author: DUSTIN, J.

text:
    APPEAL — JUDGMENTS.
    [Franklin (2nd) Circuit Court,
    October 25, 1912.]
    Dustin, Allread and Ferneding, JJ.
    DeWitt C. Jones v. Chas. T. H. Kampman et al.
    1. Appeal from Order Overruling Motion for Revivor of Judgment Maintainable only in Appeal Cases.
    Inasmu'ch as a motion for a revivor of judgment is an additional proceeding in the original case, there can be no appeal from the overruling of the motion, where the privilege of an appeal could not have been allowed in the original case.
    2. Judgment not Revivable against Heirs of Judgment Debtor.
    Nor can such a motion be allowed on the theory that while nominally to revive a judgment its real purpose is to revive a lien, when it is apparent that the proceeding to revive is not only not appealable, but not maintainable, for the reason that it is an effort to revive the judgment against the heirs of the judgment debtor.
    Motion to dismiss appeal.

      DeWitt C. Jones, for plaintiff.

      Duncan & Duncan, for defendants:
    Cited and commented upon by tbe following authorities: Taylor v. Fitch, 12 Ohio St. 169; State v. Belmont Go. (Gomrs.) 31 Ohio St. 456; Bartol v. Eckert, 50 Ohio St. 31 [33 N. E. Rep. 294] ; Barger v. Cochran, 15 Ohio St. 460; McBoberts v. Lockwood, 49 Ohio St. 374 [34 N. E. Rep. 734]; Bay v. Sylvania, 32 O. C. C. 590 (14 N. S. 429) ; Scheidler v. Railway, 11 Circ. Dee. 203 (20 R. 453) ; Rice v. Moore, 48 Kan. 590 [30 Pac. Rep. 10] ; Bever v. Beardmore, 40 Ohio St. 70; Reeves v. Skenett, 13 Ohio St. 574; Dayton & U. Ry. v. Traction Co. 26 O. C. C. 1 (11 N. S. 329) ; LaFayette & I. R. Ry. v. Butner, 162 Ind. 460 [70 N. E. Rep. 529] ; Lorimer v. Wayne Circuit Judge, 116 Mich. 682 [75 N. W. Rep. 133] ; Phillips v. Corbin, 25 Colo. 62 [49 Pac. Rep. 279] ; French v. Lighty, 9 Ind. 475.
   DUSTIN, J.

We think the1 motion in each case to dismiss the appeal should be sustained, upon the ground that a revivor is a special proceeding and not a civil action, and, hence, not covered by Sec. 12224 G. C.

The original action in each case was for money only, and a jury could have been demanded. We are unable to see why a judgment of revivor, which is held in Misner v. Misner, 41 Ohio St. 678, and in Bartol v. Eckert, 50 Ohio St. 31, 45 [33 N. E. Rep. 294], to be an additional proceeding in the same case, is entitled to the privileges of an appeal not allowed in the original action.

It is contended that the proceeding, while nominally to revive a judgment, is in reality to revive a lien. The motion for an order of revivor does not allege any levy or lien. It simply alleges ■ ownership of certain lands by the judgment debtors, which lands have descended to the defendants.

We are not aware of any law by which a lien may be “revived,” or even declared, under such circumstances.

Nor are we aware of any law by which a judgment may be revived against the heirs of a judgment debtor. The heirs, of •course, to the extent that they have inherited, are liable for the debts of the ancestor, but they are not liable on the judgment against the ancestor and can not be made judgment debtors. They may have inherited only $500 and the judgment may be for $5,000. There is no allegation here as to values, and a judgment for the full amount against the heirs would be a manifest, injustice and wholly unauthorized by statute.

The averments of the plaintiff do not even show that the original jiidgment debtors were owners of their respective tracts •of land at the time of the rendition of the judgment.

In Smith v. Hogg, 52 Ohio St. 527 [40 N. E. Rep. 406], it is held that:

“A dormant judgment * * * does not, by virtue of its revivor, become a lien on lands acquired by the' debtor after its ■original recovery, unless a levy is made thereon before it became dormant or after its revivor.”

And it is held in Miller v. Taylor, 29 Ohio St. 257, that:

“A judgment in personam, under which no specific lien on real estate was acquired during the lifetime of the judgment debtor, can not be revived and enforced against the heirs. ’ ’

It does not appear here that there was a specific or even a general lien against the property of the judgment debtors.

We are, therefore, of the opinion that not only was- the proceeding to revive not appealable, but was not maintainable ■originally.

A part of this opinion is obiter, but we thought it might be more satisfactory to give our views on the revival proceedings than simply to dismiss the appeals on the technical ground first indicated.

Allread and Ferneding, JJ., concur.


source: Caselaw Access Project

author: VOORHEES, J.

license: Public Domain

text:
    FRAUD — PLEADINGS—RELEASES.
    [Wayne (5th) Circuit Court,
    1912.]
    Taggart, Powell and Voorhees, JJ.

      Elgie C. Leedle v. Florence May Christie. Edna Cowden v. Florence May Christie.
    1. General Denial in Action Brought by Legatees to Set Aside for Fraud Releases to Life Tenant, Notwithstanding Will Showing Allegations'True is Set Out in Petition, is not Objectionable.
    Where, in an action to set aside releases obtained by a- life tenant, from legatees under the will, on the ground that the said releases were obtained by fraud, the mistake is made of incorporating the will in the petition, objection can not be made to an answer in the form of a general' denial, notwithstanding it involves a denial of allegations shown to be true by the will itself.
    2. Legatees Shown not under Duress but Dealing Openly and with Knowledge Fail to Sustain Burden of Proof of Fraud.
    The testimony having disclosed tliat the legatees were not under duress, but treated with th,e life tenant at arm’s length, and remarked that they understood their rights, and that they preferred “a bird in hand” to the contingencies in which their legacies were involved, it can not be said that they sustained the burden of proof devolving upon them, and judgment must, be given for the defendant.

      Kiefer & Kiefer and H. T>. Metz, for plaintiffs.

      John McSweeney and Ed. S. Wertz, for defendants.

       Affirmed, no op., Leedle v. Christy, 88 O. S. 527. 58 Bull. 92.

   VOORHEES, J.

These cases respectively are numbered 546 and 547, and are-in this court on appeal from the court of common pleas, to be heard together, and what is said in this.opinion in case No. 547, as far as applicable, is to apply to case No. 546, and to be the-holding and finding in that case. Both cases ’have been submitted to the court upon the pleadings and evidence. -The-plaintiffs in their petition set forth at length and in specific-detail their cause of action against the defendant, both in her-individual capacity and as executrix of the last will and testament of Raymond F. Christie, deceased. Said causes of action-are based upon alleged acts of fraud practiced upon plaintiffs by the defendant.

It is alleged in the petition, among other things, in substance, that said Raymond F. Christie, who was the husband of the defendant, Florence May Christie, by his last will and testament and by the second item thereof, gave, devised and bequeathed to his wife, Florence May Christie, all his property, both real and personal, during her natural life, or while she remained his widow, to have the full and entire control thereof, and at her death dispose of it in such a way and manner as she may see fit; but out of that estate of his said wife, during her lifetime, she was required to pay to his niece, said Edna Leedle (now Edna Cowden), $20 per month, and in case of the death of Mrs. Edna Cowden said payment should cease to be-made. This provision as to the $20 to be paid Edna Leedle was revoked by codicil by said testator by said item two of the will. The testator required his said wife to pay to his sister, Elgie Leedle, plaintiff in cause No. 546, $12.50 per month during the lifetime of said Elgie Leedle, and at the death of his said wife, Florence May Christie, said Edna Leedle or her legal representative to receive out of his estate $5,000, and his said sister, Elgie Leedle, or her legal representative, $2,000, and his nephew and nieces, Raymond Caskey, Ruth Caskey and Florence May Caskey, $1,000 each. By the third item of the will the defendant was named as executrix of said will, without bond and without appraisement, but in case his said wife should re-marry immediately after said marriage she should cause to be paid out of his estate $5,000 to said niece, Edna Leedle, and $2,000 to said Elgie Leedle, his sister, and $3,000 to said Caskey children.

After setting forth this provision of the will the petition sets forth certain acts, fraudulent representations and conduct of the defendant. Said acts, statements' and representations were made by one Frank X.- Wolfe, who accompanied- defendant on her visit to Springfield, Ohio, where they called at the residence of the plaintiff, Elgie Leedle, on or about July 27, 1909, when the^ releases were obtained through the plaintiffs ’ releasing said claims and legacies given them by said will, and it is charged and claimed by the plaintiffs that said releases were obtained by fraud, and they ask that the same be canceled, and they be restored to their rights under said will. Copies of these releases that were left with the plaintiffs by the defendant are attached to the petition. A copy of the will of Baymond F. Christie is also attached and made a part of the petition.

The defendant files an answer which is in the nature of a general denial, after admitting certain allegations, which allegations are set out in the answer.

The first contention that will be considered is by the plaintiffs that the answer is insufficient, and that many of the allegations of the petition are shown to be' true, as by the will attached to the petition. They are denied by the answer, and the plaintiff contends that this is a violation of the rule- of equity pleading, and that therefore the answer is unsustained and insufficient.

This question comes to the court more as a criticism on the .pleading of the answer than in any other form. There was no motion made as to this insufficiency as an answer, but the criticism appears in the discussion of the case by counsel on the trial. First, it seems that as to the petition there Was no objection made as to the pleadings, and therefore any matter as to the form of the petition is waived by their not meeting it by a proper motion; but in view of the way the ease comes into this .court and is presented to the court on the pleadings, we think it is important to say something in regard to the petition and the mode in which it is set forth. The action- herein is not founded upon the will of Baymond F. Christie; that is not the cause of action, and therefore the attaching of a copy of the will and making it a part of the petition is not good pleading. If a motion had- been interposed it would have been stricken .out of the petition because it was not a proper matter to be set out in the pleadings or attached thereto, and we think in this ease it is somewhat important that the question should be considered before we proceed to the merits of the case.

In the case of Crawford v. Satterfield, 27 Ohio St. 421, we find this to be the rule recognized by the Supreme Court of Ohio:

“In actions founded upon written agreements other than for the unconditional payment of money only, it is not good pleading to copy the written instrument into the pleading, nor to attach a copy making it a part thereof, and upon motion for that purpose a reformation of the pleading would be ordered; yet, when it has been done without objection, and the petition contains facts sufficient to constitute a good cause of action if well stated, the judgment will not be reversed.”

So, in this case, the way it comes to us, we observe that the claim is made there are matters in the will that have been made a part of this petition, and we think they are not admitted to be true, and are denied with other allegations of the petition which are denied and which are in fact true, and therefore the answer was sufficient. We think this will should not have been made a part of the petition in this case. It was proper enough to attach a copy of the will as an exhibit, but it should not have been made a part of the petition. As an exhibit it would be proper enough in the case, but the action not being founded upon the will, but founded upon fraud, the will could be no part of the petition. The fraud charged is in obtaining a release of legacies given to the parties in the will in question, so we think the rules of law require just such a pleading as is the answer1 interposed in a case where the cause of action is founded upon fraud. Under the system of practice prescribed to the courts by the civil code, this is incumbent upon the respective parties to the action as it was by the rules of pleading at the common law which prevailed in our courts before the adoption of the code, etc.

It is the sole purpose of the answer either to controvert the right of the plaintiff! to recover upon the facts stated in the pleading by general or special denial, or to allege facts which constitute new matter appearing by way of confession and avoidance of facts forming the basis of affirmative relief as counterclaim or set-off. New matter constitutes facts which if true are in law a defense to the action. This defense impliedly admits the truth of the facts stated in the petition, and that upon these facts the plaintiff is entitled to recover, and it avoids the effect of these statements by the answer or new matter stated therein.

Now in this case, as I have stated, the cause of action is based upon fraud, that the defendant perpetrated fraud, and that fraudulent acts were perpetrated upon the plaintiffs by the defendant in obtaining the releases that were obtained, releasing the plaintiffs’ claims that were given to them in the will of Raymond F. Christie. These fraudulent acts and charges are denied in the answer, and we think that when the denial of the acts of fraud is made, then it throws the burden of proving these acts upon the plaintiff, and the fact that there were other matters that are neither admitted nor denied is immaterial so far as the issues in this case are coneérned. In this case, the petition has attached to it a copy of the will of Raymond F. Christie, and as we have stated, the cause of action is not founded on the will. We 'think the answer is sufficient, and it is proper to deny these acts of fraud if they are not true, and when so denied the burden is upon the plaintiff to prove the allegations set forth in the petition.

It is contended by the plaintiff that the defendant procured by fraudulent acts the release of the legacies that were given to them in the will. It is claimed that advantage was taken of the plaintiffs, and misrepresentations were made, whereby they were induced to sign the papers releasing their claims, as set forth in the petition. It is contended' in the case that the defendant occupied a fiduciary relation to these parties, that she sustained the relation of executrix to the will and the estate in question, and that by reason of that relationship it was her duty and the burden was imposed upon her that she must make full disclosure; that when she obtained these papers she must show affirmatively that the transaction was, so far as she was concerned, absolutely fair and honest. This was upon the theory and ground that because she was the executrix of the will of Raymond F. Christie she was required to state fully, and make full disclosures as to .the rights of the plaintiffs under the will. And the plaintiff further contends that the defendant in making these settlements of these legacies, that the transaction so- far as she was concerned is absolutely void. If the transaction imposed upon her a fiduciary relation — namely as executrix — in dealing with this property, to make such disclosures, the question is, has she done so? We think even an executor or administrator, or a trustee, may deal with the trust property, and with the cestui que trust, and if they do, it is not absolutely void, it is voidable only, but the party who is affected thereby may by ratifying and affirming it bind himself. We do not agree with the contention of counsel that such transactions are absolutely void. It is not necessary to go further in the discussion of that question than has been indicated. Was the defendant in this transaction acting in a fiduciary relation to these parties? She is charged in the petition individually as well as executrix. The contention is this: that the defendant, Florence May Christie, visited the home of the plaintiffs in the city of Springfield, and that she had in her company or took with her a young man by the name of Wolf. They go to the city of Springfield and call at the residence of the plaintiff, Mrs. Leedle, and it is contended that Mrs. Christie introduced this young man who was with her as her attorney, or an attorney at law, and by representations and acts took advantage of the plaintiffs and procured from them a release of their rights and legacies under the will of Raymond F. Christie, deceased. The contention is that these parties, Mrs. Christie and Wolf, procured the signatures to said release by fraud and by taking advantage of the ignorance of these parties as to their rights in the premises. It is contended by the plaintiffs that they were hurried, that they had not an opportunity of consulting or getting advice in the matter involved, and that they were urged by these parties to sign these papers; that they signed them without reading them, or without making an investigation. So far as the question of fact is concerned the court does not find this contention to be true. We do not believe that. In fact we find to the contrary, and that these papers were read to the plaintiffs, and that they did have opportunity to read their contents, and therefore as a matter of fact we find that the papers were read to these parties, and that they had an opportunity of knowing what they were signing, and did know what they involved — that they involved and concerned the release of their claim under the will of Raymond F. Christie.

But the contentions are that they did not read these releases or contracts; that they signed them without their being read to them or being informed as to what the effect of the papers was, or what effect they would have upon their rights. Assuming this to be true, how stand the rights of the plaintiffs? We think the question is settled in Ohio by authority of Perry v. O’Neil, 78 Ohio St. 200, 209 [85 N. E. Rep. 41], I shall read only a brief extract, commencing on page 222, and instead of using the authorities in the opinion here I will read what the court in this case held and cited in reference to this principle of law.

In Cassilly v. Cassilly, 57 Ohio St. 582:

“Where mother and son entered into a written contract, which is correctly read to her before its execution, and she then voluntarily executes it, she is bound by its terms until it is set aside by a proceeding brought for that purpose. The facts, if satisfáctorily established, that she could not read writing, and on account of the confidence reposed by her in her son, did not carefully weigh, so as to comprehend the terms of the instrument, when it was read to her, afford no ground to treat it as a nullity or to permit her to contradict its terms by parol evidence when interposed by the son as a defense to an action at law brought by her against him. ’ ’

It will be observed that in Cassilly v. Cassilly, supra, the extract that I have read in this opinion is that there was the relation of mother and son, a confidential relation that would exist between persons so situated that would bear upon the question whether the facts there stated, the relation of confidence existing between these parties — whether that is sufficient to require the party to make disclosures by reason of this peculiar relation. On page 226 the court says:

“A person who, without reading it, signs a written contract Releasing his right to maintain an action for damages resulting from an injury occasioned by the negligence of his former employer will be held to have executed the instrument with full knowledge of its contents, when his only excuse for not reading it was that he was ‘somewhat hurried.’ Such a contract can not be avoided by the party signing ’it because he relied upon ‘allusions to future employment’ made by the agent of his former employer in the negotiations consummated by the written release, which employment was not furnished him.”

What was the relation of these parties-? When this transaction occurred and when these papers were signed they were not under duress; they consulted together 'before they signed these papers. They were no doubt halting between two opinions — whether it would be best for them to sign the papers or .not, and as expressed by the mother, “whether it would be best to accept-a bird in the-hand rather than two in the bush,” or whether they would not take the offer that was made. They consulted together and came to the conclusion between themselves, and made known to the defendant that they would accept her offer. It is contended by the plaintiff that they were put into this situation to sign Lhese papers or these releases for the reason that they were told by the defendant that, “if you do not sign these papers you will never get anything. ’ ’ We do not find this to be the true statement of facts, nor do we think it is the testimony in the ease. The facts as disclosed in the evidence in this regard are that the offer was made by Mrs. Christie to give so much money to them, and they were discussing between themselves as to whether she wouldn’t give more, and Mrs. Christie informed them that that was the limit of her offer. “Now if that is not accepted that will be the end. I will make further offer.” We think from the proof in this case the evidence does not justify the contention of plaintiffs that the statement was made or any claim made by Mrs. Christie that if they didn’t accept her offer-they would get nothing. That was not the proposition that she made, but is as claimed by Mrs. Christie when she said “I make this offer (namely of $2,500). If this is not accepted I will make no other, and I am not coming back again. ’ ’ That is the proposition that was made.

Then it is contended by the plaintiffs that they were in ignorance of their rights. Now were they? They knew about these legacies. They knew what they were entitled to under the will. They knew under what conditions they were entitled to that amount. Mrs. Cowden knew she was to have $5,000, but it was dependent upon conditions that if Mrs. Christie should xe-marry then it would become payable; but there was no certainty that she would be married. That could not be ascertained: it was impossible. There were no representations made one way or the other as to how that would be. They knew the fact, They knew the condition. They knew as jnuch about the death of Mrs. Christie as she knew — an uncertain ■event which couldn’t be ascertained. So we think that in this case the parties were on an equal footing as to the conditions surrounding the parties and the conditions of the will. We do not think it very important whether Mr. Wolf was there as an attorney, or claimed to be an attorney or not. It is undoubtedly a fact that he was not an attorney. Now if he said he was, we ■do not think that material. We think the facts in this case show that Mrs. Christie, as the testimony discloses, did take means ■•and opportunities to ascertain the situation of her rights under 'this will. She had a right to do so. When Mrs. Christie obtains zsuch information she goes to the plaintiffs and informs them as to what her rights are, and they in turn say to her that they know their rights under the will; that they knew their rights •as well as she did. Mrs. Leedle in fact did know that she was to ■get $12.50 a month as an annuity under the will of her brother, .and that it was dependent upon certain conditions fixed by the ■■will. She knew that. She knew she was to get $2,000 upon ■•■certain conditions in the will. She knew that. Edna Cowden knew that she was to get $5,000 under certain conditions disclosed in the will; so that these parties were dealing with each ■ other at arm’s length, knowing their rights respectively, and therefore the plaintiffs were not in ignorance of their rights "when they signed these releases. The testimony shows in this case that there was some effort made on the part of the plaintiffs to call their counsel, Mr. Kiefer, into consultation on the day that the releases were made. Mrs. Cowden suggested the calling •■of their counsel; Mrs. Leedle did not agree with her in that regard, and they did not call Mr. Kiefer or any other counsel to assist them. There is no evidence that Mrs. Christie interposed any objection to their obtaining counsel or assistance, but they relied upon themselves. They claimed, that they had as muck information as Mrs. Christie had, and they decided that they could act for themselves, and came to the conclusion that they would sign the release and accept the offer made by Mrs. Christie. Under these circumstances the court thinks that there, was no fraud or imposition practiced upon them.

Attention is called to McAdams v. McAdams, 80 Ohio St. 232, 240 [88 N. E. Rep. 542], The ease does not commence there, but for our purpose it is sufficient to read from this page :•

“The law applicable to such a condition of facts should be perfectly clear. Whatever presumption of fraud arising out. of confidential relations may be raised, it necessarily is rebutted when it is shown that the instrument is in exact accord with the grantor’s declarations, made both before and after its execution ~T and that, the only charge of fraud being that it was misread to him, he had it in his possession a considerable time before signing, and at other times had ample opportunity to ascertain the truth before signing, on the day of signing and delivery, and. subsequently. It is conceded on all sides that he was intending to make some sort of a reservation in the deed as to the marl,, either for life or absolutely; and it would be impossible, because' unnatural, to suppose that with the deed in his pocket for six. weeks he would never look at it to learn whether it contained the reservation which he desired, or that, when questions as to» the defendant’s title arose and he resorted to the deed when, it was in custody of the bank, he did not'then ascertain just what were its provisions. A person of ordinary mind can not: be heard to say that he was misled into signing a paper, whick was different from what he intended, when he could have known, the truth by merely looking when he signed. ’ ’

When the proposition of settlement was agreed to, the matter was submitted to the plaintiffs as to how they would have the-money divided between them, and they suggested — not Mrs... Christie — that it should be divided equally, $1,250 to each, and’, with that understanding Mrs. Christie drew her check and paid the amount thus agreed upon, half to each. We think fron$. the testimony in this ease and all the circumstances that the plaintiffs were not deceived nor defrauded by any statement or acts of the defendant; and that the burden being upon the plaintiffs to establish by a preponderance of the evidence the charges of fraud against the defendant, we think the plaintiffs wholly fail, and for the reasons hereinbefore given the judgment and decree of this court will be in favor of the defendant, and the petitions will be dismissed at the cost of the plaintiffs. Motion for a new trial will be overruled, and exceptions, and forty days for finding of fact, and statutory time for bill of exceptions.'

Taggart and Powell, JJ., concur.


author: PER CURIAM.

text:
    TELEGRAPHS AND TELEPHONES.
    [Licking (5th) Circuit Court,
    February Term, 1912.]
    Voorhees, Shields and Powell, JJ.
    Newark Telephone Co. v. J. Frank Swartz.
    Telephone Company Required to Raise Cables and Wires to Permit Moving Building but Expense Chargeable against Mover.
    A telephone company may be required to raise’ its cables and wires to such a height as to permit the moving of a building thereunder, but the company may insist on doing the work itself and charge the expense of so doing to the mover of the building.
    [Syllabus by the court.]
    Appeal from common pleas court.

      Kibler & Kibler, for plaintiff:
    Cited and commented upon by the following authorities: Dickson v. Motor Co. 53 111. App. 379; New York & N. J. Tel. Co. v. Dexheimer, 14 N. J. Law 295; Northwestern Tel. Ex. Co..v. Anderson, 12 N. D! 585 [98 N. W. Rep. 706; 65 L. R. A. 771; 102 Am. St. Rep. 580] ; Millville Trac. Co. v. Goodwin, 53 N. J. Eq. 448 [32 Atl. Rep. 263] ; Williams v. Railway, 130 Ind. 71 [29 N. E. Rep. 408; 15 L. R. A. 64; 30 Am. St. Rep. .201] ; Fort Madison St. Ry. v. Hughes, 137 Iowa 122 [114 N. W. Hep. 10; 14 L. K. A. (N. S.) 448] ; Toledo, B. G. & So. Trac. Go. v. Sterling, 29 O. C. C. 227 (9 N. S. 200) ; Cleveland Tel. Co. v. South Newburgh, 52 Bull. 173 (4 N. P. N. S. 624).

      Flory <& Flory, for defendant.
   PER CURIAM.

This is an action to enjoin the defendant, who is a mover of buildings, from interfering with the wires and cables of the plaintiff, the Newark Telephone Company, in the moving of a building located on a lot abutting on Jefferson street in the city of Newark, Ohio, and which the plaintiff claims can not be done without raising the wires and cables of the plaintiff, or cutting them. The petition, by proper averments, sets out the cause of action, and prays that the defendant be enjoined.

The defendant, by answer, admits that he is about to move a building from one lot, abutting on Jefferson street, west some distance to another lot on said street; and that it will be necessary, in moving said building, to raise the cables of the plaintiff from six to nine feet higher than they are now located on its poles along said street, and avers that he did not intend to cut, destroy or injure the plaintiff’s property in any way, but that he simply desired to loosen said cables as they are now fastened to the poles on plaintiff’s system of telephone lines, and raisé the same so that said building could pass under said cables, in taking it from the lot where it is now located under the cables, when moving the building from Jefferson street to the lot to which it is to be moved.

A reply is filed to this answer, denying all the averments of the same which are not admissions of facts set forth in the petition. A temporary injunction was allowed, and a motion was filed to dissolve the same. The case was appealed to this court, and was heard upon its merits.

We think the principal contention here arises upon the proposition as to whether or not the defendant, in the exercise of his calling as a mover of buildings, would have the right to loosen the cables of the plaintiff and raise the same on its poles from six to nine feet, as he says he requested the plaintiff to do. The plaintiff contends that it has been, and is now, willing to raise said cables on said poles, so as to permit tbe passage of said building under the same, provided the defendant would pay the expense of such moving, which the defendant refused to do, but claims that he would have the right to raise the same at his own expense.

We think that this is substantially the controversy in this action, and we think further that the position of the defendant in relation thereto is untenable. While the right of the telephone company on Jefferson street is not an ordinary use of such street, yet it is there by a franchise granted by the city of Newark, and has the right so to be there; that while it would be without right or authority to prevent the defendant from using the street for the moving of buildings, we think also that this is not an ordinary use of such street, and while the defendant would have the right to use the street for that purpose, yet he must do so in such a mannér as not to interfere with the rights of the plaintiff in occupying the street with its poles, wires and cables.

It is argued that the franchise, which has been granted to the plaintiff, and under which its poles occupy the street, provides that in no event shall the streets, avenues, lanes, alleys and courts be unnecessarily obstructed, and that plaintiff’s action in refusing to raise such cables without the defendant’s paying the expense thereof, is in violation of 'this part of its franchise. We find from the evidence that, while it is true that there is such a provision in the franchise, there is also a provision that the property of the plaintiff, its wires, poles and cables, shall not be unnecessarily interfered with, and we think that the rights of the plaintiff and the defendant, respectively, are mutual in Jefferson street. We think that the plaintiff, since it is in its, nature a public service corporation, has the right to insist upon doing whatever may be necessary to be done to its property in the way of arranging the same for the passage of buildings underneath its wires and cables, and that it is not obliged to do so without being paid therefor. The defendant is without any right or authority to raise the cables or wires of the plaintiff upon its poles without the plaintiff’s consent, and that the defendant would be a trespasser in attempting so to do, and because of tbe public service nature of the plaintiff we think that an injunction would lie, where in ordinary cases between individuals it would not lie to prevent the commission of a trespass.

It is further contended that, under the ordinance of the city of Newark, plaintiff is a trespasser in having its wires strung lower than thirty-five feet. We find that this provision of the ordinance is not applicable to the construction of telephone lines, and that it does not apply in this case.

We think, further that in order to grant complete relief in a case of this kind, the order of the court should be in the alternative; requiring the defendant, J. Frank Swartz, to pay the cost and expense of raising the cables of the plaintiff upon its poles, so as to permit the passage of said building under the same; and which shall be done by the plaintiff; or, in the event that he refuses so to do, that he be perpetually enjoined from raising such cables or interfering in any manner with the plaintiff in the possession and use of its property.

A decree may be drawn in conformity with the views expressed in this opinion.


author: DONAHUE, J.

text:
    ERROR-LIMITATION OF ACTIONS.
    [Wayne (5th) Circuit Court,
    1910.]
    Taggart, Donahue and. Voorhees, JJ.

      Horace M. McLarren v. W. C. Myers, Admr.
    Belated Proceeding In Error not Saved by Provisions for Commencement of,Civil Action.
    If a summons in error is not issued within the four months’ statutory limit prescribed by Sec. 6723 R. S. (G. C. 12270), the proceeding is not saved by the provision of Sec. 4988 R. S. (G. C. 11231) as to the commencement of actions, and jurisdiction thereof is not acquired by the reviewing court.
    [Syllabus by the court.]
    Error to common pleas court.

      M. L. Spooner, for defendant in error.

      Affirmed, McLarren v. Myers, 87 O. S. 88.

   DONAHUE, J.

This cause is submitted upon a motion to dismiss the petition of plaintiff in error. The first ground of the motion is that the summons in error was not issued and served in time.

It appears from an examination of the record that the judgment to which error is sought to be prosecuted was entered on April 23, 1910; that the petition in error was filed August 12, 1910; that the summons in error issued August 27, 1910. and that this summons in error was served upon the defendant in. error August 29, 1910, and this motion to dismiss the petition in error was filed on September 7, 1910.

The Supreme Court of Ohio in the case of Robinson v. Orr, 16 Ohio St. 284, and in the case of McDonald v. Ketchum, 53 Ohio St. 519 [42 N. E. Rep. 322], held that there being no special legislation relating to the prosecution of error, that the statutes of the civil code by analogy determine when a proceeding in error is commenced, and that, therefore, a proceeding in error must be deemed to be commenced from the date of the summons actually served upon the defendant in error. In this case the summons in error actually served upon the defendant in error was not issued within the four months authorized for the bringing of error proceedings, therefore the case falls squarely within the doctrine announced by the Supreme Court in Robinson v. Orr and McDonald v. Ketchum, supra.

Counsel for plaintiff in error insist that this case comes within the provisions of Sec. 4988 R. S. (G. C. 11231), which reads as follows:

“Within the meaning of this chapter, an attempt to commence an action shall be deemed to be equivalent to its commencement when the party diligently endeavors to procure a service, if such attempt be followed by service within sixty days. ’ ’

In this case, however, no summons in fact issued within the time limited for the commencement of an error proceeding. From the affidavits filed it appears that counsel for the plaintiff in error diligently endeavored to secure the issuing, of this summons, but the fact remains that it was not issued until after the expiration of the four months.

In the case of Baltimore & O. Ry. v. Ambach, 55 Ohio St. 553 [45 N. E. Rep. 719], the Supreme Court held that “to bring a case within the saving provisions of Sec. 4988, E. S. a summons must be caused to be issued before the expiration of the statute of limitations governing the cause of action.” On page 554 in the same ease the court says:

“It is the diligent endeavor to procure a service that brings the case within the saving provisions of Sec. 4988, and it can not be said that there is diligent endeavor to procure service when no summons has been issued to be served upon any one. If a summons has been caused to be issued, there can be an endeavor to procure service of such summons, but where no summons has been caused to be issued there can be no endeavor to procure a service. The burden of causing a summons to be issued is east upon the plaintiff in error, and as no summons was caused to be issued, in this case, there was no endeavor to procure the service of summons, and therefore the plaintiff in error does not bring itself within the saving provisions of Sec. 4988, and the circuit court was right in dismissing the petition in error.”

To the same effect is the holding of the circuit court in the ease of Andress v. Greenfelter, 29 O. C. C. 235 (9 N. S. 446), and while it is claimed that the facts in the case did not call this doctrine in question, yet the court hearing the case thought otherwise, and followed the doctrine announced by the Supreme Court in the case of Baltimore & O. Ry. v. Ambach, supra.

Aside from these authorities, however, from the reading of this section we are clearly of the opinion that this statute can not aid the plaintiff in error. No summons in error having been issued within the four months next after judgment, this case does not come either within the letter or the meaning of Sec. 4988 E. S.

Counsel for plaintiff in error contend that the defendant in error by filing this motion has thereby entered his appearance to this suit. It is sufficient to say with reference to this question that the motion was filed after the expiration of four months from the date of the judgment sought to be reversed. After that time the plaintiff in error has no right to prosecute this proceeding in error, and this court has no jurisdiction to reverse the judgment of the common pleas court. The most that could be claimed for the filing of this motion is that it amounts-to a waiver of the summons in error and entry of a voluntary appearance to the action; but we think this motion directly ■ raises the question of the jurisdiction of the court, and the right of the plaintiff in error to maintain the action after the four months allowed therefor have elapsed. The defendant in error is standing on his rights and asking this court by this motion to-dismiss this case without further proceedings, for the reason that it has no jurisdiction, and while counsel has made diligent endeavor to procure this summons to issue in time, and the.' fault is not with counsel, yet the fact remains that no summons-was issued within the four months, and no appearance effected within the four months either by service of summons in error or by the defendant in error’s entering his voluntary appearance thereto, and it necessarily follows that the petition in error must be stricken from the files.

The motion having been submitted upon evidence, and counsel for plaintiff in error desiring a finding of fact, such finding may be drawn in accord with the averments of the affidavit of counsel for plaintiff in error and time may be extended twenty days for that purpose.

Exceptions of plaintiff in error noted.

Taggart and Voorhees, JJ., concur.


text:
    DRUGS AND DRUGGISTS — INTOXICATING LIQUORS.
    [Licking (5th) Circuit Court,
    March Term, 1902.]
    Douglass, Voorhees and Donahue, JJ.
    Sarah E. Huffman v. E. T. Rugg, Treas.
    Drug Store May be Subjected to Payment of Dow Tax for Sales on Unlawful Prescriptions and Injunction Refused to Prevent Tax by Distraint.
    Prescriptions calling for beer or other intoxicating liquor can not be accepted as issued in good faith, notwithstanding the good repute of the physician issuing them has not been called in question, where the writings themselves are not produced, and the testimony regarding them is that the so-called patients went to the physician and specified what they wanted, sometimes specifying the number of bottles wanted, whereupon the physician would write a prescription calling for a certain amount of beer or other liquor and in some cases would add the word “refill,” but gave no direction as to how the liquor was to be taken; and sales of beer or other intoxicants upon such prescriptions are unlawful, and subject the owner of the store as well as the owner of the real estate to liability for the Dow tax, and injunction will not lie to prevent collection ' of the tax by distraint.
    [Syllabus by the court.]
    Appeal from common pleas court.

      8. M. Hunter, for plaintiff.

      Charles W. Miller and J. B. Fitzgibbon, for defendant.
   VOORHEES, J.

(Orally.)

The object and purpose of the suit is to restrain the defendant from collecting by distress certain taxes that had been levied under what is known as the Dow law. Without taking time to read the petition, I will read the prayer, which states the object of the suit to be;

‘ ‘ That the defendant be restrained from selling or otherwise depriving plaintiff of her property and business, and from excluding her from the possession of the drug store and the property and fixtures therein contained, and from excluding and preventing her from entering and taking possession of and operating her said business, and commanding said defendant to deliver to the plaintiff her said property, and, upon the final hearing, that the injunction be made perpetual. ’ ’

The amended answer takes issue with the plaintiff’s petition, and there are two or three questions that are presented by th'e issues which will be necessary for us to determine.

The testimony shows that this property that has been seized by the officers who were attempting to collect this tax was a drug store, situated in the village of Johnstown, this county. It is claimed by the plaintiff that she is the owner of the property, and that there has been no action on her part, during the time in which this levy of taxes was made, subjecting her to any liability under the law for the Dow tax.

It is conceded that the assessment that was made was not against the plaintiff. The assessment is against a man by the name of Friddle; and the contention on the part of the defendant is that this business, that was carried on, was in the property of the plaintiff, and that Friddle was really the owner of the property; that the attempted sale that was made was a sham, and was done for the purpose of avoiding the tax, and that really he was the owner of the business, carried on the business, and was the owner of the property, which it is sought to distrain for the payment of this tax.

It seems from the testimony that this property at one time, in 1897, beyond peradventure belonged to the plaintiff; that she was the owner of this drug store; that in 1897 she sold it to Friddle, who gave his notes for a part of the consideration at least, and paid part in cash; that he took charge of the business and carried it on until in May, 1898, at which time, by an arrangement between the plaintiff and Friddle, the plaintiff again became the owner of the property and the notes that had been given by Friddle in 1897 for a part of the consideration were surrendered, and the balance was paid by the plaintiff to Friddle by a check, which has been produced in evidence.

So, one of the issues that has been tried and submitted to the court is whether this sale was a bona fide sale, or whether it was a mere sham between these parties for the purpose of avoiding the tax that was sought to be levied and collected from this property.

. The plaintiff, in her petition, assumes, from her allegations, that she was the owner of the property, that she was carrying on the business, and that there were no intoxicating liquors sold on the premises by herself or anyone else for her, except on prescriptions duly issued by reputable physicians, as provided for under the statute. That will be one of the questions that we will have to consider.

But, first, as to the business that was carried on in this property, supposing the plaintiff to be the owner of it. It was assumed to be a drug store, with all the necessary appliances for the purpose of carrying on a drug store; and, from the testimony, it is very clear that, in addition to that, there were sold, in connection with the business, or in the same business, quantities of beer differing in amount according to the desires and wishes of the purchasers; and the contention on the part of the plaintiff is that while she was carrying on this business after May, 1898, there were no sales of intoxicating liquors made except upon the prescription of reputable physicians. •

The important question then is: whether this sale was a valid sale or not; or whether it was a mere sham. An important question is whether these intoxicating liquors — the beer that, from the testimony, unquestionably was sold there — was sold in accordance with the law, viz: that it was only sold upon prescription issued by reputable physicians, so as to be exempt from liability under the statute.

The testimony seems to be (and that will be the finding of the court) that there were prescriptions or writings furnished, by some of the parties at least who got beer there, by physicians that we have no reason to doubt are reputable physicians. But, from the testimony and facts that are produced here, can the court find that these prescriptions were such as is contemplated by the statute, and that they were issued in good faith to the parties who received them and obtained beer or intoxicating liquors upon them? The testimony indicates tnat, in many cases at least, the parties who wanted beer would go to a physician and say that they wanted beer, and the physician would write a paper directing that such and such person should receive beer, designating so many bottles of beer upon that prescription. The prescriptions are not produced. They are not offered in evidence, and the court has not an opportunity of inspecting them to see whether they would comply with what the law certainly contemplates a prescription should be. But these significant facts do appear: that the parties would go to the physician and say to the physician that he wanted so much beer. He specified what he wanted, and in some cases would specify the quantity that he wanted; and upon such a statement as that the physician .would give him his pretended prescription, without indicating or prescribing how it should be used. That was left to the option and judgment and wishes of the alleged patient. And after the party got his prescription, he would go and get his beer, the quantity that he wanted, and take it according to his own desires and wishes.

This is the way, in many instances, from the testimony, the sales were made in this drug store upon pretended prescriptions, or were made in connection with this drug store or business. Is that such a selling on prescription as is contemplated by the law? It is conceded that this beer was sold. It is conceded that it was sold in connection with this business or in this place, and that the plaintiff says that she was the owner of it, and had the management and control of it, but she seeks, and the only ground upon which she seeks to exempt her property that would be subject, or might be^ under the law, whether she was the real keeper or not, is that it was sold upon a' prescription made by a reputable phj'-sieian.

But, we are led to the conclusion, from this state of facts, that these prescriptions are not such as the law contemplates; and we have an authority which we are inclined to give faith and credit to, and I believe the decision was by the author of the law — Judge Dow; I think he is the one who drafted this law, and he ought to know or have some idea as to what was intended by it when he drafted the law. He takes up the subject as to when a prescription is issued in compliance with it:

“The plaintiff having alleged that said assessment was illegally levied, the affirmative is upon him to show this fact.
‘£ The evidence shows that the plaintiff and his clerks between the dates mentioned, sold intoxicating liquors by the bottle to be drank in said drug store, upon his own written prescription so-called and upon the prescription of another physician; that often these prescriptions were marked ‘re-fill’ upon which additional sales were made as often as called for, in some instances ten or twenty times.” Hubbill v. Ebrite, 8 Dec. 116 (7 N. P. 220).

The druggist in this ease was a physician, and the sales were frequently made upon his prescription to his alleged patient, but not entirely so, as sometimes they were issued upon the prescription of another physician.

“That these prescriptions” says the report, “were made out by plaintiff and by him filled for every imaginary ailment the customer could suggest.”

And, as we go along, we will try and make the application of the facts in the ease that we have in hand with the conditions and facts that were disclosed in this case. From the testimony, many of these alleged patients would go to the physician and tell him what he wanted; that he wanted beer; upon his statement, the prescription would be issued for so many bottles of beer, without any direction as to how,> or when, or in what quantities he shorild take it, or use it.

“The evidence shows a studied effort upon the part of the plaintiff to evade the provisions of the statute, and he now comes into a court of equity invoking its aid in assisting him in escaping the payment of the tax.
“Suppose the drug store was a saloon, and the proprietor sought to evade his liability in this way, could he successfully do it? A drug store is entitled to no greater privileges.
“The plaintiff testified that all the sales made by him were upon written prescriptions, issued as before said and which were now in his possession, but failed to produce said prescriptions or any of them. ’ ’

That is the situation here.

‘ ‘ The rule that the best evidences must be produced is applicable in this case as in any other.
“He having affirmed that the sales were made only upon written prescriptions and defendant having denied this averment, the plaintiff, when within his power, must produce the same.
“It may be that if the 'writing had been produced, the court upon inspection would have found that it was not a prescription; it is not for the witness to state what the paper was, but for the court to determine from its language.
“Suppose the paper had read as follows:
“July 4, 1896. ‘Let John Jones have 8 oz. spirits frumenti • — Refill.’ (Signed): ‘ Jas. A. Hubbell, M. D.’
“This is not a prescription under Sec. 8 of the Dow law.
“ It is not addressed to any one — it does not specify the manner of use — it leaves it all to the judgment of the patient as to the quantity he shall drink at any one time.
“The Century Dictionary defines a prescription to mean ‘a -statement usually written of the medicine or remedies to be used by a patient, and the manner of using the same.’ ”

Now, as to these prescriptions in this ease: They were not produced, but evidence was allowed to come to the court for the . purpose of showing what these prescriptions were;'and, giving them the most liberal construction, they do not meet the requirements, as we understand the law, when it is to be tested as to whether or not it was a prescription issued in good faith by a reputable physician. The law means something when it uses the term “issued in good faith.”

As we said before, we do not know the reputation of these physicians; but, when we have the facts before us, of the manner in which these prescriptions were filled, and the way these parties sought the physicians for the purpose of getting them, and the indefinite manner in which they were given and to be used, they certainly do not come within the purview of the law which defines what is a prescription. There was no direction as to its use.

Therefore, from the testimony, we must find as a fact that these sales of beer, after the plaintiff became the owner of this property — granting that her sale and purchase was an honest and fair one — the sales of intoxicating liquors, which she does not deny, were unlawful. Her excuse is, and the only excuse she offers here, that sales of that character were upon prescriptions, in good faith, by reputable physicians. But the sales then were unlawful, and it makes no difference who was the operator of the business; the object of the law is to reach the business itself ; and it is not to punish the person, but it is for the purpose of regulating and controlling the traffic in intoxicating liquors; that was the reason and object of the passage of the law, and the. business itself is what is to respond, if it is carried on in a place, and it makes no difference by whom.

Then, in this case, we would hold as a matter of fact that, after this alleged sale in May, 1898, the business of selling intoxicating liquors carried on in this drug store, the real estate of which belonged to the plaintiff beyond peradventure, was in violation of the law, for the reason that it was, in fact, not sold upon prescriptions issued in good faith by a reputable physician.

Then, what is the effect? The business is what is to respond; and if the business was carried on in the plaintiff’s property, carried on for her as she conceded, then this property must answer for the tax if it is not paid. It would then become a lien, by operation of law, upon the real estate. It would be if it was carried on by Friddle, and the plaintiff had no connection whatever with it — if it was not her business; but, if it was; carried on by Friddle in her property, the real estate would be liable for it; it would be a lien upon the real estate; and the officers who were seeking to collect the tax would have a lien upon the real estate, but they would have in addition to that a right to levy by distress if the property is claimed by another than the one who is running the business upon certain kinds of property; it would be, in the language of the statute, upon the bar, and the bar fixtures and all other property incident and necessary to carrying on the business.

Now, we will grant for a moment that that would nofreaek this drug property (and that is the strongest contention that counsel for the plaintiff make here) ; that while that which was essential and necessary to carry on this business could be reached,, in an effort to reach after personal property, and not to enforce: a lien upon the real estate, but reaching only after personal property, such property must of necessity be limited by the statute i'Sebf to fixtures and the property incident and nee<essary to carry on tbe business of trafficking in intoxicating liquors. And, speaking for myself upon this proposition, and the court really do not differ upon it, if that was all that was In the case, the drugs and things that were in a drug store •carried on in good faith, could not, perhaps, be taken under the section of the statute authorizing distress by the officers; and the seizure would be limited to that which appertained to the bar or "the saloon part of the drug store, if we may so designate it.

But, there is another principle that applies. There is no •question in this case as to the real estate, but the plaintiff seeks to invoke the aid of a court of equity to restrain the officers from taking this property — the drug store and fixtures and all the things that are incident to that business; and her contention is that they are seeking to collect the tax against her when she was mot in the business; that they are seeking to take her property Tor the payment of a liability of Friddle, and, therefore, she has .a right to come into a court of equity and enjoin the collection of that tax.

Now, it is true that where there has been an illegal levy of “taxes, or an illegal assessment of taxes, the statute does afford “the party against whom it is assessed the right to come into a •court of equity and enjoin the officers from collecting the tax. This is an innovation upon the common law. Without the aid •of the statute that could not be done, because a party would have to resort to his legal remedy. But by the statute, Sec. 5848 R. S. (Sec. 12075 G. C.), I believe it is, there has been this inmovation made upon the common law, and it is upon the strength of that statute, doubtless, that this proceeding was brought, and “the contention is made in behalf of the plaintiff that this is a proper proceeding.

Section 5848 R. S. reads as follows:

“Courts of common pleas and superior courts shall have jurisdiction to enjoin the illegal levy of taxes and assessments, or the collection of either. ’ ’

Our construction of this section of the statute is that it applies where the illegal levy is made, or the assessment made is against the' party that is seeking the aid of a court of equity. In other words, if this was Friddle’s property, and they were seeking to restrain the officers from collecting the tax levied against him, and the proof shows that the levy was against him and in his name, if it was illegal he could enjoin under this statute, because it expressly says so; but, does it give a third party that, right ? Does the plaintiff in this case stand as though it had been levied against her and illegally levied? "We think not, and for this reason: If she is the owner of the property, and they seek to-en force a claim against the property — not against her, but against her property — why then she could not come into a court of equity for the reason that she would have an adequate remedy at law. It would be analogous to this: Suppose that an attachment issues against one party, and that attachment is levied upon the property of a third party. Now, would it be contended that the third party who was a party to the other suit, could come into a court of equity and ask to have the party enjoined from selling and appropriating his property? His. remedy at law would be in replevin, or he could invoke the remedy in the trial of the right of property which is given by statute — a definite and adequate remedy at law. In this case, if' the property is Mrs. Huffman’s, and the county or state is seeking to take her property to answer the liabilities of Friddle, there is no reason why she would not have her adequate remedy at law, either by replevin, or the trial of the right of property. As I say, the question as to real estate is not here involved, but. it is the personal property — the drug store — which she claims, had no connection whatever with this other business; and, if so, she would have her adequate remedy at law.

Therefore, without taking more time, we think that the-plaintiff has no standing in a court of equity. Conceding that-she is the owner of the property — and that is what she says— under the law, and according to her claim in her petition, and according to the proof as we find it, the sales that she was permitting to be made there were clearly in violation of the law, because intoxicating liquors were sold in violation of the statute. She-then would have no standing in a court of equity. If she has a remedy, she must seek it at law.

And, for these reasons, we think that the petition in this case-should be dismissed.

Judge Hunter: Does Your Honor find, as a matter of fact, that the transfer was made to her ?

Judge Yoorhees: Why, yes, I think that we find that. (Judge Yoorhees confers with Judge Douglass and Judge Donahue.)

Judge Yoorhees: In place of finding specifically that there was an honest sale and transfer of the property, the court is of the opinion that it is a fraud — an attempted fraud on her part and that of Friddle to avoid the tax, and, therefore, she could not come into a court of equity, and that would be the finding ■upon that matter.

Judge Hunter: Well, on that matter, I would like to file ••a motion for a new trial—

Judge Donahue: I don’t think you understand it, judge— we find that her attempt to evade the law and not paying the ■tax was a fraudulent transaction on her part that bars her from •any relief in a court of equity, or to any finding of fact on these «questions.

Judge Hunter: But still, I want to know whether the court finds, as matter of fact, that that transfer was made to her, and that she was the owner of the property.

Judge Donahue: You can file a motion for a new trial.

Judge Hunter: Yes, sir, and I desire to argue it.

Judge Donahue: We find the testimony shows her steeped in fraud in an attempt to evade a statute of this state, and that .•she is not entitled to any finding further than that fact, and goes •out of the court of equity. That is the finding that the court will make, if you want a special finding.

Judge Hunter: On that matter, I desire to be heard upon .■a motion for a new trial when the court has time to hear me. 1 .also ask the court to remit the penalty.

Judge Yoorhees: We will consider that.

Judge Donahue: When do you wish to argue the motion íor a new trial, Judge Hunter?

Judge Hunter: I want a finding, because I can then take the question whether you can distrain; if you hold, as a matter of law, that that transfer is good, and then, notwithstanding there are no taxes charged against her, yet you can distrain her property — that is all the point I wish to raise in the case.

Judge Donahue: But, there are two points upon which we. dismiss the case. The first is that there being no tax assessed against her, but her property sought to be taken, her complete remedy is at law. A person who has a tax charged against him is entitled to go into a court of equity to have that stricken off. The second point is, that your client has attempted a fraud upon the statutes of the state — if it is her business, then she has attempted a fraud upon the state through these fraudulent prescriptions, and has no standing in a court of equity, and we make no other finding but those two.

Judge Hunter: And I protest against that finding. I find myself absolutely unable to concur with the court upon that statement. I simply stand upon my legal rights. I am satisfied that the transfer was in perfect good faith, and the reason was because Mr. Friddle could not pay, and the property had to be taken back. •

Mr. Miller: There is no testimony to that effect.

Judge Hunter: Mr. Friddle himself testified to it, and there isn’t a word to the contrary from anybody. If the court finds that this transfer avus made, that she OAraed the property at this time, and that the tax was not charged against her, but charged against Jacob Friddle, that raises a point of law, that you can not take any man’s property from him by distraint unless you charge him with it. That is the point I make, and the other point that is raised by the court, that she had not the right to bring this action for an injunction — you hold that as a matter of law — I disagree with the court upon that point; and those are the only two points that I Arish to raise; I can raise them without any further trouble if the court finds, as a matter of fact, that that transfer was made.

Judge Donahue: After finding that the party comes into court Avith unclean hands, the court is not supposed to make any further finding, and if our finding is wrong upon that—

Judge Hunter: The statute makes no discrimination.

Judge Donahue: We do.

Judge Hunter: In a suit to enjoin taxes, the statute does not say anything about clean hands — well, that argument is. over, you can not turn a person of bad character out of court for that reason.

Judge Donahue: Yes, you can; out of a court of equity. If they have attempted a fraud upon the statutes of the state, they haven’t any right to come into a court of equity.. We always want counsel to have the fullest opportunity to review a case, and we think we will go farther for you and find that that was a bona fide transfer. We Avill give you that finding.

Judge Hunter: You find those three facts, then?

Judge Donahue: Yes, sir.

Judge Hunter: I am perfectly willing that you find that the law was violated, and that the transfer w.as made, and that the tax was not chained against her, and you hold' that she was not entitled to this remedy of injunction.

That is all I will ask of Your Honor.

Judge Voorhees: We remit the penalty and dismiss the petition.

Douglass and Donahue, JJ., concur.


text:
    PARTITION.
    [Licking (5th) Circuit Court,
    March Term, 1911.]
    Voorhees, Shields and Powell, JJ.

      Mary V. Hardway et al. v. Consumers Brewing Co. et al.
    Title of Claimant of Aliquot Part of Land Held in Severalty must be Determined before Partition.
    Where the ownership of one of the aliquot parts of land held in severalty is in dispute, an action in partition can not be maintained by the party claiming said interest until his title thereto, has been determined.
    [Syllabus by the court.]
    Motion to dismiss appeal.
    . J. R. Davies and Kibler & Kibler, for plaintiffs.

      Norpell, Norpell & Martin, Sater, Seymour, Vorys & Rease, for defendants in error:

      Cited and commented upon by the following authorities: Roberts v. Remy, 56 Ohio St. 249 [46 N. E. Rep. 1066] ; Hogg v. Beerman, 41 Ohio St. 81 [52 Am. Rep. 71] ; Perry v. Richardson, 27 Ohio St. 110; McNeely v. Cincinnati, 19 Dee. 210 (7 N. S. 441) ; 24 Cye. 120, 121; Sargeant v. Steinberger, 2 Ohio 305 [15 Am. Dec. 553] ; Lindsay v. Zanoni, 3 Circ. Dee. 544 (6 R. 474); Swihart v. Swihart, 4 Circ. Dec. 624 (7 R. 338) ; Stone v. Poster,-3 Circ. Dec. 637 (7 R. 8) ; Elstner v. Fisher, 5 Circ. Dee. 597 (12 R. 517); McRoberts v. Lockwood, 49 Ohio St. 374 [34 N. E. Rep. 734]; Camp Phosphate Co. v. Anderson, 48 Fla. 226 [37 So. Rep. 722] ; Flaherty v. McCormick, 113 111. 532; Barr v. Chapman, 11 Dee. Re. 862 (30 Bull. 264) j Pillow v. Improvement Co. 92 Ya. 144 [23 S. E. Rep. 32; 53 Am. St. Rep. 804] ; Cecil v. Clark, 44 W. Ya. 659 [30 S. E. Rep. 216],

       Affirmed, no op., Consumers Brew. Co. v. Hardway, 87 O. S. 485.

   PER CURIAM.

This is an action for partition, the plaintiffs; Mary Y. Hard-way, Eliza J. Henthorn and Stephen A. Gill, representing that they are the owners in fee simple and entitled to the immediate possession of an undivided three-twelfths part of the lands in the petition described; that the defendant, the Consumers Brewing Co., is the owner of an undivided two-thirds of said real estate; and that the unknown heirs of Sarah Ann Wadhams are the owners in fee simple of the undivided one-twelfth part of said real estate.

They further set out that the estate of the said plaintiffs and the said Sarah Ann Wadhams was an estate in remainder in said premises, arising immediately on the termination of the life estate of one Eliza M. Kidwell; that the said Eliza M. Kidwell departed this life on November 9, 1909.

The petition further alleges that the Consumers’ Brewing Company is in the sole and exclusive possession of said premises; denies the right of the defendant to unlawfully keep plaintiffs out of the possession of their undivided three-twelfths part thereof ; they allege that they have been, ever since November 9, 1909, entitled to their respective shares in said premises; that the said brewing company has had sole possession and’ has received all of the rents, amounting to $300 or more. Wherefore, plaintiffs pray judgment for the title and possession of their undivided three-twelfths part of said premises. They ask that partition may be made, if the same can be done without injury to the value of said property, and for an accounting of the rents and profits received by the defendant brewing company.

An answer was filed by the Consumers’ Brewing Company, in which it admits, for its first defense, that it is a corporation; that it has the possession of the premises described; denies the right of the plaintiffs to any part thereof; admits that it has received the rents, issues and profits, amounting to about $300 or more; and denies each and every other allegation in the petition contained.

For its second defense, said defendant says that the cause of action on the part of the plaintiffs did not accrue within twenty-one years prior to the commencement of this action, and that the same is, therefore, barred by the statute of limitations.

For a third defense, it sets up adverse possession on the part of the answering defendant and its predecessors in title for more than twenty-one years; and makes the claim that it is the owner in fee simple of the whole of said premises.

To this answer and cross petition, the plaintiffs replied that nil- of the .averments of the second defense are untrue. They deny the averments of the third defense in said answer and cross-petition set forth; and deny that the said brewing company has had adverse possession of said prepiises for more than twenty-one years prior to the commencement of this action. "Wherefore, they pray as in their petition.

The cause comes into this court by appeal from the action of the court of common pleas upon the case thus stated.

A motion is filed to dismiss the appeal on the ground that, on the issue joined, the case is not appealable.

By the provisions of See. 5226 R. S. (G. C. 12224) “an appeal may be taken to the circuit court by a party or other person directly affected, from a judgment or final order in a civil action rendered by the common pleas court, and of which it had original jurisdiction, if the right to demand a jury therein did not exist.”

It is further provided by See. 5130 R. S. (G. C. 11379) that “issues of fact arising in actions for the recovery of money only, or specific real or personal property, shall be tried by a jury, unless a jury shall be waived, or a reference be ordered as hereinafter provided. ”

So that the question presented. for determination by this motion is whether or not the issue presented by the petition herein is one in which either of the parties has the right to demand a trial by jury. If the ease is held to be one for the recovery of specific real estate, then such right exists. If it is a case for partition, under the statutes of Ohio, then the right to demand a jury does not exist, and the motion should be overruled.

Upon an examination of the issues tendered by the petition, we think that the right of partition does not exist until it is first determined whether or not the plaintiffs have title to the real estate claimed by them, as against the defendant, the Consumers’ Brewing Company; that this is the primary object sought in this action; and that the partition is only incidental to the recovery of title by these plaintiffs.

Taking this view of the case, we are of the opinion that the motion to dismiss the appeal should be sustained.


author: JONES, O. B., J.

text:
    CRIMINAL LAW.
    [Hamilton (1st) Court of Appeals,
    March 15, 1913.]
    Swing, Jones and Jones, JJ.
    Roy Austin v. State of Ohio.
    Failure to Have Stenographer Present at a Criminal TridI not Prejudicial if no Injury Results therefrom.
    Section 1548, G. C., does not make it mandatory upon a trial judge to provide the defense in a criminal case with an official stenographer; hence a judgment of conviction will not be reversed if it appear that no official stenographer was available at the time; no claim made that the verdict is against the weight of the evidence, that the defendant was not proved guilty beyond a reasonable doubt, or that any manifest injury resulted to the defendant through failure to have a stenographer in attendance.
    Error to common pleas court.

      Howard D. Burnett, for plaintiff in error.

      Simon Boss, Jr„ for defendant in error.
   JONES, O. B., J.

Plaintiff in error, wrho was convicted of grand larceny, seeks to set aside this conviction solely because he was not furnished the services of an official stenographer to report all the testimony at the trial.

The bill of exceptions recites that upon the calling of the case for trial on the day on which it had been regularly set for trial, the defendant objected to being put to trial on that day for the reason that:

“First. Written application was made by the counsel for the defendant for an official stenographer to report the evidence and proceedings in said trial. No official stenographer being available, the court ordered the defendant to proceed to trial without said stenographer, to which objection was made and exception noted. The court directed counsel to take full notes of the evidence and stated that he would do likewise, as it was impossible to get. a stenographer and numerous cases were ready for trial. ’ ’

It does not appear that counsel for defendant had made any effort prior to the actual time of trial to arrange for an official stenographer, or finding all of the official stenographers engaged in other cases at that time to provide for an outside stenographer. Nor is it claimed that the verdict was against the weight of the evidence or that defendant was not proved guilty beyond a reasonable doubt, or that any manifest injury has resulted to defendant by reason of his not being able to have an official stenographer.

Defendant claims that Sec. 1548 G. O. makes it the mandatory duty of the trial judge to furnish him an official stenographer upon his request' or to continue the case, and that the failure to do so constitutes reversible error. We do not so regard it.

Finding no error in the record, judgment is affirmed.

Swing and Jones, JJ., concur.


author: WILDMAN, J.

text:
    PARTITION.
    [Lucas (6th) Circuit Court,
    1909.]
    Parker, Wildman and Kinkade, JJ.

      Mary E. Burch and Charles A. Thatcher v. William Brooks et al.
    1. Conflicting and Inconsistent Elections in Partition Refused and Sale Procedure Adopted not Erroneous.
    It is not error in an action for partition for the court to refuse to accept inconsistent and conflicting elections by parties in interest, and in lieu thereof adopt the procedure of ordering a sale.
    .2. Bad Faith of One without Means to Consummate Election Made not Assumed.
    Bad faith can not be assumed upon an election to take by a party in interest who is without means of his own with which to make good the obligations assumed under an election to take, where it appears that he is able to make arrangements for meeting the obligations through the aid of others.
    Error to common pleas court.

      G. B. Keppel and Gilbert Harmon, for plaintiff in error.

      George B. Orwig, Raymond T. Garrison, Brown, Geddes, Schmettau & Williams, Ersltine H. Potter and Harry Levison, for defendants in error.

       Affirmed, no op., Burch v. Brooks, 82 O. S. 441.

   WILDMAN, J.

This is a proceeding in error, resulting from the judgment .and order of sale in the court below in a partition proceeding. Partition was sought by a tenant in common of seven acres of land fronting on Auburn avenue in this city. The proceeding was began August 29, 1907. After the order of partition and the appointing of commissioners, they made return that the property could not be divided without injury to the rights of the parties, and it then stood in the position contemplated by the .statute as to what action may be taken where property is so indivisible. The statute provides in Sees. 5762-5764, R. S. (G. C. 12034-12036), inclusive, for the election by one or more of the tenants in common to take the property at the value as appraised by the commissioners.

The statute is a blank as to what proceedings shall be taken in case of conflicting elections. In speaking of one or more of the owners electing to take the property and the order of the court for a deed to such purchaser electing, the legislature either contemplated the individual election by one of the tenants in common, or the joint election by one or more, but it did not contemplate the election by one to take the whole of the property for himself and the election by another to do the same, because, of course, that sort of a proceeding would defeat itself. It would be impossible to carry it out, and under such circumstances the courts have, I think, uniformly adopted the procedure of ordering a sale, refusing all the conflicting elections.

The question does not seem at any time to have reached the Supreme Court, but so far as I am advised the lower courts have taken the course stated. In the case at bar, after the commissioners had made their return, appraising the property at $7,000, elections were filed. On April 15, 1908, Mary E. Burch filed her election, Roland A. Scott, one of the tenants in common, owner of one twenty-fourth, I believe, of the property, filed an election on April 18, three days after Mary Burch. That is to say, there was an election in her name. I will call attention later to the dispute with regard to whether it was authorized by her. On May 18, Charles A. Thatcher, who was a brother of Mrs. Burch, elected. On May 22, Chester A. Scott, a tenant in common, holding one forty-eighth, if my memory’serves me —the fraction is of no.consequence — also elected. On May 25, Mrs. Burch and Mr. Thatcher, her brother, filed a joint election.

On May 25, according to the docket, or June 1, according to the journal as shown by the transcript of entries, the court of common pleas found that there were several elections, and accordingly overruled them and ordered a' sale of the property. A motion was filed in behalf of Mary E. Burch and Charles A. Thatcher to set aside this order of the court, and that motion was overruled. Although there is this discrepancy between the journal and the docket, of course there was no occasion for filing this motion, until the court had made the order complained of — the order in which the court recognized the several elections as inconsistent, one with another, and therefore ordered a sale. And we think it quite apparent that the joint election of Mrs. Burch and Mr. Thatcher, although it appears to have been made May 25, was not made until after and because the court made the order to which I have referred.

Two entries were filed upon June 1, by counsel for one of the parties, and the transcript indicates that the judgments were entered on these dates, both the judgment overruling the elections and the subsequent order, directing sale. They were in fact evidently made upon May 25, and before the joint election of Mrs. Burch and Mr. Thatcher. But without regard to that, we think the court was justified in treating the elections which had been previously made and filed as being an election by each tenant in common filing such election to take the whole of the property and not to take it in connection with some one-else.

Upon the motion to set aside these orders, which was heard some time in July, a bill of exceptions was preserved, stating in the ordinary form: “Be it remembered,” etc., “this cause coming on to be heard upon the motions and the several elections” (stating them) “and the order of the court overruling the elections and the motion to set aside the order of sale” (including this procedure in one statement), “the following evidence was offered,” reciting the same; but it does not appear that any of such evidence was given prior to the action of the court which was complained of as wrong. It does not appear from the testimony of Mr. Thatcher that he intended his original election to be in. connection with that of Mrs. Burch, nor is there any testimony that Mrs. Burch meant hers to be that of herself and Mr. Thatcher, a thing not apparent on the face of it. It does not appear that these matters were called to the attention of Judge Morris at the time when he made the original order.

It is claimed that the original elections of Mrs. Burch and Mr. Thatcher were meant to be joint; but the election of Mrs. Burch, as I have stated, called for the deed of the whole property, to her. It was signed by Charles A. Thatcher as her attorney, and the individual election of Mr. Thatcher filed May 18, does not mention Mrs. Burch as joined with him in it. This is signed by his associate partner as his attorney. Here were two elections,. as clearly individual elections as it was possible to make them on their face, and whether the parties had it in contemplation to own the property afterwards in ■ common is of no consequence. They were asking to have the deeds made in accordance with the individual elections. Mr. Thatcher was asking to have the deed of the whole property made to him; Mrs. Burch was, through her attorney, Mr. Thatcher, asking to have the deed of the whole property made to her.

If we throw out all the other forms of election, we see no reason why the court should not have made the order it did on May 25, that is to say, it would be so if the ostensibly joint election had not been filed May 25. But as I have already indicated, we think the order of the court was really made before the filing of the joint election, and it so appears on the appearance docket.

But there were other elections. An election was made in behalf of Boland A. Scott, April 18, under a power of attorney, which although questioned, has some evidence tending to sustain it as a valid authority.

Again, disregarding all these contentions, we still have before us the election of Chester A. Scott, made May 22, three days before the order of the court, if it was made on the twenty-fifth, or nine days before if it was made on June 1; long enough before, so it must be taken into account as an election.

Chester A. Scott, it is said by the testimony of the bill of exceptions and in the arguments of counsel, was a young man who had just arrived at majority, having no means, working on a salary or wage of $70 a month, and it is said that his election was not made in good faith. He made some sort of an arrangement with one Mr. Coates, by which the latter was to take the property off his hands and pay him $45 more than the $7,000, the appraised value of the property. That was evidently all the profit that Chester A. Scott was to get out of it. He was to get $45 for the advance over the appraisal of the property.

Now it is claimed that Mr. Coates is sort of an interloper here. He comes in and asks for a substitution; he also files an election after he is made a party. It is said that he is not a proper party. They were all trying to make their calling and election sure, but in the end there was no way out of the confusion other than for them all to fail.

Let us consider for a moment the election of Chester A. Scott: Is the election in bad faith simply because the young man has no means of his own with which to pay the purchase price? If he has provided the wherewithal with which it is to be paid, and it is quite clear here that Mr. Coates was going to furnish him with $7,000 to make his election good and pay for the property, why should he not have the right as a tenant in common to elect to take the property at the low appraisement and get the benefit of the difference. Was he to be barred of any possible rights in the property because of his poverty, letting some tenant in common who had a plethoric purse go in and take it? We think that every tenant in common is given by the statute this right to elect, without regard to whether he has a large exchequer, provided he is making the election in- good faith and that when the time comes, he have the money in hand to carry it out.

Nowr, it does not at all appear here that this young man did not intend to carry out this arrangement. On the contrary, it very clearly indicated that he was going to carry it out, and that he had the substantial backing of Mr. Coates.

It may properly be added that after Judge Morris’ rulings upon the matter and after he had made this ordel* of sale, an affidavit of prejudice was filed and another judge made the final ruling after hearing all the evidence, and refused to overrule the order which had been made by Judge Morris. We think that he was correct in so doing and that his judgment should be affirmed.

We find no error in the proceedings, and judgment of affirmance will be entered, but without penalty.

Parker and Kinkade, JJ., concur.