text:
    DAMAGES ON AN INJUNCTION BOND.
    Circuit Court of Erie County.
    Ed. H. Zurhorst v. C. A. Judson et al.
    Decided, September 27, 1912.

      Judgment for Damages on an Injunction Bond — Gan Not be Supplemented, by a Second Judgment op. a Second Bond, Unless Separate Damages are Shown.

    Where bond is given by a plaintiff in the common pleas court in an injunction proceeding, and judgment having been rendered against him a second bond is executed on appeal to the upper court where a like judgment against plaintiff was rendered, and thereafter an action was brought by the defendant on the first bond and judgment recovered for the full amount named therein, and a second suit is then brought on the bond executed in the upper court, it will be presumed that all damages sustained were suffered.before the .first action was brought and were assessed by the jury in that action, and the burden being on plaintiff to show separate damages under the second bond and no such damages being shown, a judgment for five cents in the action on the second bond will be affirmed.

      H. C. Delian, for plaintiff in error.

      H. L. Peeke, contra.

      Richards, J.; Wildman, J., and Kinkade, J., concur.
    Error to the Common Pleas Court of Erie County.
   This is a proceeding in error to reverse the judgment of the court of common pleas. The defendants in error filed a cross-petition in error. In the year 1905, Judson brought suit against Zurhorst for the purpose of enjoining him from circulating a certain pamphlet entitled “A Biographical Sketch of a New Short Skate Politicians.” A temporary injunction was granted in the court of common pleas upon the execution of a bond in the sum of one hundred dollars. On the trial of that case in the common pleas court, judgment was rendered in favor of Zurhorst. Thereupon Judson appealed the case to the circuit court, in which court one of the judges granted a temporary injunction upon the execution of an injunction bond in the sum of $250. The circuit court on the trial of the case found in favor of Zurhorst, which judgment was affirmed by the Supreme Court. Thereafter Zurhorst brought an action in the Common Pleas Court of Erie County on the $100 injunction bond given in the court of common pleas, and recovered a verdict and judgment on said bond in the amount of $100, which judgment was affirmed by this court.

The present action was brought in the court of -common pleas by Zurhorst upon the $250 bond given in the circuit court. In the court of common Dleas, in this last case, a jury was waived and the court found the issues with the plaintiff and assessed the amount of his recovery at five cents, and ordered that each party should pay his own costs.

The bill of exceptions contains all the evidence offered on the trial, and includes also the evidence which was offered on the trial of the action brought upon the $100 bond. It appears from the evidence that in the action on the first bond the plaintiff introduced evidence tending to show all of the damages sustained by him, not only in the common pleas court but in the circuit court and in the Supreme Court, and it is insisted by counsel for the defendants in error that the adjudication in that case is conclusive upon the rights of the plaintiff that he was entitled to recover the sum of $100 and no more, and that said amount is the entire damage suffered by him.

It may be somewhat difficult to state any sufficient reason why this contention is not well taken.. Clearly all damages which the plaintiff had suffered were incurred before that action was brought, and may have been found and assessed by the jury in that action, and for aught that appears all damages suffered were assessed in that action.

The burden of proof rests on the plaintiff to show any separate damages suffered by him after the execution of the bond in the circuit court, but the evidence gives the amount of damages in a lump sum, so that the trial court was not furnished with evidence which would enable it to ascertain any amount of damages recoverable under the second bond, if there were such damages.

We find no error in this case to the prejudice of the plaintiff in error.

So far as the cross-petition of the defendants in error is concerned the amount adjudicated against them is the nominal sum of 5 cents,.and the costs made by them amounting to some two or three dollars, a sum which would be too trifling to justify the court in reversing the case and remanding it for further proceedings by reason of that portion of the judgment.

We affirm the judgment on the ground that on the whole, substantial justice has been done by the trial in the court of common pleas.


source: Caselaw Access Project

author:
Carpenter, J.
      Grant, J.

license: Public Domain

text:
    OFFICIAL DUTIES WHICH ARE NOT DISCRETIONARY.
    Court of Appeals for Cuyahoga County.
    W. H. McGannon v. State of Ohio, ex rel W. H. Dennis.
    Decided, October 11, 1915.

      Mandamus — Lies to . Compel the Issuing of Warrants by a Municipal Court Judge — Proper Test as to Whether Duties are Discretionary or Ministerial.

    1. When an official duty does not belong inherently to the office itself, but may be devolved upon some other officer to perform, it is ministerial and its performance maybe required by mandamus.

      2. The duty assigned by statute to a municipal court judge of issuing warrants, where the complaint and affidavits are sufficient, is ministerial and one which may be controlled by judicial power, and mandamus lies to compel the issuing of such warrants.

      J. N. Stoohwell, for plaintiff in error.

      A. T. Holmes, contra.
   Carpenter, J.

Error to the court of common pleas.

It is admitted in this ease that the complaint and affidavits required by law for the issuance of a warrant for the arrest of the person accused were sufficient in every respect, and that said chief justice, the plaintiff in error, refused and still refuses to issue or cause to be issued the necessary process or warrants for the arrest of the persons accused in said complaint and affidavits.

Whereupon the relators having demanded the prosecuting attorney to take the steps necessary to bring the person so complained of before the criminal branch of the municipal court of Cleveland for trial on said complaint, and said prosecuting attorney having refused said request, filed his petition in common pleas court for a writ of mandamus to issue compelling said chief justice to issue or cause to be issued warrants for the arrest of said accused persons. A demurrer to the petition was filed, and upon hearing was overruled, to which ruling plaintiff in error excepted, and now asks this court to reverse said ruling.

In the ease of State v. Salmon P. Chase, Governor of Ohio, 5 O. S., 529, the distinguished judge in his opinion at page 535 says:

“Under our system of government no officer is placed above the restraining authority of the law, which is truly said to be universal in its behests — all paying it homage, the least as feeling its care, and the greatest as not exempt from its power. And it is only where the law has authorized it that the restraining power of one of these co-ordinate departments can be brought to operate as a cheek upon one of the others. The judicial power can not interpose and direct in regard to the performances of an' official act which rests in the. discretion of any officer, whether executive', legislative or judicial. It is not by the office of the person to whom the writ is directed, but. the nature of the thing io be done, that the propriety or impropriety of issuing a mandamus is to be determined.”

In the celebrated case of Murbury v. Madison, 1 Cranch, at page 166, Justice Marshall says:

“In cases in which the executive possesses a constitutional or legal discretion, nothing can be more perfectly clear than their acts are only politically examinable. But where a specific duty is assigned by law and individual rights depend upon the performance of that duty, it seems perfectly clear that the individual who considers himself injured has a right to resort to the laws of his country for a remedy.”

And on page 165:

‘ ‘ The acts of - such an officer as an officer can never be examinable by the courts. But when the Legislature proceeds to impose on that officer other duties; when he is directed peremptorily to perform certain acts; when the rights of individuals are dependent on the performance of those acts, he is so far the officer of the law; is amenable to the laws for his conduct, and can not at his* discretion sport away the vested rights -of others. ’ ’

Again, in the case of State v. Chase, supra, the question was whether Chase, as governor, should be compelled by order of the court to issue his proclamation that a branch of the State Bank of Ohio was authorized to commence and carry on the banking business in Cincinnati. The statute required that if the secretary, upon the requisite examination, report a statement that the company has complied with the provisions of the law and is lawfully entitled to commence the business of banking, the same shall be certified to the governor, who shall, if he be satisfied that the law has in all respects been complied with, issue his proclamation. The governor having refused to act, suit in mandamus was instituted. The court held that such duty was a ministerial act, for the reason that its performance was not a part of the inherent nature of the authority in regard to many of his duties as governor, but might have been devolved on another officer of the state.

And this is the true criterion in mandamus: Does the duty belong inherently to the office itself, so that it can not be relegated to some other officer to perform? By applying this test, we are able to discriminate between duties which are discretionary and those ministerial, and which lie at the very foundation and fix the distinction between duties of a peremptory or mandatory nature, and those which are discretionary in their character involving the exercise of some degree of judgment on the part of the officer against whom the mandamus is sought.

To constitute a ministerial act it does not follow that the officer may not exercise his judgment, but the duties must be so clear and specific that no element of discretion is left in their performance. Even so, an officer who refuses to act, for example, refuses to try a suit properly in his court, may be compelled to perform that duty and exercise his discretion, but not be controlled in its exercise. This is evident from the ease of State v. Chase, supra, where he was compelled by the statute to investigate and examine until he should be satisfied that the law has, in all respects, been complied with. It required the exercise of the governor’s judgment whether the statute had been complied with. It was a duty cast upon him outside of his inherent duties, and therefore could have been performed by any other officer.

' Applying these principles to the facts of the case at bar-, Judge McGannon was elected by the people to perform those duties which inherently belong to the office of any judge of the court constituted for-.the trial of causes. It is clear that the duty assigned to him by the statute to issue warrants is not one of those which may, from the nature of his authority, give him a discretion which can not be controlled by judicial power. And it is not one that can not be devolved on any other proper officer of that court. Therefore it became and was a ministerial act which he was asked to perform, and his refusal to perform it warranted the institution of this suit to compel him to issue the processes asked for.

The demurrer was properly overruled, and the judgment of the common pleas court is affirmed.

Meals, J., and Grant, J., concur.

Grant, J.

I concur in the judgment of affirmance in this case. I dissent from the reasoning upon which, as to its material consideration, that judgment purports to proceed.

In the opinion read as that of the court, if it is comprehended,the thing which the affirmed judgment compels the respondent to do, is the performance of a ministerial act, to-wit: the act of issuing the warrant asked for.

I do not so understand the law.

In my, opinion, when the affidavit preliminary to a warrant is presented to the magistrate — in this ease the respondent — his function thereupon is to examine the paper, and if upon such inspection he finds that it alleges a crime, he is to issue the warrant, of course and in sequence.

The duty thus cast upon him, the duty of inspecting and considering the affidavit for the single purpose of determining whether it states an offense, is a judicial duty. It requires the exercise of discretion — this examination of a paper to see if on its face it charges, a violation of the statute.

How the discretion shall be exercised as to finding the paper sufficient or insufficient in the respect named, is not a thing that a court can by mandamus compel. That is to say, the exercise of the discretion can not be coerced by mandamus in one way or another. And it can not be so Compelled because it is a judicial and -not a ministerial act.

The writ allowed below and there made peremptory by the judgment under review, and by us here affirmed, proceeded, not on the ground that the respondent had exercised the discretion lodged with him, wrongly, but upon the quite apparent fact that he had not exercised it at all. From the record it is ■too plain for dispute that the refusal to issue the warrant was not because the affidavit was insufficient on its face and did not charge a crime, but because the magistrate substituted for the affidavit his own independent and individual fiat that the writ should not issue at all. If in reaching’ that conclusion he resorted to knowledge dehors the affidavit, his act in so doing falls under the same condemnation. That°is not exercising jurisdiction; it is ignoring entirely the duty to exercise it. The issuing of the writ at least is of course a mere clerical, and therefore a ministerial act. But discretion, in the. way I have tried here to make plain, must precede it. While the effect to which judicial discretion shall be exercised can not be controlled by mandamus, mandamus may compel it to be exercised. If the law confers jurisdiction upon a magistrate,, he must take it when it is properly invoked. An examination of the affidavit in this case was the first step in the discretion of jurisdiction, and that step the respondent refused to take. Our affirmance of the judgment below says to him that he must take it, under the compulsion of a writ of mandamus But saying that does not say that we say it because the ihing commanded is a ministerial act, as I think.

Apprehending that if we put our judgment on mistaken ground, and if hereafter it is undertaken to be drawn in precedent, it will tend to confusion and may operate miseheviously, I deem myself guilty of no impropriety in here registering my dissent from the basic view of the opinion filed by my brethren.

That mandamus will lie to compel discretion to be exercised, one way or another, is, I think, clearly held in State, ex rel Smith, v. Smith, 69 O. S., 196. There the court say that “mandamus is allowed, not to control discretion, but to compel its exercise.”

Meals, J., concurs in the dissent.


text:
    AUTHORITY OF ONE HOLDING A RESTRICTED PROXY.
    Circuit Court of Medina County.
    State of Ohio, ex rel Arthur Van Epp, Prosecuting Attorney, v. H. P. McIntosh et al.
    Decided, December 31, 1912.

      Corporations — Elections—Holder of Proxy for a Particular Purpose May Hot Vote on Other Questions — Directors of Corporations Must he Bona Fide Stockholders.

    1. A restricted proxy, whicb authorizes the holder thereof to vote for certain men for directors at the. annual meeting of a corporation or at any. adjourned meeting, does not give the holder thereof the right to vote upon any other question coming before the meeting, and a motion to adjourn the meeting carried by counting the votes cast by the holder of such proxy is of no effect.
    2. Where five persons are voted for to fill four vacancies upon a board of directors and it is impossible to determine which of the five were elected, none of them can hold office as the result of the election.
    3. It is an essential qualification for holding the position of director in a corporation, that the person elected be a hona fide stockholder in such corporation; hence, one to whom one share of another’s stock has been transferred for the sole purpose of making him eligible as a director, but who has no financial interest in the corporation, is ineligible to the position of director.

      M. B. & H. H. Johnson, for plaintiff.

      Henry & McGraw, contra.
    Marvin, J.; Winch, J., and Meals, J., concur.
    The petition states that the following named five defendants have usurped the office of directors of the Wheeling & Lake Erie Railroad Company for the term of three years, viz: Joseph Ramsey, Jr., R. E. Slaven, F. E. Palmer, W. D. Holliday and John J. Taussig; that the following named five defendants have usurped such offices for the term of two years, viz: H. B. MeG-raw, George P. Rust, C. A. Henry, A. G. Webb and S. W. Carey; and that the following named five defendants have usurped such office for the term of one year, viz: F. J. Reynolds, C. M. Spitzer, R. B. Cohen, S. P. Avery and P, A. Worthington.
   The petition avers that none of the defendants are entitled to hold the office of director of said railroad company.

The petition prays that the fifteen defendants, hereinbefore named, may be ousted from the offices severally claimed by them, and that the following named thirteen defendants may be adjudged to be entitled to hold the offices of directors of the Wheeling & Lake Erie Railway Company, viz: H. P. McIntosh, E. W. Ogleby, George S. Russell, C. H. Daugherty, Wm. R. Nicholson, Clarence L. Harper, Charles C. Jackson, Myron T. Herrick, * E. S. Cook, James C.. Chapin, Richard Sutro, Harry B'ronner and F. H. Eckers.

To this petition the defendant, Ramsey, filed an answer in which he denies that he and the other fourteen defendants, whom the petition avers are usurping the office of directors, are so usurping such office, but says that they are the lawful board of directors of the company, duly elected for the several terms which the petition avers they are usurping, at an election by a stockholders’ meeting held June 4, 1912, and he prays that he and the fourteen others named in the petition as usurpers may be confirmed in said offices and that the petition be dismissed.

Twelve of the remaining defendants, charged in the petition to be usurpers, answered, adopting the answer of Ramsey and joining in its prayer. Neither the defendant, John J. Taussig, charged as usurping a three year term, nor the defendant, P. A. Worthington, charged with usurping a one year term, file an answer to the petition.

The defendants, II. P. McIntosh, E. W. Ogleby and George S. Russell, three of those averred in the petition to be legal directors, file an answer in which they state that they are no longer directors, their terms having expired and their successors elected since the commencement of this action.

The defendants, C. A. Daugherty, Wm. E. Nicholson, Clarence Harper, Chas. C. Jackson, Myron T. Herrick, E. S. Cook, James C. Chapin, Richard Sutro, Harry Bronner, F. II. Eckers, C. M. Spitzer and B. A. Worthington, file answer denying that either Ramsey, Slaven, Palmer, Holliday, Taussig, McGraw, Rust, ITenry, Webb, Carey, Reynolds, Cohen or Avery is entitled to the office of director of the company. It is not denied by this answer that Spitzer and Worthington are lawful directors, though it is denied in the petition.

Many other matters are set out in the pleadings, especially in the answer of the defendant, Ramsey, but, except as attention is called to them later on in this opinion, it is not deemed necessary to consider them for a proper determination of this case.

If those named in the petition as usurpers are entitled to hold the office of director, it is because they were lawfully elected to the position at a stockholders’ meeting June 4,1912.

Without discussing how it came about that such meeting was held on that date, we hold that there was a lawful stockholders ’ meeting on that day, which meeting had authority and right to elect directors, insofar as there were vacancies on the board to fill. A full board consisted of fifteen members.

At a stockholders’ meeting held for the purpose of electing directors on the 14th day of June, 3911, there were elected for the period of one year, beginning May 3, 1931, C. M. Spitzer, H. P. McIntosh, E. W. Ogleby, George S. Russell and O. H. Daugherty. Without question, the meeting of June 4, 1912, it being as we hold an authorized stockholders’ meeting for the purpose, had a lawful right to elect five directors to succeed the five last named, whose term of one year had expired.

This meeting of June, 1912, undertook to elect as successors to these five, the first five named in the petition as usurpers, viz: Ramsey, Slaven, Palmer, Holliday and Taussig. But it is contended on the part of those who may be denominated the McIntosh board, that is, those who claim that there should be an ouster of such as are named in the petition as usurpers, that even if this meeting had authority of law to elect directors, no election was actually had.

At the meeting a majority of the stock was represented by John H. Watson, Jr., as proxy for Walter S. Wilson.

This is said notwithstanding the claim on the part of the so-called usurpers that Wilson was not such an owner of the majority of the stock as to authorize him to vote it. We are treating the case as though Wilson were authorized to vote this majority of stock and therefore had authority to name a proxy to vote it for him. This proxy reads as follows:

“Know All Men By These Presents:
“That I, Walter S. Wilson, do hereby constitute and appoint George Cook Ford and John H. Watson, Jr., both of Cleveland, Ohio, or either of them, my attorney and agent for me, and in my name, place and stead, to vote as my proxy at the annual meeting of the stockholders of the Wheeling & Lake Erie Railroad Company, appointed to be held at the general office of the company, in Room 418, Perry Payne Building, in the city of Cleveland, Ohio, on Wednesday, the 1st day of May, 1912, at two o’clock p. m., or at any adjournment thereof, according to the number of votes that I should be entitled to vote if then personally present, for the following named persons, or any of them, as directors of said the Wheeling & Lake Erie Railroad Company, viz:
“For three years from May 3, 1912 — C. M. Spitzer, H. P. McIntosh, E. W. Oglebay, George S. Russell, C. IT. Daugherty.
“And I hereby give and grant unto my said attorneys and agents and each of them full power to substitute in his place and stead, as attorney and agent for me hereunder, any person or persons as he shall deem best; hereby ratifying and confirming all that my said attorney and agent, or his substitute or substitutes shall lawfully do in the premises by virtue hereof.
“In Witness Whereof, I have hereunto set my hand and seal the twenty-seventh day of April, in the year one thousand nine hundred and twelve.
“Sealed and delivered in the presence of W. C. Betts.
“Walter S. Wilson.”

The minority of the stock was represented by several persons. The meeting was not altogether harmonious and an effort was made by Watson, holding the proxy for Wilson, to adjourn the meeting. It is claimed that he effectually, in law, did so adjourn the meeting.

Without considering the question of whether an adjournment could be made by one person holding a majority of the stock as against several holding a minority, we are of the opinion that Watson, under his proxy, was not authorized to adjourn the meeting. He was authorized to do one thing, to-wit, to vote for C. M. Spitzer, H. P. McIntosh, E. W. Oglebay, George S. Russell and C. IT. Daugherty as directors for the term of three years from May 3, 1912. A careful examination of this proxy will show that his authority went to that extent and no further.

In Section 1262 of Machen’s Modern Law of Corporations, it is said that a proxy “may generally do all that the principal might have done if present, and hence may vote not merely on the main question, but also on all subsidiary and incidental motions, such, for instance, as a motion to adjourn; although, of course, a proxy may be framed in such restricted terms as to confine the agent’s right to vote to some one matter, such as the election of directors.”

Clearly the proxy under which Mr. Watson was acting authorized him to vote on one subject only, and directed how that vote should be cast, and if a proxy can be so restricted as stated in the text just quoted, this would seem to be such a proxy.

In the case of Cumberland Coal Co. v. Sherman, 30 Barbour, 553, at page 577 it is said:

“A very large proportion of stockholders represented at that meeting were there by attorney, and the power given only authorized them to vote for the election of directors. It did not authorize them to bind their principals to acts and in reference to matters not authorized or assumed by the power.”

And then the court goes on to say that any ratification of acts of the directors by one holding such a power of attorney did not bind anybody, because his authority was restricted by the terms under which he acted.

In Cook on Corporations, Section 610, it is said:

“The ordinary proxy being intended to be for an election merely, does not enable the proxy to vote to dissolve the corporation or to vote upon other important business, unless the proxy itself, in general or special terms, gives the proxy the power to vote on such questions.”

After the effort on the part of Watson to adjourn, the meeting proceeded to elect, as successors to the five whose terms, by limitation, had expired, the first five named in the petition as usurpers, to-wit, Ramsey, Slaven, Palmer, Holliday and Taussig.

We are of the opinion, and so hold, that the prayer of the petition for the removal of these five men must be denied, and that they must each be confirmed in the office of director of the company.

Beyond the election of these five, the meeting of June 4, 1932, had no authority to elect, except to fill vacancies not resulting from the expiration of the terms o P those elected in 1911.

It is claimed that there were such vacancies because, it is said, a considerable number of those elected in 1911 were ineligible to the position to which they were chosen.

As to those who were elected for three years in 1911, we find no one of them to have been, at the time of such election, a bona fide stockholder of the corporation. That being true, there were five vacancies to be filled in lieu of these, and to succeed these there were elected MeGraw, Rust, Henry, Webb and Carey. These men are entitled to hold the positions to which they were elected because of the vacancies resulting from the ineligibility of those who had been elected for three years.

Of those elected in 1911 for two years, we find that one of them, to-wit, Myron T. Herrick, was a bona fide stockholder at the time of his election, and, so far as appears from the evidence, remained such stockholder and is entitled to hold the position to which he was elected.

None of the others who were elected for three years in 1911, at the time of their election was a bona fide stockholder in the corporation, and hence, as to each of them, there was a vacancy; but as to those elected in 1912 to fill the vacancies claimed to have been occasioned by the ineligibility of those elected in 3911 for two years, since there were five voted for to fill such claimed vacancies, whereas there were but four such vacancies, it is impossible to say that any of those voted for in 1912 to fill these vacancies was elected. Five men were voted for; there were but four vacancies to fill. Neither we nor any one else can select from the five thus voted for, the four who are to fill these vacancies. The result is that those voted for to fill such vacancies, to-wit, Reynolds, Spitzer, Cohen, Avery and Worthington, can not hold by reason of this election.

What has been said as to those who were elected in 1911 not being bona fide stockholders we think is borne out by the testimony of Henry B. Henson. He is the secretary of the Wheeling & Lake Erie Railroad Company. He testifies from personal knowledge and from the records of the company, and shows that the only stock held by McIntosh, Chapin, Sutro, Bronner, Eckers, Nicholson, Harper, Jackson, Cook, Oglebay, Russell and Daugherty was one share each; that these shares were transferred to them from one Wilson on the 12th day of June, 1911. Wilson is the man in whom a majority of the stock stood at the time of the election both in 19.11 and 1912. Wilson held this stock in his name; it was stock which had been pledged by the owner of the Mercantile Trust Company, as security for an indebtedness of such owner of the stock to said pledgee. The said stock so pledged to said.trust company was by it transferred to said Wilson, such transfer being entered on the books of said railroad company. Said Wilson had no interest in said stock except as trustee for said trust company, and it may be doubted whether Wilson had a right to sell any shares of that stock. But the earlier testimony of Mr. Henson in this same deposition shows that transfers of stock were made on the books of the company for the purpose only of enabling the transferees to be eligible as directors, and we think, in the absence of the testimony of these transferees, none of whom testify that they had autually purchased the stock, the only ones testifying showing by their testimony that their holding was only nominal, we are justified in holding that these transfers made by Wilson to the several parties named, were made for the purpose of enabling these men to hold the position of directors in this corporation.

It is significant that these several transfers were made immediately preceding the annual election of directors in 1911, and that each of such transferees was, at that election, chosen as a director.

That it is an essential qualification for one to hold the position of director in a corporation, to be a bona fide stockholder in such corporation, we think is clear, first, from the language of the General Code, Section 8661, which i-eads:

"And a majority of such directors must be citizens of this state. All directors and executive officers shall be holders of stock of the company for which they are chosen, in an amount to be fixed by the by-laws.”

That the language "shall be holders of stock” means "bona fide holders, ’ ’ is held by our Supreme Court in Bartholomew v. Bentley, 1 O. S., 37. In that ease, it is true, the court found that those who claimed to be directors, not only were not bona fide owners of any stock, but that they had entered into a combination for the purpose of defrauding; but they were held not to be eligible because not coming within the terms of the statute, which required each director to be a stockholder at the time of his election.

Again, in the ease of The Deuber Co. v. Daugherty, 62 O. S., 589, it is held that one Coburn, to whom stock had been assigned for the purpose of rendering him eligible as a director, but who had no actual interest in the stock, was therefore ineligible to the position of a director.

We can think of no valid reason for the provision in the statute, that in order that one may be a director of a corporation he must be a stockholder, except that the business of a corporation must be controlled and managed by those who have a bona fide interest in it. There is no greater protection to stockholders, or to those dealing with a corporation, in having a board of directors made up of those who have no bona fide interest in the corporation, than there is in having a board of directors made up entirely of those who are not even nominal stockholders.

The conclusion to which we come, therefore, is:

As already stated, that the petition must be dismissed as against Ramsey, Slaven, Palmer, Holliday and Taussig, for the reason that they were elected to fill vacancies occurring by expiration of term; that it must be dismissed as against McGraw, Rust, Henry, Webb and Carey, they having been elected to fill vacancies caused by the ineligibility of those assuming to act under the election of 1911; that it must be sustained as against Reynolds, Spitzer, Cohen, Worthington and Avery, because, as already pointed out, they were not elected.

And so we hold, that these in whose favor we dismiss the petition, together with Myron T. Herrick, who appears to have been a stockholder at the time of his election in 1911 for the term of three years, are entitled to hold office.


text:
    GRAND NIECE RELATED BY AFFINITY TO THE INSURED.
    Circuit Court of Cuyahoga County.
    E. L. Hessenmueller, Executor, v. Barbara Sirilo et al.
    Decided, December 30, 1912.

      Mutual Benefit Insurance — Beneficiary may lie Related hy Affinity after • Dissolution Of Marriage on Which it Depends.

    The grand-niece of the husband of a member of a fraternal benefit society is a person related by marriage within the meaning of Section 3631-16, Revised Statutes, which provides that anyone so related may be the beneficiary of a fraternal insurance certificate, and such relationship continues after the death of the husband upon whom the relationship depends.

      E. L. Hessenmueller and W. J. Hamilton, for plaintiff in error.

      D. B. Stone and J. C. Bloch, contra.
    Marvin, J.; Winci-i, J., and Meals, J., concur.
    Barbara Sirilo brought a suit against the Amerikai Reformatus Magyar Eygesulet, claiming to recover the sum of $750 from such defendant. The defendant in the original action is a fraternal benefit society, organized under the laws of this state. The plaintiff claimed to recover because, as she averred in her petition, she was lawfully designated as the beneficiary in a certificate for benefits which was' issued to one Mary Onody, who had been a member of the society and had died prior to the bringing of this suit.
   The society, by way of interpleader, set out that Mary Onody was a member of the society in good standing-at the time of her death; that the association was indebted to some person by reason of the membership and death of Mary, to the sum claimed in the petition, but that one John Gedeon, and also E. L. ITessenmueller, as the executor of the will of Mary Onody, deceased, each claimed to be entitled to have the amount paid to them and asked for the direction of the court.

Iiessenmueller, as such executor, filed an answer and cross-petition claiming the fund, and Gedeon also filed an answer and cross-petition claiming the fund, and it is these rival claims which were before the court of common pleas in the trial of the ease.

The result of the trial was that the court ordered the money paid to the plaintiff below, the case having been tried to the court without the intervention of a jury.

The trial judge prepared an opinion in the ease, which we think fully justifies the conclusion reached. We know of no rule of law which would entitle the executor of the will of the deceased to this fund.

The claim of the husband is based upon the proposition that the deceased died leaving no lineal descendant, and that he is therefore the heir at law of the deceased.

The plaintiff below shows that she is the granddaughter of a sister of a former husband of the deceased.

Under Section 3631, Revised Statutes, subdivision 16, which was in force at the time when the rights under this membership became fixed,, a member of the association had a right to designate as the beneficiary any person related by blood or marriage to the member.

The question was raised in this case whether the plaintiff below was such relative of the deceased, and also whether she ever was properly designated as the beneficiary, and further, whether under the by-laws of the organization she might be designated.

Of course, no person would be entitled to the payment of the money, even though properly designated, unless the person designated was a relative of the deceased within the meaning of the statute. The society could not, by any by-laws, enlarge the class of persons, beyond the statute, who might take as beneficiary. It might, however, restrict the classes, a.lwa.vs keeping within the limits of the statute.

The official language of the association is declared in its bylaws to be the Hungarian language, and its laws are printed in that language. - •

On the trial witnesses were examined as to the meaning of certain words used in the by-laws, the contention being on the one side that the only person who could be designated must be an heir at law, as that term is used in the statutes of Ohio, but we think the evidence fairly shows, as pointed out by the trial judge in his opinion, that the language of the by-law did not intend to restrict the class of beneficiaries to those who might, under the laws of Ohio, be heirs at law. The word “heir” is frequently used in common parlance among the English-speaking people, as meaning one to whom the property of a deceased person goes either by descent or by will, and it is shown in the evidence, as we think fairly, that it was in this broad sense that the words are used in the by-law.

And so we reach the conclusion, -as the court below did, that those who might legally be designated by members as beneficiaries under the certificate includes all those who, under the statute of Ohio, might be so designated; and we come to consider, therefore, the question of whether the plaintiff below comes within those enumerated in the statute as competent to be designated as such beneficiary.

If she was related at all to the deceased member, it was by marriage. There was no consanguinity between her and the deceased member, but she was, from the facts stated, a grand-niece of the former husband of such deceased member. She was related to that husband by blood; she was the granddaughter of his sister. Without question had he been a member he might have designated the plaintiff below as beneficiary and it has been so held by many authorities, as shown by the citation made in the opinion of the court below to Bacon’s Benevolent Societies, at page 621.

Authorities which seem to be directly in point are:

Sinko v. Grand Lodge, 84 Ia., 383: The statute provided that no beneficial certificate should be issued unless the beneficiary be the husband, wife, relative, legal representative, heir or legatee of the insured, and it was held in these words:

“A stepfather is a relative by affinity, and the relationship continues after the death of the wife on whom the relationship depends. ’ ’

In the case of Spear v. Robinson, 29 Maine, 531, it is said:

“By marriage one party thereto holds, by affinity, the same relation to the kindred of the other that the latter holds by consanguinity, and no rule is known to us under which the relation by affinity is lost, on a dissolution of the marriage, more than that by blood is lost by the death of those through whom it is derived. The dissolution of a marriage once lawful, by death or divorce, has no effect upon the issue, and it is apprehended it can have no greater operation to annul the relation of an affinity which it produced.”

In the case of Bennett v. Van Riper, 47 N. J. Eq., at page 563, it was held:

“Under a beneficial certificate which read: ‘Each beneficiary member, the person or persons designated by said member related to, or dependent upon him or her, shall be entitled, under the prescribed regulations and conditions,’ etc., the words ‘related to’ include persons connected by affinity as well as by consanguinity. ’ ’

Our statute, it will be noticed, goes further than the language of this certificate last quoted from, because it in express terms provides that a beneficiary may be one related to the member either by blood or marriage, so that the plaintiff below in the present case might be held to be a relative of the deceased member without going so far as the court went in the last ease mentioned. In the case of Bennett v. Van Riper, supra, this language is used in the opinion, and it appeals to us as entitled to great weight; speaking of the word “relative” or “relations”:

“When used in a contract, as in this case, I do not find that it has such a fixed and definite meaning that we must thwart the purpose of this decedent, who supposed that, by the terms of the article giving him control of his benefit in the relief fund, he could bestow it on any one of those popularly called relatives whom he might select. It seems also that a liberal rather than a restricted meaning given to the word ‘relative,’ used in this article of the association, would better comport with its benevolent purpose. The construction contended for against this certificate would exclude a member’s wife, unless she came within the other part of the phrase by being dependent on him for her support. The ties of affinity are often stronger than those between collateral or even lineal kinsmen by blood; and there is nothing unreasonable in saying that this certificate was made payable to one whom the holder supposed was properly classed among his relatives, and that the council so intended. Where there is no fixed legal or technical meaning which the court must follow in the construction of a contract, then ‘the best construction,’ says Chief Justice Gibson, ‘is that which is made by viewing the subject of the contract as the mass of mankind would view it; for it may be safely assumed that such was the aspect in which the parties themselves viewed it. A result thus obtained is exactly what is obtained from the cardinal rule of intention.’ ”

There remains only the question whether the deceased member ever did designate in a lawful way the plaintiff below as such beneficiary.

From the evidence it is clear that she intended to, and in fact that she did all-that she needed to do to make such designation, and the designation would have appeared upon the records of the association but for the failure on the part of the general secretary to make the entry in the record which he should have made, and this, he says, was because he overlooked the matter. He was called upon by the member, who brought with her the plaintiff below, and said to him that she was a relative and that she was the one that was to take under the certificate. He took the name down on a slip of paper, and simply overlooked it.

By releasing the funds to the plaintiff below, the court clearly carried out the desire and intention of the deceased member, whose right it was to say to whom this fund should go. As has been pointed out, she did all that was required of her to make the designation, and the person whom she intended to make beneficiary, and whom she undertook to make the beneficiary, should not be deprived of the benefit which, the member undertook to confer upon her, unless some fixed rule of law makes it necessary to so deprive her. We find no such fixed rule of law. On the contrary, the law seems to be in accordance with what seems clearly to be just and right in this ease. The court below so found, and its judgment is affirmed.


text:
    CONDUCT OF AN ATTORNEY WARRANTING SUSPENSION FROM THE PRACTICE.
    Circuit Court of Cuyahoga County.
    In Re Disbarment Proceedings Against Horace Neff, Attorney at Law.
    Decided, 1912.

      Attorneys — Unprofessional Conduct in Interfering with Administration of Justice.

    Where an attorney approves of and aids in the execution of a plan to discredit a juror and the prosecutor in a criminal case then on trial, by creating a false situation by causing the juryman, by means of a pretended message from the prosecutor, to visit the prosecutor’s home at midnight, such attorney is guilty of unprofessional conduct, in interfering with the proper administration of justice, and such misconduct is not excused by an honest belief that the prosecutor had an unfair advantage in criminal trials which the attorney was seeking to expose.
    Kinkade, J.; Wildman, J., and Richards, J., concur (sitting in place of judges of the eighth circuit).-
    This is a disbarment proceeding commenced in this court against Horace Neff, a member of the Cleveland bar. The alleged misconduct which the committee insists justifies his disbarment occurred in connection with a criminal trial in the common pleas court in Cleveland in December, 1931, before Honorable W. A. Babcock, Common Pleas Judge.
   The prosecution which involved a felony was one against J. A..C. Golner, who is now.serving sentence imposed in that case. Golner was represented in his trial in eonrt by two members of the Cuyahoga Bar who were men of ability and unquestioned integrity, and who were fully qualified to protect the interests of their client in every respect. The trial was commenced on Monday and lasted until the nest succeeding Monday, in the evening cf which last mentioned day a verdict of guilty was returned by the jury.' About the time the trial was begun or very soon thereafter, the- accused, Golner, employed the respondent, Horace Neff, as additional counsel in his behalf. The scope of Neff’s employment is not very clearly shown by the evidence. Neff’s statement in respect to it is that he was employed by Golner for the purpose of aiding in securing as low a sentence as possible, if Golner should be convicted. Neff was to have nothing at all to do with the trial of the case in court. His employment was rather unusual, to say the least. About the time that Neff was employed, Golner determined that it was necessary, in order to properly safeguard his interest, to employ a detective agency to operate in his behalf. He was aware that for some time prior to that the county had employed a detective regularly to work in connection with the prosecutor in criminal trials, and Golner, it seems, decided that his interests needed a like supervision during the trial. It does not appear that Neff had anything to do with the employment of the detective. On the Sunday night, the day preceding the Monday on which the ease was finished, the chief of the detective agency, a Mr. Woodward, sent a messenger by the name of Noonan, who was well acquainted and had been for many years with the respondent Neff, to the Neff residence to say to him that he was wanted at the office of the detective agency forthwith to give advice concerning an important matter. Noonan represented to Neff that he did not know what the matter under consideration was. Neff went with Noonan to the detective agency’s office and on arrival he found there, Woodward, the man on trial, Golner, a brother of Golner and perhaps one or two others. The chief detective Woodward then explained, to Neff that his agency had been retained by Golner some days prior, and that they had been keeping close watch of the parties connected with the trial, and particularly of Ihe movements of the county detectives and the jurors sitting in the case, and .that his men had reported to him a situation that led him to believe that Golner was not having a fair trial but was being railroaded, regardless of the evidence, to a conviction. ITe stated it to be a fact that a number of the regular jurors, sitting in criminal cases in Cleveland, were employed by the prosecutor as spies to take note of how jurors voted in various cases, whether for acquittal or conviction, and to report the facts to the prosecutor in order that with this information in hand, he might excuse on challenge for cause and peremptorily challenge jurors who were known to have voted for acquittal in different cases, to the end that he might secure on each trial -jury as many as possible of the jurors who were strongly inclined to vote for conviction in criminal cases, and it was there stated by Woodward that this practice was very general on the part of the prosecutor’s department, and through this means, aided by an unwarranted interference with witnesses and perhaps some intimidation of jurors by the county detective, one Doran, the prosecuting attorney was given a very unfair advantage against all defendants in criminal trials, and in connection with this general statement, it was stated to Neff that one of the jurors in the Golner case, a Mr. Glass, was one of the regular spies of the prosecutor’s department, and a very unfair man to sit in that ease. In fact, the jury as a whole was said to have been unfairly selected and hence his anticipation of Golner’s conviction which I have stated. Woodward outlined to Neff that after getting this information he had evolved a plan which he thought would aid Golner and this was his plan: He proposed to send Noonan, alone in an automobile, to the residence of Glass that night, to say to Mr. Glass that the prosecuting attorney had sent for him, and would like to have him come to his house, and if he consented to go, Noonan was to take him in the automobile to the prosecutor’s residence, and there leave him. In the meantime, another automobile' was to take several witnesses to a point near the residence of the prosecutor, and there await the coming of the juror with Noonan, in order that they might see the juror making a midnight visit 1o the prosecutor’s house, all of which it was claimed, when made known, would disclose that the juror was under the complete dominion and control of the prosecutor, and consequently not a. proper mail to sit in the trial against Golner. At this point, Neff was informed by Woodward that his advice was desired as to whether the proposed scheme was illegal, and was told that they had sent for him for that purpose. Neff says that he informed Woodward and his associates there assembled including Golner, that he knew of no statute that would be violated in executing the plan contemplated. That he said to them if they believed a juror to be thus biased and subject to the call at any time of the prosecutor, notwithstanding the instructions to the jury given daily by the trial judge, that Woodward and his associates had a legal right to test out whether that was a fact or not, and that they might do so without violating the law, under the plan outlined. Neff says that he inquired how it was to be made beneficial to Golner in a practical way, and that some one of the party suggested something about a new trial, tout that he promptly informed them that taking a juror to the prosecutor’s home and leaving him there as they planned would not be sufficient to bring about a new trial, and that Woodward then remarked that they would have something in addition to this trip of the juror. Neff says he preferred to return home but that the others insisted that he should remain and go with them to procure the witnesses and accompany the party of inspection on its trip to the prosecutor’s.house, and that he reluctantly acquiesced. Noonan was despatched in an automobile for Glass. Golner’s brother, acting as chauffeur, took another automobile with Neff and picked up three or four other witnesses and went to a point near the prosecutor’s house from which they could see the movements of Noonan and Glass at the proper time. It was definitely understood that nothing was to be said to Glass about why the prosecutor wanted him. Noonan was to state and did state to the juror that he did not know what Glass was wanted for by the prosecutor. All agreed that Golner’s trial was not to be mentioned by Noonan or any one else to Glass and this was carried out as planned. As soon as Noonan arrived at the residence of the prosecutor, which was several miles from the home of the juror Glass, Mr. Glass alighted from the automobile and went up on the porch of the prosecutor’s residence and rang the door bell. As soon as the prosecutor came to the door, Noonan left in his automobile and the prosecutor called to him, as he left, to halt, which he did not heed, but returned to the city followed by the other automobile. Mr. Glass learned in a few moments from the prosecutor that he had not been sent for at all, and he took the street car and went home. No report of this occurrence was made by anybody connected with it in behalf of Golner to the trial judge until after Golner’s trial was over, but the trial judge learned of the occurrence shortly after midnight and very soon after the visit of Glass to the prosecutor’s residence. This information came to the trial judge through the county detective, Doran, who probably learned of it through the prosecuting attorney. Mr. Neff insists that he called at Judge Babcock’s court room four times on Monday for the purpose of telling him of the occurrence* but each time found him busy, and went away without reporting it. On Monday evening the jury returned a verdict of guilty and immediately upon the coming in of the verdict, Golner had a whispered conversation with one of his counsel who immediately stepped to the bench and informed the trial judge what had taken place in connection with the visit of juror Glass to the prosecutor’s residence at midnight the night before, and was then informed by the trial judge that he, ihe judge, knew of it soon after it occurred, and that it was on that account that he had not permitted the jury to separate on Monday. By Tuesday morning the whole matter had become public and it was stated in the newspapers. It is said, however, that M!r. Neff’s name was not published as one connected with the transaction. On that day, Mr. Neff called upon the trial judge and expressed a desire to state all the facts in connection with the transaction, but was told by Judge Babcock that he understood'contempt proceedings were to be instituted against several of the parties involved, and that on that account he preferred not to hear his statement until the contempt cases should be called for hearing. Proceedings in contempt were begun against four of the parties involved (not including Neff) and those cases were heard before Judge Babcock and resulted in a conviction in each case and sentence. Mr. Neff voluntarily testified at the contempt trials. Error proceedings were prosecuted from this judgment in the contempt proceeding and judgment was affirmed by the circuit court.

No proceeding in contempt was instituted against the respondent but the Bar Association of Cleveland made an investigation of the facts and a recommendation to the circuit court that a committee be appointed to investigate and file charges, if the investigation so justified. The committee herein named was appointed pursuant to this motion in the circuit court and presented herein formal charges covering the facts I have detailed. The committee insists that the plan as carried out was intended to interfere with the administration of justice, and that it was undoubtedly the purpose of all concerned to rely upon it, at least in a substantial part, in making a showing for new trial for Coiner, and while it is not claimed that Neff was instrumental in the employing of the detective agency by Golner, or that he originated the plan of procedure carried into effect on Sunday night, that still the scheme was his by adoption and that he must be held fully responsible for it, and that his action was such misconduct in office as justifies his disbarment.

On the other hand, counsel for respondent contend that the action of Neff was entirely laudable and that he was merely seeking to expose, in order that he might correct, a long continued line of unfair conduct on the part of the prosecuting attorney’s department.

Upon this hearing the committee offered in evidence a transcript of the evidence taken in the contempt ease, in so far as it should be found by us to be competent, and also called and examined orally • the trial judge, Honorable W. A. Babcock. The respondent testified in his own behalf.

We have been furnished with a transcript of the oral evidence of the trial judge and Mr. Neff and have read this in connection with the transcript of the contempt case.

We think it is well established by the evidence presented that Mr. Neff thoroughly believed, when counselled with concerning this detective’s plan on Sunday night, that there then existed and had for a long’ time existed in Cleveland such conditions as gave to the prosecuting attorney an unfair advantage in the trial of criminal cases. We express no opinion as to whether any such unfair advantage did exist, because we have not heard the evidence concerning this question on the side of the prosecuting attorney, but we think it entirely clear from the testimony of Mr. Neil, the testimony of Judge Babcock and the other evidence presented to us, that Mr. Neff believed at that- time that such unfair conditions did exist.

It is possible that Mr. Coiner, his brother and the detectives, may have thought that this midnight visit of the juror would be entirely sufficient, standing alone, to secure him a new trial if convicted, notwithstanding what Neff says he said to them on that subject, but it is difficult to see how any lawyer could reach any such conclusion, for to do so he must necessarily assume that both the prosecutor, who was a man of experience, and the trial judge, who had been many years on the bench, could be easily imposed upon by evidence which would readily be explained so that it would have no value in securing the end designed by it. It is possible that the detective may have thought that affidavits from these witnesses that were taken to the scene would pass for their full face value, with the prosecutor and judge, without further investigation, but it must be borne in mind that these witnesses were all residents of Cleveland, easily accessible, and of course they would be called upon within a few hours, after the filing of their affidavits, by the county detective under the direction of the prosecutor and the whole matter would receive a thorough investigation. It was explained at the detective’s office that what he desired in the way of witnesses was to have three or four men of high standing, in no wise connected with G-olner and not connected at all with his office, in order that when their testimony was taken, it should have great weight, and it was agreed that they were not to be told anything of the plan more than to say to them that it was desired that they should take a Certain position from which they might see a juror visit the prosecutor’s house at midnight; the theory being undoubtedly that that single fact would be all that would be included in their affidavit, it is should be filed in aid of a new trial, and that this' fact would exactly tally with the truth. The detective emphasized the fact that he desired honorable men of high standing for witnesses, and while Neff and Golner’s brother accompanied them, the plan did not contemplate taking their evidence in establishing the fact of the juror’s visit. Those witnesses were selected by Golner, his brother and Neff. It is entirely clear that as soon as any one attempted to make use of the affidavits of these three or four honorable witnesses, the trial judge would insist upon knowing all the facts, and these witnesses, being honorable men, would of course not hesitate to state the facts as to who selected them, from what point they started, who accompanied them, how they went and how they returned, and all about it; and this would increase the list of honorable witnesses by two because it would immediately add Mr. Neff and Mr. Golner’s brother, and then it would develop, of course, that the visit of the juror was planned.'by the very men who were seeking to take advantage of it, as a piece of wrong-doing, to secure a new trial for Golner, and at about this point it might be expected that the motion for a new trial would be promptly overruled, and contempt proceedings ordered, very much as happened in this case. The whole scheme was silly in the extreme. It was wholly unnecessary to send for Mr. Neff or any other lawyer to secure advice concerning it. Had its authors called in some passing laborer, whose mind had not been perverted by long continued study of the best methods of accomplishing recognized impossibilities, no doubt he would have readily applied his common sense to the situation and branded the scheme as nonsense. It was Mr. Neff’s duty to have condemned the whole plan forthwith. This was not a case where a juror had been nibbling for a bribe. So far as the evidence discloses nothing irregular had occurred in the Golner trial. It is true that a vigorous effort was made by Golner’s counsel to prevent Glass from sitting as a juror, but after the fullest examination he was accepted as qualified <by the trial judge, and the evidence does not disclose any misconduct on the part of any juror during the trial of this case prior to this Sunday night. Even though the respondent "Neff honestly believed the information which he says he did at that time as to unfair advantage being taken by the prosecutor’s department, and even though, it be conceded’that his sole purpose was to expose this, we can not at all sanction the methods by which he undertook to aid in correcting this alleged wrong. In fact, we think his own evidence discloses that before the left the detective’s office, he had reached the conclusion himself that the proceeding was an improper one. His reluctance to go with the party which he tells of, and his haste to get away from the scene near the prosecutor’s house, as he relates it, shows clearly that he was convinced of the impropriety of the entire matter.

We note a discrepancy in the testimony of Mr. Neff before us as compared with his statements made in the contempt case. In the contempt ease the transcript of his evidence shows that he went to the same point that all the other witnesses went and went in an automobile with them to that place near the prosecutor’s house, and that he remained there in that automobile until Noonan left his position and started down town, passing this automobile, when Neff alighted from his conveyance and got into Noonan’s machine. In his evidence before us, MV. Neff testified that he went only part way to the prosecutor’s house and then alighted with a view of taking a car near there for his home, which he would have done but for the fact that while waiting for the car, Noonan came along in his automobile and picked him up. According to Mr. Neff’s own evidence, he approved and aided in the execution of a plan which tended to discredit a juror and a public prosecutor, by creating a false situation that would never otherwise have existed. We are not satisfied that he made all the effort he should have made to communicate all the facts to Judge Babcock on Monday, knowing the hours of court and being as thoroughly acquainted with the judge as he was. MV. Neff is thirty-three years of age and had been in more or less active practice of the law in Cleveland for several years prior to the Golner trial. The committee insists that he was abundantly qualified to appreciate in every respect the whole plan laid before him by the detective and to see at a glance its effect upon the administration of justice, and that no account can be taken of his inexperience which can in any way relieve him from the full measure of responsibility for what was done. If we consider Mr. Neff as possessing the ability which the committee says he does, we must at once acquit him of the charge that he intended to use this midnight visit of the juror to the prosecutor ’s residence to secure a new trial for his client Golner. Exposure was inevitable, for the reasons I have stated, and when that came he would have accomplished the very opposite of what he was employed to accomplish for his client, by putting his client before the trial judge in the very worst possible light. The trick would not only have convinced the trial judge that the jury was unquestionably correct in finding Golner gnilty but it would have presented Golner as willing and ready to carry out a scheme, the purpose of which was to impose upon the trial judge. No one pretends that Neff knew anything of the scheme until he arrived at the detective’s office where he insists he was called upon suddenly for a decision as to its legality in order that the parties might go ahead with its execution. It is a significant fact in favor of Mr. Neff that no proceeding in contempt on account of this matter was ever begun against him.

Our conclusion, after the fullest consideration of all the facts in the case, is that the situation does not justify a judgment of disbarment, but we are unanimously of the opinion that the evidence does justify a suspension of the respondent, Horace Neff, from practice for a period of six months, and such will be the judgment of the court.

       See 19 C.C. (N.S.), 317.


text:
    JUDGMENT AGAINST A MINOR. NOT REPRESENTED BY A GUAR.DIAN AD LITEM.
    Circuit Court of Cuyahoga County
    John Screen, by Mary Screen, His Next Friend, v. Georgf Linn, as Mayor of the Village of Linndale, and Ida K. Taggart.
    Decided, 1912.

      Infants — Mayor Gan Not Render Judgment Against Infant Defendant Without Guardian Ad Litem.

    A mayor, who has obtained jurisdiction of an infant defendant more than fourteen years of age by means of personal service, has no authority to render judgment against the infant without first appointing a guardian ad litem to defend the suit.

      1. Grossman, for plaintiff in error.

      H. C. Gahn and George Linn, contra.
    Marvin, J.; Winch, J., and Niman, J., concur.
    Ida K. Taggart brought suit against John Screen before the defendant, George Linn, as mayor of the village of Linndale. Summons was issued and served upon said John Screen within said village, and upon a proper affidavit garnishee process was issued and served upon the proper representative of the Cleveland, Cincinnati, Chicago & St. Louis Railway Company, vdthin the village of Linndale, said railway company being then indebted to said John Screen.
   Said Screen did not appear before said mayor in answer to said summons, and the mayor, as upon default, entered judgment in said action in favor of said Ida K. Taggart, for something like $25 damages and for costs.

The railway company, pursuant to an order made by said mayor in said garnishee proceedings, paid over to said mayor about $32 of money owing by it to said John Screen, which said mayor holds in payment of said damages and costs.

The plaintiff in this action seeks to have said judgment set aside and the money so paid into the hands of said mayor released and paid over to him.

Several grounds are stated in the petition upon which the plaintiff bases his right to the relief sought; among these is the fact that he was a minor at the time the action was commenced and at the time the judgment was taken and that the proceedings against him were irregular, in that judgment was taken as upon default, though he had no guardian and no guardian ad litem was appointed for him.

We find as a fact that the plaintiff in this action, at the time said judgment was found against him, was a minor above the age of fourteen years and that no guardian ad litem was appointed for him. As already said, service of sumons was made personally upon said John Screen. This was proper and sufficient service upon him, coming directly within the provisions of General Code, 10245, where it is aid:

“If the minor is more than fourteen years of age, service on him alone is sufficient.”

On the part of the defendant in error it is urged that the service here, having been served upon the defendant in all respects as required by the statute, the court thereby acquired jurisdiction of the defetadant, and that having such jurisdiction, the judgment against him was and is valid, and in support of this contention he calls attention to the case of Walter v. Dr. Appl, 8 Ohio Dec., 705. This is a decision of a justice of the peace in Hamilton county, and so is, of course, no authority whatever for us. However, an examination of the case shows that the point necessary to be determined here was not passed upon by the justice.

In that case it was held, as we hold here, that the service of summons upon the defendant, a minor above the age of fourteen years, gave the court jurisdiction over him, so that the judgment in the ease was not void, and therefore could not be collaterally attacked. The case before us is a direct attack on the judgment sought to be set aside, and a ground of such direct attack is that even though the court had jurisdiction it had no authority to render judgment against the defendant without first appointing a guardian ad litem for him.

General Code, 11252, reads:

“In an action against an infant, his defense must be by a guardian for the suit, who may be appointed by the court in which it is being prosecuted, or by a judge thereof or by a probate judge.”

Under this section it is clear that though the mayor acquired jurisdiction over the defendant in the action by service of summons, there was no person who could have made a defense for him. Roberts v. Roberts, 61 O. S., 96:

“Appointment of a guardian ad litem can not be dispensed with. ’ ’

In Long v. Milford, 17 O. S., 485, it is said, at page 503:

“The appointment of a guardian ad litem is not a mere matter of form. A suit against an infant can not be prosecuted without such guardian.”

The proper thing for the mayor to haye done is pointed out in General Code, 10234. That section provides that where an infant is the defendant in a case before a justice of the peace, a guardian to the suit must be appointed before the trial. That the provisions of this section are applicable to proceedings before a mayor, is shown by the reading of General Code 10491:

“So far as applicable, the provisions of this title shall govern the proceedings of mayors in the exercise of the jurisdiction concurrent with justices of the peace given to them. ” .

Both Sections 10234 and 10491 are under the same title, to-wit, “Title 2, Procedure in Justice’s Court.”

Without determining whether it is necessary in making a direct attack upon a judgment, as is done in this ease, the party making the attack must show that he had a valid defense, it is sufficient to say that the defendant in the case before the mayor, the plaintiff in this case having’ been an infant, and no allegation being made in the answer of either defendant that the judgment was obtained for necessaries furnished the defendant, it sufficiently appears that he had a valid defense.

The result is that the judgment of the mayor and all orders made by him in the ease are vacated, and he is ordered to pay to the plaintiff all the money received by him from the railway company under the garnishee order, together with interest from the time it was so received.


text:
    LEASE OF A CIGAR PRIVILEGE IN THE NATURE OF A GRANT.
    Circuit Court of Cuyahoga County.
    The Pyle & Allen Company v. The Hippodrome Building Co. et al.
    Decided, December 23, 1912.

      Lease — Grant of Exclusive Right to Sell Cigars in Building of Lessor Enforceable — Recording of Lease Notice of Rights of Lessor.

    1. A provision in a lease of a store room that the lessee shall have the exclusive right to sell cigars and tobacco in the building of the lessor, is not in the nature of a restriction but rather in the nature of a grant, is not against public policy, and is enforceable as against the lessor and his assignees who take with notice of the grant.
    2. The recording of a lease containing a grant of the exclusive right to sell cigars and tobacco in the lessor’s building, is notice to the lessees of other rooms in the building of the exclusive character of the rights granted in that lease.

      C. N. Fiscus and M. W. Beacom, for plaintiff in error.

      Kline, Tolles & Morley and Hidy, Klein & Harris, contra.
    Winch, J.; Marvin, J., and Meals, J., concur.
    Plaintiff by this action seeks to restrain the defendants, Stone and Stern, from selling cigars and tobacco in their cafe in the basement of the Hippodrome Building, on Euclid avenue, in the city of Cleveland.
   Both parties are tenants of said building, which, in plaintiff’s lease, is described as “the Hippodrome Building situated on Euclid avenue in the city of Cleveland, Cuyahoga county, Ohio. ’ ’

Plaintiff occupies a store room “on the ground floor of said building, just east of the main entrance thereof, on Euclid avenue, ’ ’ which is leased to them for ten years from May 1, 1910, to be used by them “for a cigar and tobacco store, and for no other purpose. ’ ’ In the lease appears the following:

“It is further agreed that said lessee shall have the exclusive right to sell cigars and tobacco in that part of said Hippodrome Building fronting on Euclid avenue.”

This lease was left for record with the recorder of Cuyahoga county on March 20, 1911, and thereafter was duly recorded by him.

The lease to Stone and Stern was executed November 26, 1911, and covers the basement of the Hippodrome Building on the Euclid avenue front, the basement entrance being in the middle of the main entrance of that building. Defendants run a cafe and restaurant in the basement and claim the right to furnish their patrons cigars. It appears that about eighty per cent, of those who eat in their restaurant buy cigars.

Defendants urge several reasons why they should not be enjoined from selling cigars in their cafe.

First, they say, the basement is not “in that part of the Hippodrome Building fronting on Euclid avenue”; they claim that, as the basement extends under the sidewalk and out to the curb on Euclid avenue, it does not “front”.on the avenue. This objection is frivolous; the basement is certainly in that part of the building which fronts on Euclid avenue.

Second, it is claimed that the rights granted by the plantiff’s lease are not in the nature of an easement running with the land, but merely in the nature of a restriction, and on this point they cite the case of The Apollo Cigar Co. v. O’Brien, 11 C.C.(N.S.), 63, where the covenant vjas in the nature of a restriction.

In that case the lessor bound himself not to rent any part of his premises (not leased to the cigar company) for a cigar and tobacco business, except certain stands of specified dimensions in that part of the building used as a hotel. The court held there was doubt as to the meaning of tbe covenant of restriction contained in this lease, and resolved the doubt adversely to the cigar company.

In the lease before us there is no doubt as to the meaning of the language used and it is not in the nature of a restriction, but rather in the nature of a grant; it reads: “lessee shall have the exclusive right to sell cigars and tobacco in that part of the Hippodrome Building fronting on Euclid avenue.” It is not necessary to cite authorities to the effect that such covenants as this are enforceable, not only against the lessor but also against his assignees who take with notice of the grant.

While the defendants, Stone'and Stern, had no actual notice of the terms of plaintiff’s lease until sometime after they had concluded their lease with the lessor, still the recorded lease of plaintiff was sufficient notice to them.

That lease was an instrument entitled to record and fully describes the cigar privileges as being exclusive in that part of the building fronting on Euclid avenue. Defendants were taking a lease of part of that part of the building fronting on Euclid avenue, from the same lessor, and plaintiff’s lease was in the defendant’s chain of title and bound to be examined by them.

AVe find nothing invalid or contrary to public policy in the covenant under consideration; such exclusive rights are valuable and are frequently granted. Nearly every large office building in the city, and most of the hotels, have arrangements of this kind, where the cigar privileges are granted exclusively to the proprietor of one cigar store located in the building or hotel.

Doubtless the rent for plaintiff’s small store in this theatre building was fixed with reference to the attractions which would draw the smoking public to that building, and a restaurant in. the basement might reasonably have been anticipated by plaintiff as one of such attractions, as a large, popular theatre is located in the building.

Nor can the damage to plaintiff from a breach of its rights by.defendants be easily estimated; doubtless, as defendants consider the. right to vend cigars in their cafe very valuable, it is of considerable moment to plaintiff, but there is no accurate measure for this invasion of plaintiff’s rights and so it should have protection in equity, by injunction, restraining defendants from this daily and continuous invasion of rights.

It is said, however, that plaintiff has been guilty of laches in permitting defendant to go to the expense of $20,000 in fitting up their restaurant, before notice was given of plaintiff’s claims.

This suggestion overlooks the fact that the record of plaintiff’s lease, itself, was notice to defendants, and it loses sight of the further fact that defendants closed up their lease with lessor and obligated themselves to pay rent for the basement, sometime before plaintiff was aware that the defendants were going to move into the building.

We find no reason at law or in equity why plaintiff should be denied the relief it prays.

Judgment for plaintiff.


text:
    AVERMENTS WITH REFERENCE TO EXPOSED COG-WHEELS.
    Circuit Court of Cuyahoga County.
    D. A. DeFranco v. C. Bifaro.
    Decided, December 16, 1912.

      Pleading — What Sufficient Averment of Failure to Enclose Machinery.

    In an action for personal injuries caused by a servant coming in contact with exposed cog-wheels, an averment that the defendant permitted said cog-wheels to be exposed without any enclosure and without any protection of any kind, sufficiently alleges defendant’s failure to enclose with substantial railings, etc., as required by statute.

      C. V. Hull, for plaintiff in error.

      Howland & Moffett, contra.
    Marvin, J.; Winch, J., and Meals, J., concur.
    The. defendant in error, hereinafter spoken of as the plaintiff, brought suit against the plaintiff in error, hereinafter spoken of as the defendant..
   The plaintiff was an employee of the defendant on the first day of June, 1910, and on said day and in the course of said employment, he was at work at a machine in the manufactory of the defendant, in mixing and stirring the material used for making macaroni. This machine consisted in part of certain cogwheels, meshing into one another and connected with the devices for giving power to said machinery and causing the same to move in the performance of the work to be done.

The plaintiff alleges in his petition that while so in the performance of his duties the machine, which had been stopped, suddenly started, catching his fingers between the cogs on said wheels, crushing four of his fingers, necessitating their amputation. He says that the injury so sustained by him was due wholly to the negligence of the defendant and entirely without fault on his part.

In his answer the defendant denies alUnegligenee on his part and avers that whatever injury was received on the occasion was caused wholly by the negligence of the plaintiff himself.

The result of the trial in the common pleas court was a verdict and judgment for the plaintiff.

The defendant complains that there was error'to his prejudice in the trial and prays that the judgment be reversed. He says, first, that the petition does not state a cause of action against him under the statute, Section 1027, General Code, and that if the plaintiff relied on his right to recover without reference to this statute, the facts show clearly that his negligence was such that .he was not entitled to recover.

Without discussing the. question as to whether, under the answer, the defendant could rely for a defense upon the contributory negligence of the plaintiff, we proceed to a discussion of the other question, “does the petition state facts sufficient to bring the ease within the provisions of the statutes. ’ ’

It is provided by Section 6245-1 that no “employee who may be injured or killed shall be held in any degree to have been guilty of contributory negligence in any case where the violation of any statute or law of the state, or United States, enacted for the safety of employees, in any way contributed to the injury or death of such employee, unless, by the terms of his employment, it was expressly made the duty of such employee to report such violation to the employer,” etc. There is no claim here that there were any such terms in the contract of employment, so that the next inquiry is whether the petition charges that the defendant violated any law of the state, which violation contributed in any way to the plaintiff’s injury.

Section 1027, General Code, says:

“The owners and operators of shops and factories shall make suitable provisions to prevent injury to persons who use or come in contact with machinery therein or any part thereof.
“2. They shall enclose with substantial railings or casing all exposed cog-wheels,” etc.

The language of the petition is “that on the side where plaintiff stood in so operating said machine were certain cog-wheels, the outer part thereof fitting into each other and revolving together and being a part of said machine which plaintiff was so operating; that said cog-wheels were not enclosed or incased in any manner.”

And again, “that said defendant permitted said cog-wheels to be exposed without any enclosure and without any protection of any kind. ’ ’

It is urged here tha.t, whereas by Section 1028, General Code, a penalty is provided for the violation of Section 1027, said last-named section must be strictly construed and that when strictly construed the allegations of the petition fail to show that the same was violated by the defendant.

The language of defendant’s brief on this question is this: “The phrase ‘without any enclosure’ ” is not synonymous with “enclose with substantial railings.” This, of course, is true, the one is negative, the other positive; but what counsel meant was that “without any enclosure” is not synonymous with “not enclosed with substantial railings,” and this statement is true; the two phrases are not synonymous, but the former includes the latter. To say “John has one eye” is not synonymous with saying that “John has two eyes,” but if the last statement is true, tbe first is necessarily true. Tf one is by law bound to maintain a stone bridge at a given point, an averment that he maintains no bridge whatever at that point is an absolute denial that he maintains a stone bridge at that point.

The ease referred to in defendant’s brief in support of his contention that there is no allegation in the petition showing a violation of the statute, viz., Boiler Works v. Shuck, 13 C.C.(N. S.), 118, comes very far short of sustaining the position claimed for it. The syllabus reads:

“A petition for damages on account of injuries alleged to be due to exposed cog-wheels, does not state facts sufficient to constitute a cause of action, where the petition merely avers that the wheels complained of ‘were not covered,’ and does not allege that no railing had been placed around them. ’ ’

In the opinion, at page 121, the court uses these words, speaking of the petition:

“It does not allege at all that there was no railing.”

The entire opinion shows that if there had been an allegation that the cog-wheels were not enclosed by any railing, the petition would have been good.

The complaint made as to the admission of evidence, as shown on page 13 of the bill of exceptions, is not sound, for the reasons already given on the question of the sufficiency of the petition. The question asked was:

“Was there any enclosure or railing or casing about the cogwheels when you got your fingers hurt?”

The answer was: “No.”

When the objection was made at the outset of the trial to the introduction of any evidence, the court was clearly right in overruling such objection, because the petition was sufficient, even if the allegations did not bring it within the statutes. When, however, a motion was made at the close of all the evidence, to direct a verdict for the defendant, the question was raised whether it Avas clear that under the evidence no case had been made outside of the statute; but if the question was so raised, the court reached the proper conclusion.

We find no error in the record to the prejudice of the defendant and the judgment is affirmed,


text:
    AS TO USE OF AFFIDAVIT IN SUPPORT OF AGENCY.
    Circuit Court of Cuyahoga County.
    Adam Herig et al v. H. B. Harvey et al.
    Decided, July, 1912.

      Trials — Affidavit Introduced to Establish Plaintiff’s Agency Not Evidence of Facts Stated Therein.

    In an action to recover a real estate commission alleged to have been earned in securing a lessor for certain property, an affidavit of the lessee, executed at the time of making the lease and in which it was stated that the lease was the result of direct negotiations with the owner and not as a result of an interview had with plaintiffs, when introduced hy the plaintiff as evidence of an agency, can not he used hy defendant as evidence of the facts contained in the affidavit.

      J. J. McCormick, for plaintiffs in error.

      Hitchcock, Morgan, Wackier Cross, contra.
    Niman, J.; Marvin, J., and Shields, J. (sitting in place of Winch, J.), concur.
    The defendants in error were plaintiffs and the plaintiffs in error defendants, in the court of common pleas.
   The action was for the recovery of a commission for negotiating a 99-year lease on property belonging to the defendants. The jury returned a verdict in favor of the plaintiffs against all the defendants, on which judgment was duly entered after the overruling of the defendants’ motion for a new trial.

A reversal of this judgment is sought in this proceeding upon several grounds.

The first claim of error that challenges our attention is that the verdict is not sustained by sufficient evidence.'

The defendants were the joint owners of the real estate covered by the 99-year lease Avhich the plaintiffs claimed to have negotiated and for the negotiation of which they recovered their judgment. The plaintiffs, who are in the real estate business, claimed that the property was listed with them for leasing purposes by the defendant, Albert Herig; that said defendant was the agent of the other defendants; that through their efforts'a 99-year lease of the premises was made to one IT. D. Squire; that while their efforts were the moving cause in inducing Squire to take the lease, the defendants executed the lease to him without informing them of the matter, and that they did not discover the fact until sometime after the lease was made.

The defendants denied all of these claims and asserted that Squire was their own customer. The only one of the defendants who seems to have had the matter of leasing the premises up with the plaintiffs at all, was Albert ITerig; and the other defendants dispute any agency given Albert Herig to list the property with the plaintiffs and deny all knowledge that it ever was so listed.

Within the limits of this opinion it would be impossible to enter into any extended review of the evidence. It is sufficient to say that there was evidence tending to sustain all the claims of the plaintiffs, and therefore a submission of the case to the jury was necessary. The jury, with the opportunity to observe the witnesses and with all the circumstances of the transaction laid before them, found in favor of the plaintiffs on the matters in dispute, and we are not able to say that the verdict was against the weight of the evidence.

The agency of Albert Herig was a question that rested largely upon inference, but there were sufficient facts in evidence to support the inference arrived at. If the right to recover against the defendants Adam Herig and Eva Herig, were denied because of insufficient evidence to support the finding of agency on the part of Albert Herig to represent them, it would not relieve Albert Herig from liability, because the entire property was listed, not merely his interest therein.

Another claim of error is based upon the limitation placed by the court upon the use in the case by the defendants and their counsel of a certain affidavit introduced in evidence by the plaintiffs. ■

At the time the lease was signed the affidavit in question was given by H. D. Squire. It states that about one year prior to an interview the affiant had had with Harvey & McClure on the subject of the Iierig lease, he had made offers to bring the agreement for a lease about with Mr. Al. Iierig, and not until said effort on his part did he have any talk with Harvey & McClure concerning the same; that all efforts on the part of said Harvey & McClure to secure such lease for affiant failed and were entirely abandoned; that the present lease about to be signed is the result of resumption of negotiations between Mr. Al. Herig and the lessors, and without any influence or inducement from any other person or agent than the real parties to the lease in question.

On the cross-examination of Albert Herig the existence of this affidavit was discovered by counsel for the plaintiffs, and was offered by him in evidence. Counsel for the defendants attempted to use this affidavit in his argument to the jury as evidence of the facts therein set forth, but was prevented by the court from so doing, and in the charge the court said:

‘ ‘ The affidavit was introduced in evidence, gentlemen, as bearing upon the question as to whether there was any deal between Squire and Htarvey & McClure. The contents of the affidavit are not competent in this lawsuit to prove the fact. That is not the proper way to get evidence into a lawsuit, and therefore the court eliminated that in the argument. ’ ’

AVe share the view of the trial court on this subject. The affidavit was competent evidence, bearing upon the question of the liability of the defendants to Harvey & McClure for a commission on account of the making of the lease. Any act or statement of the defendants tending to show a recognition of a claim for commissions could be shown in evidence against them. The facts recited in the affidavit were by no means admitted by the act of the plaintiffs in placing it in evidence. No claim of accident or surprise can be based on the refusal of the trial court to permit the affidavit to be used for an incompetent purpose, even though it appear that except for the mistaken belief that it could be used for the desired purpose, the defendants would have.produced other and competent evidence in support of the facts avgrred in the affidavit.

Another alleged error is predicated on the action of the trial court in not permitting one of the jurors, on the hearing of the motion for a new trial, to answer the question whether or not he entertained a belief that Adam Herig, one of the defendants, was grasping and stingy.

It was set forth in an affidavit filed in support of the motion for a new trial, that the following question was put to each and every juror:

“Is there any cause or reason which would in any way influence or prejudice you against any of the defendants in this case? Is there any cause or reason why you can not sit as a juror in this case, and impartially render a verdict in strict accordance with the law and evidence as it may be given to you in open court ? ”

The affidavit further charges that a certain juror answered this question in the negative, but that he in fact harbored a belief that the defendant, Adam Herig, was a mean, grasping and stingy individual, and that this belief wrongfully prejudiced the juror against the defendant.

In support of the charge contained in the affidavit, the juror mentioned was called and examined by counsel for the defendants, and in the course of the examination the ruling claimed to constitute error was made.

If it should be admitted that the question was a proper one to put to the juror, which may well be doubted, it is not apparent that any prejudice resulted by the refusal of the court to permit it to be answered. The other questions put to the juror and which were fully answered, covered substantially the subject of the juror’s attitude toward Adam Herig, which does not appear to have been uncomplimentary. The juror’s examination was very exhaustive and disclosed nothing which would disqualify him from sitting as a juror in the case.

When the case was submitted to the jury, on request of the defendants, the jury were directed, in the event of a general verdict for the plaintiffs, to make answer to certain questions submitted to them. It is claimed for the plaintiffs in error that the answers returned by the jury are inconsistent with the general verdict, and must control. •

If the special verdict is inconsistent with, or repugnant -to, the general verdict, the latter must be set aside.

A careful examination of the questions submitted to the jury and the answers returned, discloses no inconsistency between the general verdict and the special findings. On the contrary, the special findings support and fortify the general verdict.

No error prejudicial to the plaintiffs in error is found in the record, and the judgment of the court of common pleas is affirmed.