to recover upon a written contract, or contracts, between the parties whereby it was alleged the parties agreed that the defendant should act as agent for the plaintiffs and others in the sale of brick manufactured by the plaintiffs and others, keep account of all brick furnished, collect all moneys arising from ■sales and p'ay the same monthly to the parties so furnishing said brick, in proportion to the amount furnished by them respectively, the defendant further to guarantee the punctual payment of all debts arising from the sale of brick made by it.

Plaintiffs further alleged that pursuant to said contracts they furnished and delivered, on the order of the defendant', a large amount of brick, but that defendant failed and neglected to pay over to plaintiffs the said sums of money agreed upon in said contract on account of the said brick sold and delivered by theni to the defendants, leaving a balance due plaintiffs for which they ask judgment.

A second cause of action, reaffirming all the allegations of the first cause of action, further alleges an account stated between the parties concerning said brick transactions.

To make out their case, plaintiffs, among other evidence, introduced a written agreement, part of which is as follows:

“Articles or Agreement
“Made and entered into at Akron, Ohio, this 8th day of March, 1893, by and between Akron Brick & Tile Company, Cooler Brick Company, John Bailey, McCausland Brothers, Joseph Hugill, The Keller Brick Company and Cleveland & Besaw.
“Know all men by these presentSj That we, the undersigned ‘Brick Manufacturers/ having formed an association for-the purpose of selling ‘common’ brick with greater economy and facility anid for the purpose of better accommodating customers and purchasers of such brick, do hereby associate ourselves together under the name of the Akron Brick Association and do hereby bind ourselves, our heirs, executors and administrators, to the following ‘Articles of Agreement.’ ”

And the fourth article is as follows:

“That there shall be employed an agent or agents by the unanimous consent of all the parties hereto, whose duty it' shall be to sell all brick sold, and keep a correct and proper account of the same. He, or they, shall keep a correct account of the different qualities, the number of each, their respective prices and to even up sales every month, that is, to give to each party to this agreement as nearly as possible, an equal share of said sales, in quality and also in quantity. To collect all money arising from said sales and to pay said money to said parties monthly, according to the proportion of credits arising from said sales, belonging to each of the parties hereto.
“Article V. The agent' or agents guarantee the punctual payment of all debts arising from the sales of bricks by him for them, except when sales are made upon credit, approved by the executive committee.
“Article VI. The agent or agents shall keep a correct account of said sales and of money collected, in regular books, which shall always be open to the inspection of the parties hereto. Said books of accounts shall be the property of the association. The agent or agents shall make a report monthly to each of the parties hereto, showing the number and quality of brick delivered by each party, the amount of cash received and from whom collected and the amounts disbursed to the several parties hereto. And the said agent or agents shall enter into a good and sufficient bond in the sum of $10,000.00 conditioned for the faithful performance of his or their duties and for the guaranty of the collections of all moneys arising from the sale of bricks by such agent or agents.
;Jj % # ;¡; •-]{ í]í i]í ^ i{J ífc
“Article XVII. The Akron Brick & Tile Company in consideration of one thousand dollars to be paid to said company in equal monthly installments hereby agree to act as agents for the ‘Akron Brick Association5 for the period of one year from date and do hereby agree to do and perform the duties required of such agents under the terms and conditions of the foregoing instrument, as made.55 . '

The agreement was signed by all the parties named therein, and signed twice by the Akron Brick & Tile Company, evidently once as a party to the agreement, or member of the association, and a second time as agent, it being the agent named in the agreement.

At the close of plaintiff’s testimony, upon motion of the defendant, a verdict for him was directed, upon which verdict judgment for defendant was entered, and a petition in error has been filed in this court alleging that the court below erred in so ruling.

It is claimed by the defendant in error that the contract, extracts from which have been stated, was illegal and void, not binding upon any of the parties thereto, but was in restraint of trade and contrary to public policy; that the Akron Brick Association, as shown by said articles, was organized solely for the purpose of enhancing the price of brick and to prevent competition among the several members of such association; that the defendant was appointed as agent of such association wholly in furtherance of said unlawful purpose; that there can be no recovery under said contract because of this illegality. If such is the case, the second cause of action on an account stated, must fail as well as the first. “A claim void by reason of illegality will not support an account stated. (1 Am. & Eng. Enc., 2d. Ed., 442).

Plaintiffs5 claim that the contract is dual in its nature, part setting forth the organization of the Akron Brick Association and determining the relation of the members to each other, and part creating the reation of agent between the defendant and the several members of the association. Such appears to be a reasonable construction of said contract; and adopting it we find no such illegality in the relation of principal and agent claimed to exist between the parties to this suit as to prevent a recovery for that reason.

Wilcox & Grant, for plaintiffs in error.

Rogers, Rowley, Bradley & Rockwell, for defendants in error.

'Where part of a contract is illegal and the illegal part is sever-able from the balance, the effect of such illegality is not' to render the whole contract illegal, but the legal part may be enforced. The authorities on this point are well collected in the 15th Am. & Eng. Enc. of Law, 2d Ed., 990.

The bill of exceptions shows that defendant sold brick to many customers on orders filled by plaintiffs, and testimony was introduced tending to show that defendant collected the proceeds of such sales and has not fully accounted to plaintiffs therefor. This testimony should have been 'submitted to the jury.

The judgment is reversed.


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    THE LICENSING OF TRANSIENT DEALERS WHO SELL UPON THE STREETS.
    [Circuit Court of Hamilton County.]
    August Brunner v. The Municipal Corporation of Harrison, Ohio.
    Decided, December 8, 1902.

      Transient Dealers — License for Provided in Tillage Ordinance — Discrimination — Restraint of Trade.

    1. A village ordinance which provides that “transient dealers” shall, before doing any business, obtain a license from the mayor, must operate uniformly upon those who form a purpose to undertake such a business before they enter the village, and those who form such a purpose after coming temporarily or otherwise into the village.
    2. A provision in such an ordinance making it “unlawful for any person while on the street, or traveling from place to place about the village, to sell, bargain to sell, or solicit orders for goods, wares or merchandise by retail without having first obtained a license therefor,” is an intolerable interference with and restraint of trade.

      Ben.'B. Dale, for plaintiff in error.
    P. W. Francis, contra.
    Gieeen, J.; Swing, P.-J., and Jelke, J., concur.
   The plaintiff in error was convicted and sentenced t'o pay a fine of one dollar and costs of prosecution for violating Section % of Ordinance 106 of Plarrison, Ohio, which provides:

“That every person who comes into this village temporarily in order to represent some business located elsewhere, and to solicit orders for goods either at wholesale or retail or t'o sell any such goods on commission, shall be held and deemed to be a transient dealer; and it shall be unlawful for any such transient dealer as above defined, to sell, offer to sell, bargain to sell or solicit orders for goods at wholesale or retail within said village without having first obtained a license from the mayor thereof.”

This section discriminates in favor of persons who form a purpose after coming temporarily or otherwise into the village, and against those who come temporarily with the purpose, of representing some business elsewhere, etc., and is an unreasonable exercise of the power granted to municipalities. Sipe v. Murphy et al, 49 O. S., 536.

It is urged, however, that the general scheme of the ordinance includes and applies to all persons within the village, and that Section 4 applies to any and all persons.

“Section 4. That it shall be unlawful.for any person while on the street or travelling from place to place about said village, to sell, bargain to sell or solicit orders for goods, wares or merchandise by retail without having first obtained a license therefor from the mayor of said village.”

Under this section if a merchant of the village should perchance step out of his store onto the street and “sell or bargain to sell” goods to his customer, or if he should move a few paces farther to another place and sell or bargain to sell goods to another customer he would violate this section of the ordinance.

Such result's would be an intolerable interference with and restraint of trade.

Judgment reversed.


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    PUBLIC POLICY — BONUS FOR MILITARY SERVICE.
    [Circuit Court of Summit County.]
    Curtis V. Hard et al v. Walter Harris et al.
    Decided, April Term, 1903.

      Summons — Unreasonable Neglect in Serving — Motion for Judgment Non Obstante Veredicto — Public Policy — Bonus for Enlistment.

    1. A motion to dismiss the petition is addressed to the sound discretion of the court; and where the basis of the motion is a claim of unreasonable neglect in serving summons, and there is nothing to show that the defendants not served were residents of the county or even of the state, a reviewing court will not hold that the overruling of such a motion was an abuse of discretion.
    2. A motion for judgment non obstante veredicto is virtually passed upon by the entering of judgment on the verdict; otherwise the motion would he still pending below, and the prosecution of error to the entering of such judgment would he a proceeding prematurely trought.
    3. Public policy is in its nature uncertain and fluctuating, and where it is alleged that the enforcement of a given contract, not in contravention of a statute, would result in public injury, the truth of the allegation can not he a matter of opinion, but must he free from doubt.
    4. A bonus offered for enlistment as musicians in the volunteer infantry is in the nature of a bounty, and the payment of bounties for military service is clearly within the policy of the state of Ohio, as defined by the Legislature and the Supreme Court during the Civil War.
    Winch, J.; Hale, J., and Marvin, J, concur.
    Error to the Court of Common Pleas of Summit County.
   Walter Harris and others brought suit against Curtis V. Hard and others, alleging that on May 12, 1898, the plaintiffs, together with certain of the defendants, entered ‘nto a contract with the other defendants whereby it was agreed that in consideration of the plaintiffs and certain of the defendants enlisting in the Eighth Volunteer Infantry.for the Spanish American War, as musicians, said Curtis V. Hard and his associates would pay said Harris and his associates a bonus of $325.00 per month over and above the pay allowed by the United States Government for said services. Said Harris and his associates enlisted os agreed, were mustered into service, served six months, were paid $320.00, and recovered judgment in the common pleas court for the balance they claimed due on said contract.

In this court a motion to strike the bill of exceptions from the files has been granted, leaving undisposed of but three errors alleged by plaintiffs in error.

First, that the court erred in refusing to dismiss the petition because of unreasonable neglect of the plaintiffs below to serve summons on certain defendants; second, that the court erred in rendering judgment upon the verdict without passing upon the motion for judgment non obstante veredicto; third, the court erred in overruling the demurrers to the petition.

First, the motion to dismiss the petition for failure to serve certain defendants was filed under Section 5313, Rev. St'at., and was addressed to the discretion of the court. There is nothing to show whether the defendants nor served were residents of Summit county or not, or even of the state. We are unable to say that there was an abuse of discretion in overruling this motion.

Second, the motion for judgment non obstante veredicto was practically passed upon by entering judgment on the verdict. If such was not the ease and said motion is still pending undisposed of in the common pleas court, as claimed by plaintiffs in error, that fact might be urged by defendants hi error as showing proceedings in error had been prematurely brought, but they are not' complaining, and we see no error prejudicial to the rights of the plaintiffs in error by the failure of the court, if any. to pass upon said motion.

Third, it is urged by plaintiffs in error that the demurrers filed in the court below should have been sustained as the contract set forth in the petition is clearly against public policy; that it alleges a contract between plaintiffs together with certain of the defendants entered into with certain persons who agreed to pay them a bonus of $325.00 per month over and above the pay allowed .them by the United States for said services; that the Government fixes the pay of all who are in its service; those performing like work receive like pay and the rule is unalterable In no way could the Government sooner demoralize the public- service than to permit one class of its servants to receive a different and other compensation than that received by others employed in the same capacity ; that if the musicians of the Eighth Regiment in any way were to receive more pay than persons rendering like service in another regiment, and this fact were to become known, the public service would be immediately injured, and, in time, such favoritism would result in eompláihts and less efficient service, insubordination and finally mutiny.

It is a well established principle of law in this country that no one can lawfully do that which has a tendency to be injurious to the public or against the public good. If a contraet binds the maker to do something that is opposed to the public policy of the state or nation, it is void, however solemnly made. In applying this rule to particular cases, however, much difficulty is met with. Public policy is in its nature uncertain and fluctuating (23 Am & Eng. Enc. of Law, 2d Ed., 455); its limits can not be' determined by the courts with any exactness. The Legislature can and does define the public policy of the state. Any contraet in contravention of a statute would be against public policy; so, too, many things not forbidden by express legislative enactment are against public policy, and the courts have repeatedly set aside contracts which they have -determined to be against good government and the spirit of our institutions. Public opinion is usually prescribed by the people before it is enacted into statute law.

If the contraet alleged in the petition tended to create .the results claimed by counsel for the plaintiffs in error as necessarily flowing from it, it would be against public policy, and should not be enforced whether such results really did follow or not. Such results, it is admitted, were not contemplated by the parties when they entered into the contraet. If the public service is affected by his contraet, it is incidentally. The petition does not disclose that any of the parties, plaintiffs or defendants, were in the military service at the time the contract was entered into. The contract was not in contravention of any statute. That public injury would result from this contract can not be a -matter of opinion; it must be free from doubt.

Biclc, Boyle & Bryan, for plaintiffs' in error.

Rogers, Rowley, Bradley & Rochwell, for defendants in error.

The courts of this state have had so little to do with military questions that to ascertain, if possible, whether this contract is against the public policy of the state, we have been compelled to go back to the time of the Civil War. During that war at least two acts were passed by the Legislature authorizing county commissioners, trustees of townships and city councils to levy a tax for the payment of bounties to volunteers and to refund subscriptions made by individuals for that purpose. The Supreme Court' held these acts constitutional. One of the grounds on which it is claimed that the statutes were invalid is that they provided bounties not alone for raising volunteers, but for the repayment of moneys already paid, pledged or subscribed by individuals as bounties to volunteers who had enlisted or should enlist. On this point the court held if it was competent for the 'Legislature to have conferred authority for the payment by the local authorities of the bounties originally, it' was equally competent for them to adopt and ratify what had been done by others towards accomplishing the end sought.

Defining bounties the court said: "Bounties are but a mode of compensation for services, and may be either -for past, or as an inducement to future services. Their purpose is to strengthen the military power, not to weaken it; to commend the service to public approval and to induce men to enter it.” Cass Township v. John Dillon, Treasurer, 16 O. S., 39.

It is clear to us that the bonus mentioned in the petition to be paid to the members of the Eighth Regiment Band, O. V. I., for the Spanish American War, was in the nature of a bounty, and "as such was clearly within the policy of the state of Ohio, as defined bv the Legislature of the state and the Supreme Court during the Civil War.

Demurrers were properly overruled. The judgment is affirmed.


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    OCCUPATION OF CANAL BANK BY PERMISSION GIVES NO INTEREST IN CANAL PROPER.TY.
    [Circuit Court of Butler County.]
    The Cincinnati & Dayton Railway Company v. The Miami & Erie Canal Transportation Company.
    Decided, April, 1903.

      Easement in Canal Bank — Policy of the State with Reference to Canals — New Uses of — Injunction.
    1. One occupying the banks of the Miami & Erie Canal by permission of the Board of Public Works can not thereby acquire an interest in the canal property which will in any way limit or abridge any of the present or hereafter developed natural uses of the canal for canal purposes.
    2. Where the property taken is the merest legal figment and without real substance, the owner is not entitled to an injunction because of Section 19, Art. I, as a matter of right, when the general equities of the case do not commend it to the chancellor’s conscience.
    Jelke, J.; Swing, J., concurs.
   Application is made to this court for an order enjoining the Miami & Erie Canal Transportation Company from crossing and cutting the tracks of the Cincinnati & Dayton Railway Company at a point where the latter railway crosses the towpath of the canal.

If appears, from the evidence, that the construction upon which the Miami & Erie Transportation Company proposes to run and operate the oar or motor used for the propelling of canal boats is generally similar to the standard track construction of steam and electric railroads.

An injunction is asked for the following reasons:

1. The defendant company has not come to any agreement with plaintiff company as to terms and conditions upon which it may cross its tracks and right of way.

2. That plaintiff’s right of way and tracks constitute an easement and property rights, and that defendant company has not purchased the right to disturb or interfere with the same.

3. That defendant company has not sought to appropriate plaintiff’s property right by condemnation proceedings, and can not, because in its creation defendant company has not been given the power of eminent domain.

4. That plaintiffs claimed property right can not in any way be taken, disturbed or diminished, under the Constitution, without compensation being first made therefor.

We are of opinion that' none of these grounds upon which plaintiff company applies for this remedy are sound. When it comes to a question of respective rights, it is the right of the Cincinnati & Dayton Railway Company which must yield to any use of the canal. “The policy of the state has always been to regard canals 'as a public use of paramount importance as against other public uses, such as common highways and railroads.” No rights can be granted by the board of‘ public works in the canal property which will in any way abridge any of the natural uses of the canal. The Cincinnati & Dayton Railway Company claims to be where it is by virtue of a grant from the State Board of Public Works.

Now, whether or not, there is some latent scheme in this use of the canal, and whether, or not, it is ultimately going to develop into a diversion of the canal from the uses for which it was constructed, is a question which does not appear, and we can not tell, and which, after all, is a matter which is left to the board of public works and to the state Legislature.

This being so, any use of its right of way across the canal and its banks by the Cincinnati & Dayton Railway Company which is an interference with or limitation upon any of the natural, original or developed uses of the canal, transcends the right granted by the state board to such railway company and becomes in the nature of- a trespass upon the canal, and any of plaintiff’s property, tracks and ties, and its claimed right's have no peculiar sanctity.

Plaintiff does not come into this court in very good standing in this controversy. Plaintiff and defendant companies are in some respects rival enterprises.

Counsel for plaintiff say, frankly: “We can not agree, we do not' expect' to agree, and, inasmuch as defendant company has not been granted the power of eminent domain, we propose to stop the defendant right here.”

If plaintiff company manifested more of a spirit of arranging matters and of getting together, it would appeal more cogently to a court' of equity. It is avowedly the purpose to stop the Miami & Brie Transportation Company from the completion of its equipment and from doing business as long as possible.

In our opinion, so far as we can learn from the evidence and the records, what the Miami & Brie Transportation Company is doing is but putting into use a new instrumentality for the use of the canal property within its natural and originally contemplated uses. Now, if opportunity has been given to the Cincinnati & Dayton Railway Company to cut its own rails and make way for this new use of the canal, it has nothing to complain of. It might even be said, perhaps not so well by the Miami & Brie Canal Transportation Company, but by the State Board of Public Works, “If you are interfering, or stopping any use of the canal, you will have to get off the canal property entirely.” But, of course, it is not necessary to go that far.

Reliance is had, in a very able brief for the plaintiff, on the constitutional protection which is vouchsafed to property rights, in Section XIX, Article 1, that where private property shall be taken for public use, a compensation therefor shall first be made in money, or first secured by a deposit of money. Upon our understanding of the respective rights of the parties, there is no taking of private property. But even if, perhaps, this conclusion be not absolutely true, and if there might be some little taking of property in the cutting of plaintiff’s rails, it does not follow that plaintiff is entitled, as 'a matter of right, t'o an injunction. Such taking in this case, would be the merest figment.

It appears that defendant has had .made, at its own expense, the necessary steel crossings, and is about t’o do the work without cost' to plaintiff. Whatever damage might be done to plaintiff would be perfectly reparable. We are not unmindful that injunction, in cases of taking private property for public use, does not rest on irreparable injury, but on the constitutional guaranty, but even so there must be substance, weight and merit to invoke the chancellor’s intervention.

Equitable remedies are not entirely matters of absolute right; there are element's of discretion and grace in them.

In a note in the Harvard Law Review for April, Vol. XVI, No. 6, p. 444, it is said:

“Discretionary Power of Courts of Equity.
“There is no more distinctive attribute of -the power of the chancellor than the latitude of his discretion. Equitable remedies being extraordinary, they may, at the chancellor’s discretion, be refused or given in order to do equity. And equity Is viewed in this connection in a large sense; it is not only what is just and right as between plaintiff and defendant, but also what, according to a sound public policy, is just and right as regards the interests of the public. Thus, where the plaintiff would not otherwise have succeeded, we see equity giving relief because of the public benefit; and where the plaintiff would ordinarily have prevailed, refusing it because of the public harm. Joy v. St. Louis, 180 U. S., 1-50; Conger v. N. Y. Co., 120 N. Y., 29.”

And on page 445:

“The chancellor is master of his own writ, and though the claimant hold a legal title, is under no compulsion of law to issue the writ, so long as sound consideration of public morals and conscience forbid.”

It is a rule which recognizes all the general principles of equity as residing in the chancellor’s conscience. “He who seeks equity must’ do equity, etc., etc.”

■Whether we look with favor or disfavor upon this “Electric Mule,” up to the present time, ‘we think we must look upon it as an instrumentality for using the canal for canal purposes. This we ought to do in view of the action of the General As-’ sembly and the board of public works. If it subsequently develops into something else, another question will arise.

The restraining order heretofore granted will be dissolved and the prayer of the petition denied.


author: Price, J.,

text:
    PROCEEDINGS IN AID OF EXECUTION AGAINST ESTATES OF DECEASED DEBTORS.
    [Circuit Court of Seneca County].
    Charles Lauer et al v. Mary B. Smith, Administratrix.

    Decided, December Term, 1899.

      Sections ¿464, 6105 and 61'oy — Proceedings in Aid of Execution — Garnishment — Claims Against Estates of Deceased Persons.

    1. The bringing of a suit in aid of execution against an administrator before the expiration of the eighteen months allowed by Section 6105, which suit was dismissed as premature,, is not a bar against an adjudication of the same issues between the same parties, subsequent to the expiration of the eighteen months, no further time having been allowed by court for the collection of the assets.
    2. The remedial provisions of Section 5464, R. S., are available to every judgment creditor entitled to execution against the property of a debtor, and these provisions apply to an action against the estate of a decedent.
    3. The bringing of more than one suit between the same parties in the same court concerning the same subject-matter is not a complete defense to an action in good faith for the settlement of the rights of the parties, notwithstanding liability incurred for costs and damages by the party responsible for vexatious suits.
    Day, J.; Norris, J., concurs; Price, J., dissents.

       This case was affirmed by the Supreme Court without report, 65 O. S., 563.

   The plaintiffs’ action is in virtue of the provisions of Section 5464, Rev. Stat., in aid of execution, and for the purpose of reaching certain assets said to be in possession and control of the defendant, George E. Seney, and applicable to the payment of the claim of the plaintiffs.

The petition alleges, that the defendant, Mary B. Smith, was appointed administratrix de bonis non with the will annexed of Eredolin Smith, deceased, on February 6, 1896; that the eighteen months 'allowed by law for the collection of the assets of the estate have expired, and no further time has been allowed by the probate court for that purpose; that plaintiffs, on June 22, 1896, by the consideration of the Court of Common Pleas of Seneca Count'y, recovered a judgment against Mary B. Smith as such administratrix, in the sum of $694.20 and costs, which judgment is in full force; that the said administratrix has no personal or real property sufficient to satisfy such judgment subject to levy on execution; that defendants, George E. Seney and Willis Bacon, have money in their possession belonging to the said administratrix.

The prayer is that defendants, Seney and Bacon, be required to answer and disclose the amount of money in their hands belonging to the administratrix, and that they be required to pay the same, or a sufficient amount to satisfy the judgments of plaintiffs, over to the clerk of this court, to be applied in satisfaction of said judgment and costs.

The defendant Smith, administratrix, answers and denies all the allegations of the petition first; and as second and third defenses, pleads a former adjudication of the same matter between the same parties which 'adjudication is still in full force; and third, that an 'action between the same parties commenced August 1, 1891, for the same relief and based on the same facts, is pending in the Court of Common Pleas of Seneca County, Ohio, and undetermined.

Defendants, Bacon and Seney, both answer and say the same thing as the administratrix, that the matter has been adjudicated, and the pending of another action concerning the same matter.

All of which is denied by a reply.

The matter has been heard upon the evidence and admissions of fact submitted by both sides. The admissions are that all the averments of the petition are true, and that defendant, George E. Seney, has in his possession money belonging to the administratrix more than sufficient to satisfy the judgment and costs. The evidence shows that on January 7, 1897, the plaintiffs commenced an action against the defendants named herein by filing a petition containing all the averment's of the petition in this case, except the statements that eighteen months allowed by law to the administratrix in which to collect' 'and settle the estate had elapsed and that further time was not allowed by the probate court for that purpose.

A demurrer to the petition was sustained by the common pleas court, and plaintiffs, not desiring to amend or further plead, the petition was dismissed at the costs of the plaintiffs. The circuit court, on error, affirmed the judgment of the common pleas, and remanded the case t'o the common pleas for execution and for cost. That judgment' is still in full force. This judgment and affirmance is claimed as adjudicating the rights of the parties and concluding them in the ease now before the court.

That ease was not tried on the merits, but was a dismissal of the case solely on the ground that it was prematurely commenced; that the plaintiffs, at that time, had not a right of action against the administratrix, for the reason that the eighteen months allowed by law, and such further time as might be allowed by .the probate court, had not elapsed, and there existed the bar of the statute against an action or execution in favor of the plaintiffs until such time as the law provided had elapsed. The judgment, therefore, was in no sense an adjudication of the rights of the parties in the matter, but only of the import and to the effect that plaintiffs were not at that time permitted t'o proceed against the administratrix. We find that the defense claimed of former adjudication is not sustained.

The evidence also clearly shows that on August 7, 1896, the plaintiffs commenced an action for the same identical cause as the action we have tried aud are now considering; that summons was served on defendants, and defendants made answer substantially as in this case; that' on November 8, 1897, being the first day of the November Term, 1897, of the court of common pleas of this county, the case was dismissed without prejudice to another action at the costs of plaintiffs.

The action now under consideration was commenced August 17, 1897, only ten days after the action that was dismissed November 8, 1897. For a period of eighty-three days plaintiffs had two actions pending in the same court, for the same thing, and between the same parties. Under the law- a party is not permitted to have and enjoy the luxury of more than one lawsuit' concerning the same subject, between the same parties, in the same court, and at the same time. All in excess of one suit would be regarded as vexatious and improper, and upon the attention of the court' being directed to the fact by answer or demurrer would subject the offending party to discipline, requiring him to dismiss the vexatious suits and be made t'o pay the ’costs made in bringing them, and, perhaps, subject him to an action in behalf of the injured party for damages. This, I apprehend, would be the only penalty for commencing too many suits, and the fact would not amount to a complete defense to an action, commenced and pending in good faith for the adjudication and settlement of the rights of parties in a transaction.

The third answer, of another case pending, therefore, would not be a defense t'o the claim of plaintiffs asserted in their petition, especially in view of the unquestioned fact that when the case was tried both in the common pleas and here, there was not another action pending at all, but had been before that time voluntarily dismissed without prejudice, at the costs of the plaintiff. Plaintiffs had, perhaps, again begun their action prematurely and before the full running of the eighteen months, and again suffered the humiliation of having to dismiss the case and p'ay the costs, but that fact is no defense to their claim, asserted in this case, which was begun after the expiration of the eighteen months allowed by law to the administratrix. We find fhe alleged third defense is not sustained.

The first defense, asT have said, was a denial of the allegations of the petition, and, on the hearing, the denial was withdrawn and the truth of the averments-of the petition was conceded.

So, the defenses having all failed, the only question remaining is one of law, and is: Are the provisions for proceeding in aid of execution by action of Section 5464, Rev. Stat., available to the plaintiffs as against an administratrix of the estate of a deceased person? Section 6105, Rev. Stat., provides that an execution against an administrator or executor may issue when the eighteen months allowed by law or the further time allowed by the court for the collection of the assets of the estate have expired. This provision gives the plaintiffs a right to have an execution issued against the administratrix, Mrs. Smith, in this case. Section 6107, Rev. Stat., provides: “All executions against executors and administrators for debts due from the deceased, shall, except in the cases otherwise provided for herein, run against the goods and estate of the deceased in their hands,” etc. The cases otherwise provided for do not include the case of plaintiffs herein. So it is clear that the execution plaintiffs are entitled to, under Section 6105, Rev. Stat., runs against the estate of the deceased in the hands of the administratrix, Mary B. Smith.

In view, of these provisions, and of the requirements to liberally interpret and construe all remedial provisions of the code, we think it not a strained or unwarranted construction to hold that the remedial provisions of Section 546-1, Rev. Stat., are available for every judgment creditor entitled t'o an execution against property of the judgment debtor, authorizing a proceeding in aid of execution by action to subject any equitable estate or money of the debtor in the hands of an administratrix to the payment of the judgment.

Section 5464, Rev. Stat., provides: “When a judgment debtor has not personal or real property subject to levy on execution sufficient to satisfy the judgment, any equitable interest* * * in real estate * * * or any interest * * * in any banking * * * company, or in any money contract, claim, or chose in action, due or to become due, * * * or any money, goods, or effects, * * * in the possession of any person * * * shall be subject to the payment of -the judgment, by action.”

It does not require liberal or any construction to find that this money held by George E. Seney is part of the estate of the deceased, Fredolin Smith, and is, in law, in the hands of his administratrix, Mary B. Smith. That is a conceded fact, and under Section 6107, Rev. Stat., the plaintiffs’ execution, with the aid of Section 5464, Rev. Stat., runs against the estate of the deceased in the hands of his administratrix, Mary B. Smith, and subjects it to the payment of the judgment of plaintiffs. Such is the'conclusion of the majority of the'Court. In this conclusion Judge Price does not concur.

We do not think the evidence offered as to the insolvency of the estate of Fredolin Smith, deceased, and as to the probable per cent, the estate will pay, under the pleadings of the case, is admissible. Such evidence would be competent if an issue of that kind was tendered by the defendants, but we think not otherwise.

Bore & Bore, for plaintiffs.

Willis Bacon and George E. Seney, for defendants.

The objection to this evidence is sustained, and exceptions may be noted. The .finding is for-the plaintiffs,.-and'George E. Seney, defendant, is ordered to pay over of the money in his hands belonging to the administratrix a sum sufficient to satisfy the plaintiffs’ judgment, interest and cost. Costs are taxed to the administratrix. Judgment accordingly and cause remanded for execution.

Price, J.,

dissenting:

I differ from my associates only upon one proposition. I agree with them that the former adjudication is no bar, for the reason the first petition omitted averments, the assignment of which makes the second petition good. As to the pendency of another action at the time the last case was commenced, which appears from the evidence was dismissed before the second ease came to trial, the second case has been sustained by two decisions, one in Harris v. Trimble, C. S. R., 108, 110, and a case, Porter v. Kingsbury, 77 N. Y., 164.

My only ground of dissent is that Section 5464, Rev. Stat., is intended to confer action in favor of and against living persons —especially living persons; but when a man dies his estate passes into the hands of persons representing him, and all rights must be worked out against the administrator through the provisions of the special procedure provided for the settlement of the estates of deceased persons, and -Section 5464, Rev Stat., ought not to apply in this ease.


text:
    RECEIPT GIVEN BY DISTRIBUTEE FOR MONEY NOT RECEIVED.
    [Circuit Court of Hamilton County.]
    In re Estate of John H. Koehnken, deceased.
    Decided, February 11, 1903.

      Practice — Admihistrator—Bondsmen—Distributee—Receipt of— Reopening of Account in Probate Court.

    1, Where a receipt is given by a distributee to an administrator upon distribution, and the account of the administrator is properly published and confirmed by the probate court, the evidence thus perpetuated is compíete and binding upon the parties in so far as the giving of the receipt is concerned, but it is not conclusive as to. whether the distributee actually received the money or the distribution was made according to law.
    2. .The verity or legality of a distribution can not be questioned in the probate court by reopening the account after the lapse of eighteen months, but must be determined in an independent action.
    3. As to what effect the giving of a receipt to the administrator for money not actually received has upon the liability of the bondsmen of the administrator, is a question which must be determined upon equitable principles in a proper action.
    Swing, J.; Jelke, J., concurs.
   We are of the opinion that except as to the item of $200 and interest which the administrator had in his hands, and which was not accounted for in his final settlement, the probate court did not have the power to go into the consideration of the question whether in fact' the money was paid to Mrs. Koehnken for which she gave a receipt to said administrator.

The receipts were filed by the administrator as required by Section 6190, R. S. The only object of this section is to perpetuate the evidence of distribution and the payment' of the money due to those who are entitled to it. Under this section the probate court does not determine who are entitled to the money due on distribution, and it rests on the administrator to pay the money over to those who are entitled to it. If he pays to the wrong person, he may still be compelled to pay over to the person entitled to the same on distribution. In the case of Negler v. Gard, 20 O., 310, such an action was brought in the court of common pleas.

The evidence here shows that Mrs. Koehnken signed the receipt in which she 'acknowledges the receipt on distribution of the amount set out in the receipt. The account was properly published and confirmed and nothing was done by the parties for more than eighteen months thereafter. The perpetuation of this evidence under this section, it seems to us, was complete and binding 'on the parties, so .far as the giving of the receipt was concerned, and that is all that it amounts to. Whether in fact the money was paid is an entirely different question and must be determined in another action, and this remark 'also applies to the further question of what effect the giving of this receipt has on the bondsmen of the administrator. These questions must be the important questions, the settlement of which the parties must ultimately seek to have determined, and these questions must ultimately be determined by what was actually done by the administrator, and Mrs. Koehnken, and the action of the probate court, and by the action of the parties in permitting the record in the probate court to remain undisturbed for a period of eighteen months.

Oscar W. Kuhn, for the appellant.

Goebel & Bettinger, for appellee.

No action that the probate court can make now, can in the least change this. We find no provision in the statute which authorizes that court after the lapse of eighteen months to undo what had been done by it; and as said above, we find no reason for it as it does not accomplish anything or settle any rights.

The purpose of Section 6190, has been held by our Supreme Court in several cases to be a provision simply for the perpetuation of evidence, and is not binding or conclusive as t'o the distribution, except when made according to law; and it does not have the effect to discharge the administrator of his trust where assets are still to be administered.

If Mrs. Koehnken received her share of the estate on distribution that is the end of the controversy; if she did not, and has not by her act estopped herself, she. may recover the same in a proper action and the administrator will continue liable until barred by the statute of limitations.

Whether the bondsmen remain liable in any event must be determined upon equitable principles in a proper action, and those questions can not be affected by what the probate court now does, with respect to trying to correct the record of that court, but must be determined by what the court did and by what the parties permitted to remain undone, without objection, for a period of eighteen months.

For these reasons we think the judgment should be modified to the extent above set forth.