text:
    INFERENCE OF NEGLIGENCE AGAINST WAREHOUSEMAN.
    Circuit Court of Cuyahoga County.
    Thomas Dave Brown et al v. Mrs. Albert Bray.

    Decided, November 1, 1909.

      Motion to Make Petition Definite and Certain — Warehouseman—Inference of negligence — His Duty to Remove it — Charge as to Absence of Party from Coitrt Room — Apportionment of Costs on Retrial of Case, Discretionary.

    1. In an action against a warehouseman for damages to a piano and china closet stored with him, by reason of his negligence in permitting the varnish on said articles to become checked, the veneering loosened, the ivory on the keys of the piano loosened, its metal rusted, etc., all to her damage in a certain sum, it is not error to overrule a motion to make the petition definite and certain by setting out after each item the amount of damage claimed therefor.
    2. If goods are placed in the care of a warehouseman in a certain condition and are returned to the owner in a worse condition and one which would not ordinarily arise without negligence, an inference arises that the goods were damaged by the negligence of the warehouseman and under such circumstances it is not erroneous to charge that such inference of negligence must he removed by the warehouseman.
    3. Under the facts of this case, the • plaintiff having testified by deposition, ‘being absent on a pleasure trip in California, it is not erroneous to charge that “the presence or absence of the parties in the court room should not influence you in the least.”
    4. Upon reversal and retrial of a cause with the same result, it is not an abuse of discretion to refuse to apportion the cost.

      J. J. McCormick, for plaintiff in error.

      J. A. Fenner, contra.

       Affirmed without opinion, Brown v. Bray, 83 Ohio State, 462.

   Marvin, J.; Winch, J., and Henry, J.,

concur.

Suit was brought by Mrs. Bray against T. D. Brown, and Wm. P. Herig, partners doing business as the Eagle Storage & Moving Company. The petition set out that the defendants were earrying on a business as public warehousemen and movers; that on the 3d day of May, 1905, she placed with the defendant as such warehousemen, for storage, certain articles of furniture, including a piano and a china closet; that when she so placed this property with the defendants, the same was in good condition. She says that this bailment continued until the 3d day of April, 1906, on which day the defendants returned her property to her, but when it was so returned the piano was greatly damaged in “that the varnish and finish of piano was checked; the veneering roughened and loosened; the ivory on piano loosened, the keys would not work, the felt on piano loosened, and metal parts rusted and damaged.”

She says that by reason of this it became necessary to have the piano refinished and repaired, which took from the 3d of April to the 23d of September, 1906, during all of which time she was deprived of the use of the piano. She says, too, that when the china cabinet was returned to her, the varnish and finish of the same was damaged and ruined by being checked and roughened, and that by reason of the condition of this-property, when restored to her, as compared to its condition when delivered - to the defendants, she was damaged in the sum of $150.

To this petition the defendant filed a motion asking that the, plaintiff' be required to make the petition more definite and certain, by stating the various amounts of damage sustained by said plaintiff opposite each item, and the cost or. expense thereof.

Doubtless what was meant was, that the plaintiff be required to make her petition definite and certain, and not “more definite and certain.” The statute authorizes the former and not the latter, because evidently the law-makers supposed that that which was definite and certain need not be made more definite and certain. However, the language used is that often used by pleaders, and will be considered as if it read in the language of the statute.

This motion was properly overruled.

To require the amendment suggested by this motion would have required of the plaintiff to set out specifically what amount she suffered by the fact that ‘1 the varnish and finish of the piano is checked”; what amount she suffered by reason of the fact that “the veneering was roughened and loosened”; and what amount was suffered by her because “the ivory on the piano was loosened, ’ ’ and so on as to each item. Carried to its logical conclusion, if the defendants were entitled to have such an amendment made, the court might have required that she state just what number of the ivories were loosened and the amount of damage done to each one of such keys; just what particular pieces of metal were rusted and damaged and the amount she suffered by the rusting of each one of these several pieces of metal. As well might one be required, in case of a personal injury, where several bones had been broken, to make a statement of what amount of damage the plaintiff would claim by reason of the breaking of each bone, and if, in addition to the breaking of bones there was a claim for the bruising of the body, just how much was claimed by reason of such bruises.

The petition was sufficiently definite to apprise the defendants of what the plaintiff claimed, and to have required more than stated in this petition would have required the plaintiff to do what would, in most instances, be an impossibility; certainly it would be impracticable for one to state definitely the exact amount suffered in damage by reason of each of these several matters complained of.

The result of the trial was a verdict and judgment in favor of the plaintiff below, and it is to reverse this judgment that the present proceeding is brought.

It is said the court erred in refusing to grant a new trial. One of the grounds upon which this claim is made, is that the defendants (the plaintiffs in error) discovered new evidence after the trial.

An examination of the bill of exceptions fails to show what evidence was introduced on the hearing of the motion, ^so that we are without information as to what such new evidence was.

It is further urged that the damages allowed were excessive and appear to have been given under the influence of passion and prejudice. The damages awarded were $100.

We do not find from, the evidence that this amount was so excessive as. to show it was given under the influence of passion or prejudice. It is possible that we might have found the damages to have been less, but it was a fair question for the jury, and if properly submitted, as we find it was, we can not say it is clearly excessive.

The other grounds for new trial will be considered in connection with the questions as they arose in the trial.

It is urged that the court erred in its charge to the jury, because it is said that a burden was placed upon the defendants which ought not to have been so placed. The court said in relation to the burden as follows:

“This denial of the defendants causes the burden of proof to devolve upon the plaintiff to prove the .charge against the defendants it makes in the petition by a preponderance of the evidence.” " ’

Again the court said:

“Now I have stated the burden of proof is upon the plaintiff to prove the allegations upon which liability depends by a- preponderance of the evidence. That charge is the negligent failure of the defendants to properly and safely keep those two articles thus stored with the defendants.”

And the court further said:

‘•‘If the plaintiff has not proved by a preponderance of the evidence that the defendants were negligent, that is, that the defendants did fail to use ordinary care, then your verdict should be for the defendant. If, on the contrary you find that the defendants failed to use ordinary care of these two articles of furniture and that damage resulted to the plaintiff by reason of such negligence or want of ordinary care by the defendants then the plaintiff would be entitled to recover.”

And again:

“But if you find that the goods had suffered injury while they were stored, then proceed to take up the question whether the plaintiff has proved by a preponderance of the evidence that the defendants were guilty of negligence in the manner of keeping it, which resulted in such injury. ’ ’

And again:

“If, on the contrary, you find plaintiff to have proved negligence of the defendants causing injury to her goods, you will then take up the question of Avhat damage under the proof she has shown to have sustained.”

Certainly all this language placed the burden, as it should have been placed, upon the plaintiff below.

The court, however, said to the jury, and this is what is complained of:

“That if you find that the goods stored by plaintiff with the defendants were given into the defendant’s exclusive possession to keep while in storage and the property was returned to the plaintiff in a damaged condition, that is, damaged as compared to what it ivas in Avhen defendants received it, in-other words, that the goods had been injured while in storage and it is shown that the injury or injuries are such as do not ordinarily occur to goods thus stored, without negligence, proof of these facts may make a prima facie case against the defendants, justifying the inference of negligence on their part in the manner of keeping the goods in storage, and if this inference arises in the evidence in this case, then it is for them, the defendants, to remove such inference to avoid its operation against them in determining this question of negligence. This, they may do, by showing the injury did not occur through their negligent care of the goods, or they may remove such inference, of it arises, by showing the exercise of such care of the goods, the doing of such things, the keeping in such place, etc., as removes the inference of negligence which may arise in your minds from the evidence in this case. Noav if such inference does arise, and if they have remoAred such inference then I say to you, determine from the evidence in this case without resorting to any such inference, whether or not the plaintiff has shown in the proof by a preponderance of the evidence that the defendants AA^ere guilty of negligence causing the injury to her goods to her damage. ’ ’

Now it will be noticed that there is no language of the court which suggests to the jury here that the defendants were bound to remove any inference which might arise by reason of the difference in the condition of the goods when they left the possession of the defendants, from their condition when the defendants received them, by a preponderance of the evidence. Certainly if the goods went into the possession of the defendants in a certain condition, and if when they were returned to the plaintiff they were in a worse condition, and one which would not arise ordinarily without negligence on the part of the defendants, every sensible man would draw the inference that there had been negligence, and that inference, the court said, if such inference arose, must be removed. But, as already said, no suggestion is made that it requires a preponderance of evidence to remove it. Counsel for plaintiff in error seems to understand the language of the court as putting a burden upon the defendants to show that they were not guilty of negligence. This, taken in connection with what the court said on the matter of the burden, is not a fair construction of the language. From what the court said the jury might well find that the inference was overcome not by a preponderance of evidence, but by sufficient evidence to remove the inference. That is, the evidence on each side being equal, and the burden being upon the plaintiff, as the court plainly said it was, the jury following the charge of the court in this regard, must have found that they were not to be influenced by this inference.

There was no error on the part of the court in the charge as to the removal of the inference resulting from the condition of the goods at the time they were restored to the plaintiff.

At the trial in the court of common pleas, the plaintiff was not personally present. She was at Long Beach in the state of California,’and her deposition was there taken and used on the trial. The court said in its charge in relation to the use of this deposition:

“I want to say to you gentlemen, give attention to all the testimony in the case. For me to emphasize one particular more than another would probably be erroneous; look to all the proof in the case. I have been requested while arguments have been going forward to charge you something on the question of absence of the plaintiff herself who has testified as to being at the sea shore in California. I say to you simply because requested, I think !• need not say it, that the parties may testify by deposition and in such ease they lose no rights by reason of not being present in court, and the presence or absence of the parties in the court room should not influence you in the least. ’ ’

Since the statute provides for evidence to be taken and furnished by deposition, what the court said, up to the last sentence, was undoubtedly correct. It was the business of the jury to consider all the evidence, as well that taken by deposition, even though it were the deposition of a party to the suit, as any other evidence. The last sentence “And the presence or absence of the parties in the eourt room should not influence you in the least,” perhaps, could not be justified in all cases, because the very absence of a party to the ease who could easily be present and testify on a matter of vital importance in the ease, might very well be taken into account by the jury. But, in this ease, the language used was- not, as we think, prejudicial to the defendants. The deposition shows that the plaintiff was in California on a journey for pleasure. It is by no. means a suspicious circumstance that a party having a case involving the small amount involved in this case should not come thousands of miles, and thereby break up an expensive journey taken for pleasure, for the purpose of being present at the trial of the law suit. We think the jury should not have been influenced one way or the other by the fact that this plaintiff did not come home from California to be present at this trial, and therefore that the language used by the court was not prejudicial to the defendants.

Some complaint is made because there was no apportionment of costs in this ease, error in the case having been once prosecuted in this court, after a judgment was obtained by the plaintiff below, and reversal had. The matter of costs, if they might have been apportioned at all, was a matter wholly in the discretion of the court, which we do not find was abused, and so we find no error in the record, and the judgment of the court of common pleas is affirmed.


source: Caselaw Access Project

author: Henry, J., Marvin, J., and Wildman, J.,

license: Public Domain

text:
    PROCEEDINGS FOR. ANNEXATION.
    Circuit Court of Cuyahoga County.
    State of Ohio, ex rel A. S. Chisholm et al, v. R. J. McKenzie et al.
    Decided, December 21, 1906.

      Detachment of Territory from Village — Annexation of Territory to a City — Two Inconsistent Petitions Filed with County Commissioners ■ — Priority in Action Thereon.

    A* petition to detach territory from a village and erect it into a village was filed with the county commissioners before another petition to annex the greater part of said village, including the territory described in the first petition, to a city, was also filed with the commissioners, the second petition, however, being filed two days before the council of the village gave its assent to the detachment of territory prayed for in the first petition. Held: The two petitions being inconsistent, the second was entitled to be first heard.
   Henry, J., Marvin, J., and Wildman, J.,

concur.

This mandamus proceeding seeks to compel the county commissioners to take immediate and favorable action upon a petition filed with them for the detachment of certain territory from the village of Collinwood and the erection thereof into a separate township under the provisions of R. S., 1616 (Municipal Code, 536-59).

The defense of the county commissioners is that another petition pending before them takes precedence over and, if granted, will prevent favorable action upon the petition filed with them by the relators.

The facts are embodied in an agreed statement showing that on May 28, 1906, the relators filed their petition in the office of the county commissioners, and, on the same day, the council of the village of Colliuwood passed an ordinance giving consent to the proposed detachment of territory. Said ordinance became effective June 13, 1906. Hearing on the petition had meanwhile been fixed by the county commissioners for June 13, 1906. The territory in question entirely separates the city of Cleveland from the remainder of the village of Collinwood.

While these events were transpiring another movement was. on foot to annex nearly all the village of Collinwood, including all of the territory in dispute, to the city of Cleveland, under the provisions of R. S., 1615 (Municipal Code, 1536-58). To this end the council of the city of Cleveland, on request of two-thirds of the legal voters of the territory proposed to be so annexed, passed an ordinance May 28, 1906, authorizing application to the county commissioners to cause such annexation to be made. This ordinance became effective upon legal publication, which we think means after ten days from first publication, so that it was in force at least as early as June 11, 1906. Upon all of that day the commissioners were in recess between adjourned meetings of their regular session; but written application, pursuant to said city ordinance, was filed on said date in the name of the city clerk of the board of county commissioners. We think that this was a sufficient application of the council to the commissioners within the meaning of the last mentioned section of the statutes. The council of course acted on behalf of the city, and it is not a material variance that it also acted upon the city’s name. The clerk of the board is the statutory custodian under Sections 845 and 1021, Revised Statutes, of all “papers required to be deposited and kept in his office, and as such a paper lodged with him is properly before the board (State, ex rel Osborn, v. Mitchell et al, 22 C. C., 208). It follows that the council of the city of Cleveland had done all that was possible or required of it in the premises on June 11, 1906, and the county commissioners were, on and after that date, invested with complete jurisdiction to take the first step by them to be taken in such a proceeding. Section 1536-58 provides indeed “that in all their proceedings in the premises the county commissioners shall be governed by the provisions of law contained in Section 1536-44 or rather, through reference from the latter section, by the provisions contained in Section 1536-32, as far as applicable. There it is provided that a petition for the annexation of adjacent non-municipal territory to a municipality, “shall be presented to the board of county commissioners at some regular meeting thereof, and when so presented the same proceeding shall be had, in all respects, as far as- applicable, and the same duties in respect thereto shall be performed by the commissioners and other officers, as are required in the case of an application to be organized into a village,” etc.

The county commissioners, “in all their proceedings-,” with respect to an application made under Section 1563-58, are to be governed by the provisions of law thus referred to. But conceding that the commissioners can act upon such an application only at “some regular meeting” or adjournment thereof, it does not follow that an application may not be filed with the board of commissioners while it is in recess. The presentation of a petition or the filing of an application is no part of their procedure. It is the act of the petitioner or applicant.

On the side of the relators here, it is to be observed that their petition was filed, as well it might be, before the assenting ordinance of the village of Collinwood became effective. But the county commissioners jurisdiction is to entertain it only “with the assent of the council, given in an ordinance passed for that purpose, and not otherwise.” Such being the language of Section 1536-59, we are bound to hold that it was not until June 13, 1906, two days later than in the case of the city’s petition, that the county commissioners were first invested with jurisdiction to take any action at all on the petition of the relators.

It follows therefore that the right of prior consideration, as between these two conflicting petitions, which were simultaneously urged before the commissioners at their session of June 13, 1906, attaches to that one, jurisdiction to consider which first accrued, to-wit, the city’s application. Failure on the part of the commissioners to observe such priority would result in void action. State, ex rel Osborn, v. Mitchell et al, supra.

And we hold that it is not important that the earlier petition invokes their discretionary action, whereas the later petition invokes the performance of a duty alleged to be immediate and mandatory. The commissioners do not refuse to consider the relator’s petition. They merely decline to consider it until the earlier and inconsistent petition is disposed of. And we hold that this interpretation of their power and duty in that behalf is correct. The writ prayed for is refused.


author: Winch, J.; Marvin, J., and Henry, J.,

text:
    PROCEEDINGS IN ERROR. IN LOCAL OPTION CASES.
    Circuit Court of Cuyahoga County.
    In re Petition in Favor of Prohibiting the Sale of Intoxicating Liquors v. Tom L. Johnson, Mayor, etc.; and Five Other Liquor Cases.
    Decided, November 26, 1906.
    Wei and Dry Petitions — Searings thereon Judicial — Leave to Pile Petitions in Error urcmtcd T>y Court and Not Judge — Transcript Must Accompany Petition in Error.

    1. Leave to file a petition in error in the circuit court to the action of a mayor or judge upon a petition in favor of prohibiting the sale of liquor under the Jones law, must be granted by the court and not by a judge thereof.
    2. With the petition in error in such cases must be filed a transcript of the final record or a transcript of the docket and journal entries, as required by Revised Statutes, Section 6716.
    3. The proceedings before the mayor or judge on such petitions are judicial and not ministerial; otherwise error would not lie to them.

      Geo. II. Shcm, C. W. Gollisler, Hobday c§ Quigley, Blaoidin, Bice cD Ginn, and F. D. Morrow:

   Winch, J.; Marvin, J., and Henry, J.,

concur,

liming the summer vacation six petitions in error were filed in this court, upon leave of one judge thereof, to review a like number of rulings, four by the mayor of the city of Cleveland and two by a judge of the Common Pleas Court of Cuyahoga County, within which said city is situated, upon petitions presented to said mayor and judge, respectively, in favor of prohibiting the sale of intoxicating liquors as a beverage' in certain residence districts in said city, described in said petitions, as provided under the Jones law, so-called.

The jurisdiction of the court to consider these petitions in error is challenged upon two grounds:

First. Because leave to file said petitions in error was granted by a judge of the circuit court, in vacation, instead of by the court itself during term time.

Second. Because neither a transcript of the final record nor a transcript of the docket or journal entries was filed with any of said petitions in error, as required by Section 6716, Revised Statutes of Ohio.

A determination of these propositions requires an examination of part of Sections 4 and 32 of said Jones law, reading as follows :

“Section 4. The mayor or judge shall decide whether the petitioners are qualified electors in the residence district and equal in number a majority of the votes cast in the residence district at the last regular municipal election, and the mayor shall make a record of his findings on his docket, and the judge shall cause the same to be recorded in the records of his court.
“Section 3.2. Any person being a qualified elector of a residence district of any municipal corporation wherein a petition shall have been presented and held sufficient by a mayor or judge as provided for in this act may prosecute error from such finding by first filing a motion for leave to file a petition in error with the circuit court of the county in which such residence district is situated.
“The motion shall not be granted unless for good cause shown. If such motion is granted, a petition in error shall be filed within fifteen days after the finding or decision of the. mayor or judge setting forth the errors complained of.”

Conceding, as has been held by other circuit courts of this state, that leave to file such petitions in error must be granted by the court and can not be granted by one pr more judges thereof in vacation, perhaps, it does not follow that if petitions in error are filed within the fifteen days limited 'by the statutes, but during vacation, they must be stricken from the files.

In each of these cáses plaintiffs in error did all that this statute-requires of them to be done. Each filed with the clerk of this court a motion for leave to file a petition in error. Each filed a petition in error with said clerk within the fifteen days. The court was not in session. Quaere, could the court when thereafter duly convened in session, grant this motion, and the petition in error being on file within the fifteen days, would the limitations of the statute be complied with?

What answer we should give to this question in a case where we felt the leave should be granted, we do not now indicate, for a consideration of the second objection to the jurisdiction of the court shows that such leave should not be granted in these eases, in any event.

2. The second ohjeetion is that no transcript was filed with the petition in error.

We have carefully examined all the papers filed in all these eases and find that in none of them was there filed with the petition such transcript as is required by Section 6716, before referred to.

If the proceedings before the mayor or the proceedings before the judge were of a judicial nature, then manifestly the jurisdiction of this court to review said proceedings must be invoked as prescribed by Chapter 1, Title IV, Part 3, of the Revised Statutes, and as Section 6716 contained in said chapter, was not complied with, the court' is without jurisdiction to entertain said petitions in error. Jennings v. Mendenhall, 3 O. S., 490; Stewart v. Williams, 15 O. S., 484; Barton v. Am. Nat. Bk., 14 C. C., 450.

If the proceeding before the mayor or judge were of a ministerial nature; if they exercised non-judicial functions under the Jones law, then said Section 12 of said law is in contravention of Section 6, Article IV, of the Constitution, for it would be the conferring of original jurisdiction upon the circuit court in excess of that limited by the Constitution. Logan Branch Bank, Ex Parte, 1 O. S., 432; Musser v. Adair, 55 O. S., 466.

So it seems that whether the* functions performed by the mayor or judge under the Jones law are ministerial or judicial, the result would be the same in these six cases, and the petitions in error must be dismissed for want of jurisdiction in this court to entertain them.


text:
    PROSECUTION FOR^UNL AWFUL SALES OF LIQUOR.
    Circuit Court of Cuyahoga County.
    L. Cohen v. State of Ohio.
    Decided, November 26, 1906.

      Liquor Laws — Not Duplicity to Charge in one Count the Keeping of a Place for Sale of Liquors and Also Selling Them^-Evidence Unlawfully Obtained 'Under Search and Seizure Law May be Used in Pros- ' ' eeuting for' Keeping a Place for Sale of Liquors.

    1. In a prosecution for the violation of the liquor laws, an affidavit is 1 'not bad for duplicity which charges not only that the accused kept and used a wagon for the selling, furnishing and giving away of intoxicating liquors as a beverage, but also that from it he sold, furnished and gave away such liquors.
    2. It’ is no objection to the introduction of evidence in a prosecution for the violation of the liquor laws, that such evidence was unlawfully obtained under the search and seizure law.

      Klein & Harris, for plaintiff in error.

      A. V. Taylor, contra.
   'Marvin, J. (orally); Winch, J., and Henry, J.,

concur.

This ease is brought to this court on error, seeking to reverse the judgment of the court of common pleas, an affirmance of the judgment of the police judge of the village of Chagrin Falls.

' Cohen was convicted before the police judge upon a charge contained in an affidavit, that charge being:

.That on ór about the 4th day of May, .1906, in the village of Chagrin Falls, in- the county of Cuyahoga, and state of Ohio, one L. Cohen, then and there being, did then and there keep and use. a vehicle, to-wit, a wagon, for the selling, furnishing and giving away., intoxicating ..liquors- as a beverage, and in-which and from'which said place and vehicle intoxicating liquors were then aiid there kept for sale, and sold, furnished and given away as beverages; that the keeping by the said L.. Cohen of said vehicle aforesaid was then and there prohibited and .unlawful contrary to the.form of the statute in such ease made and provided.”

' That conviction was upon the evidence, a part of which is contáih'éd in a -bill of "exceptions filed -with us. It was objected to the affidavit that it was bad for duplicity, because it charges that he kept a place, vehicle, for the sale of intoxicating licpiors, and that intoxicating liquors were then and there kept for sale/sold furnished and given away, as a beverage. It is conceded that in the village of Chagrin Falls, the sale of liquor from a vehicle or other place was prohibited. But it is said here that he both kept a place and sold the liquor. We don’t think it makes the complaint bad because the fact is stated that he sold liquor in the place or from the place that he kept for that purpose.

There is a demurrer filed, which was overruled. Perhaps it should be said that the evidence obtained was unlawfully obtained under the search and seizure law. I suppose that was true. If one does an unlawful thing and thereby evidence is obtained that another has committed a crime, I think it is an unheard of thing that the evidence can not be used. If one breaks into my house and obtains evidence by such breaking in, which is unlawful, that I have committed a crime, that evidence against me can be used. There is nothing in that that should justify a reversal here. We do not consider whether the evidence was lawfully or unlawfully obtained.

It is said that the bill of exceptions is incomplete: that certain glass bottles were introduced in evidence Avhich it is said were labeled in a certain way, but evidently the labeling as set out in the bill is not sufficient. There should appear something to show what ease they are in and in what court the ease is being tried. It is said that it was agreed that the bottles might be treated.as evidence, being kept for somebody’s convenience in the village of Chagrin Falls. There was a dispute about how they were attached.

We can not consider the facts of this case because the bill is not complete, and not'having the facts, the judgment is affirmed. There is no error in the case unless it is about the facts.


author: • Winch, J.; Marvin, J., and Henry, J.,

text:
    CONFLICTING EVIDENCE ON CONFIRMATION OF SALE.
    Circuit Court of Cuyahoga County.
    Mary Duckwitz v. Nathan Komito et al.
    Decided, December 22, 1905.

      Weight of Evidence — Credibility ' of Witnesses for Trial Judge■ — Confirmation of Sale.

    An order .confirming a sale of real, estate made by, the sheriff will not ■ be reversed on the weight of the evidence, where the evidence on . the motion for confirmation was conflicting, for the trial judge is better able to consider the credibility of the witnesses tlían a reviewing court!
   • Winch, J.; Marvin, J., and Henry, J.,

concur.

The unfortunate occurrence here involved is one in which we can not grant the relief prayed for in the petition in error. We are asked to reverse an order of the common pleas court confirming a.sale of real estate made by the sheriff. The contention of the court below was that the sale confirmed was reported as made to Mary Duckwitz, plaintiff in this case, on the bid of her attorney, a reputable member of the bar, while in fact the bid was so made by mistake on the part of her attorney and wholly without authority from the plaintiff.

The bill of exceptions contains all the evidence taken oh the hearing, of the motion. The attorney and the plaintiff both state that the former had received no instructions from the latter to bid on the property; the attorney explains how he made his mistake and the plaintiff alleges that it wotild'be a/hardship for her to be compelled to take the property. Had this been all the evidence offered on the hearing, it would have been clearly an abuse of discretion and error on the part of the court to confirm the sale.

But the defendants in the action produced witnesses whose positive statements as to what transpired at the sale fully warranted the trial judge in confirming the sale, if he believed them, He choose to believe them and confirmed the sale. Under such conflicting evidence, the verdict of a jury would not be set aside, no matter which way it brought in a verdict.

Iiow much more improper would it be for this court to reverse a judgment of a judge when his determination of a matter resting largely within his discretion is based upon his consideration of conflicting evidence. This court, under the circumstances shown by the evidence, might have decided differently, had the original hearing been before it, but that is not sufficient reason for reversing the judgment of the trial court.

Judgment affirmed.


text:
    BAD JUDGMENT EXERCISED BY A DRIVER.
    Circuit Court of Cuyahoga County.
    The Cuyahoga Lumber Co. v. Harry H. Brinkman.
    Decided, January 19, 1906.

      Collision Between Cm- ancl Wagon — Oioner of Wagon Liable.

    A judgment against a lumber company and in favor of a motorman on a street car who was injured by collision of his car with the lumber company’s wagon, will not be reversed on the weight of the evidence, when there is evidence tending to show that the driver of the lumber wagon was calculating upon a nicety when he turned in front of the approaching ear, and should have used better judgment and waited until the car got by, for it could not turn out of the track, while the wagon could.

      Smith, Taft & Arter, for plaintiff in error.

      H. E. Parsons, contra.
   Winch, J.; Marvin, J., and Henry, J.,

concur.

Defendant in error was a motorman, operating a street ear-on Euclid avenue; he was coming west on that street on a certain day in August, 1901, when a wagon loaded with lumber belonging to plaintiff-in error, coming .from the west on the south side of the street, turned suddenly across the track at Russell avenue and in front of the car which the .motorman was operating, that a collision occtirred and the motorman was hurt. He sued the lumber company and recovered judgment. The lumber company asks us to set this judgment aside because, as it alleges, it is not sustained by sufficient evidence. This is the only reason urged in this court for a reversal.

We have carefully read all the evidence given by the eye witnesses to the accident. There was evidence tending to show that the driver of the lumber wagon was negligent; there was evidence tending to show that the motonnan was negligent; there was evidence tending to show that both were negligent.

Evidently the jury believed that the driver of the lumber wagon was calculating upon a nicety when he turned in front of the approaching car, and should have used better judgment and waited until the car got by, for it could not turn but of the track, while the wagon could. Upon this theory the judgment is sustainable and we are unable to say that the evidence does not sustain it.

It was a close case on the facts, and the opinion of the twelve men who weighed the facts should not be set aside, it being conceded that the defendant below had a fair trial.

Judgment affirmed.


author: Marvin, J.; Winch, J., and Henry,

text:
    PRESUMPTION AS TO MANNER. OF MAILING A LETTER.
    Circuit Court of Cuyahoga County.
    The Farmers’ Mill & Grain Company v. Antonio De Franco.
    Decided, October 26, 1906.

      Mailing Letter — What Presumed.

    When a witness says that he mailed a letter, in the absence of any inquiry as to the mode in which he mailed it, it will be presumed that he mailed it in accordance with the regulations of the post office department.
   Marvin, J.; Winch, J., and Henry,

J., concur.

This case comes on error to the court.of common pleas. Suit was brought by the mill company, that is the Farmers’ Mill. & Grain Company, designated herein as the mill company, against Antonio De Franco, upon a petition in the usual short form: that upon two hundred barrels of flour at $3.70, less the freight, which was shipped from North Dakota to this city, the freight amounting to $121.40, $618.60 was payable.

De Franco filed an answer and cross-petition, and before the case went to trial he twice amended it; so that when the case went to trial it was upon the petition, the second amended answer and cross-petition and the reply.

The cross-petition sets out that on the 14th day of October, 1903, a contract was entered into between the plaintiff and the defendant, whereby the defendant purchased from the plaintiff four thousand barrels of macaroni flour, at $3.70 per barrel f.o.b. cars at Cleveland, Ohio, to be shipped in installments of two hundred barrels at a time, every fourteen days; that payment was to be made upon the several shipments not more than ten days after arrival. The contract sets out further that payment was to be made by drafts to be drawn by the plaintiff upon the defendant, and defendant says- that no draft for the installment sued for, was ever made; he says that the plaintiff shipped nine installments in all and eight were paid for; the installments of flour were not sent every fourteen days nor were the payments always made within the ten days specified by the contract, but from time to time installments of two hundred barrels were forwarded and payments made from time to time, and nobody made serious complaint as to the time of shipping the flour or the time of payment, up to the shipping of the ninth installment.

The defendant says in his cross-petition that the plaintiff notified him on the 1st of August, 1904, that he canceled the contract, and that flour had advanced very considerably in price and that, thereby, he lost a very large amount and that he lost because of the cancellation by the plaintiff of the contract.

To that answer and cross-petition the plaintiff replied. It admits that on the 16th of June, 1904, the ninth installment was shipped from' North Dakota; that is the installment .sued for. in the action; it admits, then, that this suit is brought for the price of the flour thus shipped, and that said shipment was to the defendant. It admits that said flour was received, but says that not being informed of its shipment, that the same was not received until the 15th day of July, 1904.

Proceeding to answer the cross-petition, the plaintiff says that on the 16th of June, 1904, the shipment was made; it admits that said defendant received the same but denies that the date the defendants received the same is correctly set forth; it further admits that no further shipment would be made by it to the defendant, since the shipment of the 16th of June, and denies each and every other allegation contained in the cross-petition.

The first negotiation in reference to a contract for this flour was on the 14th day of June, 1903, and was between the Wright Brothers, a brokerage firm in this city, and the defendant. The Wright Brother’s took an order from De Franco for four thousand barrels of Macaroni flour to be shipped by the plaintiff to De Franco, and forwarded that order to the plaintiff in North Dakota. Thereirpon the secretary of the company at North Dakota wrote the following letter to De Franco:

"Milnor, North Dakota, Oct. 19, ’03.
"A. De Franco,
"Cleveland, Ohio.
"Dear Sir: You have placed an order with us, through the Wright Brothers, No. 20 Cheshire St. of your city, under the following conditions as we understand it. We are to book your order for four thousand barrels of macaroni straight flour, at $3.70 per barrel, f.o.b. cars Cleveland, all rail, shipment, in 98 pounds, jute or cotton, the order is conditioned upon the first car of two hundred barrels which is .to be shipped on or about the 24, inst., proving satisfactory. If these goods are such as you desire, the balance of the order you are to receive in shipments of car load lots of two hundred barrels each every fourteen days. It is understood, of course, that the standard quality of the first car is to be maintained in subsequent shipments. You are to pay for these goods within ten days from the arrival of the car at Cleveland. In case the first ear does not prove satisfactory you are privileged to cancel the entire remaining thirty eight hundred barrels of the order.
“Please advise so that we may know that your understanding and ours of the contract are the same.
“Yours truly,
“F. W.'Vail,
“Sec. é Treas.”

To that letter De Franco answered on the 31st of October, in the following words:

“Cleveland, Ohio, Oct. 31st, 1903.
“The Farmers Mill & Grain Co.,
“Milnor, North Dakota, .
“Dear Sirs: I understand that you ship the ear of flour the 24th inst., of October, and I am out of flour; so send it as soon as you can. The contract is alright.
“Yours truly,
“A. De Franco.”

When that answer was made the contract was completed between these parties. It will be seen that by that contract, the flour was to be shipped every fourteen days, in installments of two hundred barrels, and the payments were to be made not later than ten days after the arrival of the flour.

The result of the trial in the court below was, that the evidence having all been submitted, the court, on motion o.f plaintiff, instructed the jury that the defendant was not entitled to recover on his cross-petition and that the company was' entitled to recover the amount sued for in its petition, and directed a verdict accordingly, and that verdict was rendered, and by proper proceeding the case is here for review.

The evidence shows that on the 9th of November the first installment was shipped. De Franco received that flour, and a letter was written on the same day of the shipment by the mill company to Do Franco, which letter reads:

“Milnor, North Dakota, Nov. 9, ’03.
“A. De Franco,
“Cleveland, Ohio.
“Dear sir: Please find here B. L. of C. G. W. Car No. 16,-852, in which we have shipped you two hundred barrels of macaroni straight flour. We enclose invoice herein. You are to take credit for the freight charge, and remit us the balance. We trust that the goods will arrive promptly and prove all that you expect.
“Yours truly,
“F. W. Vail,
“Sec. & Treas.”

Thereafter shipments were made as has already been said from time to time, and payments made by draft after deducting the freight, not made upon draft drawn on De Franco as he has set up in his cross-petition, for, in no instance so far as appears, did they draw on him, but he sent a draft for whatever the bill was, deducting the freight and remitting the balance, and nothing further need be said on his defense as far as that feature is concerned.

On the 16th of June, as has already been said, the last shipment was made. Up to that time there had been no suggestion on the part of either plaintiff or defendant, that the contract was rescinded because of the failure of either party to perform it in its exact force; neither that the payments must be made within the ten days after the receipt of the flour, but they had. continued to ship it right along.

On the 16th of June, when the last shipment was made, a letter which I will now read, was written:

“Milnor, North Dakota, June 16, ’04.
“ A. De Franco,
“Cleveland, Ohio.
“Dear Sir: Please find herein invoice of load of Sunrise shipped you this day, loaded out in N. P. car No. 18145, B. L. of shipment is also enclosed. Please send us cheek for goods on arrival. Let us know about when you will want the next carload shipped out. We were a little slow in this shipment as the roads were impassible and the farmers could not bring the grain in, owing to a very rainy Spring.
“Yours truly.
“F. W. Vail,
“Sec. & Treas.”

Up to this time the mill company had no thought of cancelling this contract because the payments had not been made, because in this letter they asked when De Franco will want another shipment. De Franco says he answered that letter on the ,20th of June and that his answer was in these words (he testifies it was sent then):

“Cleveland, Ohio, June 20, 1904.
“The Farmers’ Mill & Grain Co.,
Milnor, North Dakota.
“Dear Sirs: We received your letter of the 16th and you say when we want next car of flour; send the next car the way the contract reads.
“Yours truly,
“A. De Franco.”

Now he testifies that that letter was mailed to the mill company by him. It should be said that on the 1st of August the mill company wrote a letter to DeFranco which reads:

“Milnor, North Dakota, Aug. 1, 1904.
A. De Franco,
“Cleveland, Ohio.
“Dboa• Sir: Owing to the fact that you have not filled your contract with us in the matter of making' remittance for goods which were shipped you from time to time properly, ten days after arrival of the goods, the last shipment having been made you on the 15th day of June and no remittance having been made by you, you are hereby notified that our contract with ynu is canceled and no further shipments will be made. We regret that such action on our part becomes necessary. We have called your attention to this matter a number of times before. You can not but realize that we can not do business indefinitely in this way, and our only course is to make no further shipments.
“Yours truly,
“F. W. Vail,
“Sec. Treas.”

Various letters passed between the parties before and after, but it is not deemed necessary to call attention to them here. The notice that the contract was canceled by the mill company was written on the 1st of August. By the terms of th,e contract, shipments were to be made every fourteen days; they were not to be paid for until ten days after the goods were received. The last shipment was made- on the 16th of June; it could not have arrived in Cleveland in time to give De Franco ten days in which to remit before the 30th of June, which would be fourteen days thereafter. If I)e Franco sent his letter on" the 20th of June and it was received by the mill company, the mill company should have sent on the 30th of June another installment of flour because he asks for it, and, if they received from him the letter which he says he sent to them, then they were in default before he was in default. But it is said that the testimony in regard to this letter furnishes no evidence that the letter was ever received by the mill company; the secretary and treasurer of the mill company says it never was received. DeFranco ’s testimony in regard to the matter is that he mailed the letter to the mill company. lie does not say that he put a postage stamp upon it; he does not say what words it had upon it; his testimony, found on page 53 of the'bill of exceptions, is this:

“You say you answered the letter of June 16th? A. Yes sir.
“Q. ’ Now, in what way did you prepare the letter, in typewriting or writing A. Typewriting.
‘ ‘ Q. How soon after, to the best of your recollection, did you get this letter from them (indicating) 1 A. Well, a few days after.
‘ ‘ Q. Did you write the letter yourself ? Or some person else ? A. My son wrote it for me.
“Q. Did you see him write it? A. Yes sir.
“Q. What did you do with letter after it was written? A. Why I mailed it.
“Q. Have you a copy of that letter? A. Yes sir.”

Now this is the testimony as to the mailing of the letter. And it is said that this is not such testimony as raises a presumption that the letter was ever received, because it does not appear that a postage stamp was ever put on the letter. We think there was evidence sufficient as to the mailing of this letter, and we call attention to the ease of Brooks, Borden & Ford v. Day, in 11th Ia., page 46, the opinion in which is very short and reads as follows:

“The defendant brings this cause upon a single question. His bill of exceptions shows that he objected to the introduction in evidence of the notary’s protest which accompanied the note, upon the ground that the notary’s certificate did not affirmatively show, that when he addressed through the post office a notice to the defendant of the presentation and non-payment of the note, that he paid the postage on the same. The objection was overruled and exceptions taken at the time, and now is renewed in this court. We concur in the opinion of the court below, and will presume that the notary public sending such a notice by mail, conformed to the established regulations of the post office department.”

We call attention also to the ease of The Oregon Steamship Co. v. Otis, 53 Am. Rep., 221. The same case is also found in 100 N. Y., 222, the syllabus of which I will read:

“In the absence of any proof to the contrary, or any inquiry as to the mode, we must understand this to mean that they were mailed in the usual manner.”

Now, in this case, there is a denial by the secretary and treasurer of the mill company, that the letter was received, but the question should have been left to the jury as to whether the letter was received. The court below should not have taken the defendant’s case from the jury on> his cross-petition. The language used by the witness was that he mailed the letter. If there be given to these words their ordinary significance, it means that he put the letter iu the post office and that it was addressed in the usual way; and as already said, if the jury came to the conclusion upon all the evidence that the letter was received, then before the remittance for the last installment could have reached them, they should have forwarded another installment. And for this error in directing the jury to return a verdict against the defendant on his cross-petition the judgment of the court below is reversed and the case remanded for new trial.


author: Marvin, J.; Henry, J., and Wildman, J.,

text:
    OWNERSHIP OF NOTES SUED ON.
    Circuit Court of Cuyahoga County.
    Alma S. Sherman v. Eldoras S. Tucker.
    Decided, December 21, 1906.

      Promissory Notes — Denial of Ownership — Amendment of Petition so as to Sue as Executor Instead of Individvially — Sending Written Requests to Oharge to Jury in Their Retirement.'

    1. Petition to recover on promissory notes having beenp filed by one claiming to own the notes in her individual capacity, it is hot error to permit lier afterwards to amend her petition and sue as executrix of a deceased person and’ claim to own the notes as such executrix.
    2. Plaintiff alleged that she was the owner of certain notes as executrix of a deceased person, setting up that the notes were endorsed to her decedent in Ms lifetime by the payee of the notes, before they were due and that he was the owner and holder of them at his death. Defendant did not deny that plaintiff was' such executrix or that the notes were so endorsed to her decedent or that he owned them at his death, but denied -only that plaintiff was the owner of the notes. Held: No sufficient denial of the right of plaintiff to recover on the note’s! .
    3. It is not necessary to send written requests to charge to the jury in their retirement unless they were'presented before- the argument.
   Marvin, J.; Henry, J., and Wildman, J.,

concur.

The defendant in error brought'suit against’the'plaintiff in error upon two promissory ■ notes, ■ setting out each one as a cause of action against the defendant. This- suit was broúglit by her in her individual personal capacity. One of the notes sued upon is payable two years after its date and the other three years after its date. The first note reads:

“ Painesville, Ohio, Mch. 18, 1896.
“$1500.00. Two years after date I promise to pay to the order of U. C. Walton fifteen hundred dollars, at Boughton, Ford & Co., Burton, Ohio, with interest at 6 per cent, annually. Yalue received.
“E, S, Tucker.”

The following is written on the back of said notes:

“Pay to Alma S. Sherman or order. U. C. Walton.”

There are no credits endorsed on said note.

The other note, as has already been said, is the same except that the time of payment is three years from date instead of two years from date.

This suit was begun on the 10th day of June, 1902. On the 31st day of December, 1904, on motion of the plaintiff, plaintiff was permitted by the court to amend her petition, substituting herself as executor of the will of Roger Sherman, deceased, for herself in her personal capacity, and alleging that by reason of the facts set out in said amended petition she was the owner of said notes as such executor. .This amendment was made over the objection of the defendant, and an exception was taken to the order allowing the amendment. The plaintiff was also allowed to amend by making a new party defendant in the ease, but nothing was done by the court in reference to such new party in any wise affecting any o’f the parties now before this court, and nothing need be said as to that amendment. As to the amendment substituting herself as executor an exception was taken. We think that the action of the court in that regard is fully justified by the case of Becker v. Walworth, 45 O. S., 169. On pages 174 and 375, this language is used- (it should be said, however, before reading this, that a suit was brought against a person as in his personal capacity and that hereafter application was made for leave to amend, letting the suit stand as against the defendant as executor) :

“The filing of the first petition in the ease is claimed to contain an election. In the. caption to that pleading the defendant was described as ‘Michael Becker, executor of the estate of Abram Rafenstein, deceased,’ and in the body the allegations purported to charge him as executor. Before answer, on leave, the petition was amended so as to charge him personally. This leave was granted without prejudice to defendant’s right to insist that plaintiff had elected to make her claim against him as executor, and not personally.
“Our practice encourages great'liberality in pleading, and the code enjoins the duty of allowing amendments at all stages of a case in furtherance of justice. The commencement of the action by the filing of an original petition against the defendant as executor worked no prejudice to him, and it is not easy to see why such commencement of the action should preclude amendment on the part of the plaintiff in order to charge him personally. It was no more than the discontinuing of one action and the commencement of another, and this may have been induced by the discovery that the one would prove wholly fruitless. ’ ’

That reasoning applied to this case would justify the court in permitting the amendment to be made, and there was no error in that regard.

It is further claimed that the court erred in admitting the notes in evidence. I shall read certain allegations in the amended petition and certain parts of the answer. The first cause of action is upon the note due in two years, and the second upon the note due in three years. In each case this-language is used:

"There are no credits indorsed on said note; said note was duly endorsed in blank, by said U. C. Walton and sold and delivered to said Roger Sherman by him long before its maturity, and said Roger Sherman was the owner and holder of said note at the time of his death.”

In 'answer to this the defendant sets out that there was a fraud perpetrated upon him in the procuring of these notes; that he was induced by certain fraudulent representations and conduct on the part of the payee of the notes to give the notes in part payment of the purchase price of certain lots near the city of Chicago; that the lots were not the ones shown to the defendant at the time he -made the purchase; that they were not such lots at all as they were represented to be, and that Sherman (the deceased) was a party to that fraud, but the only denial contained in this answer is in these words:

"This defendant denies that said notes are owned by the plaintiff and he says that if and so far as said plaintiff may on the trial hereof produce evidence of her ownership, she took whatever title she has or shall show with notice of this defendant’s said claim and defenses to said notes, and after the samo each became due by the terms thereof and'her-said testator at the time he received said notes and at the time of the giving of the same was interested with said Walton in said transaction in said lots and in said transaction the said Walton acted in whole or in part as agent for said Sherman, deceased, who was then in full life. ’ ’

The plaintiff said she owned the notes as executor. The defendant denied it. Plaintiff said she owned the notes because they were duly endorsed in blank by U. C. Walton and delivered to said Roger Sherman long before maturity, and said Roger Sherman was the owner and holder of said notes at the time of his death. That is not denied. It is urged, however, that it is a sufficient denial to deny the ownership in that way, and in a brief submitted attention is called to 66 O. S., 121, and especially to page 135; 15 O. S., 225, and the language of the court on page. 250; 58 Fed. Rep., 681; 13 O. S., 228. In each case it is held that it is a denial of the right of the plaintiff to recover when one denies the ownership of a note sued upon. He need not set up the facts upon which he relies as showing that the plaintiff is not the owner. But here the plaintiff has set out the facts upon which she relies to show that she is the owner, to-wit, that the notes were notes of her testator long before they were due and that they were endorsed in blank and delivered to him and that they were his property at the time of his death. So that under the pleadings it was not necessary for the plaintiff to show that the notes were sold to the testator and delivered to him in his lifetime and that they belonged to him at the time of his death. But she offered the notes in evidence, and it is said that there was error in admitting them in evidence. She had testified that the notes were in her possession. She testified where she found them, one in the safe with her husband’s papers, and the other in a bank at Titusville, Pa. Now, when she produced the notes in evidence it is a sufficient showing, at least it tended to show that she as executor was the owner of the notes. Indeed I think it was enough that they were the property of the testator when he died and that she had them as the executor of his will, and there need be no other showing about it. It certainly could not prejudice the defendant below that she produced the notes as tending to show her ownership of them as executor.

lb 'the brief of-'counsel for plaintiff in error it is urged that there was no evidence that the name of the payee on the back pf the note was his genuine signature. It was not necessary to show that that was a genuine endorsement, because it was not denied. The plaintiff testified to the fact that the endorsement as it now appears' upon the notes was not upon the note at the time of the death of'her husband but that the only endorsement upon the note at that time was simply the name of the payee and that the words appearing above that name now on the notes, “Pay to Alma S. Sherman, or order,” were written after the death' of Roger Sherman. ‘ ‘ I hereby waive demand of notice and protest, U. C. Walton.” It appears that these endorsements were made after the death of Roger Sherman. Remembering that the notes belonged to Roger Sherman when he died, no action of the payee could take away the ownership of ■ these notes in the representative of Roger Sherman. . Since they did not belong to Walton, he could not make any endorsement after the death 9! Sherman which could change the ownership.

It is said, however, that there was error in the charge of the court in these words;

“It. is-the- claim of the plaintiff that after the death of Roger Sherman these notes were found among his papers, or were lóhnd under such • circumstances or in such place as indicated 'that.-they were under his control at the time of his death, and •in'his-possess!on,-actual or constructive, and it is also claimed by plaintiff that at .that time the only endorsement on the back of the note was the name U. C. Walton. Now, if that be true, if these notes were found in his possession, actual or constructive, and by constructive I mean that they were found where 'he bad placed them for some purpose without intending to part with the ownership of them, the presumption, I say, would be that they belonged to him at the time of his death.”

There was nothing in the evidence that could justify this language, there being no denial of his ownership at the time of his* death. There was no prejudice in it, however. The same may be said as to other language of the court in regard to establishing the ownership of the notes. It was admitted that they belonged to Sherman when he died.

Again complaint is made of the action of the court, in refusing to send certain written instructions to the jury. The facts as shown by the bill are that after argument the court said that plaintiff had submitted twenty-one requests: that the court declined to give these requests except as given in the general charge, and then the court said, as appears-on- page 27 of the bill:

“The requests of the defendant to charge the court I will,give, all except the eighth, but I have great doubt, Judge Bentley, whether I ought to give the eighth one, the last one; I don’t know whether it would be fair to the other party t.o give that request in this case.
“Mr. Bentley: I think fairness ,to the defendant, Tucker, requires something in the nature of that request, or something of an equivalent nature should be given.
“The Court: I will give it.”

Then follow two requests. The language is:

“1. The defendant, Tucker, moves the court to dismiss this action upon the pleadings herein.”

This request is refused.

“2. In case said first request is refused, said defendant. Tucker, requests the court to direct the jury to return a verdict for the defendant, Tucker.”

This request is also refused.

Then comes the charge proper to the jury.

This is followed by numbered paragraphs beginning with No. 3, and ending with No. 8, and then follows what is further said to the jury.

It is nowhere said that the numbered paragraphs were in writing, and only by implication is it said that they were the instructions. We think it fair to treat them as being in writing and as requested by the defendant. At the close of the charge the bill shows the following:

“Counsel for defendant, Tucker, asks that the requests to charge that were given, go to the jury on their retirement. And said request was refused,”

As already said, the implication is that these were in writing and we treat them as though they were. It can not be assumed that these requests were made before the argument. We must treat them as being made at the conclusion of the argument.

' This livings us to the construction of Section 5190, Revised Statutes, the fifth and seventh subdivisions of which read:

“5. When the evidence is concluded, either party may present written instructions to the court on matters of law, and request the same to be given to the jury, which instructions shall be given or refused by the court before the argument to the jury is commenced.
“7. The court, after the-argument is concluded, shall, before proceeding with other business, charge the jury; any charge shall be reduced to writing by the court, if either party, before the argument to the jury is commenced, request it; a charge or instructions, when so written or given, shall not be orally qualified or modified in any manner to the jury by the court; and all written charges and instructions shall be taken by the jurors in their retirement, and returned with their verdict into court,-and shall remain on file with the papers of the case.”

/filíese subdivisions read substantially as the 5th and 7th subdivisions of old Section 33 of the criminal code, found in 74 Ohio Laws, page 349. There is no difference in the reading in so far as the written instructions to the jury are concerned.

In the case of Griffin v. State 34 O. S., 299, the second clause of the syllabus reads:

“Under Section 33, title 2, chapter 6 of the pepal code (74 Ohio L., 349), special instructions given to the jury .in writing after argument, are not required to be taken by the jury, in their retirement, where the principal charge is not required to be in writing.”

The opinion of the court bears that out. On page 303 the court say:

“The only charges that the court is required to reduce to writing, under either clause of the section, are such charges or instructions as it is requested to reduce to writing before the argument is commenced, and it is too late to make the request after th,e argument is commenced,”

To the same effect are the eases in 10 C. C., 151, 153-4; 9 C. C., 691. In each case the opinion was delivered by Judge King, and it is said that the requests which must go to the jury are those mentioned in sub-division 5, to-wit, requests to charge before argument. Entirely consistent with these authorities are the eases in 63 O. S., 543, and 40 O. S., 430.

Following the construction given to these several statutes we find no error in the action of the court in this regard, and no error in the record of the case.

Judgment affirmed.


author: Marvin, J.; Winch, J., and Henry, J.,

text:
    DEFENSE OF PAYMENT.
    Circuit Court of Cuyahoga County.
    Thomas C. Willard v. Wm. C. Wood.
    Decided, November 12, 1906.

      Pleadings — Evidence Received on Issue Not Raised in Them — Charge on Issued so Raised.

    In a suit to recover commissions for sale of real estate the answer denied that plaintiff made the sale, and alleged that a third person made the sale and was paid therefor. The reply alleged that whatever the third person had to do with the sale was as the agent of plaintiff. The court charged, among other things, that if the jury found that the third person was a partner of plaintiff, payment to him would be payment to plaintiff. . The bill of exceptions not giving the evidence received in the case, Held: Competent evidence might have been received, without objection, that the third person was a partner of plaintiff, and so it- was not error to charge upon that subject.'

      E. J. Pinney, for plaintiff in error.

      White, Johnson, McCaslin ■& Gmnon, contra.
   Marvin, J.; Winch, J., and Henry, J.,

concur.

Willard brought a suit against Wood, and the petition which he filed upon instituting the suit reads:

‘ ‘ Plaintiff says that the defendant is a resident of the city of' Cleveland and state of Ohio; that on or about the 6th day of May, 1901, the said defendant was the owner of a certain apartment house on Clinton street in the city of Cleveland, and that he then and there employed the plaintiff to sell the same or find a purchaser therefor; and the said defendant then and there agreed to pay plaintiff in case he-should sell or find a purchaser for said property a 2 per cent, commission on the price for which said property should be sold.
“Plaintiff says that he did find a purchaser in one John A. Zangerle and that the property was sold to the said Zangerle on or about the 23d day of December, 1901, for the sum of $34,000.
“Wherefore there is due the plaintiff from defendant for services so rendered as above set forth the sum of $680, which the defendant refuses to pay and for which plaintiff asks judgment with interest thereon from the 23d day of December, 1901, and the costs of this action.”

To that the defendant answers:

“And now comes said defendant, by White, Johnson, McCaslin & Cannon, his attorneys, and for answer to the petition filed herein by said plaintiff says:
“He denies each and every averment in said petition contained except that the defendant owned a certain apartment house on Clinton street in the city of Cleveland, and that plaintiff did, at one time, attempt to sell the same.”

Years ago, when most of you men were not practicing attorneys, it was a question whether or not there was a general denial in the language used here. That it is a denial has been settled by the court. Then follows:

“The facts in relation to the matters referred to in said petition are these: Plaintiff at one time attempted to sell the apartment house referred to, for defendant, but without success. Having failed so to do, and a long time having elapsed, one George Downing, a real estate man, found a purchaser in one John A. Zangerle, and defendant paid to him a commission for procuring such sale, without any claim being made by said Willard that he was entitled to any portion of the compensation therefor, and without said Willard having, in fact, anything to do with procuring said purchaser.”

To that answer a reply was filed, as follows;

“Now comes the plaintiff and for reply to the answer of defendant herein, says plaintiff admits he did attempt to sell the apartment house referred to for defendant, and for his reply plaintiff says that he denies that George Downing, real estate agent, found the purchaser for the property, viz., John A. Zangerle, but plaintiff avers he found the said Zangerle himself and that during the months of August and September, 1901, plaintiff submitted to the said defendant two offers from the said Zangerle.
“Plaintiff further for reply says that he did make a claim for commissions on the property before the said transfer and sale were completed, and further says that he did notify the said defendant of his claim for commissions and. also notified defendant not to pay the said Downing any compensation whatever.
“Plaintiff for further reply said that he did so procure the said purchaser for said property. Plaintiff further denies each and every averment in said answer contained, not specifically admitted by said defendant.”

Upon this state of the pleadings the ease, went to trial to a jury and resulted in a verdict for defendant. .

A bill of exceptions is filed here, winch contains none of the evidence. The language of the bill is:

“The plaintiff introduced evidence -to maintain the issues on his part, and thereupon the defendant rested.
“And thereupon the defendant introduced evidence to maintain the issues on his part, and the defendant rested.
“And thereupon the plaintiff requested the court to charge each of the following written requests separately.”

Then follows a series of reqxxests not made under the statute requiring the charge to be made before argument, but simply the general request that the court charge these propositions. We will not take time to read the several propositions. We have given them careful consideration, as well as the charge. To the extent that they embody the law, we think they were contained in the general charge. If it had been requested that they be given before argument, it would not be sufficient that they were given in the general charge. There was no error in refusing to charge as requested.

• But it is said, and the only matter to which we give attention is a complaint made as to- what the court did say in its charge. The thing to which we call attention is- this part of the charge:

“That brings us to the issues between the parties. There being no question but that the property was sold, was transferred from Wood to Zangerle, the real contest between the parties is as to what was the agency that brought about that transfer. The plaintiff says that he brought it about and the defendant says that he did not. Now the plaintiff says that he was the agency, the instrumentality, as you have heard his coun-. sel use the term and perhaps- counsel on the other side also, that he was the procuring or efficient cause that brought these two minds together, that is, Wood’s mind and Zangerle.’s, and made this a completed transaction. Willard says that while Downing had something to do with this matter, that Downing was only an instrumentality used by him, just as an office boy might be,- or the telephone might be, or the United States mail might be; that Downing was a mere agent of his, Downing was not working for himself at all but was working for Willard, just, as I say, as an office boy might.”

Further the court said:

“The defendant sets forth another claim, and that is this: The defendant says that Downing was not, as the plaintiff called him, a mere runner for the plaintiff Willard, he was not the mere agency and instrumentality to carry out Willard’s independent work, but the defendant says that Willard and Downing together or Willard, Downing and Ringle together, acting jointly, the one not independent of the other, but acting as partners- is the term that has been used in argument, and I think you understand just what it means that these three people or these two "people were acting together to bring about this common end, and that being partners, that being their joint relation, that they had a right to pay Downing and the payment either to Willard or to Downing or to Ringle, that is, the payment to one partner would pay the payment to all. And I say to you, gentlemen, that that is the law, if you find that these people were jointly interested, that is, if Downing was not the subordinate of Willard but was his partner, as it were, then payment to Downing would be payment to all; payment to one partner would be payment to all.”

It is insisted that under the pleadings in this case there could have been no such issue between the parties on the trial, because the defendant in his answer is not content to deny the allegations- of the petition, but has set forth what he says the real transaction was, and says that Downing was the agent who brought about the sale from Wood to Zangerle, hence it is said that without having the evidence before this court the court is bound to say that there was error in admitting any evidence showing that an issue such as is spoken of in this charge could have been made. Perhaps it is not denied that if the defendant had contented himself with his general denial he might have shown that the sale was not made by the plaintiff in his sole capacity but made by a co-partnership, but they say that having gone on to set out the transaction and that Downing was not the agent, there could have been nowhere in the evidence anything to show that there was a co-partnership between Downing and the plaintiff. Without saying, because it is not necessary to say, whether the defendant might have introduced evidence on his part to show that there was a partnership, that he was acting as the agent and that therefore the plaintiff could not maintain the action by himself individually, it is sufficient to say'that it is clear that in a cross-examination of the plaintiff’s witnesses, if the plaintiff’s witnesses had testified that the plaintiff did this work, that a cross-examination of such witnesses might véry well have been made and as a result the fact of this co-partnership might have developed, or evidence tending to show such co-partnership. For myself I have no doubt that the defendant himself might have introduced evidence tending to show that there was this co-partnership, because I-don’t understand that he would be deprived of introducing this evidence if he had simply contented himself with a general denial, if he had added nothing to that. Again, speaking for myself, I think he could have shown that this was a co-partnership of which Willard was a member. We therefore think there was no error in the language of the court in .the record we have before us, and the judgment is affirmed.


author: Henry, J.; Marvin, J., and Winch, J.,

text:
    RAISE OF SALARY DURING TERM OF OFFICE.
    Circuit Court of Cuyahoga County.
    The State of Ohio, ex rel Paul Schreiner, v. James P. Madigan.
    Decided, March 28, 1905.

      Salary of Police Clerk — Power of Council to Change After Enactment of Municipal Code.

    The salary of the clerk of the police court of the city of Cleveland elected at the first election after the municipal code went into effect, may be increased by the city council then in office.

      J. M. Williams, for plaintiff.

      N. D. Baker, contra.
   Henry, J.; Marvin, J., and Winch, J.,

concur.

This is a proceeding in mandamus commenced in this court on the relation of the clerk of the police court of the city of Cleveland to compel the auditor of said city to authorize the payment of the increase of salary to which said clerk claims to be entitled under a recent ordinance of said city raising his compensation from $1.500 to $2,000 per year. The case is submitted on demurrer to the defendant’s answer.

The office of police clerk existed before and is continued by the municipal code. The present incumbent of the office in said city was chosen thereto at the first election held after the code went into effect. No action affecting the salary of the police clerk in said city has ever been taken since a time long before the code went into effect, except the ordinance before referred to, which was passed February 13, and became effective February 28, 1905. The act of April 19, 1904 (97 Ohio Laws, 101), afforded the requisite authority for the passage of such ordinance, and the ordinance effects an increase of relator’s salary, except as it may be limited by other provisions of law prohibiting the increase or diminution of an officer’s compensation during his term of office. There are three such provisions in the statutes, which, it is claimed, may apply to the present case. Former Section 1717, of the Revised Statutes, repealed, by the municipal code, contained such a provision, which, it is conceded, limited1 the power of a municipal council, in this behalf, from the time of the passage of the old .ordinance fixing the salary of the police clerk in Cleveland at $1,500 down to the time of the adoption of the code. But Section 1717, having been repealed by the code, is, in our opinion, -no longer applicable, and it does not affect the present case.

The code, notwithstanding that it established a -new form of government for all cities in this state, did not interrupt the corporate existence of such cities (Fosdick v. Perrysburg, 14 Ohio St., 472; Electric Street Railroad Co. v. The Hamlet of North Bend, 70 Ohio St., 46, 55). On the contrary, Section 214 of the code expressly provides that “all by-laws, ordinances and resolutions heretofore lawfuly passed or adopted by the council, board of legislation or other legislative body in any municipal corporation, and not inconsistent with this act, shall remain in force until duly altered or repealed.” Hence we think the old ordinance fixing the salary of the clerk of the police court in Cleveland remained in force unless and until it is properly superseded.

•Section 117 of the code provides, however, that “the present council, board of legislation or other legislative body shall fix the salaries and bonds of all officers to be elected at the first election held under the authority ■ of this act; provided that the salaries so fixed shall not be increased or diminished during the term for which any officer may be elected or appointed.”

It is conceded that the council in existence at the time of the adoption of the code took no express action fixing the salary of the clerk of the police court. But it is argued by defendant that inasmuch as tbe duty was mandatory upon council to take action in this behalf, its conduct, in the premises- is equivalent to a confirmation of the salary already fixed. We are unable to subscribe to this view. We think that under Section 214 of the code, council’s failure to act did indeed leave the old ordinance in force, but we do not think that such failure to act can be construed to an express or affirmative action by council. No salary for the clerk of the police, court having been “so fixed” by the council then in existence, it follows that a limitation applicable only to salaries “so fixed” is inapplicable to his salary which had been fixed before.

Section 126 of the code contains, however, a further provision of the same sort, namely, council shall fix the salaries of all officers, clerks and employes in the city government, except as otherwise provided in this act. The salary of any officer, 'clerk or employe so fixed, shall not be increased or diminished during the term for which he may have been elected or appointed.” This section, it will be observed, provides for the' fixing of salaries, “except as otherwise provided in this act.” But Section 117 provides for the fixing of the salaries of ‘1 all officers to be elected at the first election held under the authority of this act.” The salary hitherto enjoyed by the relator was not fixed under the authority conferred by Section 126, and inasmuch as the limitation which is contained in this section in terms applies only to salaries “so fixed,” it is not applicable to the present ease.

We hold, therefore, that council had, in February, 1905, full power to change the salary of the present clerk of the police court of the city of Cleveland within the limits as to amount prescribed by law. The demurrer to defendant’s answer is overruled and a peremptory writ will issue.


text:
    EVIDENCE AS TO STANDING OF MEMBER. OF BENEFICIAL ASSOCIATION.
    Circuit Court of Cuyahoga County.
    Supreme Conclave of the Improved Order of Heptasophs v. Helen Fife.
    Decided, June 26, 1905.

      Beneficial Associations — Presumption of Good Standing — Must be Rebutted by Evidence of Equal Weight — Evidence as to Non-Payment of Dues and Suspension. ,
    1. In an action on a benefit certificate where the defense is that the member was not in good standing at the time of his death, a remittance blank and report sent by the subordinate lodge to the supreme body, reporting such fact, and a card used as part of the bookkeeping system of the supreme body, also showing the same fact, are competent evidence.
    2. When both sides have rested and one of the parties has left with the assurance that no more evidence would be introduced by the other side, it is not an abuse of discretion to refuse to reeéive additional and material evidence thereafter offered by the party giving such assurance.
    3. A member of a beneficial association being shown to have been in good standing at one time, the presumption is that he continued in good standing until his death, and the burden is upon the association to rebut this presumption by evidence of equal weight or countervailing force.
   Winch, J.; Henry, J., concurs; Marvin, J.,

dissents.

This was an action brought by the defendant in error against the plaintiff in error as beneficiary of one Isaac N. Fife, to recover on a benefit certificate issued by plaintiff in error, a fraternal benefit association of which said Isaac N. Fife was a member, wherein said association agreed to pay said beneficiary the sum of $1,000 upon the receipt of satisfactory proof of death of said member, provided said member was in good standing in said order at the time of his death. The petition alleges the death of said Isaac N. Fife, and that at his death he was a member in good standing, and had performed all things by him to be performed, under the terms of said certificate.

The answer sets up as a defense that the member was not in good standing at his death, but had been suspended for failure to pay dues some months previous to his death.

The following errors are alleged to have occurred on the trial of the case in the common pleas court:

1. A paper writing was rejected which it is said the evidence disclosed was a remittance blank and report sent by the local conclave of which Fife was a member to the Supreme Conclave, showing that he had not paid assessment No. '244, and was suspended for non-payment thereof.

We are inclined to think that the evidence shows that said paper writing was part of the records of the association made by its officers in the course of their duty under the rules of the order and that it was .therefore admissible in evidence. But we are unable to say that the evidence shows the facts claimed as to its contents, because no copy of said paper is set forth in an offer to prove its. contents, hence we are unable to say that any error in ruling it out was prejudicial, and this assignment of error is therefore overruled.

2. A card, was .excluded, which it is said was a part of the book-keeping system of the supreme office and showed non-payment by Fife and his suspension.

We are inclined to think the evidence does show that said card was part of said book-keeping system and that it was admissible in evidence for the reason before stated, but for the reason before given, because no copy of the card is found in the bill of exceptions, this assignment of error is overruled.

3. It is contended that there was error in rejecting the testimony of the witness Millinger as to the actual suspension of Fife by his local conclave.

It appears from the bill of exceptions that” before this evidence was offered the case had been closed and both parties had rested on the previous day. The plaintiff had left the night before and gone to Leetonia, on the express assurance by defendant’s counsel that no more evidence would be introduced,

Upon the application by defendant to open np the case for presentation of testimony by Millinger as to a specific matter, leave was so granted. That permission did not include the right to introduce evidence on the subject included within this assignment of error; when it was offered the court refused to permit its introduction for that reason.

Under the circumstances of the case we think there was no abuse of discretion on .the part of the trial judge in so ruling, and this assignment of error is overruled.

4. It is said that the court erred as to the burden of proof in holding that plaintiff having shown that her husband was at one time in' good standing as a member, he should be presumed to have so continued until the contrary was shown, and that the burden was upon the defendant to show that he had lost his good standing.

The law announced by the trial judge is in accordance with the views of this court as expressed by Judge Baldwin in ease of Hall v. Scottish Rite Knights Templar, etc., Aid Assn., 6 C. C., 137, 141.

But it is claimed by counsel for plaintiff in error that this presumption was overcome and rebutted by the introduction by the plaintiff herself of certain letters (Exhibits D, E, F, and G, in the bill of exceptions).

We think this point well taken. In so holding we follow the case of Octers v. Supreme Lodge Knights of Honor, 98 Va., 201.

With the presumption of good standing rebutted, and no proof that the member had paid all assessments due up to his death, the plaintiff failed to make out a case; the motion for a new trial on the ground that the judgment was not sustained by sufficient evidence, should therefore have been granted.

For error in overruling said motion the judgment is reversed and the cause remanded for a new trial.

The motion to direct the clerk of this court to correct the file-mark on the bill of exceptions so as to show that it was filed on April 11, 1905, the day on which it was actually filed, is also granted.


author: ITenry, J.; Marvin, J., and Winch, J.,

text:
    APPLICATION OF DOCTRINE OF LAST CHANCE.
    Circuit Court of Cuyahoga County.
    Isadore Goodman v. The Cleveland Electric Railway Company.
    Decided, November 10, 1905.

      Collision Between Street Car and Wagon — Last Clear Chance.

    To authorize the application of the doctrine of last clear chance, an issue involving it must be made by the pleadings.

      Maloney & Ryan, for plaintiff in error.

      Squire, Sanders Dempsey, contra.
   ITenry, J.; Marvin, J., and Winch, J.,

concur.

This was a personal injury damage case which the court below took from the jury. Goodman was a huckster, driving a one horse wagon eastward on the south side of St. Clair street. He was struck by a car going in the same direction. The accident occurred in the middle of an unusually long block, or interval between str§et intersections. Goodman had looked behind him when at or near the last street and had perhaps seen a car coming far down the street. He started to cross the street to see a customer; but, seeing that the car was too close, he reined his horse around to the right to get off the track again. Before he had done so, however, the car struck the left hind wheel of his wagon and threw him out, inflicting injuries.

It is conceded on the argument that he was negligent in attempting to cross the track, but it was urged that the motorman’s subsequent conduct in failing to slow up his car, was a new cause such as should have been submitted to the jury to determine whether or not it was the negligent and sole proximate cause of the injury.

The petition does not make this kind of a cause; for it does not allege that the motorman, after discovering plaintiff’s danger, failed' to exercise ordinary care to prevent the threatened collision. Nor does the-evidence tend to show that any such fact existed. True, such a state of facts may conceivably have existed, consistently with the circumstances as shown by the testimony, but there is no affirmative evidence thereof, and we can not see how the trial judge could do otherwise than direct a verdict.

Judgment affirmed.


author: Winch, J.; Henry, J., and Marvin, J.,

text:
    KNOWLEDGE OF DEFECT IN STREET.
    Circuit Court of Cuyahoga County.
    William P. Herig et al v. City of Cleveland.
    Decided, December 9, 1907.

      Defect in Street — Rislc Assumed.

    One who, with knowledge of a defect or obstruction in a city street, voluntarily assumes the risk and ventures upon the obstruction, can not make the city respond in damages.

      J.. J. McCormick, for plaintiffs in error.

      N. D. Baker, contra.
   Winch, J.; Henry, J., and Marvin, J.,

concur.

The driver of plaintiff’s team and a high furniture wagon was driving westerly on Summer street in the city of Cleveland on the 28th day of May, 1904, when he came to an excavation in the middle of the street made by the city, which was about six feet wide and seven feet long. This excavation was protected on the northerly side by sheeting or piling which averaged about two feet in height. On its easterly end, toward which the driver was approaching, dirt thrown out was about three or four feet high. The distance between the excavation and the curb of the street on the northerly side, was seven feet and four inches. Paving stones taken from the excavation were piled on the curb to the north. A few of these stones had fallen over into the street. Everything connected with the hole and the entire situation was in plain view to the driver from his elevated seat. He decided to drive past the excavation on its northerly side. While doing so, a piece of paper blew up in the street just in front of his horses and frightened them, so that they either bached in such a manner that the nigh horse was east into the hole, or the off horse,. stumbling on said loose paving stones, crowded the other horse into the excavation before the driver could get his team under control. The horse which fell into the excavation was badly- injured, and for his loss the plaintiffs brought their action against the city. The trial judge directed a verdict for the defendant.

In this we think there was no error. One who with knowledge of a defect or obstruction voluntarily assumes the risk and ventures upon the obstruction can not make the city respond in damages. Schaefler v. Sandusky, 33 O. S., 246; Conneaut v. Naef, 54 O. S., 539; Norwalk v. Tuttle, 73 O. S., 242.

Nor was there any merit in the motion for a new trial on the ground of newly-discovered evidence, for the affidavit accompanying it shows no new evidence, or any that could not have been discovered by the exercise of ordinary diligence. Further if the so-called new evidence had been presented it would have made no difference in the verdict.

Judgment affirmed.


author: Winch, J.; Henry, J., ancl Marvin, J.,

text:
    COLLECTION OF CLAIMS OWNED BY BANKRUPT.
    Circuit Court of Cuyahoga County.
    Anna Clark Murphy v. The Cleveland & Sandusky Brewing Company.
    Decided, December 9, 1907.

      Bankruptcy — Abandonment of Claim by Trustee.

    A trustee in bankruptcy may abandon a claim due the bankrupt, but there must be some evidence of such abandonment beyond a possible motive for it, before a creditor of the bankrupt, not mentioned in the schedule, can collect such claim for liis own benefit

      Herman Preusser, for plaintiff in error.

      Sqtdre, Sanders & Dempsey, contra.
   Winch, J.; Henry, J., ancl Marvin, J.,

concur.

Both parties having submitted the cause to the court by the motions made at the close of the evidence, the court was thereby clothed with the functions of a jury, and the verdict directed for defendant should not be set aside, unless clearly against the weight of the evidence. Bank v. Hayes Sons, 64 O. S., 100.

The only issue of fact raised by the pleadings was whether the trustee in bankruptcy had abandoned the dividend on the shares of stock in the defendant company which had been transferred to it. This dividend was declared August 1, 1903. When it was payable does not appear. Plaintiff brought her suit against Barrett and garnisheed the brewing company August 13,1903, twelve days aft§r the dividend was declared, but whether before or after it was payable, does not appear. This twelve days interval, therefore, is of no weight in determining whether the trustee had abandoned the dividend.

The fact 'that all of Barrett’s personal debts had been paid and a surplus turned over for the payment of his partnership debts would furnish a motive for the trustee, were he to abandon this dividend in the face of a claim against it by one of Barrett’s personal creditors, such as plaintiff is, but we can not reason fi’om motive to act in the absence of proof of acts tending to show abandonment. Motive explains action, but it does not prove it.

The objection to evidence offered that plaintiff had no knowledge. :of the bankruptcy proceedings when she brought this suit was properly sustained. Upon .the issue that the trustee had abandoned the dividend, the trustee’s knowledge of plaintiff’s claim and of the dividend was important, but the plaintiff’s knowledge was immaterial. •

. The. fact that the schedule did not show plaintiff’s claim is of no weight. Had it shown said claim this might have been more reason'for the trustee’s abandoning the dividend to the claimant.

The evidence of the refusal of the trustee to become a party to this casé and of its motive to quash service upon it is of some weight upon the issue of abandonment. It was the only evidence thereof offered 'in the case. The trial judge held this evidence insufficient to show abandonment and we are unable to say that he was -clearly wrong in this. The pleadings show •that plaintiff had knowledge of the bankruptcy proceedings within one year of the adjudication therein, and it may be that the trustee preferred, and had a right to prefer that the plaintiff make proof of her claim before him and, upon her failure so ■to do, that he might use the dividend for the benefit of the partnership ; creditors.

'Oúr sympathy is- with the plaintiff, but the law seems to be against her.

■Judgment affirmed.


text:
    AUTHENTICATION OF JUDGMENT BY MAYOR..
    Circuit Court of Cuyahoga County.
    Alois Zupanic v. Village of Collinwood.
    Decided, December 9, 1907.

      Transcript and Bill of Exceptions from Mayor’s Court — Official Seal.

    A transcript and bill of exceptions prepared for the purpose of reviewing a judgment of conviction in a mayor’s court must be authenticated by the official seal of the mayor.

      F. G. Friend, for plaintiff in error.

      B. B. Tracy, contra.
   Winch, J.; Henry, J., and Marvin, J.,

concur.

Plaintiff in error was convicted before the mayor of Collin-wood of violating an ordinance of said village making it unlawful to keep open on Sunday a room in which on other days of the week intoxicating liquors were sold, furnished., and given away as a beverage.

He filed a petition in error in the common pleas court to reverse said judgment of conviction, but said court affirmed the judgment, whereupon petition in error was filed in this court to reverse both of said judgments.

The errors alleged to have occurred upon the trial of plaintiff in error can not be reviewed in this court, and were not properly reviewable in the common pleas court, because the petition in error is not accompanied by sufficient transcript and bill of exceptions. The reason the transcript and bill filed are not sufficient is because they are not authenticated by the seal of the mayor before whom the trial was had.

Section 1536-775, Reveised Statutes, provides that a conviction under an ordinance of any municipal corporation may be reviewed by petition in error. And for this purpose a bill of exceptions may be taken, or a statement of facts embodied in the record on the application of any party.

Section 1536-774, Revised Statutes, provides that the mayor shall be furnished with a corporate seal of the corporation.

Section 1536-773&, Revised Statutes, provides that the mayor “shall subscribe his name and affix his official seal to all writs, process, transcripts and other official papers.”

A bill of exceptions is an official paper, and transcripts are specifically mentioned in the section. In order that such documents may be considered by a reviewing court they must be authenticated in the manner provided by law, and when not so authenticated, should be stricken from thev files.

Under the act of April 12, 1858, “to relieve district courts” (S. & C., 1155), bills of exceptions from the common pleas court were required to be signed and sealed. The authority for taking bills of exceptions being statutory, it was held in the case of Rankin v. Sanderson, 35 O. S., 482, that the absence of a seal prevented a consideration of the bill of exceptions by a reviewing court.

Following that authority in this case, the transcript and bill of exceptions are stricken from the files and the petition in error is dismissed.