author: BENTLEY, J.

text:
    (Sixth Circuit—Lucas Co., O., Circuit Couit.)
    Before Bentley, Haynes and Scribner, JJ.
    THE GENDRON IRON WHEEL CO. v. SANTSCHI.

      Testimony — Rule as to weighing same—
    Where witnesses on one side of a controversy give testimony which is reasonable and consistent with itself, and other witnesses on the other side, contradict the testimony and testify to the contrary matter, it is not proper to disturb the finding of the jury either way, though their finding is contrary to the testimony of the greater number of witnesses. But the probative force of the testimony of any witness is not derived solely from his direct deposition as to any given matter, but' is rather the final result of all his averments bearing on the matter, when considered and analyzed with reference to known circumstances and facts. This may leave the matter supported not by the full force of the witness’ observations, but only by such strength as is left in them after they have been weakened by the other statements of the witness himself, or by the known and settled order of things.
   BENTLEY, J.

Mr. Santschi recovered a judgment against the Gendron Iron Wheel Company, in the court of common pleas, for $4,500, for an injury suffered by him while employed by the company, by the bursting of an emery wheel.

Various errors are assigned in the petition in error, but none were argued or relied on in this court except those founded upon the claim that the verdict is against the weight of the evidence.

The faots, as claimed by the plaintiff below, are these: On May 4, 1890, the plaintiff, a young man of about twenty-six years of age, had been working for the plaintiff in error for some days about their factory, here in Toledo, where machinery was run and bicycles and other articles were manufactured. His work was net confined to any certain kind of employment, but, as he expressed it, he was “working at most everything. ”

On May 14, he was, by one of the foremen of the company, put to work át an emery wheel running at a high rate of speed, grinding small protuberances cr burrs left in casting one of the small iron parts of bicycles, called “binders. ” He had been thus working nearly all day, having no notioe or knowledge of any defect in the emery wheel or of any danger from its swift revolution, and along late in the afternoon the wheel burst, and, its motion being towards him-, one of the flying pieces of the wheel hit him on the head and severely injured him. He claims that, in fact, the emery wheel was defective; that a small piece had fallen out of it the day before while another workman was grinding on it, and that that workman had promptly called the attention of the said foreman to it and had refused to work longer upon it, and that, thereupon, the wheel was taken from its place on the left end of the shaft and placed on the right end of the same shaft, and another emery wheel which had up to that time been on the right hand end of the shaft,was placed on the left end; in short, that said two wheels were changed about, but said defective wheel was allowed to run in its new place, and that the defect was such as would render it dangerous and liable to burst, to the knowledge of the company, and that it did burst by reason of said defect and the high rate of speed at which it was run.

Some question was made as to whether the person who set the plaintiff to work at the, wheel (a Mr. Krete) was authorized so tc do, and whether his relations to the company were such as that notice to him of the defeot in the wheel was notice to the company; but we think his authority and relation were sufficiently shown, and there is no controversy but that plaintiff was injured, and by the flying fragments of an emery wheel at which he was working. The decisive thing is, was the wheel which burst defective as claimed, and was Mr. Krete’s attention so calle d to it? The plaintiff in error earnestly contends that, though the jury evidently so found,the great weight and force of the evidence indicates otherwise. And it is perhaps fair and proper that we state the testimony, facts and deductions that make for the support of the claims on each side on this issue.

The plaintiff testified that he went to work at the wheel on the right hand end of the shaft of the machine in question, about eleven o’clock in the morning of the 14th, and worked until noon, then quit for dinner and began again at ten minutes to one o’clock, and worked some hours till the wheel burst. He says that he did not use the face or periphery of the wheel, but ground on I he side of it, and did not notice or know of any defect in it, and that he had some expe ;i-enee with emery wheels off and on for four or five years, and was careful, and he says that he didn’t let any binder get únder the wheel and between' that and the iron table of the machine under the wheel. He says that the wheel that he worked on was thicker and smaller in diameter than the one exhibited to the jury, which was an inch thick and four inches in diameter.

The evidence of the defendant below tended to show, and the defendant claims the truth is, that the accident occurred from the plaintiff’s allowing many of said binders to lie on the table of the machine, and that the slight jar of the machinery would move them about, and nothing prevented one. of them from coming in contact with the wheel, and that immediately after the accident it was noticed that a part of the wheel that burst still clung to the shaft and showed it.to be an inch wheel, and not one and one-half inches thick, and right under the place of the centre cf the wheel one of these binders was then sticking up, being lodged in the round draft hole through the table, and on the upper corner as it lay a place was gr'ound off as if by the wheel. This piece of iron, cr binder, was exhibited to the court, being attached to the bill of exceptions, and the machine itself, with a four-inch emery wheel, one inch thick, was also exhibited, and it was demonstrated that if such a piece should get into that position under the wheel, while in motion, it would inevitably tear the wheel in pieces or cause it to burst. Several witnesses testified to seeing those binders all over the table while plaintiff was at work, and to the fact that the wheel that burst was a fourteen-inch wheel, cne inch thick. The man who originally put it in new, a few days before,says he put this inch wheel on the left Bide and worked cn it there, ground on it the day before Santschi was hurt, and tl^at Hill that day changed it from the left to the right side, and that he and not Santschi was grinding on it up to the time that Hill changed it. And there was much testimony tending to show that Santschi was not.giinding on the machine cn the 13th, but was at work in the rubber room, and that Bar-chant was grinding on the 13th where Santschi claimed that he — Santschi—was. Mr. Hill, who was the man who changed the wheels, according to the testimony on both sides,says he did it so the large wheel could be on the right, as it was handier in grinding mud-guards, and that the fourteen-inch wheel was thus left cn the right hand side, and that he had the wheel in his hands and there was no defeat that he saw. There was no evidence tending to show that the fourteen-inch wheel was defective, but that persons ground tools on its face several time that day. Mr. Kerte denies that his attention was called to any defect in the wheel, but says that if it had been it would have been his duty to take it eff and not. suffer it to be run.

The testimony was conflicting as to whether such defeot in the wheel as testified to by Surtman and Hutchinson could have been seen while the wheel was running, but several expert witnesses testified that such a piece being out of a wheel run at such speed as this ran — over 1,5Q0 revolutions per minute — it would throw the wheel out of balance and oause the whole machine to so shake and tremble that no one could avoid noticing it, and it could not be used. There was no testimony contradicting this (except the said testimony of the plaintiff that he did not notice any such thing, and that of Surtman and Hutchinson, that the piece was out). There was, at least, no claim cr proof but that the wheel ran apparently smooth and all right till it burst,, with no such jar or shaking of the machine.

To prove the existence of said defect in the wheel, the plaintiff called as a witness one Surtman, a workman then employed about the defendant’s shop, who testified that on May 13 — the day before the accident — he, Surtman, was engaged in grinding on an emery wheel on the left end of the shaft in question all day until about two, or half-past twc o’clock, when he heard a scund as if something had hit a piece of sheet iron; that he then stopped the wheel — not on that account — but to get a drink, and when he came back from getting a drink, he noticed that a piece was broken from the edge cr corner of the emery wheel at which he had been grinding, about an inch and a half down on the eide of the stone and extending to the face or periphery of the stone about one and one-half inohes. That this was about 2:30 P. M. That about three o’clock he called another workman —one Hutchinson — over and showed him where the chunk was out of the wheel,and soon after called Mr. Krete’s attention to it and refused to work longer at the wheel, thinking it dangerous. That Krete said nothing, but walked off, and soon after the wheels were changed about, by a man named Hill — a sort of sub-foreman in another room — and that he, Surtman, saw the wheel with the same chunk broken out, on the right-hand end of the shaft, the next day, where the plaintiff was working when hurt.

The plaintiff called the said Hutchinson as a witness, and: he testified that on the afternoon before Santschi was hurt, as he was passing where Surtman was at work, he called his attention to a place on the edge of the emery wheel where a chunk had broken out. He describes it about the same as Surtman did,and says he told Surtman to be careful and not press too hard on the wheel,and to sit on one side because it would burst. He did not notice the weel afterwards, but says that it ran after that on that day.

These two witnesses — Surtman and Hutchinson — furnish all the testimony in the case as to said defect in the wheel* or notice to the oompahy of it. Counsel for defendant in error claim that this is sufficient proof of the negligence of the company, and that however directly or thoroughly they may be contradicted by other witnesses, the jury had their testimony, and had the right to believe them.

We notice that while one of the defendant’s witnesses was on the stand, he was asked, on cross-examination, if he did not say in the presence of a sister of the plaintiff ¿nd the plaintiff, when calling on the plaintiff, a few days after be was hurt, that the wheel which burst and hurt the plaintiff had a chunk cut of it the day before. He denied having said so, and in rebuttal, Mr. Santsohi’s sister contradicted him — Santschi not being called for the purpose- — and she testified that he did so say on the said occasion. This tes» timcny is not to the main issue, and can in .strictness only be considered as affecting the testimony of the witness Strutt; leaving the plaintiff’s case to stand upon the testi? mony of Surtman and Hutchinson as to the defect in the wheel, and of Surtman alone as to notioe to the company of the defect.

The plaintiff says that he did not notice any defect in the wheel, and was grinding on the side of the wheel, and hi? counsel argue that the defect could not be seen when the wheel was revolving, and that though it was at rest at time? during the day — at the noon hour at least, and once when the plaintiff stopped it to oil the machine — it might have stopped so that the broken part was undermost and so would not probably be noticed.

We will now notice some of the considerations urged as showing the improbability of the story cf the.defeot in the wheel.

1. This action was brought on July 24, 1890, Mr. Santschi verifying the petition July 16, 1890. He had gone back to work at the Gendron two or three weeks after he was hurt, and worked off and on there five or. six weeks, he says. His original petition does net mention a defective wheel, but charges negligence only in running the wheel at a dangerous rate of speed whereby it burst. The allegations about the defective wheel, were put in long after the original answer and reply were filed, and on leavo of the court, on February 9, 1891, by interlineation. It is argued that if the plain? tiff knew this fact upon which his case depended, really, he would have mentioned it to his attorneys, and they would have been sure to put it in the petition; and also that if this Mr. Strutt had, as claimed, said, in the presence of the plaintiff and his sister, that the wheel had a defect in it the day before,and it was then regarded as so important that it was remembered, the plaintiff must have known and remembered it when he filed his petition; and that, at all events, when the plaintiff returned to duty at the shops after so serious an aooident, the causes of the aooident and the circumstances would have been discussed between him and his.fellow workmen, and the faot of the defect must have come to his attention, and the faot that he did not oharge it in his petition, is strong evidence that no such faot was thought of or known about the shop, and that if such defect had been known to two workmen about the shop, it would have been a matter of general comment among all, and as this was evidently unknown to the plaintiff after being about the shop so soon after his injury and for so long a time, it is urged that there is strong ground for doubting this story of Surtman and Hutchinson.

It is also testified by a foreman of the company that he discharged Hutchinson for coming drunk to the shop, on the day Santsehi was hurt, and that Surtman was afterwards discharged for throwing some iron tubing down an elevator.

The story of Surtman is peculiar. He says that the wheel that finally burst-was twelve inches in diameter and two to two and a half inches thick. The man who put it in says it Was one and one-half inches thick; that it was comparatively a new wheel, having been put on the left end of the shaft of this machine a few days before May 14; that he had ground on it there, off and on, for four or five days, and it was apparently all right till as he was sitting before it, on May 18, this p'ece oame out. It did not hit him, though it would haturally take his direction. It had been ground on when running at a, high rate of speed, for several days. There Was no suggestion that it had been hit so as to crack this little piece out — nothing to indicate that that little pieoe flew out of the corner for any other reason than, that the wheel was imperfectly compacted and shed pieces by reason of its great velocity — this being so, it would seem strange that it would disintegrate in that way, by detaching an inoh and a half piece from the corner, the remainder of the wheel staying intact during its constant use at a like Velocity, all the next day till it went to pieces near night. Mr. Surtman says he realized the danger of being at work on it and refnsed, on that account, to continue the work. He calls the attention of the foreman to it — the foreman Krete —who testifies that if his attention had been oalled to it, he would not have allowed it to run, and his duty would be to at once take it off; and this foreman walks off without a word, and does nothing to change the wheel. As it happens, the wheel is changed by another man, for another purpose, either that day or the next — probably that day — and on the day that Santschi was injured, Mr. Surtman — who says he refused to work on it on account of its defect and the danger —sits within two feet of it for hours grinding on another wheel of the same machine on the same shaft,where danger would be almost as imminent as when he was grinding on the wheel itself, since the piece that flew out when he wag grinding did not hit him, but must have gone to the left of him, and he says that he never called Santschi’s attention to the defect, nor provided for his own safety, and did not know but that any moment Santschi would attempt to grind, on the face of the wheel as Surtman had done, instead of on the side. There is no explanation of this conduct of Suit-? man offered, except that he says that he did not know but that the foreman had told Santschi of the defect. But even if Santschi should be careful to grind only on the side of the wheel, this would not obviate the danger to Santschi, or to Surtman, should other pieces fly out of the wheel or should it go to pieces from its defective character and the velocity of its revolutions.

This conduct of Surtman, as he himself relates it, is to utterly a variance with his statement of what he observed before, as to impel the mind to the conviction that there .must be some mistake somewhere. But his position at the wheel on the day of the injury is not only shown by his own testimony,but by other evidence,and there is no question or controversy about that part of his story. ■

Again, there wa.s no evidence tending to prove that there was any defect in any wheel other than the one twelve inches in diameter ana from one and a half tc two and a half inches thick. The plaintiff says that the wheel he was workT ing on — -the wheel that burst — was, as he judges, not more than a half or three-quarters of an inch from the iron table beneath it; that he put his mind to the danger of letting binders get under the wheel, as it might hit him — 1“break on him.” If the wheel was only a twelve-inch wheel, it is manifest thar the binder would not touch it, since with a fourteen-inch wheel, the space is just one-eighth of an inolj smaller than the greatest diameter of a binder. So that a twelve-inch wheel would clear a binder by three-fourths of an inch. So that the plaintiff was mistaken in his testir mony as tc the wheel being smaller than the fourteen-inch wheel, or in his statement of the distance between it and the table. He saysthatjduring the day he stoppel his work af the wheel in order to let persons grind tocia upon it, and that they did so; at least two of the defendant’s witnesses testify that they did thus grind tools on the face of this stone, and there was no trouble — a thing that would be next to or altogether imp ssible if sueh a defect existed in it.

We think-no one can read the record of. this case and not feel a decided and irresistible conviction that the truth of the matter was with the claims of the defendant below as to the material facts. The testimony of the defense makes a most satisfactory showing as to how this acoident could and probably did happen. With the testimony of Surtman and Hutchinson as to the defect in the wheel, does the case present such mere conflict of testimony as to render it improper for a reviewing court to interfere with the verdict of the jury,baHed, perhaps, upen a belief of the testimony of these men? Where witnesses on one side of a controversy give testimony which is reasonable and consistent with itself,and other witnesses on the other side, contradict the testimony and testify to the contrary matter, we do not deem it proper to disturb the finding of the jury either way, though their finding is contrary to the'testimony of the greater number of witnesses; but the probative force of the testimony of any Witness is not derived solely from his direct deposition as to any given matter, but is rather the final result of all his averments bearing on the matter, when considered and anal-ized with reference to known circumstances and facts. This-may leave the matter supported uot by the full force of the witness’ observations, but only by such strength as-is left in them after they have been weakened by the other statements of tne witness himself, or by the known and settled order of things. We regard the testimony on behalf of the plaintiff in respect to the alleged defect in the wheel as largely self-destroyed, and when we add the power of oircumstances sworn to by certain of the defendant's witnesses, and some of them not contradicted,we feel an abiding conviction that the truth of the case as shown by the record, would not justify the verdict rendered, and that to let it stand would be to allow manifest error to triumph over truth.

We have read with great attention the opinion of the court of common pleas in overruling the motion for a new trial, and we think we see in it a recognition of the unsatisfactory character of the finding of the jury and of their estimate of the evidence, and we regret that the judge of that court did hot deem it his duty to set the verdict aside and to grant a new trial. We think his overruling of the motion for a new trial was erroneous for that the verdiot is against the olear and manifest weight of the evidence.

The plaintiff met with a severe injury. There is no doubt of that. And perhaps there would be a natural desire that those more . able than he should help to bear it; but there are misfortunes that ocme to us all, which, though hard to endure, must be borne as a part of the il's of life which we must suffer and for which we have no lawful redress against our fellows. Verdicts of juries and judgments of courts must stand upon settled principles which justify them, or not at all.

The said judgment is reversed, the verdict set aside, and the cause is remanded to the court of common pleas for a new trial, and judgment isvrendered against the defendant in error for cost,and a special mandate is awarded to the court' of common pleas for execution thereon


source: Caselaw Access Project

author: Bentley, J.

license: Public Domain

text:
    (Sixth Circuit—Lucas Co., O., Circuit Court
    Oct. Term, 1894.)
    Before Bentley, Haynes and King, JJ. -
    ENGELMAN, ADM’R., v. THE L. S. & M. S. RY. CO.

      Boy on railroad track — Trespass—When not entitled to damages for injury—
    Where in an action by an admln:strator for wrongfully causing the death of his intestate, it appeared from plaintiff’s evidence that the deceased, with other boys, for no purpose connected with the railroad company, or its operations, or business or interest, and without the consent of his parents, but against the warning of his mother, went upon the railroad tracks of the defendant; that his purpose was to amuse himself, probably, with these other boys, and to pick up coal and carry it away — for he appeared to have had a basket with him-and was apparently in the act of stooping to pick up coal when he was struck dead by the train which came up behind him, his attention being probably directed to this purpose of getting the coal, and he was thus prevented from seeing the train which was approaching him from behind, it is a case in which the deceased if he had survived would not have been entitled to damages from the R. R. Co., and is it proper for the court, on motion of the defendant R. R. Co., to instruct the jury to return a verdict for defendant.
    (Affirmed by Supreme Court without report. Oct. 22, 1895.)
   Bentley, J.

This waR an action brought in the court of common pleas of this county, for the killing of a boy about twelve years of age, young Barteit, he being killed by being struck while on the tracks of defendant company in the neighborhood cf •Swan Creek bridge, in this city. The train cf the defendant compan)7, it seems, came along while the boy was on the tracks, not at a public crossing, but on the right of way, and perhaps at a place where persons had been in the habit of orossing or traveling for some time The boy was stooping, apparently picking'up something — coal, perhaps — close by the outer rail of the track, and the beam at the base of the' pilot, projecting beyond tho rest of the pilot, and perhaps beyond the rest of tho engine, struck him and killed him. ■ He was not seen by the engineer nor fhe fireman — those in charge of the train — and thev did not know until they had proceeded down to the'depot that any such thing had occurred.

The administrator of the boy charges that the company was negligent in the manner as follows:
“Plaintiff further says the said death of the said John. Bartelt was wrongfully and negligently caused by defendant as follows, to-wit: The employes of defendant, while engaged in the defendant’s business in operating cars of defendant upon and along defendant’s railway tracks at the locality aforesaid, were accustomed' to and did wrongfully and negligently throw off coal upon and along the line of way of said tracks of the said defendant company,and invited the children in the neighborhood to come and gather the same up to take and carry it away.
“Plaintiff further says that the railway tracks of defendant in and at said locality were not fenced in or otherwise arranged so as to exclude the public therefrom, but defendant allowed the same to be so open and exposed to publio use, and allowed and permitted the public to come upon and use and make a thoroughfare thereof in the locality aforesaid, and so it was that the said John Bartelt, being invited thereto by the defendant, did, on the said 8th day of February, 1898, go upon toe said tracks of defendant at the place aforesaid, and while theie at the invitation of' defendant engaged in picking up the coal upon the defendant’s railway track, without any warning by the defendant or its employes to keep away from and off from the said tracks and line of way of defendant, the said John Bartelt was wrongfully and negligently struck by the locomotive and cars of defendant- and killed as aforesaid.
“Plaintiff further says that at the time said John Bartelt was so killed by the locomotive attached to the railway cars-of defendant as aforesaid, the said locomotive and train was being operated upen and along said railway tracks of defendant at an exceedingly high rate of speed, contrary to law and ordinance, and sc it was that although the said John Bartlet was upon the tracks at the locality named, where the engineer and fireman of said looomotive could see-him at a great distance therefrom, yet the said employes ana' agents of defendant wrongfully and negligently failed to observe and see the said John Bartelt, and wrongfully and negligently ran said locomotive and train of cars at an excessive rate of speed upon and against the said John Bartelt, without warning, in suoh wise as to strike and instantly kill him-as aforesaid. ”

The petition then charges that the boy was in the exercise cf ordinary and reasonable care for one of his years.

The plaintiff,-upon the trial, called certain witnesses for1the purpose of establishing the facts charged in his petition, and rested his case. Thereupon counsel for the railway moved that the jury be instructed to return a verdict for the defendant upon the testimony as it then stood.

The court, in finally passing upon that motion, stated, as appears from the bill of exceptions, as follows:

“The court understand the cause, submitted upon the evidence to present the following facts: That upon the 8th day of February, 1893, the deceased, with other boys, for no purpose connected with the rail road company, or its operations, or business or interest, and without the consent of his parents, but against the warning of his mother, went upon the railway tracks of the defendant; that his purpose was to amuse himself, probably, with these other boys, and to pick up coal and carry it away- — -for he appeared to have had a basket with him — and was apparently in the act of stooping to pick up coal when he was struck dead by the train, which came up behind him; his attention was probably directed to this purpose, of getting the coal, and he was thus prevented from seeing the train whch was approaching him from behind
“To olaim that under these circumstances — no odds what coal had fallen off the cars of defendant along there — -along the line of its road — and no odds, if you please, that brakeman may have thrown it off purposely, they did so in-furtherance of an unlawul and a dishonest purpose on their part. We think that these boys cannot be held to have been on the track of defendant, with right to be there; but, cu the contrary, they were there at best at their own risk. We-have no doubt but what the company would have been justified in not only ordering them off, but in keeping them off of its tracks. The mere fact that it did not do so, did not give-these boys a right to be there to obstruct the management and operation of its trains and the business of the company.. Now, however much it is to be regretted, the consequences to this boy, from so sad an accident which destroyed his life in an instant — however much this is to be regretted, it seems to me that nothing can be dearer than that no financial liability attaches to the defendant because of this injury to the deceased. And now, inasmuch as we must hold that, had the boy not been killed, but had survived the injury which he received, he could not have maintained his action against the defendant company, therefore his administrator cannot maintain an action for the purpose of recovering damages by reason of his injury and death.
“We will therefore sustain the motion wh.iohishere made •and direct the jury to return a verdict for the defendant.”'

And the jury, thus instructed, did return a verdict for defendant, and a judgment following that was rendered by the oourt.

A motion for a new trial had been made and was overruled.

We have read the testimony in this case and we think that it proves the facts recited in the court’s disposition of that motion.

We have had occasion heretofore to oonsider the rights of boys upon railway tracks at places not at a public crossing, although at a place where people quite frequently passed over in crossing over and along the road, and perhaps to the knowledge of the servants to the company. It was incumbent upon the plaintiff in this case, of course, to make out by affirmative proof the allegations in his petition to warrant recovery, and it was incumbent upon the plaintiff to show, not only that the running of the train ' was wrongful, but that the death of the plaintiff’s intestate was caused by the improper handling and running of the train, and not in any degree by such negligence as the facts would require tc be attributed to a young boy.

As I have recited, it does not appear that, in fact, the servants of the company handling this train saw the bey upon the track. He was not upon the engineer’s side; and the fireman, perhaps engaged in other matters and attending to his duties, did not see him, did not know that the bey was near the track — in fact, as I have said, did not know that the engine had struck him until some time afterward. At this place in question the railroad grounds were fenced upon one side, but on the northerly side, the side from which the bey approached the tracks, they were net fenced. There was ■quite a high grade at that point, and there was no crossing or public street for some little distance from it. There were places up and down where persons going along there to their work, either railroad men or others, had worked paths to the approaches, and it was shown that persons more or less frequently passed along there, and that boys had been upon the tracks, and on some occasions had taken baskets and picked up coal that was scattered there, either fallen from the engine or thrown from the car. It does not appear that any persons had had their attention called to these actions of the brakemen in throwing off coal, or that anybody knew anything about it except the brakemen who did it. It does net appear affirmatively whose coal it was, except that it was such coal as was carried upon cars of the company passing along there. Some of the witnesses make some expression as if such acts would be to the loss of the shippers of the coal; that it was doal belonging to some persons \yho were shipping along the line of the railroad, and not to the railroad company.

After reviewing the testimony, we are of the opinion that the facts warrant the statement which I have read as coming from the court, and that it warranted the final disposition of the case as made by the court; in other words, that the plaintiff did not show such circumstances as indicated that the boy was free from negligence contributing to his death, or that the persons in charge of the engine either did see, or were fairly in duty bound to see, the boy in time to protect him from being struck by the train. The judgment, therefore, will be affirmed.

Plaintiff excepts.


author: SmyseR, J.

text:
    (Fifth Circuit—Licking Co., O., CircuitCourt
    March Term, 1898.)
    Before Adams, Douglass and Smyser, JJ.
    HENRY D. SPRAGUE v. RICHARD LAW et al.

      Dower right of wife in land mortgaged by her husband before marriage—
    A wife is entitled to dower in land of her husband mortgaged by him before marriage, and only those claiming through, or having a right to claim through the mortgage instrument, can defeat the wife’s right of dower. A mere judgment creditor cannot set up the foreclosure proceedings to defeat her right of dower; but as against his judgment, she has dower in the whole premises.
   SmyseR, J.

(orally.)

The case of Henry D. Sprague v. Richard Law, et al., is submitted to the oourfc upon a finding of facts made by the court below. The contention is between the executor of Van Voorhis and Nora Law. The original action was begun by Sprague in 1896, and it was founded upon a promissory note for a thousand dollars, executed by Richard Law in 1892] secured by a mortgage upon certain real estate described in the petition. Deeds was made a party defendant. He answered setting up a note of a thousand dollars and a-mortgage securing the same on the same premises described-in the petition, the note and mortgage bearing date in 1886.. Richard Law and Deeds were the only parties defsndant originally. Van Voorhis, as execuior of Van Voorhis, deceased, intervened upon his own motion,and filed an answer’ and oross-petitibn alleging that in 1896, by the consideration of the court of common pleas of this county, he recovered a judgment against Richard Law'for $3,803. Nora Law intervened, and upon her own motion was made a part defendant. She alleged that she was the wife of Richard Law; that she was married in 1893, and, as wife, had a contingent right of dower in the premises subject to the mortgage, and" asked that her rights in the premises, as wife, be protected. ’ A decree in foreclosure was taken, and a sale of the premises had; and, after the payment of costs, taxes and the mortgage claims of Sprague and Deeds,there remained fordistrib-ution $148.63. Van Voorhis claimed this fund by virtue of his judgment. Mrs. Law claimed this fund by reason of hem contingent right of dower in the premises. That states-sufficiently the facts that are submitted. They are found' substantially as I have stated t-hem by the court below. I‘ may add that it was conceded cr found by the court that1 when these mortgages were executed, Law was unmarried. He married Nora Law in 1893. After the execution of these1-mortages, but before the recovery of the Van Voorhis judgment, counsel for Van Voorhis contended that in no event i&= this woman, as the wife of Richard Law, entitled to anything in these premises; that she had ne interest; that the-sale of the premises under foreclosure worked a conversion-of the realty into personalty, and there can be no such thing-as contingent dower in personalty. They contend also that the mortgages having been executed before this defendantbecame the wife of Law, she oould, as against these mortgages, have no right of dower; and, because she oould have-no right of dower as against those mortgages, she could Have-no right of dower as against this judgment; that there was-no estate of the husband. It is urged here that there can be-no such thing as dower; that the man is alive, etc.

Counsel cite us 27 Ohio St., 464, and Fox v. Pratt, 27 Ohio St., 512, two cases, which they contend are decisive of • their claim to this fund. Counsel for Mrs. Law cite Mandel v. Clave, 46 Ohio St., 407, as equally decisive of their contention.

In Ohio, we think, even though a mortgage be outstanding the estate is the estate of the husband. In the case of Kerr v. Lydecker, 51 Ohio St. 240, 248, I desire to call attention to a paragraph:- “The mortgage being, in equity, regarded -as a mere security for the debt, the legal title to the mort- . gage premises remains in the mortgagor, as against all the world, except the mortgagee, and also as against him until ■condition broken.” On page 250: “After condition broken, the title is vested in the mortgagee, as between him and the mortgagor, and as the right of the mortgagee to recover the possession of the land by ejectment, always existed at common law, and has not been taken away by statute, it still • exists in this state. ” In sec. 6351, Rev. Ptat., we think there is a clear statutory recognition of the right of a wife to ■ contingent dower. This .is- the section under Insolvent Debtors’act. “Payment of liens, etc.; questions of title, dower etc.; the probate court shall order the payment of all 'incumbrances and liens upon any of the property sold, or rights and credits collected, out of the proceeds thereof, according to priority; provided that the assignee may, in all oases 'where the real estate to be sold, or which may have been contracted to be sold by the assignor prior to the assignment, is incumbered with liens, or where any questions in regard to the title, or the dower estate of the wife or wid•ow of the assignor require a decree to settle the same, com- • menee a civil action in the common pleas court or probate -court cf the proper county, making all persons in interest, including the wife or widow cf the assignor, parties to such proceedings; and upon hearing, the court shall order a sale -of the premises, or the completion of the contracts of sale so made by the assignor, the payment of incumbrances and the ■.contingent dower interest of the wife or widow.” The court is to hear and determine in such cases the right of the wife,, •and adjust her contingent right of dower.

The case of Culver v. Harper, supra, is relied upon by counsel. The syllabus is: “The widow of a purchase-monkey mortgage, motgage given before marriage, and property sold by executors to pay the mortgage debt, is not dowable ■ of the whole proceeds, but only of the surplus remaining rafter satisfying the mortgage.” On page 512: “A widow is dcwable of the surplus remaining after the payment of a. purchase-money mortgage.”

Judge Follett: This is not that kind cf a mortgage.

The Court (continuing): I understand net; at least, there’ is no finding that it is a purchase-money mortgage.

These cases furnish tne rule, and the question is whether in this particular case Mrs. Law is brought .within these two oases to which T have just called attention. The court say that it would be inequitable and unjust to take the property of a man and turn it over to the wife of the mortgagor; and for that reason they Bay that, as against a purchase-money mortgage, she shall not have dower.

I read from page 468, in the case of Culver v. Harper, supra: ‘‘This doctrine of instantaneous seizin is semewhat technical. It was invented for righteous ends, and is therefore useful. It would be the height of wrong that the wife should have dower as against the purchase-money mortgage. ”

On page 515 of Fox v. Pratt, supra, the court say: “It has already been held that in case of a purchse-money mortgage, the widow is entitled to dower, not in the whole property, but only in the surplus after paying the mortgage debt. * * * This is the rule as regards the rights pertaining to the purchase-money mortgage,and those claiming under that instrument. Where other interests exist, other considerations may perhaps arise.”

The case at bar is somewhat like the cases of Culver v. Harper and Fox v. Pratt, supra, because this woman did. not sign these mortgages. She was not the wife of Law when the mortgages were executed; but, does it follow that she is precluded from dower in the whole proceeds by reason*of the fact of her non-marriage at the time of the execution?' There is a growing liberality in Ohio to protect the rights of a ■ wife, and to extend rather than to curtail them. A very instructive case is found in Yeoman v. Lasley, 40 Ohio St., 196, but we will not take the time further than to cite it to the attention of counsel.

In Mandel v. McClave, 46 Ohio St., 407, first paragraph of the syllabus reads as fellows: “The contingent right of a wife, during her husband’s life, to be endowed of his real estate at his death, is property having a substantial value that may be ascertained with reasonable certainty from established tables of mortality, aided by evidence respecting-the state of health and constitutional vigor of the husband and wife respectively.” Justice Bradbury says, on page 410:. “If the contingent right of a wife to dower in her husband’s-real estate is recognized by the laws of the state as property, and if her release of it by joining with her husband in a mortgage to secure his debt, is not a technical bar, but, instead, only inures to the benefit of the mortgagee and his privies, we perceive no principle of law or public policy that should prevent a court of equity from applying in favor of the wife, the equitable rule that the property of the debtor shall be first applied to the satisfaction of his debt before resorting to that of the surety. And the creditors of the husband have no standing in a court of equity, to prevent-the application of this equitable rule; they have no claim that propertjq which as between husband and wife belongs to the wife, shall be taken without h«r consent, and applied' to pay their debts gainst the husband.”

Jonathan Rees, for Plaintiff.

Follett & Follett, for Defendant.

The court substantiates'the proposition that it is valuable property. Then it reasons upon the effect of her sign- ' mg in this instance. She did sign the mortgge, but the-court held that she signed the mortgage simply as security for the husband, and the interest that she had in his estate-was her interest, and that his property should gc, first, to-the pavment of his debts; and, there being sufficient to endow her out of the residue, she was entitled to be endowed out of the entire estate.

By Chas. H. Follett — : She had the legal title.

The court (continuing): She had the legal title, that is true. I cannot stop to read all this, but this is the principle running through it, that only these claiming through,or having a right tc. claim through the mortgage instrument, can defeat the wife’s right of dower; and in this case we hold that Van Voorhis, being a mere judgment creditor, had no right as between the husband and the wife. Her right to dower was in the whole premises, and Van Voorhis, as a judgment creditor, cannot set up the foreclosure proceedings tc defeat her right of dower; as against his judgment, she had dower in the whole premises; and without pursuing it further, we think the case of Mandel v. McClave, supra, is decisive of this question. As found by the court below, as between Van Voorhis and Mrs. Law, she was entitled to be endowed out of the whole proceeds; and, that being true, it follows as a matter of course that she would be entitled to the residue of this fund that is now on hand, and a decree-will be entered accordingly.


author: Day, J.

text:
    (Third Circuit — Defiance Co., O., Circuit Court
    Oct. Term, 1898.)
    Before Day, Price and Norris, JJ.
    GEORGE DAUM et al v. WM. A. KEHNAST.

      Administrator giving two successive bonds — Co-sureties—
    (1.) D., as administrator, on his appointment gave bond as such, with D.and M.as sureties. Later an additional bond was required and given, with K. and K. as sureties. D. and M. resided in one county, and K. and K. in another. L. made default, and K. was compelled by legal process to pay the shortage, which he did, and brought suit for contribution in the county in which K. andK. resided, making K. and D. and M. parties defendant, and on his request summons was issued and served on D. and M. in the county of their residence. On motion to quash service of summons-on D. and M. and demurrer to the jurisdiction,

      Held, (1), The fact that D. and M. and K. and K. were sureties for the administrator on two separate and distinct instruments, is not of essence or material; but they sustained the relation to each other of co-sureties, and as such were liable to an action for contribution.

      Same — Bondsmen living in different counties — Action in one county and service in another—
    (2), The action was rightly brought in the county in which K., ona of the sureties, resided. D. and M. were properly joined as parties defendant, and the issuance and service of summons on them in the county of their residence effected their appearance to the action, and gave the court in the county of K.’s residence jurisdiction to try the case and render judgment therein.
    Error to the court of Common Pleas of Defiance county.
   Day, J.

The action in the common pleas court was by Kehnast for contribution from co-sureties. The material facts stated in the petition and otherwise made to appear are as follows: One Fred W. LeSeur was duly appointed and acted as administrator of the estate of Thomas Dempsey, deceased. At the date of his appointment he gave bond in the sum of $2000,with George Daum and Henry Meyers as sureties. The bond contained the usual condition, that the administrator should account for and turn over all moneys received by him as such administrator. Later, it being necessary to sell real estate to pay debts, an additional bond was required and given, containing a similar condition, in the sum of $16,000, with Wm. A. Kehnast, the plaintiff below, and John H. Kiser as sureties. Both bonds were accepted and the sureties approved, and LeSeur acted as administrator, but failed and omitted to account for and pay over moneys received by him as such in the sum of $000. An administrator de bonis non of the estate of Dempsey, deceased, brought suit in Defiance county on the second bond against LeSeur, Kehnast and Kiser to recover for the default of LeSeur. Such proceedings were had that a judgment was rendered against LeSeur, Kehnast and Kiser for $900 and costs. Kiser and LeSeur are and were insolvent, and with the exception of $200, no part of the judgment could be made off of either of • them, .and Kehnast was compelled to and did pay said judgment and costs with the exception of $200, whereby he says a right of action has accrued to him against his co-sureties, Kiser, Daum and Meyer, for contribution. Kiser and Kehnast are residents of Defiance county, and Daum and Meyer of Henry county, Ohio. The prayer of the petition is for an accounting in equity between the co-sureties and for judgment as the rights of the parties may appear.

On this petition a summons was issued to the sheriff of Defiance county for Kiser, and to Henry county for Daum and Meyer, both of which were served on the defendants and duly returned in accordance with the fact. Daum and Meyer entered a qualified appearance for that purpose only and submitted a motion to set aside service of summons on them, based on the fact that they were residents of Henry county, Ohio, and not subject, in this case, to be summoned in Defiance county, the court by such process acquiring no jurisdiction over their persons. This motion was overruled and exception noted. Daum and Meyer then demurred to the petition,raising the.same question of jurisdiction. This demurrer was overruled and the said defendants not desiring to further plead, the court took an account of the matter and entered judgment against Daum and Meyer that they each contribute their proportionate share of the enforced payment made by Kehnast, Daum and Meyer prosecute error here to obtain a reversal of the judgment, and they assign as grounds of reversal the ruling and judgment on the motion and demurrer.

The only question raised is as to whether the plaintiffs in error, being residents of Henry county, can be summoned and brought into the court of Defiance county, so as to subject them to the jurisdiction of that court.

The bringing of actions, when and where; the making of parties thereto, plaintiff and defendant; the issuing and service of process, so as to effect the appearance of a party to such action, are all matters regulated and governed by the positive provisions of the code, which, it is believed, clearly authorized and warranted the course of procedure adopted and followed in this case.

The parties named as defendant, with the exception of LeSeur, were all sureties on the bonds of LeSeur as administrator of the estate of Dempsey, deceased, and as such liable to contribution as between co-sureties. True, they were on separate and distinct instruments, but that fact, it seems, is not of essence, and does not in the least alter or affect their relation to each other or their liability as-co-sureties. In Oldham v. Broom, 28 Ohio St., 41, Judge Johnson, on page 48, says:

“The right of contribution among sureties is not founded on contract, but is the result of principles of equity on the grounds of equality of burdens and benefits. For this reason, when several parties by the same or by distinct instruments become sureties for the payment of a sum of money, and one pays more than his share, he may compel contribution from the others as co-sureties.”

See also 45 Ohio St., 577.

Enforcing this doctrine, then, and it follows surely that Kehnast, Kiser, Daum and Meyer were co-sureties for the administrator LeSeur, and so liable for contribution to equalize the burdens incident to the situation. Being co-sureties, they all had an interest in the controversy tendered by the plaintiff and adverse to the plaintiff. They were also necessary parties to a complete determination and settlement of the question involved. If this is so, then, under the provisions of section 5006, Revised Statutes, they were properly joined as defendants in the case.

Section 5006 provides:

“Any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of a question involved therein.”

This section, we think, clearly authorized the making of Daum and Meyer and Kiser defendants to plaintiff’s contention, as necessary and substantially interested parties.

Martin Knupp, for Plaintiffs in Error.

H. G. Baker, for Defendant in Error.

Chapter 5, title 1, division 2, provides and directs where actions may be brought. Section 5031 of that chapter provides:

“Every other action must be brought in the county in which a defendant resides or may be summoned, except,” etc.

In this case, a defendant, J. H. Kiser, resides in Defiance county, and so the action was rightly brought in Defiance county.

Section 5038, Revised Statutes, has this provision:

“When the action is rightly brought in any county, according to the provisions of chapter 5 of this division, a summons may be issued to any other county against one or more of the defendants at plaintiff’s request,” etc.

This was all done in this case, as appears of record, and it is believed that, in following the plain and clear provisions of the statutes, jurisdiction was obtained over the defendants Damn and Meyer.

We approve the action of the lower court, and affirm its judgment.


author: Voorhees, J.

text:
    (Fifth Circuit — Stark Co., Ohio, Circuit Court
    Feb’y, Term, 1899.)
    Before Adams, Douglass and Voorhees, JJ.
    RUFUS H. PILCHER v. ALFRED B. GRAHAM.

      Enticing party into foreign jurisdiction to obtain service of pro cess—
    (1.) When a defendant residing in one state is induced to come within the jurisdiction of a court of another state, by a trick or false statement of the plaintiff for the purpose of serving him with summons in an action in that court, the service is void, and the court will not thereby obtain jurisdiction over the person of such defendant.
    Same—
    (2.) One who entices another into the jurisdiction of a court to consult over pretended business matters, cannot have him served with a summons until after a reasonable time for his departure from the jurisdiction after the termination of the business on which he had been invited to come.

      Same — Attacking judgment obtained in foreign court for service of process fraudulently obtained—
    (3.) In an action on a personal judgment rendered by a court in another state, it is competent to plead and prove n defense, that the defendant was decoyed in to the jurisdiction of the court •by fraud and false representation by the plaintiff, who took advantage of his presence to serve him with process; and such a defense is not within the rule which forbids the collateral impeachment of judgments, but is in the nature of a direct attack upon the judgment.
    Error to the Court of Common Pleas of Stark county.
   Voorhees, J.

Action of plaintiff in error was founded upon a judgment rendered in his favor, against the defendant, Graham, in the circuit court of Cook county, Illinois, at its July term, 1897, for the sum of $1010.75, with interest at six per cent from July 21st, 1897. (A copy of the transcript of the judgment was attached to the petition.)

It is alleged in the petition, that said court is a court of general jurisdiction, having cognizance over the subject matter of the judgment,and a copy of the laws of said state conferring general jurisdiction on the court was filed with the petition,

It is further averred that said judgment is wholly unpaid, and is still a valid and subsisting judgment against the defendant.

Defendant answered, averring among others, this: That about April 3rd, 1897,.the plaintiff, claiming to be under obligations'for favors before that time extended to plaintiff and his son, presented to defendant a deed for certain mining lands in the state of South Dakota. The consideration named in the deed was $2,000,00; but it is averred in the answer, that there was no valuable consideration whatever for said deed. It was agreed between plaintiff and defend ant, in case defendant should be able to sell said lands for $2,000.00,defendant should retain $1,000.00,and pay a like sum to plaintiff.

Defendant took possession of said deed under this arrangement. He avers that he was not indebted to the plaintiff in any sum of money whatever for said deed. About the 6th day of June, 1897, plaintiff, for the purpose of cheating and defrauding the defendant, and for the purpose of fraudulently procuring a judgment against him, in the court of Cook county, Illinois, upon a pretended claim for ■ the consideration of said deed, fraudulently wrote to the defendant, who resided and still resides in the city of Canton; Ohio, that he, plaintiff, had made a sale of said lanas for $1,000.00; that it was necessary for defendant to immediately come to Chicago to assist in conveying said lands to the purchaser, and plaintiff would then pay defendant one-half of the consideration price, to-wit: $2,000 00, the money realizéd from the sale of said lands.

Defendant, believing said sale had been made by plaintiff, and that it was necessary for him to convey said lands to the purchaser, and believing that the representations made by plaintiff to him were true, left his home in Canton and went to Chicago, wholly in_pursuance of the request of plaintiff, Immediately u[on the arrival of defendant in Chicago, plaintiff fraudulently procured the service of a summons upon him, in a case in the circuit court of said Cook county, in which he, the plaintiff, claimed the sum of $1,000.00 against the defendant.

Defendant further averred, that he was not indebted to the plaintiff in any sum whatever; that plaintiff had not made the sale of said lands, and said representations were made .for the sole purpose of fraudulently inducing defendant to come into the jurisdiction of said court, for the purpose of procuring service of a summons upon him in said jurisdiction.

On June 21st, 1897, plaintiff, by his agreement in writing with one Wesley Young, the agent of defendant, promised and agreed to extend the time for anwserby defendant in said case until August 15th, 1897.

Afterwards, on July 21st, 1897, plaintiff fraudulently, and in violation of his said agreement, and without the knowledge of defendant, procured the judgment to be rendered against defendant, set forth and described in plaintiff’s petition, and by reason thereof, defendant was deprived of making his defense. Said judgment was procured against the defendant by the fraud of plaintiff as aforesaid. Plaintiff filed a general demurrer to the answer, which wes overruled.

Plaintiff thereupon replied denying the allegations of the answer,

Upon the issues thus joined trial was had in the common pleas to a jury, resulting in a finding in favor of the defendant. By direction of the court, the jury answered the following interrogatories, and returned the same with their general verdict, viz:

First: “Was the time knowingly extended for answer to the defendant, by plaintiff, in the case in circuit court of Cook county, Illinois/(Chicago) to August 15th, 1897?” Answer, “Yes”.

Second: “Was defendant enticed to the city of Chicago in June, 1897, by plaintiff for'the purpose of serving him with summons in the action in said circuit court of Cook county, Illinois, the action in which the judgment was rendered in this case?”' Answer, “Yes”.

Upon these findings of the jury, it was considered by the court that the defendant go hence without day, and recover from plaintiff his costs.

Motion for new trial filed and overruled.

Petition in error is prosecuted to this court, assigning various grounds of error. But one ground is pressed in this court,, namely: That the court erred in overruling the plaintiff’s demurrer to the answer of defendant, This raises .the only material question in the record, and it may be stated as follows: Can the judgment of the Illinois court, upon which the action in this case is founded, be attacked in this way ?

It is alleged in the answer, and by the demurrer admitted to be true, that the plaintiff by fraud and fraudulent representations enticed the defendant within the jurisdiction of the Illinois court,

It is also alleged that by fraud the plaintiff took judgment on July 21st, 1897, after having agreed, in writing, with the agent of the defendant, that the defendant could have until August 21st, 1897, to answer.

It is averred in the answer, that immediately upon the defendant’s arrived at the city of Chicago, he going there upon the representations of plaintiff, to attend to certain business matters between plaintiff and defendant, connected with the subject matter in suit on which the judgment was taken, plaintiff caused him to be served with a summons in said action.

One who induces another to come into the jurisdiction to consult over their controversy cannot have him served with summons, until after a reasonable time for departure from the jurisdiction after the termination of the business on which he had been invited to come. Miami Powder Co. v. Griswold, Superior Court of Cincinnati, 6 Am. Law Rec., 464,

If a party be enticed or decoyed into the jurisdiction of a court, or induced to come by any device, and advantage is taken of his presence to serve him with process, it will be set aside, Jurisdiction of the person cannot be acquired in this way; it is a fraud upon the law.

If jurisdiction over the person of defendant were obtained in the Illinois court, by fraud practiced by plaintiff in enticing him into its jurisdiction, wherein the judgment set forth in this action was rendered, can the judgment be assailed in the courts of this state, when that judgment is made the foundation of the cause of action? We think it can. This conclusion is sustained by Kingsborough v. Tousley et al., 56 Ohio St. Rep., p. 450. It is there held:

“In an action on a personal judgment, whether rendered by a court of this state or elsewhere, it is competent to plead and prove in defense, though it be in contradiction of the record, that the defendant was not served with process, nor jurisdiction of his person otherwise obtained by the court rendering the judgment. Such a defense is not within the rule which forbids the collateral impeachment of judgments, but is in the nature of a direct attack upon the' judgment.
“An answer in such case is not defective, because it fails to state a defense to the cause of action on which the judgment is founded.”

Courts will not sanction any attempt by fraud or misrepresentation to bring a party within its jurisdiction; and when a party has been induced by false statements to come within the jurisdiction of the court, for the purpose of serving him with a summons in an action in that court, the service on motion will be set aside. Carpenter v. Spooner, 2 Sandford (N. Y.), p. 717.

When a defendant is brought within reach of the process •of a court by a trick, or by the fraudulent: abuse of other process, the service of the writ will be set aside. Addicks v. Burk, 1 Phila. R., 19; Com. v. Daniel, 6 Penn. Law Jour., 330; Williams v. Bacon, 10 Wend., 636; Louis Stein and Adolphe Stein v. Valkenhinpen, 96 English Com. Law R., 63; Williams v. Reed, 29 N. J. L. R., 385.

In Wanger et al. v. Pright, 52 Ill., 35, the court held:

“That where a party has been fraudulently induced to come within the jurisdiction of the court so as to render him or his property amenable to its process, he may have his action therefor. So where a person residing in another state was induced to come into this state by certain creditors residing here, falsely representing to him through a telegraphic dispatch, and a letter under another name, that the person whose name was so used, desired to see him in Chicago, on a certain day, upon business not connected! with the real object in view, which was to allure the party into this state for the purpose of arresting him under civil process to compel payment cr securing of his debt, and when the party came within the jurisdiction of the courts c£ this state, in compliance with such request he was arrested at the instance of the creditors, and imprisoned. It was held that the creditors guilty of such fraudulent conduct and abuse of process not only could not make it availing for the purpose intended, but were liable to an action at the suit of the party injured for the illegal arrest and imprisonment. ”

W. C. Pippitt and Shaver & Shaver, for Plaintiff in Error,

Welty & Albaugh, for Defendant in Error.

Our attention has been called by counsel for plaintiff in error, to the 139 Ills. R. p,. 311, and specially to pegs' 324, where the court say

“The prevailing doctrine is, that ? plea of fraud is not admissible in actions on judgments of sister states, where there was jurisdiction of the person and subject matter, unless it can^be set up in the court of the state rendering the judgment”.

We do not question this principle, but it must be borne in mind, that the essential facts necessary to give the judgment this effect, are jurisdiction of the court over the subject matter, and over the person.

These are open to inquiry, and if it appears that either was wanting, the judgment is not conclusive; and the facts may be pleaded, in an action on the judgment. Lawrence v. Jarvis, 32 Ills. R., pp. 304-305.

Our conclusions are, that the court of common pleas did! not err in overruling the demurrer to defendant’s answer, and on the findings of fact by the jury there was no error in overruling the motion for a new trial.

Judgment is affirmed.


author: Laubie, J.

text:
    (Seventh Circuit — Harrison Co., O., Circuit Court
    Nov. Term, 1898.)
    Before Laubie, Frazier and Burrows, JJ.
    ABRAHAM M. BUSBEY v. O. M. RUSSELL.

      Gas and oil lease — Modification of terms by assignee of lessor without consent of creditors—
    (1.) An assignee for creditors of a farm upon which there is a valid oil and gas lease, can not modify such lease and change the “royalty” of the lessor therein provided for; and a subsequent approval of such modified lease, merely endorsed thereon by the probate judge, without the application or consent of the creditors, gives it no validity; and such modification is void as against a purchaser of the farm at the assignee’s sale, although the sale was made subject to all legal contracts for oil and gas, and the purchaser knew of such modification at and before the purchase.

      Same — “Income” defined—

    (2.) In such case, where the original lease provided for a “royalty” of one-eighth of all the oil produced and saved, to be delivered to the lessor in tanks or in pipe lines to his credit, free of expense; and if any well should “produce gas in sufficient quantities to justify marketing, the lessor shall be paid at the rate of one-eighth income dollars per year for such well so long as the gas therefrom shall be sold,” the “income” referred to is the gross income, and not the net.
    Appeal from the Court of Common Pleas of Harrison county.
   Laubie, J.

This case is here upon appeal, and is an action for the purpose of quieting title of the plaintiff against a claim made by Russell, in reference to certain premises in this county, and for an accounting of moneys due as “royalty” on natural gas. It is claimed upon the part of Russell, that the plaintiff in purchasing the premises in question, purchased and took them subject to his lease.

The farm in question was owned by the father of the plaintiff, who became insolvent and made an assignment of the farm, for the benefit of creditors, to H. L. Thompson. Prior to that time, he had executed a lease to Wood & Company of oil and gas rights in the farm. The lease to Wood & Company had been assigned to the Jewett Oil Company, and two wells had been drilled upon the land from which it was supposed that gas in paying quantities might be had, and thus the matter stood at the time of the assignment by Busbey to Thompson of the farm for the benefit of creditors.

That lease had been recorded, and was, in all respects, legal, and the party purchasing the premises at the assignee’s sale, the present plaintiff, took subject to the rights of the lessees and their assigns under the lease. But after the assignment, the Jewett Oil Company wanted to sell to Bussell, the present defendant, and Russell did not like the terms of the lease, and upon application to the assignee, the assignee modified the lease and changed its terms, The original lease provided in regard to the gas for a royalty to be paid of ‘‘one-eightb of income dollars;” and this was changed by the contract of the assignee with Russell and modified so that the royalty was to be $100 a year for each well while gas was obtained in marketable quantities. That contract, made, perhaps, six months before the sale by the assignee of the farm, was handed to the probate judge, and he endorsed upon it an approval, but did nothing further,

It is claimed that the lease thus modified by the assignee, bound the plaintiff — that he knew of that lease when he bought the farm; that it was a good and valid lease, and, therefore,bound him.

The plaintiff knew that Russell was in possession when he bought the farm at the assignee sale. He admits, also, that he knew of the modification of the lease, but he”denies that it was legal — that it had any validity. He claims that this modification of the lease was void, and that he is entitled as the successor of the lessor, his father, to the royalty provided in the original lease.

Now, when we turn to the order of sale, there was nothing in the order originally, as issued by the probate judge, in regard to this lease at all, but when the assignee came to sell, this was written and attached to the order of sale by him:

“Also subject to any and all rights of the Ohio Oil Company, the Jewett Oil Company or the Harrison National Bank of Cadiz, Ohio, or either of them in any of said premises in all legal contracts in relation to oil or gas and the purchaser shall take the royalty under said lease.”

It is claimed that the auctioneer stated that the purchaser would» take the farm subject to these leases, but it is said by the witnesses that what is written here is what he stated. At all events, we find it in writing, and that is better than the memory of witnesses — writing, and made at the time, with no mention of Russell or his lease in it.

But whether Russell was named at all is entirely immaterial, because the reservation is limited to legal contracts in relation to oil and gas held by the parties named.

As I have said, the plaintiff claims that this modified or new lease made by the assignee was not legal— that it was absolutely void and of no effect. And in that contention we agree with counsel for the plaintiff. It was illegal and void, the assignee having no authority to make it or the probate judge thus to approve it. The assignment was for the benefit of creditors, and all the power or right that the assignee or the probate court ordinarily possessed in enforcing the trust was to sell the property and distribute the proceeds among the creditors. The assignee had no right to change the terms of any lease that was upon the premises at the time of the assignment, and the subsequent approval of the probate judge endorsed on the contract gave it no force or effect, the consent of the creditors. having not been applied for and obtained.

The plaintiff, Busbey, therefore, did not take the farm subject to the lease as modified by the assignee. He took it subject to the terms of the original lease', and only that. What effect it would have to show that such change was to the benefit of the creditors, or that a decree had been made by the probate court authorizing such change, in a proceeding brought for that purpose, we need not now consider.

This leaves the question remaining, what is the royalty to be paid? It is asserted that, under this original lease, the plaintiff is entitled to one-eighth of the gross income; that he does not know what that was, has no means of ascertaining it, and he calls upon the defendant to account and state amount of the income. It is agreed between the parties that the account rendered by Mr. Russell is correct. The query is whether it shall be upon the gross income or the net income, and also what would constitute the net income.

Mr. Russell apparently contends not only that it is the net income the royalty of one-eighth is to be apportioned to the plaintiff upon ,but that the net income can only,be ascertained by taking the costs of improvements as well as th® mere expenses of running the business into account,

To make the first part of this contention clear, the phrase “net income”, or the word “profits”, should have been used. Generally, the word “income” has a different signification from these.

Income is “that which comes in or is received from any business or investment of capital, without reference to the outgoing expenditures; while ‘profits’ generally means the gain which is made upon any business investment when both receipts and payments are taken into account. Income, when applied to the affairs of an individual, expresses the same idea that ‘revenue’ does when applied to the affairs of a state or nation,’’ People v. Supervisors of Niagara, 4 Hill, 20; 7 Hill, 504; Anderson’s Law Dic., 532; Cooley on Tax., (2nd Ed.) 221; 19 E. & A. E. of L., 258; Millar v. Douglass, 42 Tex., 288.

, At all events, the meaning of “income” must generally be determined by the intention of the parties as deduced from the context, the subject-matter of the contract, and the character of the person contracting.

,• “But in arriving at the meaning of words,' we musj^uqderstand not only how, but by whpm, they are used; otherwise the intent of the person using them may be wholly perverted. One may say that his income from a certain prop-, erty amounts to a certain sum, and yet he may be speaking merely of the accruing rent, without regard to either insurance, taxes or repairs. * * * And we well understand that outside of business circles, it is so common thus to speak of income, that we can never know whether net or gross income is meant without further inquiry.”

Thompson’s App., 100 Pa. St., 4.78.

In that case the testator gave his widow “one-half of the Income” of his farm, which was to be rented until his youngest child should come of age. The testator, the court said, was a farmer who had previously rented his farm on the shares, and it was natural to presume he meant the gross income. Besides, one definition of “income” was “produce”, .and if that, or “product”, was substituted, the court said, the meaning w'ould be free from obscurity,

In Millar v. Douglass, ante, it was held that the taxable “income.” of a merchant meant, according to the statute, his receipts for the sale of goods, less their actiial cost.

Webster,'in part, defines income as “the produce of a farm; the rent of houses; the.proceeds of professional business”; and Worcester, as “produce; revenue; receipts”.

In the case at bar, it is evident from the context, the .subject-matter of the contract, and^ the character of the contracting parties, that by the word “income” was meant gross income; that it was used in the sense of product, revenue or receipts.

By the lease in question, the lessees, Wood & Co., agreed to test the premises primarily for oil, and were to have possession for two years or as much longer as oil was .found in paying quantities, and one-eighth part of all the oil produced and saved was by them to be delivered to the lessor, free of expense into tanks, or into pipe lines to his c"ed.t. It was further agreed that if wells were found producing gas in sufficient quantity to justify marketing, the lessor “should be paid at the rate of one-eighth of income dollars per year for such well so long as the gas therefrom should be sold.”,,

It will be seen, therefore, that the parties contracting were a farmer and á company engaged in “developing” oil and gas territory; that the subject-matter was the testing for oil, and, incidentally, for gas, on the farm of the lessor, and its production by the lessees for. division between the parties, if found; and the context, that the lessor’s share of the oil was to be one-eighth of the whole amount produced and saved, delivered to him free from expense.

Now, we may admit, as was said in Thompson’s Appeal, supra, that in the ordinary commercial sense the term “income” may mean net or clear income; but, like that case, in the case at bar the instrument to be construed is not of a commercial character — not a contract between merchants, nor between merchant and customer — and, therefore, the question is not to be determined by strict commercial usage, but by the principle laid down in that case, which takes into'consideration how and by whom the term was used, in determining the meaning of the parties in the use of the term.

Looking at it in that light, the contract in this case makes it clear that the parties intended gross income, and not net.

It is a matter of common observation that royalties on minerals are assessed on the marketable amount produced? or are made a share of the amount produced; and it is fairly to be inferred that when the lessor in this instance stipulated for one-eighth of the income from the gas produced and sold, he intended, and it was understood to be, one-eighth of the gross income or receipts from the sale; and the stipulation as to the oil, we think, places it beyond question.

It was impracticable to deliver one-eighth of the gas itself to tire lessor as was to be done with the oil, and it seems reasonable that he would stipulate for the same proportion of the receipts from the marketed gas, instead of running the risk of no substantial return for the gas by reason of bad financial management and wasteful expenditures on the part of the lessees. Further, it is fair to assume that, with such a provision in regard to the oil, if the parties intended the royalty on the gas to be one-eighth of the net income, they would have said so in the contract.

It is to be remarked that the language used in regard to the royalty on the gas is very peculiar; it is one-eighth of the income “dollars”, apparently substituting dollars for gas. The dollars received for the gas could be the subject of division if the gas could not be; and so it is provided the the lessor is to receive one-eighth of them as hie share.

But we do not put our decision upon this ground, because the original lease, which we have not seen, may have been a printed blank, and might show that the word “'dollars” was printed, and carelessly not erased when the blank form was filled. • We mainly rely upon the reasons heretofore stated for oui conclusion.

Decree may be taken for the one-eighth of the gross receipts during the period stated in the petition, as shown by the statement furnished by the defendant, with inter est, and for quieting the plaintiff’s title as prayed for.


author: Marvin, J.

text:
    (Eighth Circuit — Cuyahoga Co., O., Cir Court
    March Term, 1899.)
    Before Caldwell, Hale and Marvin, JJ.
    THE STATE OF OHIO EX REL. WARD v. ALBERT E. AKINS, AUDITOR.

      Jurors before justices of the peace, in prosecutions for violation of pure food laws—
    W. served asa juror, before a J. P., in a prosecution of S. for violation of the pure food laws. S. was convicted and sentenced to pay a fine and the costs of prosecution, and to be committed to jail until such fine and costs were paid. S. began proceedings in error, and gave bond for stay of execution of the sentence, and was not oommitted to jail.

      J3eld, that W. was entitled to be paid out of the county treasury his fee for such services as juror.
    Mandamus.
   Marvin, J.

This is a proceeding in mandamus to compel the defendant as auditor of Cuyahoga county tc issue a warrant to the relator, Ward, for a fee as juror.

Ward, claims he is entitled to to the payment of such fee out of the county treasury. The relator states in his petition, that he was summoned to and did serve as such juror before E. H. Bohm, a justice of the peace in this county, on the 27th day of January, 1899, in the trial of one Henry Y. Scanlon, who was charged with having violated that statute of the state of Ohio making it an offense to serve and furnish oleomargarine without displaying a placard advertising that such oleomargarine was^kept by him; that the trial resulted in a verdict of guilty, and the court gave judgment accordingly and sentenced Scanlon to pay a fine and the costs of the prosecution, and that, upon failure to pay . such fine and costs, he should be committed to jail until the same were paid. The fine and costs have not been paid, and it is further averred in the petition that Scanlon never was committed to jail; he was .never actually incarcerated in the jail; he gave notice of his intention to appeal the case and to file his petition in error in the court of common pleas of Cuyahoga county, Ohio, and applied for an order suspending the execution of said sentence during the pendency of said proceedings in error, and entered into recognizance according to law, whereupon execution of said' judgment and sentence was suspended pending such'proceedings in error. The justice made out a full transcript of the proceedings and the costs therein, properly certified the same under oath, and delivered such transcript to the defendant as such auditor of said county. The amount shown by the transcript, to be owing to the relator for his services, as such juror, is two dollars. The relator says that he has requested and demanded of the auditor to draw his warrant on the county treasurer for the amount of his fees in the said proceedings, two dollars,and deliver the same to him, and that the defendant has and does refuse to do so.

To this petition, the defendant filed a general demurrer. And this raises the question, under the facts set forth in the ■petition, whether the relator is entitled to be paid out of the county treasury his fee as a juror in a case where there has been no actual incarceration of the party tried, for failure to pay the costs and fine in a case where the party has been found guilty.

The section of the statutes under which Scanlon was tried, was 4200, sub-section 18, Bates' Statutes. Section 8718a gives justices of the peace final jurisdiction in cases of this sort, and provides, among other things:

“That in all cases brought under the provisions of this section, if the defendant be acquitted, or if convicted and committed in default of paying fine and costs, the cost of each case shall be certified under oath to the county auditor, who, after correcting the same, shall issue a warrant on the county treasurer in favor of the person or persons to whom such costs and fees shall be paid.”

Section 4200, srb-section 20, provides for the punishment of one violating the section under which this prosecution was had, in the manner charged against Scanlon in the affidavit; and it does not provide that as a part of the sentence that shall be imposed upon cne found guilty under section 3718a, of disposing of or furnishing oleomargarine without advertising by a placard — it does not provide in. such case, that any part of the sentence shall be that the one so found guilty, shall be committed to jail until the fine and costs are paid.

Under section 4200-20, the party convicted may be committed to jail until the fine and costs are paid; but it is not necessarily a part of the sentence that he should be so committed, though, in the prosecution of Scanlon, as alleged here, it was a part of the sentence that he be so committed.

It is urged on the part of the relator, that the sentence having been pronounced upon Scanlon that he pay a fine and pay costs and that he be committed to jail until the payment of such fine and costs, brings this within the purview of section 3718a, and its provisions, requiring upon the filing of a transcript with the certificate, under oath, as to the costs, with the auditor, that he shall thereupon draw his warrant on the county treasurer. It is said that when the sentence is pronounced, that that brings the cause within that clause of the statute requiring the auditor to draw a warrant in case of a party being committed- to jail.

As we view' this case, it is not essential to'the proper determination of it, that that question be here decided; and, perhaps, a wise thing to do is to omit saying anything as to the view we would take if that question was necessarily raised here. The fact is in this case,Scanlon never was committed to jail, That the reason he was not committed was, that there was a suspension of the execution of the sentence, upon his giving the undertaking required by law in the prosecution of proceedings in error to a higher court. A similar question might arise if Scanlon, instead of giving such undertaking, had been taken into custody by the sheriff,and on the way.to jail had escaped, and so never had been committed. However that question might be determined if it were here to be determined, is, as has already been said, in our view, immaterial in this proceeding,

Section 1330, Revised Statutes, provides that:

“In all criminal cases where a jury may be called to try the issue joined, and the defendant shall be convicted, there shall be taxed in the bill of costs the sum of six dollars as a jury fee, and judgment shall be rendered therefor against such defendant, which sum, when collected by the clerk of said court or sheriff, to whom execution shall have been issued, shall be paid over to the county treasurer.”

Now, whatever, the custom may have been, we are not aware of any statute which authorizes the taxing as costs in proceedings under the statutes generally known as “Pure Food Statutes”, a jury fee, to include all that is to be paid to jurors; and to hold that what is to be paid to the jurors in such proceedings, shall be taxed as costs against the party prosecuted and found guilty, would be to put upon the defendant in such prosecution where he is found guilty, a burden not put upon one prosecuted for more serious offenses under .indictments. If one were prosecuted for the crime of arson, and found guilty, there could be taxed against him but six dollars as jury fees — and so of any other of the felonies punished under the laws of Ohio; and yet if there is to be taxed the entire amount that tbeseveral members of the jury are to receive in prosecutions of this sort, as has already been said, a much greater burden would be put upon the defendant than if he were on trial for arson, burglary, robbery, or any other offense that is indictable under the statute as felony.

Section 5182, Revised Statutes, provides that:

“Each grand and petit juror, drawn from the jury box pursuant to law, and each juror selected by the court pursuant to section 5178 of this chapter, and each talesman shall be allowed two dollars per day, for each day he serves; and if not a talesman, five cents per mile from his place of residence to the county seat, and such compensation shall be certified by the clerk of the court, and paid by the county treasurer on the warrant of the county auditor.”

Wm. E. Patterson, for Plaintiff.

P. H. Kaiser, for Defendant.

We have held in a case recently in this court, Bentley against Akins,auditor, that this section,so far as the amout to be paid to jurors is concerned, applies to prosecutions under the “Pure Food Laws.”

We held that the amount of two dollars provided for in •section 5182, is the amount to which jurors, in such prosecutions as this against Scanlon, are entitled, and that two dollars per day is the fee that each juror is to receive. So held by virtue of section 6705, which provides:

“That provisions of title 1, of part 8, of the Revised Statutes, which are in their nature applicable to the proceedings before justices, and in respect of which no special provision is made in this title, are applicable to the proceedings before justices of the peace.”

Section 5182 comes under title 1, part 8, Revised Statutes. For the same reason that we there held the fee to be paid to each juror was two dollars, we hold that the payment is to be made upon the warrant issued by the county auditor upon the treasurer, and that when the clerk, or, in a case of this sort, a justice of the peace, who is his own clerk, certifies to the auditor the amount to which a juror is entitled, it is his business to issue a warrant upon the treasurer for the payment of that fee. We do not understand that if the en.tire fee of the jury should amount to twenty-four dollars, that that is part of the costs to be taxed against the party convicted. The county is to pay each juror the amount coming to him.

Entertaining these views, the demurrer is overruled, and judgment may be entered for the relator.


author: Douglass, J.

text:
    (Fifth Circuit — Licking Co., O., Circuit Court
    — Mar. Term, 1899.)
    Before Adams, Douglass and Vorhees, JJ.
    McCUNE, OWENS & CO. v. JOHN SNYDER et al.

      Mechanic's Lien — Necessary averment — “ Authorized Agent”—
    (1.) An averment in a petition by virtue of which it is sought to perfect a mechanic’s lien under favor of B. S. 8184, stating “That under a certain verbal con ract with the said principal contractor who, at the time of ordering said materials, was an agent and contractor ot said owner, ” is insufficient to satisfy the requirement of the statute which provides that such contract must be entered into by the owner or his authorized agent.

      Same — Notioe by sab- contractor to owner — Actual Notice required. (2.) Where the statute requires notice to be given to the owner by a sub-contractor in order to secure a lien on the fuod in , his hands, although silent as to its form or manner of service, actual notioe alone will satisfy its requirements, and an averment that the owner has absconded or is inaccessible is not equivalent to notioe or an excuse for failure in that regard.
    Appeal from the Court of Common Pleas of Licking county.
   Douglass, J.

This case comes into this court on appeal, and the single question presented is raised by a general demurrer to the several answers and cross-petitions of Voglemeier, Stough, Jones, Smith, Bailey & Keel'ey, Ulrich and Wiggins.

McCune, Owens & Co., in an amended and supplemental petition, say that they are partners doing business under the firm name of McCune, Owens & Co., in the city of Newark.

That on the 20tb day of August, 1895, one Ludwig Miller was the owner of certain property; that he entered, into a contract in writing with the defendant, John Snider, a& principal contractor, whereby it was agreed that, for the consideration of nine hundred and fifty dollars, the said Snider was to erect a dwelling-house on bis lot, and, in pursuance of said contract, a dwelling-house was erected and completed in accordance with the contract, and that he was then entitled to be paid; that he was not paid; that Miller, on the — ■ day of November, 1895, delivered the possession of the property to Snider, who is now in possession of the same. That the possession was delivered to said Snider by Miller, intending and agreeing then to pay the sum of $950., the contract price, and Snider received the-possession with like intent and agreement, and is entitled to' a deed for the property, and cannot obtain it on request, the agreement not being in writing.

That a certain judgment was obtained before a justice of the peace in favor of plaintiffs against Snider; that a transcript was duly filed, and that this became a lien when filed, on the 21st of November, 1895. And sets up the fact that' certain other parties were making some claim; and he asks that they be made defendants.

A second cause of action states that a judgment was recovered against Snider before a justice of the peace, a transcript filed, giving plaintiffs a lien on the 15th day of December, 1896.

The third cause of action in the petition sets up the fact', of a certain account, and avers that the proper steps were' taken to perfect a lien upon the fund; and that John Snider as principal contractor, and Ludwig Miller as owner,entered into a certain contract for the construction of this dwelling-house; that on the 18th day of November plaintiffs filed with the owner of said premises, Ludwig Miller, a sworn' and itemized account of the amount and value of the materials furnished.

This is the claim of the plaintiff.

To this petition answers and cross-petitions are filed, to-which a general demurrer is interposed.

This third cause of action in the petition seeks to perfect a lien upon the fund by notice to the owner. All of these-above nampd parties file answers and cross-petitions, some in the attitude of sub-contractors, and others claiming a di-rect contract with the owner; they say that the case is exceptional; that the structure was completed, and the owner, Miller, absconded and abandoned the country, and turned the completed building over to the contractor, Snyder, in payment.

The averments sought to bring this case within what are claimed to be the provisions of the statute on the question of notice, and also on the question of the contract, are these: After making the formal averments, they say: “Under a certain verbal contract with the said John Snyder, who, at the time of ordering said material was an agent and contractor of the said Ludwig Miller”; and then the averment is further made “That at the time said work was completed, and prior to the filing of said affidavit above mentioned, the said defendant Ludwig Miller had left the city of Newark, and these defendants made diligent search after and for said defendant Ludwig Miller, but were entirely unable to ascertain his whereabouts, and remained in ignorance of the same until some months subsequent to the filing of said affidavit.”

Like averments are made with reference to these cross-petitions that I have named, in order to bring them within the purview of the statute as it now stands.

These liens, of course, are statutory, and the method to be pursued is defined in section 3184. That is for the lien direct. The manner in which a lien is secured upon the fund in the hands of the owner is prescribed in sections 3193-4. Recent legislation in respect to the manner in which these liens shall be perfected has been pared down some by the supreme court. Since which time courts have held, and the bar has recognized the fact, that the mechanic’s lien law stands about as it was before the attempted amendment which contemplated that any person performing labor or furnishing material, no matter how far down along the line, although there was no privity of a contract between him and the owner, might perfect a lien, and the court eliminated that obnoxious feature, one repugnant to the-constitution in so far as it gave the right to a lien where noprivity of contract exists. In the 55 Ohio St., 423, Crawford v. Tingle:

“The act of April 13, 1894, 91 O. L., 135, in so far as it gives a lien on the property of the owner to sub-contractors, laborers, and those who furnish machinery, material or tile to the contractor, is unconstitutional and void. -All to whom the contractor becomes indebted in the performance of his contract, are bound by the terms of the contract between him and the owner.”

The language of the statute that gives the right to a lien is that it must be by virtue of a contract between the owner or authorized agent. That means authorized agent for the purpose of making this contract; and where the averment is made as in this case, that Snider, is the agent and contractor, it seems that construction and limitation is given to the word “agent” by what is said in this same case on page 442:

“An agent can have no interest adverse to his master, but this statute attempts to create an agent for the owner out of the contractor who is opposed to him in every interest. It is an attempt to make the contractor serve two masters, himself and the owner. This can not be done. For this we have the highest authority. ”

That is, the contractor and the owner deal at arms’ length; and, as a matter of course, the agent contemplated by the statute, and the contract that is spoken of, viz: “By virtue of a contract entered into by the owner or his authorized agent,” means an authorized agent for the purpose of making that contract; and, in view of what is contemplated by the statutes, and the adverse relation or character of contractor and owner, the averment that Snider was the agent and contractor of Miller, we think has no warrant; that it does not comply with the statute. The statute means, an authorized agent for the purpose of making this contract.

Now, it is contended that the fact that Miller had left the country, and had turned over this property to Snider, who was the equitable owner — turned it over to him bodily, in -.payment of his claim, having left the country, that an aver■ment stating that fact ought to exonerate the parties and fur-nish an excuse why no notice need be served on the owner,'as prescribed by the statute, in order to get a lien on the fund in his hands; that that ought to be a sufficient excuse; that the statute ought not to be construed so as to lead to absurd consequences or results, and that impossible or vain things ought not to be required, and all that. But, ■the rules of law that must govern in these cases in respect ■to notice must be followed, first having in mind that this lien is statutory; it is not a common law lien; and that equity cannot lend its aid to secure the lien — the lien must be secured by force of the statute, and after the lien is secured, equity will take care of the parties in the enforcement of their lien.

In 89 Ohio St., 661, the court say:

“It is the duty of courts in the interpretation of statutes, unless restrained by the letter, to adopt that view which will avoid absurd consequences, injustice or great inconvenience, as none of these can be presumed to have been within the legislative intent. ”

Thus giving a very good reason. And then the court proceeds to say:

“Where a statute requires notice of a proceeding, but is silent concerning its form or manner of service, actual notice will alone satisfy such requirement.”

That is the rule that the supreme court lay down respecting notice.

If the legislature had seen fit to have said, provided in oases where the owner is not accessible notice may be given in a certain manner, actual notice would be dispensed with.

C. W. Miller and B. G. Smythe, on behalf of Plaintiff.

G. C. Daugherty, Frederick M, Black, T. W. Philipps, Jonathan Bees, J. R. Fitzgibbon, Frank Bolton, S. M. Hunter, on behalf of Defendants.

Oftentimes we have statutory rights of which we cannot avail ourselves, because proper conditions as to persons or subject matter are not present. In such cases we are only unfortunate that these things are wanting and that we cannot avail ourselves of the statute.

We are of the opinion that, under this authority, and on principle as well, where one seeks to avail himself of a statutory right, it is only his misfortune that it furnishes no excuse, and that nothing except a notice as prescribed therein, and on the terms therein required, will satisfy the requirement of the statute.

We are of the opinion that, in- order to perfect a lien, notice must be given to the owner as prescribed by the statute; that is, actual notice; and that the averment that the contract was made with Snider, who, at the time, was the agent and contractor of the defendant, Miller, is insufficient to satisfy the requirement of the statute that he was the authorized agent, which means: the authorized agent for

the special purpose of making the'contract, as contemplated by the statute.

These demurrers are, therefore, sustained; the cross-petitions are dismissed, and the cause will be set down for trial, or continued, as may be desired.