text:
    ATTORNEY AND CLIENT — DISBARMENT.
    [Ashland (5th) Circuit Court,
    June Term, 1913.]
    Powell, Voorhees and Shields, JJ.
    In re H. L. McCray.
    1. Retention of Larger Portion of Amount Recovered and Ground for Disbarment of Attorney.
    The retention by an attorney of a larger portion of the amount recovered than the client believed to be warranted by the contract of employment, does not constitute ground for disbarment, where the client is an aged man and his inconsistent and contradictory testimony as to the terms of the contract indicates that if not an unreliable witness he is at least very forgetful.
    2. Collection of Fee for Services Subsequently Regarded as Unnecessary not Moral Turpitude.
    The collection from the guardian of an imbecile of a fee of $5,000 for services which resulted in a compromise whereby a large amount of cash and securities were turned over to the guardian, $2,000 of which fee was paid to another attorney for services in the same behalf, is not rendered an act of moral turpitude by the fact that these services were subsequently regarded as unnecessary and a finding to that effect was made in the common pleas court.
   VOORHEES, J.

This cause is in this court by appeal from the court of common pleas of Ashland county, Ohio, and is submitted to the court upon the complaint in writing against said H. L. McCray preferred by order of the judges of the court of common pleas of the sixth district of Ohio, wherein, among other things, it is charged, as set out in the first specification under said charge, that said Henry L. McCray was guilty of unprofessional conduct involving moral turpitude in this, to-wit:

On or about October 1, 1889, said Henry L. McCray as an attorney and counselor at law was retained and employed by one Ludwig Seheriff, a resident of Ashland county, Ohio, to prosecute a certain action against the county treasurer of Ash-land county for the recovery of $1,456 which a certain tax inquisitor, one B. A. Bowman, claimed was due from said Ludwig Seheriff to said county as back taxes, and which amount was paid.

Said Henry L. McCray as attorney for said Ludwig Seheriff subsequently filed a petition in the court of common pleas of said county praying judgment against the treasurer of Ashland county for the sum of $1,456 and interest from October 5, 1898.

On or about December 6, 1900, a compromise was effected between said Henry L. McCray, attorney for said Seheriff and the county treasurer on the basis of $792.02, whereupon said Henry L. McCray received and receipted to the auditor for said sum of $792.02 December 6, 1900, and signed said receipt, “McCray & McCray, attorney, L. Seheriff”; three or four weeks after McCray & McCray, received said $792.02 from the county treasurer; $150 thereof was turned over to said Seheriff; that said amount is all that said Seheriff received; said H. L. McCray then and there converting the balance thereof, to-wit, $642.02, to his own use and benefit, and refused thereafter to pay said Seheriff any further part thereof, though often requested so to do.

Said cause was heard in the court of common pleas to the judges of said sixth district upon said complaint and the specifications thereunder, resulting in a finding by said court that said Henry L. .McCray has been guilty of misconduct in his office of attorney and counsellor at law involving moral turpitude as set forth in said specifications. It was therefore ordered and decreed by the court that the said Henry L. McCray, be, and he is removed from his office of attorney and counselor at law in the courts of the state of Ohio, and that .the name of the said Henry L. McCray be stricken from the roll of attorneys.

To this finding and judgment of the court the said Henry L. McCray appealed to said circuit court and such proceedings were had in the premises that said cause was duly appealed to said court and the same came on for hearing at the June term, 1913, of the court of appeals of said county, which court is the su'ceessor in jurisdiction of said circuit court, to which the cause was appealed as aforesaid, and the same was submitted at said June term upon- said complaint and the evidence.

The case was tried in said court on the testimony taken in the court below, and by agreement of the parties the transcript of the testimony, so taken, was submitted to the court, together with additional oral testimony in behalf of said Henry L. McCray, which transcript and oral testimony were offered by the parties on the trial and were all the evidence in the case.

In support of said complaint said • Ludwig Scheriff was sworn and testified. An examination of the record containing said Scheriff’s testimony discloses the fact that Mr. Scheriff is an old gentleman some eighty years of age and that his testimony is indefinite and contradictory in many particulars, but it is apparent that the transaction out of which said controversy grew was a claim of Mr. Scheriff’s for the recovery of taxes that had been wrongfully assessed against him and paid, and to recover back taxes so collected from him, which amounted to over $1,500. He called upon Judge McCray in reference thereto, and it was concluded on consultation that a suit should be brought to recover back said taxes, and by agreement between Mr. Scheriff and Judge McCray the fees were to be one-half of the amount recovered back from the county.

The case was finally compromised for the sum of $792.02. The compromise was brought about in this way. If the case had proceeded to trial Mr. Scheriff would necessarily have been a witness, wherein he would have been subject to examination concerning his property, etc., and this he absolutely refused to do. Rather than be a witness he was willing that the whole sum might be lost so far as he was concerned, as he would not go into court and subject himself to an examination. Thereupon negotiations were entered into whereby a compromise was effected for the amount above stated, viz., $792.02, and this sum was paid to Judge McCray. Afterwards $150 was paid to Mr. Scheriff and a receipt was given by him to Judge McCray for $400. Scheriff claims that this amount was never paid to him and he denied in his testimony that he had agreed to give one-half of the amount recovered back to the attorney for collecting the same. An examination of the testimony of Mr. Scheriff shows that he was either very forgetful or that his testimony is inconsistent and unreliable.

On the other hand, Judge McCray testifies in his own behalf concerning the transaction, and his testimony is clear and convincing as to the transaction from its inception to its final determination, and shows that in place of there being a wrongful appropriation of any part of this money recovered back, that the judge was more than generous in settling with this old man and paying him more money than he was entitled to under the contract that he had made for the collection of the claim on account of back taxes paid.

It is very apparent to the court that old Mr. Scheriff had been used by some designing parties to institute complaint against Judge McCray, and without any ground therefor was willing to make complaint that he had not been paid his share of the money that was so refunded by the county for taxes that had been wrongfully collected from him. The court thinks that the whole trouble in the matter grew out of some jealousy or ill-feeling by some parties against Judge McCray, and that they could and did wrongfully use this old man to induce him to make these charges against the judge, and this court is surprised, in view of the testimony that was given in this case and the nature of the testimony as given by Mr. Scheriff, how the court or the judges thereof ever could have arrived at a conclusion or result that Judge McCray in this transaction was guilty of misconduct as an attorney involving moral turpitude, and we think that the judgment and finding of the court is not supported by the evidence, but is manifestly contrary thereto.

Therefore, the judgment of this court is that the specification under charge number 1 is not supported by sufficient evidence and is contrary to the evidence.

It is also charged that H. L. McCray is guilty of unprofessional conduct in his office as attorney and counselor at law involving moral turpitude in this, to-wit:

From the records of the probate court of Ashland county it appears that on or about October 4, 1904, one B. F. Shelley was appointed guardian of one Paul Oliver and his estate and duly qualified and entered upon his trust; that such proceedings were thereafter had as compelled him to file an inventory and account of his administration of said trust, to which inventory and account exceptions were filed and heard, among which were exceptions to a large amount paid to--said Henry L. McCray, to-wit, about $5,000.

It further appears that the the same was heard before Wickham, Judge, in the court of common pleas on or about the fifteenth to the eighteenth day of June, 1909, both inclusive, and resulted in a disallowance of the said $5,000, which said guardian paid to said H. L. McCray for alleged services rendered. In that proceeding it was found by the court of common pleas that the payment of the said $5,000 was not a legal or proper charge in whole or in part.

• The facts concerning this transaction are that said E. F. Shelley, under a claimed power of attorney to act for Paul Oliver, went to the office and secured the services of said H. L. McCray for the purpose of getting the custody and control of about $26,500 belonging to said Paul Oliver, then in the hands of one S. A. Raridon, cashier of the First National Bank of Loudonville, Ohio, in which bank Paul Oliver was a director and president.

The legal services wkich said McCray was called upon to do and which he did were to prepare and file a petition for an injunction, commanding said Raridon to deliver the certificates or money to said E. F. Shelley; that the date- of this claimed contract for legal services was prior to the appointment of E. F. Shelley guardian; that the action was brought by the said H. L. McCray for E. F. Shelley individually against S. A. Raridon, and in no way connected the name of Paul Oliver with such transaction. That said Raridon had retained as his attorney in the matter of Jesse Hissen, of Loudonville, Ohio, which appears of record in the appearance docket volume 28, page 39b of the records of said court of Ashland county.

Without going into too much detail as to the specifications under this charge, it is sufficient to say that in support of this charge said S. A. Raridon was sworn and testified, and from his testimony it appears that Raridon was the cashier of said bank at Loudonville, in which said bank Mr. Paul Oliver was a large holder of stock, and had funds in said bank aggregating some $62,000. That there was $26,500 in cash which was evidenced by certificates of deposit issued by said Raridon payable to his order. Said certificates were for the amounts following, to-wit: two for $10,000 each, one for $5,000 and one for $1,500. Raridon had possession of these certificates, and Mr. Oliver becoming uneasy about the financial responsibility of Mr. Raridon, wanted to have the certificates turned over to him. This Raridon refused to do, and thereupon Mr. Oliver called upon Judge McCray to consult him with reference thereto, and upon consultation it was concluded to bring an action. Said E. F. Shelley as the friend of Oliver and later his guardian consulted with Judge McCray as to what would be the best course to pursue to get said certificates from said Raridon.

Upon consultation with Mr. Oliver and other parties interested with the bank, it. was thought best not to bring a suit directly against Raridon by the bank for said certificates, as such a proceeding it was feared might hurt the credit of said bank. Therefore a different plan was adopted than to have a suit brought by Mr. Oliver as president or otherwise of the bank or the bank itself. Before any action was taken it was agreed by Mr. Oliver with Judge McCray that if he would recover back said certificates that his fee should be $5,000.

A petition was prepared and filed asking for an injunction restraining him from disposing of said certificates. Mr.Hissem, an attorney at law residing at Loudonville where said bank was situated, and who was the attorney for said bank, upon application to court for permission to withdraw said petition from the files, temporarily obtained such an order, but said petition seemed to have been mislaid or lost and was never returned to the files in said court.

After considerable controversy between Mr. Earidon, Mr. Hissem and the sheriff, Mr. Earidon finally endorsed said certificates and turned the same over to Sheriff Homan in the bank at Loudonville.

Judge McCray testified in his own behalf as; to this transaction and his connection with Mr. Paul Oliver in the bringing of the suit and the agreement as to what the fee should be. Mr. Oliver proposed that if he recovered back these certificates that he would give him $5,000. Judge McCray’s testimony is clear and convincing as to this transaction and shows that it has none of the elements of fraud or moral turpitude such as is contemplated by the statute, Sec .1707 G. C., regulating proceedings for disbarment of attorneys for misconduct in office.

It seems from the 'testimony and the record in this ease that it finally resulted in a compromise between the parties concerned whereby the certificates were turned back to the sheriff by Mr. Earidon, but to accomplish this through Mr. Hissem it seems that there was some claim made by him that he should be paid for his services in connection therewith. The matter was submitted to Mr. Oliver, but he was unwilling to give anything more- than the $5,000 and that whatever was to be paid in the way of costs or attorney fees had to be paid out of the $5,000 that was to be given to McCray for the recovering of these certificates. Mr. Hissem insisted that he was entitled to fees, and his first claim was that he should have one-half of the $5,000. Judge McCray thought this was unreasonable and unfair to him, and he protested against paying that amount, and finally it was agreed that Hissem was to receive $2,000 for his services, which was paid. The balance of the $5,000 would rightfully belong to Judge McCray.

Taking this whole transaction as disclosed by the testimony of Earidon and McCray, this court is satisfied that there is no just ground or reason for the judgment that was found and rendered by the court of common pleas or the judges thereof hearing the ease. Taking into consideration the relation of th.ese parties to each other, meaning Oliver, Raridon and Hissem, and in view of the testimony of Raridon and Judge McCray, this court is clearly of the opinion that there is no ground for a finding that said Henry L. McCray has been guilty of unprofessional conduct involving moral turpitude in the management of either the case of Seherrff or Oliver as set forth in the specifications upon which said cause was tried, and as we have had occasion to say in connection with the complaint against Judge R. M. Campbell, post, we are at a loss to see upon what ground or theory the court of common pleas or the judges thereof, found the charges one and two or the specifications thereunder true as against said Henry L. McCray. This court, on the contrary, is of the opinion that said charges are not supported by any sufficient evidence, and that there was no misconduct on the part of said Henry L. McCray in connection with said matters of said Ludwig Scheriff or said Paul Oliver.

Therefore, the court is unanimous in the opinion that said charges and specifications are not sustained by sufficient evidence and there are no grounds justifying the disbarment of said Henry L. McCray as an attorney at law from practising in the courts of the state of Ohio or for striking his name from the list of attorneys in said state, and the judgment of this court is that said complaint be, and the same is, hereby dismissed, and said Henry L. McCray restored to all rights and privileges of an attorney at law in the state of Ohio, and that he be restored to all rights that he has lost by reason of said complaint and the proceedings thereunder had in the court of common pleas, and that he recover his costs in this proceedings against the state of Ohio.

The other charges and specifications contained in said complaint are not supported by any evidence in the case warrant a finding or judgment against the said Henry L. McCray, and therefore the same are dismissed.

Powell and Shields, JJ., concur.


source: Caselaw Access Project

author: HENRY, J.

license: Public Domain

text:
    NEGLIGENCE.
    [Cuyahoga (8th) Circuit Court,
    May 29, 1905.]
    Marvin, Winch and Henry, JJ.
    Harry H. Brinkman v. Cuyahoga Lumber Co.
    Burden of Proof not on Plaintiff to Show Absence of Contributory Negligence.
    Contributory negligence is ordinarily a matter of defense and a charge “that before the plaintiff can recover he must show that he was not to blame himself and that his own negligence did not contribute to his injury” was error.
    Error.
   HENRY, J.

The action below was for damages for personal injuries, and the judgment of the court of common pleas must be reversed for error in the charge as follows: “It is his (the plaintiff’s) business to show that the injury which he sustained was because of the negligence of the defendant, or of his teamster, and that it was not because of his own negligence.” And again.- “The first thing that you will have to determine, before you can find a verdict for the plaintiff, is that he was injured through the negligence of the defendant company by its teamster, and that he was not to blame himself, and that his own negligence did not contribute to his injury.”

The burden of disproving contributory negligence was thus cast upon the plaintiff where it does not ordinarily belong. There was nothing in this ease to take it out of the ordinary rule, nor is there anything else in the charge curative of the .error thus committed.

Beversed and remanded.

Marvin and Winch, JJ., concur.


author: VOORHEES, J.

text:
    ATTORNEY AND CLIENT — DISBARMENT.
    [Ashland (5th) Court of Appeals,
    June Term, 1913.]
    Powell, Yoorhees and Shields, JJ.
    In re Robert M. Campbell.
    1. Specific Evidence as to Nature and Extent of Attorney’s services not Overcome by Uncertain Negative Testimony of Pecuniary Interest.
    An action for recovery of compensation for services rendered by an attorney for the benefit of a decedent during her lifetime and in the settlement of her estate after her death, negative testimony given by persons having a pecuniary interest in the estate, to the effect that they had no knowledge of the rendering of such services, can not be accepted as overbalancing direct and convincing testimony as to the extent and nature of the services, given by the attorney himself and corroborated • in large measure by testimony by the executor of the estate.
    2. Abandonment of Claim by Attorney, after Stubborn Contest Confronted, not Conduct involving Moral Turpitude Requiring Disbarment.
    Nor does the fact that counsel for the said attorney abandoned the claim, and ordered that it be withdrawn, when confronted by a stubborn contest in court, disprove in any wise the merit of the claim; and an order disbarring the said attorney for unprofessional conduct involving moral turpitude in presenting and prosecuting such a claim will- be set aside.
   VOORHEES, J.

This cause is in tbis court by appeal from the court of common pleas of Ashland county and is submitted to the court upon the complaint in writing against said Robert M. Campbell preferred by order of the judges of the court of common pleas of the sixth district of Ohio, wherein, among other charges and specifications, charge number two charges that said Robert M. Campbell was guilty of unprofessional conduct involving moral turpitude in this, to-wit: ffl

First Specification. “On or about the first day of October, 1907, said Robert M. Campbell presented to one George A. Ullman, executor of the estate of one Mary Freer, deceased, a claim for compensation for services as an attorney at law alleged to have been rendered by said Campbell to said Mary Freer during her lifetime, which claim amounted to $2,400, which claim was allowed by said executor. In fact the said Campbell had rendered no such service to said Mary Freer and had no claim against her said estate, or if any services were so rendered by said Campbell, the claim so presented was largely in excess of the reasonable value of such services.

“By means of the aforesaid claim the said Robert M. Caffipbell obtained from George A. Ullman, as executor of the estate of said Mary Freer, deceased, the sum of $2,400 of the money of said estate, thereby defrauding said estate and the legatees under the will of said Mary Freer, deceased.”

Said cause was heard in the court of common pleas to the judges of said sixth district upon said complaint on said charge number two and the specification,thereunder and the evidence, resulting in a finding by said court that said Robert M. Campbell has been guilty of misconduct in his office of attorney and counselor at law involving moral turpitude as charged in 'the second charge of said specifications. And it was

‘ ‘ Ordered and decreed by the court that the said Robert M. Campbell be, and he is, hereby removed from his office of attorney and counselor at law in the courts of the state of Ohio, and that the name of the said Robert M. Campbell be stricken from the roll of attorneys.”

To this finding and judgment of the court the said Robert M. Campbell appealed to said circuit court, and the court fixed the bond for said appeal at the sum of $100. Thereupon such proceedings were had in the premises that the appeal of -said cause to said circuit court was perfected and the same came on for hearing at the June term, 1913, of the court of appeals of said county, which court is the successor in jurisdiction of said circuit court, to which said cause was appealed as aforesaid, and the same was submitted at said June term upon said complaint and the evidence.

The case was tried in this court on the testimony taken in the court below and by agreement of the parties the transcript of testimony so taken was submitted to the court in behalf of the respective parties the same as if the witnesses were offered and examined in open court. The transcript and the evidence offered by both parties on the trial were all the evidence in the case.

In support of said second charge and the specifications thereunder a number of witnesses were called and testified, among whom were Francis J. Freer, Mrs. James Smith, Bertha Boyd, Mrs. Francis Freer, Judge McAdoo, Harry L. Hess, Mrs. Frank Freer, Frank Freer and J. A. Shearer. The testimony of these witnesses may be designated as negative testimony. They do not assume to know anything direct upon the claim involved in said charge number two, and the only reason that they give why said claim is not a valid claim against the estate of said Mary Freer, deceased, was that they never saw Judge Campbell at the home or residence of said Mary Freer, never saw him in consultation with her or doing any business for her, and therefore they came to the conclusion that he had no valid claim against her estate.

Most of these witnesses are relatives of said Mary Freer, deceased, and therefore directly interested in said estate. While they are only collateral heirs, yet they are financially and pecuniarily interested in said estate, and upon this class of testimony and of this negative character the court found the said Robert M. Campbell guilty of misconduct as an attorney at law involving moral turpitude.

Said complaint is based under favor of Sec. 1707 G. C., and should receive a strict construction, and the complaint should be sustained by clear and convincing proof, if not by proof beyond a reasonable doubt.

To this complaint said Robert M. Campbell offered himself as a witness and testified as to his relations to said Mary Freer and her estate which came to her from her deceased husband, one Jonas Freer. It seems from the history of the case and Judge Campbell’s connection therewith that he had been the attorney of said Jonas Freer and his brother, Randolph Freer, for a number of years and had been their advisor and counselor in many of their business affairs; that they had a large estate and many transactions of a legal nature of importance, in all of which Judge Campbell was the advisor and counselor; that upon the death of said Jonas Freer said estate passed to and became the property of said Mary Freer. Among other assets of said estate were some six or seven farms in said Ashland county, together with real estate situated in the city of Ashland, and said Mary Freer, having been aware and advised of the fact that Judge Campbell had been the advisor and attorney of her husband, sought his advice, and also through her agent, said George Ullman, who during her life from the death of her said husband was her agent managing her business matters, including the management of said farm. In connection with said business said agent, George Ullman, consulted said Robert M. Campbell and at her solicitation communicated to said Robert M. Campbell. He also called on her at her residence a number of times in consultation concerning her business matters, among which was the preparation of wills for herself. And by express agreement made with said George Ullman, as agent of said Mary Freer, and with her knowledge and consent, it was agreed that said Robert M. Campbell should be the advisor of said Ullman in reference to the legal matters concerning said estate, and this condition continued until the death of said Mary Freer, but no compensation was paid to him during the lifetime of said Mary Freer. It was understood between said Mary Freer, Ullman and Campbell that the compensation was to be paid at the death of the said Mary Freer, and in addition- to the compensation for services rendered during the lifetime of said Mary Freer he was to represent said Ullman as the executor of said Mary Freer’s estate.

Said Robert M. Campbell’s statement of the services performed and his relations to said Mary Freer and said George Ullman is given in detail and very frankly by said Robert M. Campbell, in such a way and manner that it certainly refutes any of the negative claims that are made by the witnesses for the complaint as hereinbefore referred to. His testimony is entitled to more favorable consideration and weight than all the negative testimony of the interested parties, wherein their only reason for their theory of the case that there was no just claim against said Mary Freer’s estate was that they never saw said Robert M. Campbell at her home or in consultation with her.

But in addition to the statements of Judge Campbell, much of his testimony is corroborated by said George Ullrnan, especially with reference to business matters of said estate in which they had the benefit of said Robert M. Campbell’s advice and experience as a lawyer. So that if said Robert M. Campbell was not the atttorney of said Mary Freer during her lifetime so that she could be considered a client, she evidently was what might be termed a sponger upon the time and services of said R. M. Campbell.

It no doubt is within the range or experience of every lawyer of extended practice, that there is a class of persons who, while they do not pay attorneys, are always willing the receive their advice and counsel in reference to business matters pertaining to their estates, and the larger the estate the greater the benefit that class of clients receive with the least expense to them.

It appears from the testimony in the case that in fact there was nothing paid on said claim, although a receipt was given by said R. M. Campbell, but there was no money actually paid. The only thing that was done in that regard was that a check was given for the amount, but with the understanding and on the condition that the same was not to be paid until the rumored exceptions to be filed to the account of said executor were heard and determined. It seems that the counsel for said R. M. Campbell, and perhaps the judge himself, lost their nerve in the trial of this case, and in open court directed and consented that said claim be withdrawn and the same was withdrawn. This fact does not necessarily discredit the validity of said claim. The only thing that it tends to show is, as has been indicated, want of nerve in counsel to fight for a claim which seemed to be just and fair, and the fact that it was withdrawn does not carry with it necessarily evidence of the claim not having merit, or that the same was not an honest and just claim against said estate. We think under the circumstances as disclosed in the evidence in this case that the claim was just and should have been paid.

Taking into consideration the relation of these parties, in view of the testimony of Judge Campbell and the executor, George Uliman, this court is clearly of the opinion that there is no ground for a finding that said R. M. Campbell has been guilty of unprofessional conduct involving moral turpitude in the management of said estate, and in the claim he presented to the administrator for allowance. This court is at a loss to see or find upon what theory the judges of the court of common pleas found the charge number two and the specifications thereunder true. On the contrary this court' is of the opinion that said charge is not supported by any evidence and that there was no misconduct in the presenting of an account to the executor of said Mary Freer’s estate under the circumstances and conditions upon which the services or much of the services charged in said account were rendered and performed.

Therefore the court is unanimous in the opinion that said charge number two is not sustained by sufficient evidence and that there are no grounds justifying the disbarment of said Robert M. Campbell as an attorney at law from practicing in the courts of the state of Ohio, or for striking his name from the list of attorneys in said state, and the judgment of this court is that said complaint be, and the same is hereby dismissed, and said R. M. Campbell is restored to all the rights and privileges of an attorney at law in the state of Ohio, and to all rights, that he has lost by reason of said complaint and the proceedings thereunder had in the court of common pleas, and that he recover his costs in this proceeding against the state of Ohio.

The other charges and specifications contained in said complaint are not supported by any evidence in the case to warrant a finding or judgment against said Robert M. Campbell, and therefore the same are dismissed.

Powell and Voorhees, JJ„ concur.


author: GORMAN, J.

text:
    CRIMINAL LAW — INTOXICATING LIQUORS.
    [Hamilton (1st) Court of Appeals,
    December 6, 1915.]
    Jones, Jones and Gorman, JJ.
    Henry Kreimer v. State of Ohio.
    Affidavit and Judgment Showing First Offense Reversal not Granted for Failure of Record to Show such Fact.
    Failure of the record to show, in a prosecution for keeping open on Sunday a place in which intoxicating liquors are sold on other days of the week, that the offense charged was the defendant’s first offense, does not require a reversal of the judgment of conviction, where the affidavit and judgment show it was his first offense, and there is no transcript of the evidence to show that anything to the contrary appeared during the trial.
    Error.

      John A. Deasy, for plaintiff in error.

      E. S. Morrissey, for defendant in error.
   GORMAN, J.

Plaintiff in error Henry Kreimer, was charged in the affidavit filed in the municipal court of Cincinnati on August 30, 1915, with having knowingly and unlawfully allowed to remain open on the first day of the week commonly called Sunday a certain room in which intoxicating liquors were sold on other days of the week than on Sunday, contrary to the form of statute in such case made and provided.

This was a case involving a violation of Sec. 13050 G. C., which prohibits places being open on Sunday which are on other days of the week used for the sale of intoxicating liquors.

Upon this affidavit a warrant was issued, and Kreimer was apprehended and appeared in the municipal eourt on August 30. He asked and obtained a continuance of his case until September 15, 1915. On that day the following entry was made:

“This cause coming on for hearing upon the affidavit and warrant filed herein, defendant being in court and arraigned, pleaded not guilty and court hearing the testimony find said defendant guilty and do order said defendant to pay $25 and costs, but upon further consideration court do order $15 of said fine to be suspended.”

Section 13050 G. C., among other things also provides for a second offense, for keeping open a place on Sunday where liquors are sold on other days of the week, and that the party convicted shall be fined or imprisoned. Therefore, it appears that if the case were a second offense against Kreimer he would be entitled to a jury trial; and unless the record shows that he waived a jury trial, it would be error to proceed to try him without the intervention of a jury.

The record in this case consists only of the affidavit, the warrant, the entry of continuance and the judgment entry above set out. There is no bill of exceptions, and we have no knowledge of what evidence was adduced on the trial before the municipal court.

Kreimer prosecuted error to the common pleas court, which affirmed the municipal court, and he is now in this court claiming error on the part of the municipal court and the common pleas court, and asking for a reversal of both judgments. He claims that, under See. 54 of the Greenlund act, 103 O. L. 239:

“At all trials for offenses under laws or ordinances regulating the sales or traffic in intoxicating liquors the court shall * * * before the trial take testimony to determine wdiether or not the defendant is a licensee * * * and if it appears that such defendant is a licensee whether such licensee has in fact been convicted of a previous offense under said laws or ordinances; and if the fact be that said licensee has suffered a previous conviction under any of said laws or ordinances, or that a conviction in the case pending will work a revocation o'f a liquor license granted in this state, the said licensee * * * shall be entitled to a trial by jury.”

Now it is contended by counsel for Kreimer, plaintiff in error, that the record fails to show — as it does — that an examination was made by the judge of the municipal court in Kreimer’s case to determine whether or not he had suffered a previous conviction for a violation of the liquor laws, and that by reason of the failure of the record to disclose such an examination the municipal court had no jurisdiction to hear and determine the case and impose the penalty upon Kreimer.

There is no presumption of error in the trial of a case, and in order to warrant a reviewing court in reversing a case for error the error must be apparent in the record and prejudicial to the party complaining. The record in this case discloses that Kreimer’s was a first offense. The affidavit shows it to be a first offense, and the judgment and finding also disclose the case to be a first offense. We have no record of what transpired before the judge of the municipal court as to the examination of Kreimer before the trial, nor of the testimony that was taken on the trial. For all that appears on the record the judge of the municipal court may have examined Kreimer and other witnesses before the trial and found that the charge made against Kreimer was a first offense. We can not assume that it was the second offense, especially in the face of the record which discloses it to be a first offense.

Judgments of the court are presumed to be regular and valid until they are shown to be irregular or invalid. The municipal court had jurisdiction to try Kreimer, in case it was a first offense, assuming that'he was a licensee; but where the record fails to show that he was a licensee, as it does in this case, and where it fails to show that the court omitted to take testimony as to whether or not it was a first offense, no error appears affirmatively in the record that would warrant a reversal of the case.

If the plaintiff in error desired to protect himself in case the offense charged was a second one, it was incumbent upon him to have the record in the municipal court brought into this court so that we might be apprised of the proceedings in that court; and if that record should disclose that it was a second offense and the court proceeded to try him, as it did, without the intervention of a jury, then manifestly the judgment would be erroneous and would call for a reversal.

The record therefore fails to show any error prejudicial to the plaintiff in error which would warrant a reversal of the judgment.

Some question was made'in the argument of the case as to whether or not the defendant had paid his fine and costs, and it was suggested that the case before this court was only a moot case because of the fact that plaintiff in error could not complain inasmuch as the judgment of the trial court had been satisfied by the payment of the fine and costs. It is sufficient to say that the record fails to show that the fine was paid by Kreimer and therefore the question is not presented as to whether or not a person who has been convicted of a misdemeanor and has paid his fine, may prosecute error to reverse the judgment.

The judgments of the municipal court and of the common pleas court are affirmed.

Jones and Jones, JJ., concur.


author: CHITTENDEN, J.

text:
    PRINCIPAL AND SURETY— SET=OFF.
    [Hamilton (1st) Court of Appeals,
    March 8, 1915.]
    Richards, Chittenden and Kinkade, JJ. (Sitting by designation.)
    Charles L. Evans v. Lou Beddinger et al.
    Surety on Replevin Bond Entitled to Benefit of Judgment Obtained by Principal Against Defendant in Damages for Breach of Contract.
    A surety on a replevin bond is entitled to the benefit of any valid judgment obtained by his principal against the defendant in an action for damages on account of breach of contract with reference to the same property involved in the replevin suit, and the issue of execution against the surety should be stayed until such right of set-off has been determined.
    Error.

      Cobb, Howard & Bailey and H. L. Rockel, for plaintiff in error.

      Dolle, Taylor & O’Donnell, for defendant.
   CHITTENDEN, J.

The facts, so far as they need be stated in this opinion, are as follows: On or about February 17, 1911, Elmer Stevie and Lou Beddinger entered into an agreement whereby Stevie was to exchange his automobile with Beddinger for a motor launch and was to pay Beddinger $150 in cash.. The automobile was delivered to Beddinger and Stevie paid him $139.20. After more than a year had elapsed and Beddinger had failed to deliver the motor boat to Stevie, Stevie brought an action in replevin to recover possession of the automobile. The plaintiff in error, Charles L. Evans, became surety on the replevin bond given in that action. On trial in the common pleas court a verdict was rendered in favor of Beddinger and the jury having assessed the value of the automobile at $150, Beddinger elected to take the amount of the judgment in lieu of the automobile, and thereupon judgment was entered in favor of Beddinger against Stevie for $150. Execution was issued upon this judgment and returned unsatisfied. Evans was then cited to show cause why the judgment rendered against his principal should not be enforced against him. He appeared in response to such citation and filed his answer, in which answer he set out in substance the facts concerning the trade between Stevie and Beddinger, and that his principal, Stevie, had begun an action in the common pleas court of Hamilton county against Beddinger to recover damages in the sum of $450, alleged to have been suffered by him by reason of a breach of the contract of trade above referred to. He further alleged the insolvency of the defendant Beddinger, and asked that no further proceedings be taken against him during the pendency of the action by Stevie against Beddinger until after judgment should have been entered therein in favor of Stevie, and that then such judgment should be set-off against the judgment of Beddinger, and that after such set-off he be discharged from further liability on the bond. To this answer a demurrer was filed which was sustained by the court, and no further pleading being filed by Evans judgment was entered against him in the sum of $150. Error is prosecuted in this court by Evans. He insists that the common pleas court erred in sustaining the demurrer and entering judgment against him.

We have considered the oral arguments of counsel and have examined the briefs, and upon consideration of the question involved, we conclude that Evans is entitled to the benefit of having set off against -the judgment entered against him and his principal, Stevie, any valid judgment obtained! by Stevie against Beddinger. At the time the matter was presented to the trial court on the demurrer, no judgment had been rendered. The allegations were simply that the action was pending, and we think that the trial court was justified in declining to stay the entering of judgment until after the case brought by Stevie against Beddinger had been determined. No existing defense was shown by Evans that would necessarily preclude the eutering of judgment against him upon the summary proceedings that were instituted to accomplish that purpose: but it is clear that, in view of the allegations of the insolvency of Beddinger, and the fact that Beddinger had been unable to satisfy his judgment upon execution against Stevie, Evans was entitled to be protected against the collection of the judgment from him until such time as it should be determined that no valid set-off could be obtained in the form of a judgment in •favor of Stevie in the pending suit. Therefore, we think, that while the trial court did not err in sustaining the demurrer, it should have stayed the issuing of execution upon such judgment until the right of set-off could be determined in the then pending case of Stevie against Beddinger. It was stated by counsel in oral argument in this court, and not disputed, that a verdict by direction of the court was recently rendered in favor of Stevie for $150 in that case.

Under the statutory power conferred upon this court to modify judgments, 'we will so modify the judgment of the common pleas court as to stay the issuing of execution upon the judgment until after the final determination of the action set out in the answer of Evans. The judgment as so modified will be affirmed.

Richards and Kinkade, JJ., concur.


text:
    PRINCIPAL AND AGENT.
    [Cuyahoga (8th) Circuit Court,
    June 26, 1905.]
    Marvin, Winch and Henry, JJ.

      Salem Iron Co. v. Leonard B. Miller.
    Agent Is Liable in Damages to Principal for Fraud and Failure to Defend Suits.
    An agent who enters into a contract on behalf of his principal with another company for whom he is sales agent for merchandise at an exorbitant price and in unreasonable quantities, and who fails to defend an action instituted against his principal in another jurisdiction, and by false testimony in that action aids the selling company to obtain a judgment against the principal, is guilty of fraud for which his principal upon the discovery thereof may maintain an action against him for damages.
    Error.

      Biltingley & Clarke and Kline, Tolies & Goff„ for plaintiff in error.

      Goulder, Holding & Masten for defendant in error.

      Reversed, no op., Salem Iron Co. v. Miller, 76 O. S. 586. 32 O. C. C. Vol. 36

   HENRY, J.

This proceeding in error is prosecuted to reverse the judgment on the pleadings, rendered by the court of common pleas, in favor of defendant below. The parties here stand in the same relation as they stood there.

The petition alleges that Miller while secretary of the Salem Iron Company, and while he was also a member of the firm that were sales agents for the Labe Superior Consolidated Iron Mines, acted as agent for both parties in negotiating the sale of iron ore by the latter to the former company at an exorbitant price, and in a quantity far beyond the needs of the Salem Iron Company.

It further sets out that when-this came to the knowledge of the board of directors of the Salem Iron Company they repudiated the contract as unauthorized and void. The mining company thereupon brought an action against the Salem Iron Company in the federal court in Pennsylvania. The latter company then called upon Miller to defend that action, which he failed to do, but instead, as is claimed, assisted the mining company with false testimony and otherwise, so that it prevailed. ■ This action was thereupon begun by the Salem Iron Company against Miller to recover the amount of the judgment which it paid in the former action.

The answer here denies the fraud, admits the other essential facts, and alleges that the Pennsylvania case was tried and determined upon the issues whether the contract between the two companies was authorized or ratified by the Salem Iron Company. No reply was filed to his answer.

It is manifest that this is not a case of an agent binding his principal by a contract apparently within, but. really without, the agent’s authority. In such a- case the agent might be liable over. Here Miller was admittedly agent for both parties, so that his real and apparent authority were equal. If he did not have authority from the Salem Iron Company to enter into this contract, then the former action must have been determined as it was, because of a subsequent ratification of the contract by that company. And that being true, it follows that whether Miller did or did not have authority this action seeks to hold him responsible, not for his own act merely, in contracting on behalf of the Salem Iron company, but for an act which that company either antecedently or subsequently made its own. This it can not do.

It is clearly bound by the adjudication in the former case, even though Miller was not a party thereto. See Atkinson v. White, 60 Me. 396.

But it is claimed that Miller fraudulently obtained an unjust adjudication of that issue by his own false testimony, and therefore this action can be maintained upon that ground alone. We do not concur in this view. The clear weight of authority is that perjury and subornation under such circumstances are not actionable civilly. See 3 Enc. Pl. & Pr. 630, and cases there cited. Also, Taylor v. Bidwell, 65 Cal. 489 [4 Pac. Rep. 491]. To hold otherwise would be to foster endless litigation over the same subject-matter.

The judgment below is affirmed.

Marvin and Winch, JJ., concur.


text:
    CONTRACTS — SALES.
    [Cuyahoga (8th) Circuit Court,
    June 11, 1907.]
    Marvin, Winch and Henry, JJ.
    Independent Coal Co. v. C. N. Quirk, et al.
    Sale of Output of Coal without Agreement to Deliver Entire Output Held Unenforceable.
    When one agrees to purchase the entire output of another’s plant and pay for it at a certain price, but there is no agreement on the part of the seller to deliver his entire output, upon a suit for the price of goods delivered under this contract; Held: That defendant has no counterclaim for damages by reason of plaintiff’s failure to send him his entire output as there was no enforceable contract.
    Error.

      Kerruish & Kerruish for plaintiff in error.

      Hamilton & Smith, for defendants in error.
   HENRY, J.

The defendant in error recovered a judgment against the plaintiff in error for coal sold and delivered under the following contract:

“C. N. Quirk, Pres., P. F. Walthour, Viee-Pres. and Gen’1 Mgr., H. F. Thrasher, Sec. and Treas.
“Northern Ohio Coal and Coke Supply Company.
Superior Gas and Steam Coal a Specialty.
“Reference.
” General Office.
“First National Bank.
“Chardon, Ohio, Aug. ’9th, 190-,
“Contract for Coal.
“Agreement between the Independent Coal Company of Cleveland, Ohio, by P. P. Quail, its manager, party of the first part and Northern Ohio Coal and Coke Company, by H. J. Thrasher, Secretary, party of the second part; Witnesseth:-Said party of the first part agrees to take all surplus coal of said party of the second part in the amount of all that said party can ship outside of local trade.
‘ ‘ The price of these deliveries is to be 97 1-2 cents, per ton f.o.b. mine until September 1st, 1902, and $1.00 per ton f.o.b. mine from September 1st, 1902, until January 1st, 1903. The grade of coal to be run of mine from the Chicera mine of the Chicera Coal and Coke Company of Chicera, Penn. If rate of freight changes higher the Independent Coal Company have right to cancel this contract.
“.(Signed) The Independent Coal Company,
“By P. P. Quail,
“Manager.
“Northern Ohio Coal & Coke Supply Co.,
“By H. J.'Thrasher,
“Secretary & Treasurer.”

The plaintiff in error was defendant below and interposed a counterclaim upon the alleged failure of the defendants in error to carry out their part of the contract. Its answer alleges that when the price of coal went up, the plaintiff below failed and refused to deliver all of its surplus coal not required for the local trade, by reason of which plaintiff in error was' compelled to and did buy certain large amounts of coal needed by it, and to pay a price in excess of that named in the contract. It, therefore, asks damages for the difference.

" This ease has been here before with the parties standing in the same relation as they stand now. At that time we reversed "the judgment cf the court below for misconduct of the jury. Our attention was not. then challenged to the Tact that under the pleadings and written contract there was no question for the jury to decide. Had our attention been so challenged we should have been obliged to say this contract is entirely one sided and does not require the defendants in error to deliver any coal whatever. Compare Herrick v. Wardwell 58 Ohio St. 294 [50 N. E. Rep. 903]. Its effect is to bind the plaintiff in error to pay for aDy coal that may have been delivered to and accepted by it in pursuance of this contract. This result was reached by the court below, though not upon the same ground.

The judgment is affirmed.

Marvin and Winch, JJ., concur.


author: BY TEE COURT.

text:
    CONTRACTS — COUNTIES.
    [Perry (5th) Court of Appeals,
    June 30, 1914.]
    Shields, Powell and Yoorhees, JJ.
    Ohio Light & P. Co. et al. v. State ex rel. Prosecuting Attorney of Perry County.
    Without Authority to Contract for Lighting County Buildings Without First Advertising for B'ds.
    A contract entered into between county commissioners and a public lighting company for the lighting of county buildings for a definite period is invalid and will be canceled where made without first advertising for bids, notwithstanding no company other than the one with which the contract was made was engaged in furnishing light for public or private consumers in that locality or had the right to use the streets for that purpose, and the contract entered into without advertising was entered into in good faith, and the prices therein specified for lighting are reasonable, and the expense of ad-' vertising for bids has been saved.

      T. B. Williams, for plaintiff in error.

      T. M. Potter, Pros. Atty., for defendant in error.
   BY TEE COURT.

This action was commenced in the court of common pleas of this county by the defendant in error, who sought to cancel and set aside three certain contracts that had been entered into between the Ohio Light & Power Company and the other plaintiffs named, who are the commissioners of Perry county, Ohio, for the furnishing of electric light by said power company for the use of Perry county in the lighting of its jail, infirmary and the children’s home buildings which belong to the county. The principal ground upon which it was sought to set aside the contracts was that the same had been entered into between the light and power company and the commissioners of said county without advertising for bids and in violation of the statutes of Ohio with relation to contracts entered into by county commissioners. The particular section of the statute that is claimed to have been infringed in Sec. 2435-1, and which reads as follows:

“The commissioners of any county may at any time either before or after the completion of any county building, invite bids and award, contracts for supplying such building with light, heat and power, or any of the same, for any period of time, not exceeding ten years, but none of the provisions of Sec. 5660 of the G. C. shall apply to any such contracts.”

The latter clause of the statute quoted relates solely to the certificate required by law to be filed by the clerk or auditor before a contract for the expenditure of money can be entered into, certifying that the money to carry out such contract is in the treasury, or levied and in course of collection, and does not have any bearing upon the case presented. The pleadings show that a contract was entered into between the parties, plaintiff in error, the Ohio Light & Power Company, on the one hand, and the commissioners of Perry county, on the other hand, by which the Ohio Light & Power Company were to supply the light for the buildings named for a period of five years, at a price agreed upon, with the option to continue for five years longer.

It is contended by the prosecuting attorney that by the terms of this statute, the commissioners were required to submit its proposals for light at competitive bidding, which was not done, and that submission is a condition precedent to the right of the commissioners to enter into any contract for the purpose of supplying light to those buildings, and that because it had been omitted, the contracts themselves were void and should be canceled and set aside.

The defendant, the Ohio Light & Power Company, set out for a defense, in substance, that at the time of entering into each of said contracts, which it admits were made, there was no other firm, person or corporation, except the answering defendant, in said township where the buildings were located, or in the village of New Lexington, furnishing light to public or private consumers, nor was there any other person, firm or corporation, except the answering defendant, at the time of the entering into of said contracts, or since, that had the right to the use of the streets, alleys and public places within the said village of New Lexington, Ohio, for the purpose of transporting and conducting electric current in said village.

It is further said, as a part of its said second defense, that it is the only person, firm or corporation furnishing light to public or private consumers in Perry county, Ohio, except a small-plant at Junction City, about five miles from the public buildings of Perry county, Ohio, for the lighting of which the contract was made; and further, that there was no other person, firm or corporation, in said county, village or township aforesaid, that could have bid on the lighting of said public buildings, except this answering defendant, in case said county commissioners had advertised for bids for all of said buildings. Further, that said contracts were made in good faith, and the prices therein specified for the lighting of said buildings were and are reasonable. For the reasons given, it alleges that the advertising for bids by the county commissioners was unnecessary and that by omitting said advertising there was a saving of expense to the taxpayers, as there could have been no competition whatever in case advertising was had.

A demurrer was filed to the said second defense.

The question presented is rather a new one in the state of Ohio. It is a general principal that all contracts relating to public affairs and involving annually a large amount of money must be let at public bid, and a majority of the court have arrived at the conclusion that this demurrer is well taken; that the second defense as set out and alleged, does not state a defense to the cause of action contained in the petition, and that the contracts entered into between the Ohio Light & Power Company and the commissioners of Perry county, having been let without notice or inviting bids from any other source, are void, and that the action of the court of common pleas in cancelling and setting aside such contracts was not erroneous, and that the judgment of that court should be affirmed. The cause will be remanded to the court of common pleas for execution, and exceptions may be noted.

Shields, Powell and Houck, JJ., concur.


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

text:
    INJUNCTION — NUISANCE.
    [Hamilton (1st) Court of Appeals,
    April 1, 1916.]
    Jones, Jones and Gorman, jj.
    Union Reduction Co. v. John Storey.
    Injunction Lies Against Operation of a Plant Throwing off Noisome Odors.
    A reviewing court will not disturb an order enjoining a reduction plant from casting off noisome or' offensive odors, where it is in evidence that such odors have been emitted to the annoyance of persons living nearly half a mile distant, and experts have testified without contradiction that with a plant properly equipped the emission of such odors could only be due to carelessness or accident.

      Peck, Shaffer & Peck and Kealy, Ferris & McAvoy, for plaintiff in error.

      Kelley & Eemke, for defendant in error.
   JONES, (E. H.) P. J.

In the court below John Storey asked for an injunction against the Union Reduction Company restraining it from easting upon his premises and into his dwelling-house noisome smells, gases, odors, etc. arising from its garbage and dead animal crematory or reduction plant.

A permanent injunction was granted in this language:

“It is therefore ordered, adjudged and decreed by the court that an injunction be, and the same is hereby granted, restraining the defendant from operating its reduction plant so as to continuously create or cause to be east upon the land of the plaintiff described in the petition any noisome or offensive odors, vapors or gases, or into or,about the dwelling of plaintiff to the serious injury of plaintiff in health, comfort or property from and after the date of the entry of this decree. ’ ’

The company seeks here a reversal of this judgment.

There was a large number of witnesses called upon either side and, needless to say, the testimony is conflicting. There is a preponderance, however, in support of the finding of the court that ‘ ‘ at certain times a nuisance is created by the way in which the defendant’s reduction plant is operated.”

The reduction company has a contract with the city of Cincinnati requiring it to gather and dispose of by cremation and reduction process the garbage, dead animals and animal offal of the city. This work by law devolves upon the city but there is statutory authority for the contract made with the plaintiff in error by the city, Sec. 3809 G. C.

It is claimed that the plant has the sanction of the legislature and city council, that it is performing a public function that has to do with and is closely related to the health and general welfare of the people of Cincinnati and that for these reasons an injunction will not lie. The authorities to which we are cited support this claim but provide that the work must be done with a high degree of care and with constant vigilance by those in charge to see to it that only the latest and most improved machinery and appliances are employed.

The evidence shows without contradiction that this plant at the time of the final hearing, in its plan and equipment, was fully up to date. Mr. Jesse Moorman, president of the company, and Mr. Charles E. Woodworth, a man of many years’ experience and an expert upon the subject, were called by defendant below and testified as to the character of the plant.

Mr. Moorman testified that:

“The plant at out last trial was in an uncompleted condition. Since then we have completed all the buildings, we have put new" conveyors in the entire plant, we have added four more units to the digestors, we have completed the decreasing plant, and installed one new drier and' a scrubber. ’ ’
‘ ‘ Since the last trial we have rebuilt this plant. In that time we have added- — well, we have put in a complete new’ conveyor system from start to finish. A portion of this decreasing plant was installed at that time, and one boiler, and one drier, and four units of digestors, and the scrubber we have put in since that time.”

He also testified that he was in the garbage and reduction business at the same time in Indianapolis and at St. Louis, and was familiar with other plants in the United States.

“ Q. Do you know of any mechanism for the distribution of gases, or elimination of odors, not in operation in this plant by yonrself? A. I do not.
‘ ‘ Q. What are the odors coming from the plant now, Mr. Moorman, what causes them ? A. What odors do you mean ?
“Q. I mean the odors that emanate from that plant; you get odors from the plant, do you not? A. Tou don’t get odors from the plant unless you go on our premises and get close to the plant.
“Q. Tou say there are no odors that carry from the plant ? A. No, not to amount to anything, no, sir.
“Q. Tou think, so far as you know, there are no carrying odors from that plant today? A. I think not.

Mr. Woodworth testified as follows:

“ Q. I will ask you to state whether there is any device or mechanism in use anywhere for the elimination of odors and the destruction of the two smelling gases that has not been introduced at this plant, any successful device? A. I know of none.
“Q. I wish you would state to the court whether there is anything in the plan of operations, or in the mechanism to be used which can be added to this plant to further eliminate the odors? Á. I know of nothing, comparing them with other plants of similar character in the country.
“Q. What difference is there in the carrying of the odors now and a year ago? A. Well, with the device they have introduced they have mitigated the carrying of the noxious and offensive gases and odors to the extent of introducing an appliance that is accepted by all the garbage concerns in this country as being the most practical for this purpose.
“Q. Do you know of any plant that is superior to this equipment, to this plant, for the handling of the same tankage tonnage ? A. Know of no plant, to my knowledge, sir.
‘ ‘ Q. With the introduction of the new apparatus, you say it will eliminate all the far carrying odors? A. Tes, sir, except under extraordinary conditions.
“Q. Except when there would be carelessness of the employes, valves getting out of order or the pipes bursting ? A. Tes.
“Q. . About hov far away from that plant would you say the local odors that are peculiar to the plant, would be discerned? A. Well, according to the direction of the wind, sir. If you were in the teeth of the wind, that might carry two or three blocks, and if you were against the wind you wouldn’t know the plant was there.
“Q. Well, now, if you were to be told that during the past five or six months as often as once or twice a week, the people experienced the most disagreeable odors and that of burning flesh and garbage, at a distance from half a mile to a mile and a quarter, to what would you attribute that? A. Two or three times a week? If such were an established fact, I would think there was carelessness that often.
‘Q. If you were to be told people in their homes a distance of from half a mile to a mile and a half were frequently unable during the past five or six months to eat their meals in comfort because of this sickening odor, what would you say that odor came from? A. I couldn’t tell of any other source, of an odor of that type, so far carrying, that would come from any other part of that process except what I told you, from-gas that came from the digestor that was allowed to escape through some cause, either negligence or an accident.”

We thus have proof from the company’s witnesses that, except through carelessness or accident, there could be no appreciable annoyance to Mr. Storey who lives nearly half a mile from the plant.

We can not see, therefore, how the plaintiff in error can justly complain of the restraining order granted by the court below. If its own expert witnesses are correct (and their evidence is not denied or controverted), there is no excuse in law or morals for offensive odors reaching Mr. Storey’s home twenty-three hundred feet away. It seems to us that the order granted below restraining the defendant company from operating its reduction plant so as to continuously annoy Story in his said home with noisome or offensive odors, vapors or gases is reasonable and proper, and one from which there can be no relief in a reviewing court.

Judgment affirmed.

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


author: WINCH, J.

text:
    MUNICIPAL CORPORATIONS.
    [Cuyahoga (8th) Circuit Court,
    June 8, 1908.]
    Marvin, Winch and Henry, JJ.
    Henry Soeder v. Cleveland (City).
    Compliance with Burns Law must be Pleaded to Recover against Municipality.
    In an action against a municipal corporation to recover on a contract with it to. which the Burns law applies, the petition must allege and the evidence show that the requirements of said law were complied with and a certificate filed showing money in the treasury to the credit of the proper fund.
    [Syllabus by the court.]
    Error.

      Blanding, Bice do Ginn, for plaintiff in error.

      Newton D. Baker, for defendant in error.
   WINCH, J.

The petition in error in this case alleges that the common pleas court erred in sustaining-a demurrer to the plaintiff’s second amended petition. That petition for its first cause of action claims compensation for certain work done and materials furnished in the improvement of a city cemetery and under an alleged contract entered into in 1898, when the city of Cleveland was under the so-called Federal Plan law (88 O. L., 105), and William 3. Akers was director of charities and corrections. The sitxy-seventh section of said law provided that said director should have all the powers and perform all the duties which are by law or ordinance vested in or required of the trustees of cemeteries.

■ Chapter 7, Div. 8, Tit. 12, Part 1 R. S. (Secs. 4154 G. C. et seq.), then provided regarding cemeteries, vesting their title in the corporation, but giving their entire management, control and regulation to a board- of three trustees; to lay out such grounds and cemeteries into lots, avenues, etc., direct all improvements and embellishments of the grounds, determine the size and price of lots and sell the same, charging therefor no more than might be necessary to reimburse the corporation for the cost of lands purchased or appropriated for cemetery purposes, and to keep m order and embellish the grounds.

The money thus received, the cemetery trustees were authorized to spend.

The demurrer was sustained because of failure of the pleader to allege that the Burns law, so-called (Sec. 2702 R. S.; Sec. 3806 G-. C.), which requires that no contract (involving over $250 under the Cleveland special act) shall be entered into by the corporation unless the city auditor “shall first certify that the money required for ‘that purpose’ is in the treasury to the credit of the fund from which it is drawn, ’ ’ etc.

The contention of the plaintiff in error is, first, that it does not affirmatively appear from the petition that the Burns law was not complied with, and secondly; that the Cleveland special act being unconstitutional, its director of charities and corrections was but a de facto board of cemetery trustees and as such not subject to the provisions of the Burns law.

The first point is one of pleading.

It is alleged in the petition that “on said 14th day of April, 1898, the said city of Cleveland, acting through said William J. Akers, as such director of charities and corrections, the said Akers therein exercising the powers of the board of trustees of cemeteries, duly entered into a contract in writing with one Conrad J. Hoffman, a copy of which is hereto attached, marked ‘Exhibit A,’ for the improvement of said West Park Cemetery.”

It is said that the word “duly” intended that the Burns law, as well as all other laws, was complied with. We can not so conclude, for the petition states specifically through whom the city was acting in making the contract, and limits it to the director named, thus excluding the participation therein of the city auditor, as required by the Burns law.

Again, all contracts with a municipal corporation being void, except such as come within the requirements of the Burns law, we are inclined to the view expressed in the case of Kerr v. Bellefontaine, 7 Circ. Dec. 93 (13 R. 24), that in an action on a contract with a municipal corporation it is necessary “to allege and prove that at the time such contract was made, the necessary certificate of the clerk (auditor) showing that the money required for the same was in the treasury to the credit of the fund from which it was to be drawn, and not appropriated for any other purpose, was obtained.” This point is also suggested but not decided by the case of Lancaster v. Miller, 58 Ohio St. 558 [51 N. E. Rep. 52], and the ruling of the circuit court referred to is not weakened by the fact that that ease was reversed by Kerr v. Bellefontaine, 59 O. S., 446 [52 N. E. Rep. 1024], the reversal being put upon the ground that Sec. 2702 did not apply in the ease at all.

Coming to the second point claimed by counsel for plaintiff in error, that Sec. 2702 does not apply to cemetery trustees and that Akers was acting as a de facto board of cemetery trustees, it is two-fold.

The claims that cemetery trustees are not bound by See. 2702 in mainng contracts for the city is based upon the case of Kerr v. Bellefontaine, supra, but that case applies only if the improvements here involved were to be paid for out of the receipts from sales of cemetery lots, and not if the payment for work done under the contract involved the raising of money by taxation, and there is nothing in the petition to show which was the case.

The presumption would be, from the vast amount of work to be done and the. large sums to be expended under the contract, as set forth in the petition, that this was original work in a. new cemetery, and within the purview of Sec. 2702. But, however that may be, we hold that Akers was a de facto director of charities and corrections, and not a de facto board of cemetery trustees, within the principles announced in the case of State v. Gardner, 54 Ohio St. 24 [42 N. E. Rep. 999; 31 L. R. A. 660].

We therefore hold that the demurrer to the first cause of action was properly sustained.

As to the other causes of action, they appear to be for extras, all growing out of the contract pledged in the first cause of action and inseparably connected with it. While each is for less than $250 this effort to split up a single cause of action and thus circumvent the provisions of See. 2702 should not be encouraged and we therefore hold that the demurrer as to them was properly sustained.

Judgment affirmed.

Marvin and Henry, JJ., concur.


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    EXECUTORS AND ADMINISTRATORS — WILLS.
    [Cuyahoga (8th) Circuit Court,
    February 3, 1908.]
    Marvin, Winch and Henry, JJ.
    Edward N. Fell, Admr. v. Amyrilla Carter, Admrx.
    Bequest Incompetent Evidence of Payment in Action for Services Rendered Decedent.
    In an action to recover for personal services rendered a deceased person, it is not competent to introduce the decedent’s will, in which she makes a bequest to the plaintiff, as evidence tending to show that the bequest was in payment for the services, '.unless the will so states.
    [Syllabus by the court.]
   WINCH, J.

This was an action to recover for personal services rendered by defendant in error’s intestate, Thomas Sheets, to plaintiff in error’s decedent, Sarah A. Spafforc],

Without objection the defendant below was permitted to introduce the fourth section of the will of Mrs. Spafford which provides:

“To my brother Thomas Sheets, I give, devise and bequeath the sum of four hundred dollars, but should he die before myself, this bequest will be null and void.”

In his charge the trial judge directed the jury to consider whether this bequest in the will was intended to be and was in satisfaction of her brother’s claim. Afterwards realizing that in this respect he had erred in his charge to the jury, the judge recalled the jury and gave the following additional charge: .

“Gentlemen, I submitted an issue in the charge, which upon reflection I am satisfied was erroneous on my part. That was with reference to the use that might be made of the proof as to the bequest in the will of four hundred dollars by Mrs. Spafford to her brother. This money has never been received by him, and it can not bind his rights in any respect nor those of his administrator. It, therefore, can not be considered in the nature of a defense by way of any satisfaction for any claim which the plaintiff may have in the case. You may, however, consider that act of hers in making such bequest in the will, and give it whatever weight it is entitled to as bearing upon what the true understanding and agreement was between the parties as to any promise to pay for the services rendered by the plaintiff. If it has any bearing or sheds any light on that question, consider it for that purpose. It can not be considered as a defense in the nature of any satisfaction for any obligation sued on. I, therefore, make this correction that there may be no error in the instructions given in the charge. ’ ’

This additional charge is not in accord with the proposition laid down in the case of McNeil v. Pierce, 73 Ohio St. 7 [75 N. E. Rep. 938; 1 L. R. A. (N. S.) 1117; 112 Am. St. Rep. 695], but its general tenor was favorable to the defendant below and can not be complained of by him. However, his counsel now says that the statement therein contained that “this money has never been received by him,” was not based upon any evidence in the case, and was therefore unwarranted and was misleading. For this reason he says that the judgment should be reversed.

This language was doubtless suggested by the language used' by Judge Wright in ruling upon a similar proposition in the case of Willis v. Dun, Wright 133, but ivhether a good or bad reason was given for excluding the will in that case, or limiting its competency in this case, is immaterial. The will should not have been submitted to the jury at all, or for any purpose. There was no error prejudicial to plaintiff in error in this -additional charge. Neither was there error in permitting the deposition of a son of Thomas Sheets to be used. He was not disqualified from testifying by any statute we know of.

Judgment affirmed.

Marvin and Henry, JJ., concur.


author: ■WINCH, J.

text:
    ADMIRALTY — NEGLIGENCE.
    [Cuyahoga (8th) Circuit Court,
    June 8, 1908.]
    Marvin, Winch and Henry, JJ.

      Gilchrist Transp. Co. v. George Pearson.
    Negligence for Captain without Warning to Order Cable Hauled in.
    It is negligence on the part of the captain of a steamboat to order a cable hauled in, which is lying slack on the dock, without warning and without looking to see if anybody lawfully on the dock might be caught in a bight of the cable and injured.
    [Syllabus by the court.]
    Error.

      Seaton & Paine, for plaintiff in error.

      R. B. & A. G. Newcomb, and — Skiles, for defendant in error.

       Affirmed, no op. Gilchrist Transp. Co. v. Pearson, 80 O. S. 723,

   ■WINCH, J.

The defendant in error was a ship carpenter in the employ of the American Ship-Building Company, working on its docks on the old river bed, in the city of Cleveland. To these docks the Neshoto, a large steamer belonging to plaintiff in error, had been brought for repairs, and while Pearson was eating his lunch in one of the ship-building company’s buildings on September 13,1905, the Neshoto was moved across the river bed from the north bed from the north to the south side, and he found it there, apparently moored at the dock, when he carne back Lo work. Walking along the dock to his work on the boat, just as he was about to step over a steel cable lying slack upon the dock and extending from the boat to a port on the deck, said cable was suddenly, and without warning, drawn taut by a steam capstan on the boat, caught him between the bight and threw him into the air, as a result of which he fell upon the dock and sustained serious injuries. Pearson sued the transportation company for damages, claiming it was negligent in starting the steam capstan on the deck of the boat and jerking the cable when it knew, or should have known, that said cable was lying upon the dock and that said dock was a passageway for the men employed in the shipyard, and that it would catch and injure plaintiff if it were suddenly jerked, and in failing to warn the plaintiff as said capstan was about to be started and said cable about to be jerked, well knowing that the men upon the dock relied upon and had a right to rely upon a warning notice being given in such event.

The answer was' a general denial and plea of contributory negligence on the plaintiff’s part.

On the trial the transportation company claimed that at the time of the accident the Neshoto was under the control and in the care of the ship-building company and that the latter was responsible for the accident, if anybody. This issue was fairly submitted to the jury and we think that the evidence, without giving the details of it, warranted the jury in determining that the transportation company did the act which resulted in the injury to Pearson.

We also think that the transportation company was negligent under the circumstances. Warning should have been given before the line was hauled taut.

It is just as negligent to haul in such a cable quickly, without warning, and without looking to see if anybody on the dock might get caught, as it is to throw out a line without warning and without looking to see if anybody on the dock might be hit by it and injured. If the captain of the Neshoto desired to use the dock for his own purposes, he should have taken ordinary steps for the safety of those on the dock.

Pearson had a right on the dock.

The evidence as to the custom at said dock of giving warning under such circumstances was properly received on the question of Pearson’s possible contributory negligence, and'the jury was warranted in finding him without fault.

Further consideration of the evidence in this case is unnecessary; it is sufficient to say that we think it sustains the verdict and the judgment is affirmed

Marvin and Henry, S3., concur.


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    BANKRUPTCY — GAMING AND GAMBLING.
    [Cuyahoga (8th) Circuit Court,
    September 23, 1908.]
    Marvin, Winch and Henry, JJ.
    F. A. Stetson, Tr. v. David Vesper et al.
    Recovery of Money Lost at Gambling by Trustee In Bankruptcy.
    A trustee in bankruptcy can maintain an action to recover money lost by his bankrupt within six months of the bringing of the action.
    [Syllabus by the court.]
    Error.
   WINCH, J.

This action was brought in tire common pleas court by F. A. Stetson, as trustee in bankruptcy of one A. S. Jacoby, to recover the sum of $1,155 lost by said Jacoby in gambling with the defendants, Vesper and A. E. Harden, the latter being also the owner of the building in which the gambling was done.

Provision for suits of this bind is made by Secs. 4269 to 4276 R. S. (Secs. 5966' G. C. et seq.). Section 4270 provides that a person losing money in gambling may recover it back, if he sues therefor within six months after the loss of the money. Section 4773m provides that if the loser does not bring such suit within six months, another person may bring it for his own benefit thereafter.

In this case it appears from the petition that the trustee in bankruptcy was appointed and the suit was brought by him within the six months, and for that reason the demurrer to the petition was sustained, on the theory that the right created by the statute which did not exist at common law, could only be exercised by the loser personally during the six months, and did not- pass to his trustee-in bankruptcy.

A correct solution of the question thus submitted requires an examination of the bankruptcy act, in qrder that we may determine what pases under it from the bankrupt to his trustee. Section 70 of said act reads, in part, as follows: .

‘ ‘ The trustee of the estate of a bankrupt, upon his appointment and qualification, and his successor or successors, if he shall have one or more, upon his or their appointment and qualification, shall in turn be vested by operation of law with the title of the bankrupt, except in so far as it is to property which is exempt. * * *
“(3) Powers which he might have exercised for his own benefit, but not those which he might have exercised for some other person; * * *
“ (6) Rights of action arising upon contracts or from the unlawful taking or detention of, or injury to^ his property.”

Elucidating the meaning of the words used in Section 70, by referring to the adjudicated eases upon the subject, we find that Loveland, in his text-book on bankruptcy, Section 176, at the bottom of page 509 says:

‘ ‘ Thus, the trustee is the proper party to institute a suit to recover the value of lands or goods and merchandise sold by the bankrupt,” etc.

So, also, the trustee, where a right of action exists under the state or federal law, may recover money lost in gambling, and note 13 cites four cases as sustaining this proposition of the text.

"We are unable to find any of said cases in the library, but have no doubt that they do sustain the proposition that the trustee succeeds fully to the right of the bankrupt to recover money lost in gambling, whether it be considered as a power conferred upon him by the statute or a right of action arising, through the unlawful taking of his money. It thus appears, as we think, that the right to bring this action passed out of the bankrupt within the six months, so that he could not exercise it during that time, and that it passed to his trustee in bankruptcy, who was the only person during the remainder of said six months entitled to bring the action. Such being the ease the demurrer to the petition should have been overruled, and for error in sustaining it, the judgment is reversed, and proceeding to render the judgment which should have been rendered, the demurrer to the petition is overruled, and the cause is remanded to the common pleas court for further proceedings.

Marvin and Henry, JJ., concur.


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    INTOXICATION.
    [Cuyahoga (8th) Circuit Court,
    September 23, 1908.]
    Marvin, Winch and Henry, JJ.
    Margaret Trumble v. C. W. Colgan.
    Evidence that Husband was Drunk in. Saloon not Sufficient In Action by Wife for Sale of Liquor to Husband. ,
    The fact that a husband was found drunk in a saloon, after the wife had notified the saloonkeeper to cease selling him liquor, is not sufficient in itself, the husband, as a witness for plaintiff testifying that he did not get his liquor there, to show that the defendant saloonkeeper sold him the liquor which made him drunk.
    [Syllabus by the court.]
   WINCH, J.

Plaintiff brought suit against Colgan, a saloon-keeper, for damages sustained by reason of the latter’s selling intoxicating liquor to her husband, George W. Trumble, a person who was in the habit of becoming intoxicated, after she had notified him not to do so, as provided in the statute.

To sustain her case she offered herself and her husband as the only witnesses, and at the conclusion of their testimony a verdict for the defendant was directed.

We have read every word of the bill of exceptions to see if the plaintiff made out such a case that it should have been submitted to the jury.

She proved her husband an habitual drunkard, and that she had given the notice to Colgan that the law requires.

We think she utterly failed to prove that Colgan sold her husband any liquor after she had told him not to. The only evidence given by the wife on this subject was that she found her husband drunk in Colgan’s saloon, about a month after the notice had been given. She also attempted to state that on the latter date she overheard Colgan say to her husband “We will fix her, George, you bet your life we will get even with her”; but this is weakened by her further testimony found on pages 25, 26, and 27 of the -record.

The plaintiff offered her husband as a witness and thereby vouched for his truthfulness; he testified that C'olgan never sold him. a drink after notice.

Further it was said by the wife several times during her testimony that there were other witnesses who knew that her husband bought liquor in the defendant’s saloon; the “boys,” as she called them, and her own brother, or half-brother. It is significant that none of these witnesses were produced at the trial.

Having failed in a material point to make out a case, the trial judge very properly directed a verdict for the defendant; indeed, it was his duty so to do, and the judgment is affirmed.

Marvin and Henry, JJ., concur.


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    LANDLORD AND TENANT.
    [Cuyahoga (8th) Circuit Court,
    June 1, 1908.]
    Marvin, Winch and Henry, JJ.
    H. R. Crow v. R. J. Simms.
    Failure to Remove. Small Part of Goods on Last Day of Lease not Holding Over.
    Where a tenant from month to month moves out on the last, day of the month, but, through the fault of his movers, some of his goods remained in the house until the next morning,- there is not such holding over as to constitute him a tenant for another month.
    [Syllabus by the court.]
    .Error.

      W.W. Wheeler and Howland <& Niman, for plaintiff in error-

      Klein & Harris, for defendant in error.
   WINCH, J.

When this action was begun before a justice of the peace, an attachment was issued on the ground that the claim sued upon was for necessaries, to-wit, rent for a suite of rooms in an apartment house. On appeal to the common pleas court, the attachment was dissolved.

It appears that the tenant leased from month to month. Three days before the end of his month he notified the landlord that he would move out on the last day of the month. This he proceeded to do, and removed most of his goods before night-fall of the last day, but through the fault of his mover, some of his goods remained in the apartments until about 10 o’clock of the morning of the first day of the next month. The tenant and his family did not remain over the last night but slept elsewhere.

We hold that under the circumstances of this case there was not such a holding over as to constitute the defendant a tenant for another month. See cases cited in 18 Am. & Eng. Enc. of Law 406, n4. A consideration of both sides of this question may be found in Haynes v. Aldrich, 133 N. Y. 287 [31 N. E. Rep. 94; 28 Am. St. Rep. 636], and Herter v. Mullen, 159 N. Y. 28 [53 N. E. Rep. 700; 44 L. R. A. 703; 70 Am. St. Rep. 517].

There being no holding over, no claim for rent arose; hence no attachment as for necessaries should have been allowed. The common pleas court properly dissolved the attachment and its judgment is affirmed.

Marvin and Henry, JJ., concur.


text:
    COVENANTS — PLEADING.
    [Cuyahoga (8th) Circuit Court,
    June 1, 1908.]
    Marvin, Winch and Henry, JJ.
    James R. Bell, Tr. v. W. H. Mahaffey et al.

      Bill of Particulars for Breach of Warranty to Pay Incumbrances cannot be Corrected on Error Showing Lack of Jurisdiction because Incumbrances were on “Real Estate.”
    Where the bill of particulars filed before a justice of the peace recites that the claim is for “breach of warranty to pay incumbrances,” and there is no bill of exceptions, showing that the warranty was as to incumbrances on real estate, it will be assumed that they were upon personal property and that the justice had jurisdiction of the case; and the record can not be helped out by allegations in the petition in error filed in the common pleas court seeking a reversal of the judgment of the justice on the ground that he did not have jurisdiction of the action.
    [Syllabus by the court.]
    Error.

      Vernon H. Burke, for plaintiff in error.

      Brady & Dowling, for defendant in error.
   WINCH, J.

Plaintiff in error sued defendant in error before a justice of the peace for “breach of warranty to pay incumbrances” and had judgment. Defendant in error thereupon filed a petition in error in the common pleas court to reverse said judgment, alleging that the justice was without jurisdiction in the ease because it drew in question the title to real estate.

There was no bill of exceptions filed with the petition in error, and, as the bill of particulars filed in the justice’s court does not disclose whether the warranty sued upon was for the payment of incumbrances upon real or personal property, the only question now for consideration is whether the fact that it was with regard to real estate could be brought before the common pleas court by an allegation to that effect in the petition in error and the introduction of evidence in the common pleas court to sustain that allegation of the petition in error.

The common pleas court held that such allegation in the petition in error was proper, received evidence thereunder, and reversed the judgment of the justice of the peace. In this we think the common pleas court erred.

While it is true that Section 6709 R. S. (See. 12247 to 12249 G. G.), regulating proceedings in error from the common pleas court to the circuit court provides that the circuit court may reverse the common pleas court “for errors appearing upon the record,” and Sec. 6708 (Sec. 12241 G-. 0.), regulating error to the common pleas court from a probate court, justice of the peace, or any other tribunal, board, or officer exercising judicial functions, and inferior to the court of common pleas, omits the words quoted, still the Supreme Court- has not deemed the omission of said words significant, for it held, in the case of Roberts v. Roberts, 61 Ohio St. 96 [55 N. E. Rep. 411], a case carried into the common pleas court by petition in error from the judgment of the probate court, that “Nothing can be added to or taken from a record by averment in a petition in error, and extrinsic facts pleaded in such a petition do not form any part of the record sought to be reversed.”

Most assuredly this rule should have been adhered to by the common pleas court in the case at bar. There being no record of the evidence introduced before the justice of the peace, it is quite possible that he received evidence showing that the warranty was made in the sale of personal property and none tending to show that it was with regard to real estate. If he did, he committed no error in entertaining jurisdiction of the case and so should not be reversed because of other or stronger evidence produced for the first time before the reviewing court. In this respect a petition in error differs from a bill in equity, and because the common pleas court disregarded this distinction its judgment is reversed and the judgment of the justice of the peace is affirmed.

Marvin and Henry, JJ., concur.


text:
    APPEAL — ELECTION'S.
    [Cuyahoga (8th) Circuit Court,
    February 17, 1908.]
    Marvin, Winch and Henry, JJ.
    Cuyahoga Co. (Dep. State Supvrs.) et al v. State ex rel Clarence N. Green.
    1. Reviewing Courts Required to Determine Questions of Election Submitted.
    A proper interpretation of election laws is of so much importance to all citizens, that a reviewing court must answer questions with regard thereto, when submitted to it, notwithstanding a.n election may have settled the rights of individuals involved, before the judgment of the court of original jurisdiction can be reviewed.
    2. Error Will not Lie In Appealable Case After Appeal Perfected and Dismissed.
    Appeal to the circuit court having been properly perfected in an appealable case, and the appeal subsequently dismissed, error will not lie to the same original judgment..
    [Syllabus by the court.]

      Error.

      White, Johnson, McCaslin & Cannon, for plaintiffs in error.

      Higley & Maurer, for defendant in error.
   WINCH, J.

On October 26, 1907, tbe relator filed his petition in the common pleas court praying that a writ of mandamus be issued against plaintiffs in error requiring them to recover and file a certain nomination paper and to print the names of the nominees thereon upon the ballots to be voted at the election to be held November 5,1907.

The petition alleges that the only reason the respondents rejected said nomination paper was because they had held it to be not in apparent conformity with the provisions of the statutes of Ohio, in that it did not contain the names and addresses of persons to the number of five or less as a committee who might fill vacancies caused by death or withdrawal.

To this petition a demurrer was interposed and overruled, whereupon the case was heard upon the petition and the evidence and a peremptory writ was awarded on November 1, 1907, four days before the election.

The transcript shows that the following proceedings were had in the matter after the election:

November 30, 1907. Appeal bond fixed and filed by defendants.

December 26> 1907. Mandate from the circuit court filed setting forth that said court had granted the motion of the relator to dismiss the appeal and that the appeal was dismissed at the cost of the respondents.

December 24, 1907. Petition in error filed in the circuit court.

It is this petition in error that' we now have under consideration ; it alleges that the common pleas court erred in overruling the demurrer to the petition, and that the common pleas court had no jurisdiction of the action.

We have no doubt that this contention is correct. The action of the deputy state supervisors and inspectors of elections in the matter here involved is made final by the statutes. Such has been the holding of the Supreme Court so many times that a mere reference to a few of its decisions is sufficient. Chapman v. Miller, 52 Ohio St. 166, 176 [39 N. E. Rep. 24]; Randall v. State, 64 Ohio St. 57 [59 N. E. Rep. 742]; State v. Jones, 74 Ohio St. 418 [78 N. E. Rep. 505].

There are other cases decided by the Supreme Court, but not reported in full, referred to in brief of counsel for plaintiffs in error, which are to the same effect.

But it is claimed by defendant in error that notwithstanding our conclusion as to the law, we can not now reverse the judgment complained of, and motion is made to dismiss the petition in error upon the following grounds:

1. That the relief prayed for in the petition and the order below appertained to the duties of the plaintiffs in error as deputy state supervisors of elections of Cuyahoga county in and about the election held November 5, 1907.

2. That the order of the court below complained of was not served upon any of the plaintiffs in error.

3. That the plaintiffs in error have heretofore elected to review the said proceedings below by way of appeal.

The first two grounds suggest that any order this court might make now would be a brutum fulmen; that naught remains but an academic question.

We do not think the point well taken. A proper interpretation of the election laws is of so much importance to all our citizens that the courts must answer questions with regard thereto when submitted to them, notwithstanding the fact that the rights of individuals are usually determined in such matters before the reviewing courts can pass upon them, by the holding of an election.

Such has been the practice of the Supreme Court.

In the ease of Randall v. State, supra, involving matters pertaining to the election held November 6, 1900, petition in error was not filed in the Supreme Court until November 17, 1900, and on January 22, 1901, the Supreme Court reversed the judgment of the circuit court, sustained a demurrer to the petition and dismissed it. .

The case of Beacham v. State, 64 Ohio St. 577, concerning the election held in November, 1900, reached the Supreme Court October 26, 1900, but was not decided until April 9, 1901, when the judgment of the circuit court was reversed and the petition dismissed on the authority of the Randall case.

The third reason alleged for a dismissal of the petition in error has given us much trouble.

The transcript does not disclose why the previous appeal of this case was dismissed in this court. Every intendment, however, is in favor of that judgment of dismissal, and if other ground of dismissal may be presumed, it can not be claimed that the dismissal was for want of jurisdiction, for the law is well settled that actions in mandamus are appealable. Dutten v. Hanover, 42 Ohio St. 215; State v. Philbrick, 69 Ohio St. 283 [69 N. E. Rep. 439].

We may, therefore, suppose that the appeal was dismissed because the appellants, defendants below, failed to prosecute their appeal, or because the circuit court after the election refused to try the case and make up a record, when its judgment, being an original judgment, would have no operation. This point distinguishes the trial of a case involving only an academic question from the review' of the judgment of an inferior court on a question which has become academic since leaving the lower court. The latter judgment, if erroneous, should not be left to stand as a precedent. If, then, the appeal was not dismissed for want of jurisdiction, was that adjudication a bar to further review of the action of the common pleas court ?

In other words, did the plaintiffs in error elect their remedy and have they had their day in court in such sense that they can not now be further heard ?

It has been decided in this state that one can not have two proceedings in error based upon the same judgment. Cincinnati, S. & C. Ry. v. Belt, 36 Ohio St. 93.

It is also said by Judge Davis, in the case of Irwin v. Lloyd, 65 Ohio St. 55, 61 [61 N. E. Rep. 157], that there can not be a second appeal from the same judgment.

We consider the following eases to be authority for the proposition that error can not be predicated to a judgment from which an appeal has been properly taken. Sale v. Pratt, 36 Mass. (19 Pick.) 191; Furman v. Motely, 67 N. J. Law 174.

The appeal having been properly taken and the case being an appealable one, the whole body of the case is in the appellate court and there is nothing left in the lower court upon which to predicate error.

We have little reluctance in reaching the conclusion stated, for the judgment of this court in the appealed case can easily be reviewed by the Supreme Court and the academic question propounded answered by that court in that case, as well as in this case, if it sees fit to answer it.

The motion to dismiss the petition in error is granted.

Marvin and Henry, JJ., concur.