text:
    LIABILITY OF LANDLORD FOR ACCIDENT IN AN OUTBUILDING.
    [Circuit Court of Richland County.]
    Amanda Edwards v. Peter Rissler and William Stoodt.

    Decided, January Term, 1902.

      Landlord and Tenant — Dangerous Premises — Defects Inherent in Original Construction — Nuisance—Owner Liable, When — Liable Under an Agreement to Keep Premises in Repair, When — Buildings Appurtenant to Main Building Demised — Liability of Owner for, When — And to One Rightfully on the Premises, When.

    1. A landlord, who leases premises with an existing nuisance thereon at the time of leasing, resulting from defects inherent in its original construction, and this occasions injury to a third person, is responsible therefor.
    2. Where the defect in the leased premises, rendering them dangerous, occurs after the demise, and the lessor, by virtue of the lease, covenants to keep such premises in repair, and retains or reserves the right to enter for that purpose, he is liable for injuries to third persons, occasioned by the property becoming out of repair and dangerous.
    3. A landlord is charged with the duty of keeping in repair and free from danger an outbuilding, appurtenant to the demised premises, constructed and maintained by him for the accommodation and use in common of his tenants, where he has control of such outbuilding, subject only to the tenants’ right to use the same as an outbuilding.
    4. The owners of a business block, used for public offices, store-rooms, and the like, with an outbuilding and privy vault appurtenant thereto, for the accommodation and use in common of their tenants and other persons rightfully about said building, who retain general control over said outbuilding and vault, and agree with their tenants that they, the owners, shall keep the same in repair, and they retain or reserve the right to enter for that purpose, are liable for substantial injuries occasioned by said outbuilding becoming out of repair and dangerous to one in attendance as a witness at a trial being conducted in one of the rooms of said building, leased by said owners to a justice of the peace, for the purpose of conducting the business pertaining to his office.

      Error to the Common Pleas Court of Richland County.
    On the 21st day of June, 1900, the plaintiff in error, Amanda Edwards, plaintiff below, filed her second amended petition in the Court of Common Pleas of Richland County, Ohio, against Peter Rissler and William Stoodt as defendants, and for a cause of action alleged in substance that the defendants, Rissler and Stoodt, at the time of the happening of the grievances complained of, were the owners of a certain brick building, situated at the corner of Main street and Plumb alley, in the city of Mansfield, said county; that the building on said premises was used for the purpose of public offices, storerooms and the like, and no part of it was used for private homes or living rooms; that it was understood and agreed between the owners and their tenants that the owners should have general control of said building, with the right to enter the same at any time for the purpose of making repairs; that it was, by agreement; the duty of the defendants to build, maintain and keep in repair all outbuildings that were appurtenant to the main building that was so owned by defendants and leased to their tenants. At the rear of said building and appurtenant thereto 'there was, at the time of the happening of the grievances complained of, a large privy vault built by defendants on said premises, and built for the accommodation and use in common of their tenants and other persons who were or might be in or legitimately about said building, and said privy was one of the outbuildings on said lot under the absolute control and care of defendants. Said privy vault, as to size, mode of construction, etc., is fully and minutely described in the petition, with the further averment that its original plan and construction were faulty, unsafe and dangerous, describing wherein its faulty construction and dangerous character consisted. That this dangerous and unsafe condition of said outbuilding and vault was, at the time of the happening of the injuries to the plaintiff complained of, and for a long time prior thereto, well known to the defendants; that, on account of its unsafe condition and the defendants’' knowledge of the same, they had, or could have had, reasonable grounds to apprehend that persons using said outbuilding would be in great danger of injury therefrom.

      The petition further states that one Marcus McDermott was, on the 18th day of July, 1899, the date the injury complained of occurred, a duly elected, qualified and acting justice of the peace in and for Madison township, Richland county, Ohio; that on or about May 1, 1899, said Marcus McDermott became a tenant of said defendants in said building,' and has so continued to the present time, he having leased a room therein for the purpose of conducting the business pertaining to his office as such justice of the peace, said lease being upon the terms and conditions as to repairs hereinbefore averred as common to all the tenants in said building. That defendants well knew the purpose for which said McDermott rented said room, and knew that many persons, as litigants and witnesses, would of necessity frequent said room, and, in the nature of things, have to use said outbuilding. That although defendants well knew of the unsafe condition of said outbuilding at the time of renting said room to said McDermott, they willfully, wrongfully and negligently failed to apprise him of its true condition, and led him to believe it was safe for him; and the patrons and others, frequenters of his office, to use said outbuilding.
    Plaintiff further avers, that on the occasion when she received her injuries therein complained of, she was subpoenaed as a witness to attend a trial at the office of said justice; that her attendance was a forced attendance, not voluntary on .her part, and that while so attending said trial, having occasion to use said outbuilding, and without any knowledge upon her part as to its unsafe condition, she received the injury complained of in her petition, to her damage in the sum of $4,000, for which she prayed judgment.
    The defendants demurred to plaintiff’s said petition on the ground that it does not state facts sufficient to constitute a cause of action. The court of common pleas sustained the demurrer. Judgment was rendered against plaintiff for the costs in the case; to which ruling of the court the plaintiff at the time excepted. Petition in error was filed in this court to reverse said judgment.

      Voorhees, J.; Douglass, J., and Donahue, J., concur.

       Affirmed by Supreme Court, January 19, 1904, without report (69 O. St., 672).

   The amended petition and demurrer involve questions relating to the liability of landlord and tenant, lessor and lessee, where a third person, while rightfully upon the leased premises, has been injured in consequence of the unsafe, dangerous and defective condition of said premises. It is alleged that Peter Rissler and William Stoodt were the owners of a brick building in the city of Mansfield, Ohio, which they had leased to certain tenants, among whom was one Marcus McDermott, a justice of the peace, who kept his office in one of the rooms in said building, and was in possession of and using the same as such justice in conducting' the business incident to such office. That at the rear of said building, and appurtenant to the main building there was a large privy vault for the use and accommodation in common of the tenants and other persons who might have occasion to use the same when rightfully upon said premises. Said privy vault is described as being about six or eight feet square and about ten feet in depth. That the floor thereof, on account of the long usage and faulty construction, was, at the time the same was leased to tenants, including said McDermott, unsafe, dangerous and wholly unfit for use.

The petition further states that at the time said premises were leased, and during the term of the leases, said outbuilding and vault were under the exclusive control of the owners of said building, and, by the terms of renting or leasing, said outbuilding and vault were to be maintained and kept in repair by the owners for the use of their tenants and their patrons. That the plaintiff, while attending a public trial before said justice of the peace, under a subpoena as a witness, had occassion to use a privy, and without knowledge of the unsafe condition of said outbuilding and privy vault entered the - same, and on account of its decayed and unsafe condition, the floor, without fault or negligence on her part, gave way and she was precipitated into said privy vault and was injured.

These conditions being alleged in the amended petition and admitted by the demurrer, the question is: Are the owners liable upon the statements made in the amended petition?

It is apparent at once that there was no contractual relationship between the plaintiff in error and the defendants in error, and it is not contended that the right to recover is based on that relationship. It is contended by plaintiff in error that the defendants in error, as owners of said premises, owed her a duty to keep the same free from dangerous defects, and that such duty was created from the fact that said owners had control of that part of the premises where the accident occurred, and that, by the terms of leasing to the various tenants, said owners had undertaken to keep said premises in repair. On the other hand it is contended by the defendants in error, the owners, that liability in such cases depends entirely on the question as to who invited the injured party on the premises; and that there is no implied warranty on the part of the owners to a guest, customer of the tenant, or one rightfully on said premises, that such premises are in a safe condition; that if an injury occurs on the premises then the injured person must look for redress to the person who invited him into such dangerous place.

Liability of the owner or landlord to persons rightfully on the premises arises in two ways:

First. Where, at the time of leasing, the property is in an unsafe or defective condition resulting from construction, or is in such want of repair as to be a nuisance, and the owner receives rent for their use, the owner is liable to persons rightfully on the premises for injuries happening in consequence of such defective and unsafe condition, because the nuisance on or defective and unsafe condition of the premises was occasioned by the owner, and he is held responsible to such persons rightfully on the premises even after the lease of such premises to a tenant. The erector or maintainer of a nuisance can not relieve himself from liability to such persons by assigning over, and more especially where he grants over and receives rent and recompense for the use of such premises, and he continues to permit the property to remain a nuisance or in such unsafe and dangerous condition. The principle upon which his liability is based is, that control is the criterion of responsibility, for control means that power which occasions and which can prevent. The nuisance having been created, that is, allowed to originate, by the owner, manifestly he should be responsible for its consequences. If the defect is inherent in the original construction, and that occasions the injury, then the owner, or landlord, is responsible for injuries to persons rightfully on the premises.
Second. Where the owner, at the time of leasing the premises, assumed and agreed to maintain and keep in repair the demised premises, and was in the exclusive, immediate and absolute charge and control of such premises, the owner is liable to such persons rightfully on the premises. But when the nuisance or unsafe and dangerous condition of the premises arises after the demise, in absence of an agreement to repair by the owner and where the owner does not retain control over said premises, the tenant would be responsible and not the landlord. The principle of liability ordinarily applies only to persons in possession and having control either as owner or tenant.

The cases of Burdick v. Cheadle, 26 O. S., 393, and Shindlebeck v. Moon, 32 O. S., 264, have been cited by counsel for the defendants in error as applicable to this ease. In those cases the tenant himself had possession of and control over the property. They were not cases where the landlord had retained possession of the premises and where he exercised control over them as he saw fit, as is alleged in the amended petition in this ease, .'and the Supreme Court recognized the principle in those cases, .that where the landlord is in possession of the premises, or of a portion of them, and exercised control over them, he ’is liable for negligence as the general owner of such property regardless of the lease. And the court say, in Burdick v. Cheadle, supra, at page 396, after discussing the maxim, sic utere tuo alienum laedas:

“This principle ordinarily applies only to persons in possession, and having control of the property, either as owners or •tenants. But in ease a landlord undertakes with his tenant to keep the premises in repair, having thus reserved the control to the extent necessary for making repairs, his duty to the .public in relation to the property is not affected by the lease, and he remains responsible, under the doctrine of the above maxim, for defects arising from the want of repairs during the continuance of the lease.”

And on page 397 the court say:

“The general rule of law undoubtedly Is, that persons who claim damages on the account that they were invited into .a dangerous place, in which they received injuries, must seek their remedy against the person who invited them. There is nothing in the relation of landlord and tenant which changes this rule. ’ ’

And in the case of Shindlebeck v. Moon, supra, the first paragraph of the syllabus is as follows:

“A landlord who has demised property, parting with possession and control thereof to a tenant in occupation, is not responsible for injuries arising from defective condition of such premises, when that defect arises during the continuance of the lease.”

And on page .267 the court say:

“The principle which runs through eases, determining the responsibility of the one or the other, may'be thus defined: Whoever had control of the premises at the time the cause of injury originated, that person is liable in damages, which simply means that the party in fault must respond.”

And on page 275 the court say, after discussing the case of Burdick v. Cheadle, supra, and other cases:

“The rule, therefore, deducible from the authorities, and which is applicable to the case in hand, is this: A landlord, who is out of possession of the premises, by virtue of a demise, and who has no control over them; who would not have the right to enter therein, even to make repairs, without his tenant’s consent," is not liable for accidents occasioned by the fact that the property is temporarily out of repair.”

The Superior Court of Cincinnati at General Term, in Dorse v. Fisher, 19 W. L. Bull., 106, in the first paragraph of the syllabus, say:

“A landlord is charged with the duty of keeping in repair and free from danger a common passage-way for a number of his tenants, where he has control of the passage-way, subject only to the tenants’ right to use the same as a passage-way.”

In that case the defendant was the owner of a tenement house in the city of Cincinnati, in which he had fifty-two tenants, among whom were the plaintiff, his wife and two sons. In the yard back of the house was a privy for the use of the tenants of the house. The landlord desiring to improve his property contracted for the erection of a second large tenement house in the yard. The cellar of the new building extended some little distance under the privy, which required the removal of the privy and the vault some three or four feet. By reason of removal from its former position, the wall of the vault had given way under one of the doors and a large hole was made by the caving in of the earth adjacent to the wall. There was evidence that the defendant, the owner, knew of the dangerous condition of the approach to the privy for some days preceding the accident. The plaintiff, going out to the privy at night, in attempting to enter, fell into this hole before described and was injured. A verdict was rendered against the defendant, the owner, and judgment followed the verdict. At general term the judgment was affirmed.

Taft, J., in rendering the opinion of the court, on page 107, says:

“The tenants were lawfully entitled to use the approaches to the privy. The evidence shows that they shared this right with each other and with the landlord. The landlord had, and exercised control over the yard and approaches to the privy, subject to the right of use by the tenants. Under these circumstances, the ordinary rule as between the tenant and the landlord, that the tenant shall make repairs, is changed, and the obligation to keep in repair such common way, as controlled by the landlord, is upon the landlord.”

The general rule is stated and authorities cited in 2 Shearman & Redfield on Negligence, Section 710, as follows:

“And so where a building is let in flats for offices or for habitation — the halls, entries, stair-ways, roof and yard not being demised to any tenant but used in common by all — the landlord owes a duty to the tenants, and to those entering the premises to visit them, to keep such undemised parts in a reasonably safe state of repair.”

In the case of Looney v. McLean (1880), 129 Mass., 33, the court held:

“A landlord, who lets rooms in a building to different tenants, with a right of way in common over a staircase, is -bound to use reasonable care to keep such staircase in repair; if he fails to do so, he is liable to a tenant injured thereby while in the exercise of reasonable care.”

And the court on page 35 say:

“Where a portion of a building is let, and the tenant has rights of passage-way over staircases and entries in common with the landlord and the other tenants, there is no such leasing as will exonerate the landlord from all responsibility for the safe condition of that portion of which he still retains control, and which he is bound to keep in repair; as to such portion, he still retains the responsibilities of a general owner to all persons, including the tenants of his building.”

Ths case is approved in Watkins v. Goodall (1885), 138 Mass., 533.

In the case of Stenberg v. Willcox (1896), 96 Tenn., 163 (34 L. R. A., 615), the Supreme Court of Tennessee held:

“Where unsafe premises are leased, to be used as a boarding house, the lessor, if he knew the unsafe condition of the premises, or could have known it by the exercise of reasonable care and diligence, is liable to the lessee’s guest or boarder who-has sustained personal injuries as the result of such unsafe condition of the premises.”

In the case of Marwedel v. Cook et al (1891), 154 Mass., 235, the court say:

“The owner of a building let it for office purposes to várious tenants, retaining control of the halls, stairways and elevator. The stairways were winding, and so constructed that the natural light was partially cut off, and artificial light, for which provision was made, was necessary at times to render them safe. During an afternoon in March a woman went in the elevator to the fifth floor on business, and having finished the same at about half past five o’clock, after the elevator had stopped running for the day, proceeded to descend by the stairway, with which she was unacquainted, then the only mode of egress. A tenant of the office visited by her, seeing that the gas was not lighted, cautioned her to be careful. As she was going down from the fourth to the third story it grew dark, but although unable to see she went on, holding to the hand-rail with both hands, and in some way at the turn in the stairs lost her hold, fell, and was injured. Held, in an action against the owner of the building for such injuries, that the question whether the defendant was negligent in not lighting the stairways, and whether the plaintiff exercised due care in descending under the circumstances, were for the jury.”

The amended petition avers not only defects in the original construction of the privy vault, before the renting, but it is alleged that the defendants, as owners, at the time of leasing the same, assumed and undertook to maintain said outbuilding and vault, and the same were, at the time of the happening of the grievances complained of, under the exclusive, immediate and absolute charge and control of said owners; that, by the terms of renting or leasing of said premises, it was no part of the duty of the tenants to provide, maintain or keep in repair said outbuilding and vault; that by the terms of the leasing by said tenants, including said justice of the peace, it was stipulated and fully understood by said owners and tenants, that all such conveniences, as said outbuilding and vault, were to be furnished for the use and convenience in common of said tenants and their patrons by said owners.

The rule, therefore, deducible from the authorities before mentioned, and which is applicable to this ease, is this: A landlord, who leases premises with an existing nuisance thereon at the time of leasing, resulting from defects inherent in the original construction, and this occasions the injury to a third person, is responsible; or, if the defect occurs after the letting, and the lessor, by virtue of the lease, covenants to repair, and retains or reserves the right to enter to make repairs, he is liable for accidents occasioned by the property becoming out of repair and dangerous.

This rule is well stated by Mr. Kerr in his work on Real Property, Vol. 2, Section 1227, as follows:

“The liability of a landlord for injury to third persons in the premises leased ceases with the commencement of the tenant’s occupation, unless the landlord has expressly covenanted to repair, in which case he is liable to the same extent that he would be if in actual occupation of the premises himself, upon the principle that by his covenant to repair he holds out to those in the lawful occupation of the premises an implied assurance that they are safe, and an implied invitation to use all parts of them. If there be a reservation in the lease to enter and to view and make improvements, the lessor is bound to make the necessary repairs without notice to do so.”

Twitchell & Hartman, for defendants in error.

Twitchell & Hartman, for defendants in error.

The allegations contained in the amended petition in this case are sufficient to hold the defendants liable on two grounds: First, for defects inherent in the original construction of the vault; and, second, under the terms of the lease, whereby they retain control of the building and agree to, keep the same in repair. Therefore, the court erred in sustaining the demurrer, and for this reason the judgment is reversed.

Cause remanded with instructions to overrule the demurrer.


source: Caselaw Access Project

license: Public Domain

text:
    LANDLORD AND TENANT.
    [Circuit Court of Franklin County.]
    Charles W. Linke v. D. B. Walcott et al.

    Decided, January Term, 1903.

      Bes Judicata — Action for Recovery of Rent — Not Barred by Judgment in Previous Action to Recover Possession and for Mesne Profits.

    A judgment in an action for recovery of possession of real property and for rents from and after the forfeiture of tke lease is not a bar to a suit for recovery of money under the lease, which accrued prior to the forfeiture.
    Wilson, J.; Sullivan, J., and Summers, J., concur.
    It was not error to sustain the demurrer to the supplemental answer or plea in bar. The recovery of damages as for mesne rents and profits in the action for possession and to declare a forfeiture, was no bar to a recovery in this action for rents under the lease.

      J. D. Sullivan, for plaintiff in error.

      Bathmell & Johnson, for defendants in error.

       Affirmed by the Supreme Court without report, 68 Ohio State, 530.

   There was no error in sustaining the demurrer to the second answer and cross-petition filed November 10, 1899, for the reason that the defendant did not stand upon this pleading, but filed another answer and cross-petition in which he availed himself of all its material averments; and for the further reason that the pleading did not state a defense or cause of action. Nor was it error to sustain the demurrer to the third defense, for no special damages are pleaded and no eviction is averred.

We find no error in the admission and exclusion of evidence, and no prejudicial error in the charge of the court, looking to the state of the proofs to which the charge must be applied.

We find no error on the record, and the judgment is affirmed and cause remanded.


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    REQUIREMENTS FOR. THE PRACTICE OF DENTISTRY.
    [Circuit Court of Franklin County.]
    The State of Ohio, ex rel Ellsworth Glenn, v. The Board of Dental Examiners, etc.

    Decided, July 1, 1904.

      Dentistry — Standards Imposed by the Legislature for the Practice of— Tested Rights.

    1. One who prior to 1902 had not obtained the required certificate for the practice of dentistry is not of the excepted class, but is included in the express terms of the act of that year raising the standard for the granting of a certificate.
    2. A vested right is not conferred by a statute which merely prescribes a method by which such a right may be obtained; and it is competent for the Legislature to raise the conditions for obtaining such a right both as to those who were and those who were not theretofore competent to acquire it.

      Wilson, J.; Sullivan, J., and Dustin, J., concur.

      G. J. Marriott, for plaintiff.

      Attorney-General, for defendant.
    We are of opinion the judgment in -this ease should be affirmed.

       Affirming State, ex rel Glenn, v. Board of Dental Examiners, 1 N. P. — N. S., 449.

   The statute of 1902 provides:

“Any and all persons who shall desire to practice dentistry in this state after June 1, 1902, except such persons as are legally practicing dentistry, as defined in this act, in the state at the time of the passage of the act shall file application,” etc.

The relator was not legally practicing dentistry in this state at the time of the passage of the act. He had not obtained the required certificate under any of the prior acts of the Legislature. The act of 1902 is therefore by its express terms made applicable to him — not coming within the excepted class.

The question, then, is, does it deprive him of a vested right?

What he demands at the hands of the board is the right to practice his profession in Ohio. He had no vested right to do so at the time of the passage of the act. It does not, absolutely, deprive him of that right, or place unreasonable restrictions upon its acquirement. That he might have applied under the former act and obtained the necessary certificate according to its provisions under the facts pleaded in the petition was not a vested right. It simply provided the way in which the right might become vested. It was competent, therefore, for the Legislature to change the terms by raising the standard as to him, the same as to any one else who was not legally practicing dentistry in the state.

The right to make the application under the prior law was not such cause of procedure as is affected by the provisions of Section 79, Revised Statutes.

The judgment is affirmed.


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    MANDAMUS TO COMPEL LEVY OF EXECUTION.
    [Circuit Court of Lucas County.]
    The State of Ohio, ex rel John Burtscher, v. Sereno B. Chambers, Sheriff of Lucas County, Ohio.
    Decided, May 31, 1904.

      Execution — Mandamus Will not Lie — To Compel Levy of — Where there is an Adequate Remedy at Law — What Constitutes an Adequate Remedy at Law.

    1. An action in mandamus will not lie to compel a sheriff to levy a writ of execution, where there is a plain and adequate remedy by due course of law.
    2. Where there is no allegation that the defendant is insolvent, or that execution of the writ is likely to be defeated by the removal of property subject to levy beyond the reach of the sheriff during the life of the writ, and the only ultimate purpose is to obtain a satisfaction in money of the judgment previously obtained, an adequate remedy exists at law, and a writ of mandamus to compel the immediate levy of execution will not be granted.
    Parker, J.; Hull, J., and PIaynes, J., concur.
    This is an application by petition and motion for a writ of mandamus to issue to command the sheriff to levy upon certain property belonging to the Lake Shore Railway Co., which it is said had been pointed out to the sheriff for that purpose by the relator.
   It appears from the petition that the relator recovered a judgment at the January Term, 1904, against the Lake Shore & Michigan Southern Railway Co. for the sum of $7,500 and costs. The judgment is in full force. On the 25th day of April, 1904, an execution was issued on the judgment by the Clerk of the Court of Common Pleas of Lucas County, Ohio, and placed in the hands of the sheriff. It is averred in the petition herein that the railroad company has abundant personal property in Lucas county out of which to satisfy the judgment; and, as I have said, it is averred that the relator has pointed out to the sheriff certain personal property, and has requested the sheriff to make a levy thereon. The petition further states that the sheriff has failed and refused to make said levy, and still fails and refuses to make the same, without any reason for such refusal and failure; that no proceedings have been taken by the said defendant to prosecute error from the said judgment, and no bond has been given in stay of execution thereon. The relator says.that because of this action or non-action, upon the part of the sheriff, he is unable to realize the amount due him upon said judgment; that he is without remedy in the premises, unless it be afforded by the interposition of this court. Therefore he prays for a writ commanding the sheriff to levy upon this property which he says he has pointed out.

The ease comes up upon an application for either an alternative or a peremptory writ, whichever may be deemed proper. It was suggested by counsel who appeared on behalf of the sheriff and as well for the railroad company, that an alternative writ might be issued, and the questions made upon the answer to that writ. But it seemed to the court from the first that whether even an alternative writ should issue was exceedingly doubtful. Therefore we thought proper to have the matter presented upon motion, and we have concluded that the writ should not issue.

The statute provides, in accordance with the well settled rules of the common law upon the subject that have been in force for a long time, that the writ shall not issue if there is a plain and adequate remedy in the premises by due course of law (Section 6744, Revised Statutes). It will be observed that the petition does not set forth that the railroad company (the defendant in the other suit) is insolvent, or that there is any danger that this abundance of property, which the relator says the defendant has in this county, will be gotten out of the reach of the sheriff during the life of this writ or any time in the future, so that the sheriff will not have an opportunity to obtain satisfaction of the writ out of this property. But the relator insists that'the statute requires that the sheriff shall proceed immediately, under his writ, to levy upon the property of the defendant that can be reached, and obtain satisfaction of the writ. The statute on the subject contains language indicating that the sheriff should proceed promptly. The word “immediately” is used in the statute. It appears that the writ has sufficient time yet to run, so that the sheriff may wait' several weeks, and yet have time to levy upon personal property and expose it for and bring it to sale during the life of the writ. . But the relator insists that the sheriff must proceed, at once, and he insists through his attorney that the railroad company is backing the sheriff in such a way as to encourage him to delay action upon this writ, with the ulterior purpose of having the matter drag along for a while, and then file his petition in error and bond in this court, for the purpose of having the matter go over the summer adjournment; whereas, the relator is anxious to have the matter brought to a speedy hearing in this court before the summer adjournment.

Since the law provides that the defendant railroad company may have four months within which to file its petition in error, and it may pursue any legitimate means to avail itself of all the time allowed by the statute, of course it can not fairly be said that it was guilty of anything culpable. On the other hand, it is quite apparent, in the absence of averments, that the railroad company is insolvent or that this property is likely to get beyond the reach of the sheriff; that the complainant here has an ulterior purpose, which may be entirely proper and laudable, to compel the defendant below to file its petition in error and bond in a shorter time than the four months which the statute gives it.

But laying aside those considerations, which can have little if any Influence upon our determination of this matter, the real question is, whether the relator has a right under the law to this writ, under these circumstances. It is insisted upon by the relator that he should not be driven to an action for damages against the sheriff, because that might result in his being compelled to enter upon further litigation to obtain another judgment upon which he might have the same trouble about obtaining satisfaction, and so on without limit. He insists, therefore, that he should have this right of requiring the sheriff to proceed to obtain satisfaction of the judgment which he has already obtained. Ordinarily, as we read the law, the right to an action at law to recover a personal judgment, where the measure of damages is clear, and there can be no difficulty about it, and the ultimate right and purpose is to obtain pecuniary satisfaction, is an adequate remedy at law.

It is quite evident that the ultimate purpose here is to obtain a satisfaction in money of the judgment obtained in the court below. If the sheriff shall do any wrong, shall omit to perform any duty whereby the satisfaction of this judgment is not obtained or is lost he is liable upon his bond. It is laid down by the authorities that the fact that the proceeeding by mandamus may be a more speedy remedy than the action at law to recover a money judgment, does not afford a sufficient reason for proceeding by mandamus rather than by action at law. I cite on this point Merrill on Mandamus, Sections 52, 53, in which is given a great many instances where one having an action at law to recover a money judgment, is held to have an adequate remedy at law. I also cite State, ex rel, v. Meiley, 22 O. S., 534. The same matter is discussed in Moses on Mandamus, page 60. I call attention to State, ex rel Proseus, v. Craft, 17 Fla., 722. This is a case that resembles the case at bar more closely than any other case we have been able to find. It was a proceeding against a sheriff to compel him to execute a writ which called for satisfaction in money. We are cited to many cases, and find many oases where the sheriff is required to proceed under a writ of execution to do something else than to obtain pecuniary satisfaction, where he has been compelled to proceed by mandamus; for instance, to oust one from premises and deliver same to another, and to give other specific relief than money satisfaction. This, however, was an ordinary writ of execution upon which the sheriff was required to make the money. The chief-justice, in delivering the opinion, points out that there was some difficulty, or possible difficulty, about the title to the property which the sheriff desired to levy upon in this case, and that, it was stated, would afford a sufficient reason for not issuing mandamus; but the court says this beside:

“Again, the proceeding by mandamus can only be resorted to where there is no other adequate legal remedy to accomplish the purpose. The plaintiff wants to make his money; he has nothing else in view. If a sheriff refuses to execute the writ, when it is his duty to execute it, the plaintiff may have his action at law against the sheriff.
“We have not found any case decided by the courts allowing a mandamus to compel a sheriff to make a levy under an execution in his hands. The court has such control over its officers, and the plaintiff has such right of action for willful neglect of duty, that it seems hardly possible that a mandamus should be resorted to, though Moses on Mandamus, page 60, suggests that such writ may lie when other remedies prove to be inadequate. But that point has not been reached in this case.”

Moses on Mandamus, at page 60, says this:

“If a summons or execution is placed in the hands of a sheriff to be served, and he neglects or refuses to serve it, the party in whose favor it was issued has a remedy by action against the sheriff, and, therefore, as an ordinary rule, a writ of mandamus would not lie to compel him to serve them. There may, however, be cases where such remedy by action would be inadequate, in which case no doubt a mandamus would lie to compel the sheriff to perform his duty.”

We have no fault to find with that statement of the law, but we take it that where the case is presented of an apparent solvent defendant, who is likely to retain the property, so that the sheriff may reach it during the life of the writ, and where the proceeding is to obtain satisfaction in money, so that an action may be had against the sheriff upon his bond, there will be no difficulty about the measure of damages; there is an adequate remedy at law, and the sheriff may not be proceeded against in this way.

There is another remedy at law provided by our statute. Section 5594, Revised Statutes, provides for a very summary process and remedy. It is as follows:

“If an execution or order of sale directed to an officer come to his hand to be executed, and he neglect or refuse to execute it; or if he neglect or refuse to sell property of any kind which, by any writ or order he is directed to sell; or fail to call an inquest, or to return to the clerk’s office a copy of the certificate of appraisement made by the inquest; or neglect to return to the proper court an execution or order of sale to him directed, on or before the return day thereof; or neglect to return a correct inventory of personal property taken on execution, unless he return that amount of the judgment, including costs, has been paid to him; or neglect, on demand, to pay to the person entitled thereto, any money by him collected or received for the use of such person, at any time after he collects or receives the same; or neglect or refuse, on demand, to pay to the judgment debtor all money by him received on any sale made, beyond what is sufficient to satisfy the writ or order of sale, with interest and costs, such officer shall, on motion in court, and notice thereof in writing, as provided in the next section, be amerced in the amount of such, judgment, including costs, with ten per cent, thereon, to and for the use of such plaintiff or defendant, as the ease may be.”

C. A. Thatcher, for relator.

E. D. Potter, for respondent.

Under this statute it is not necessary to bring another action. It is only necessary to proceed by motion in the court where the judgment is obtained, and if the sheriff is chargeable with declining to execute his writ, the remedy is very simple and very summary. It was adopted in Graham v. Newton, 12 Ohio, 210, for this is not a new statute; there the sheriff was amerced for refusing to levy and obtain satisfaction of a judgment, and the ten per cent, was added. He instituted proceedings to obtain a reversal of the judgment, and the Supreme Court affirmed the judgment, saying that the only fault with it was that the lower court had failed to compute and add the interest before computing the ten per cent, penalty; that the ten per cent, penalty should have been computed upon the original judgment, interest thereon and costs, and added thereto. If the sheriff is in fault in this matter, as complained by the relator, here is another very simple and very effective remedy afforded by the statute.

Whether he is in fact at fault in not making an immediate levy is a question about which we now express no opinion, leaving that for the court where the proceeding may be instituted.

For the reasons stated the writ will be refused and the petition dismissed.


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    EASEMENT FOR A PRIVATE ROAD.
    [Circuit Court of Lorain County.]
    J. D. Bates v. Benjamin F. Sherwood.
    Decided, October 12, 1902.
    , Private Road — Easement for, How Acquired — Conveyance Absolute Notwithstanding Agreement to Reeonvey — Creation of Way of Necessity by Implication.

    ' 1. An easement for a private road is acquired by one who' uses a well defined track across the land of another in reaching land of his own otherwise inaccessible, where such use has been adverse and continuous for more than twenty-one years.
    2. A deed of conveyance, accompanied by a separate written contract wherein the grantee agrees to reconvey the land to the grartor or to one whom he may name, upon payment within a certain time of a specified sum without interest, is an absolute conveyance and not a mere security.
    .3. Where a way of necessity has been extinguished by a union of seizin it is not revived by severance, but a new way is granted by implication if the necessity continues.
    Caldwell J. (orally); Marvin, J., concurs; Hale, J., dissents.
    Heard on error.
   The plaintiff sets up that the defendants on February 1, 1900, and divers other times between that date and the time of the commencing of this action, wrongfully and unlawfully trespassed upon his property; that defendants are insolvent and can not respond to an action for damages, and asks to have them restrained from trespassing in the future.

Benjamin F. Sherwood admits he did drive upon plaintiff’s land at or about the time alleged in the petition, and then sets out facts in the petition to justify his acts in so doing. He pleads he is the owner of ten acres of land adjoining plaintiff’s land over which he drives in reaching his land, and that there is no other way to reach his land, and the way in question, has been used by him and his grantors for more than twenty-one years without interruption or hinderance; -that he traveled in the same defined roadway over plaintiff’s land leading to said ten acres, doing no damage to plaintiff’s freehold. He also pleaded that plaintiff sold and deeded to him said ten acres and included in his deed all the appurtenances belonging thereto. He says by reason of the facts set out, he has over plaintiff’s said land a way of necessity. H. Sherwood answered he was working for his co-defendant, and denies under the same facts set out in his co-defendant’s answer. And the action was dismissed as to him.

The reply denies that any way of necessity or by prescription or in any other form existed in favor of defendant. The reply sets out that Mrs. Sherwood, who was the mother of the defendant, was the owner of said ten apres, and as such owner gave plaintiff a mortgage, on which there was due in April, 1899, $324; that she then agreed to and did convey to plaintiff a deed of said land, and this was done on an agreement that he would deed back to her or' either of her sons she might designate said land, upon said $324 being paid to him without interest, and said deed to Benjamin F. Sherwood was made in compliance with said contract; that said first deed was a security and the second was only a mode of redeeming.

The pleadings and evidence raise the following questions:

First. Was the way in question used for more than twenty-one years by defendant and his predecessors in title before the beginning of this action?
Second. Was such way by license?
Third. Was the transaction of the two deeds the giving of security in different form and a release of the same, or are they, in fact, deeds absolute?
Fourth. The effect of the deeds if absolute.
Fifth. If the deeds are deeds absolute in fact, then is there a way by implication over plaintiff’s land?

Then the questions, does the ten acres join plaintiff’s land, is there any other way, is a way necessary in view of all the facts, should the parties have contemplated a way, or did they contemplate a way?

The piece of land over which it is claimed the defendant has driven without authority, and he was stopped by the plaintiff just prior to bringing this action, is reached by a lane from the highway, which goes back some little distance, and then carnes woodland which, belongs to the plaintiff, and this way leads from the end of that lane in a diagonal direction across the plaintiff’s land, the woodland, to this ten-acre piece, and in that way the ten-acre piece has been reached.

Now the defendant claims that this way has been in common nse for the purpose of reaching the ten acres he owns for more than twenty-one years, and he, therefore, has acquired a right, an easement, in this way. The evidence upon this is not much in conflict, but very little, and in fact it is almost conceded by the plaintiff that this way had a marked track where the wagons and vehicles had gone in reaching the ten acres, but some little question as to whether it did not deviate from the way claimed; but we find that the testimony shows that this way had been in use for more than twenty-one years when Mrs. Sherwood deeded the land to Bates and also when Bates deeded it back to the son, the defendant in this action, and that that way had a marked tract or course that the wagons had pursued, as nearly in one track as wagons ever do go in going through a woods, and that the way was well marked clear through to the ten-acre tract.

This way was used not only by the parties owning the ten acres, Mrs. Sherwood, but was used more or less by the plaintiff in this case in drawing wood or timber and whatever he wished to draw from his own lot, and that use had continued for more than twenty-one years.

In the second place it is claimed that this way was by license, and the testimony tends to show at a very early time, very soon after Mrs. Sherwood was married, that application was made to the father of the plaintiff for the privilege of driving over this wood lot to reach the land belonging to Mrs. Sherwood, the ten-acre piece, and there is evidence that application was made to the plaintiff after he became the owner, having inherited it from his father. He testifies he made complaint that they were driving over there when the ground was soft, and cutting up the lot, and that the understanding was when they got permission to drive through there that they should drive only when the ground was hard, and that he would stop them entirely if they did not refrain from driving when the ground was soft, so they would not cut up tbe woodland, and that then permission was obtained by a promise to' either pay damages or not drive when the ground was soft, and that has continued.

Mrs. Sherwood denies ever having made application when she was the owner of this property to either him or his father for any permission, but she simply drove over and used this way across the plaintiff’s wood lot, as a matter of necessity to reach her lot and without objection on his part, and we find that the 'license is not established by the evidence.

Then we come to the question of the two deeds. Mrs. Sherwood owed to the plaintiff $324 about April, 1899, on a mortgage that had been running for some time upon the ten acres she owned. He insisting upon having his money, an agreement was entered into, by which agreement she deeded to him absolutely the ten aeres — that is, by a deed absolute upon its face in fee simple — and he says that he gave back an agreement at that time that if by December 1 (this occurred in April, 1899), following she would pay back the $324 without interest, he would then deed back the land to her or to either of her sons which she might designate, and that she designated the deed to be made to Benjamin, the defendant in this action, and Benjamin took the deed and paid the $324, borrowing the money on this same land. Benjamin,‘after that, perhaps in February or some time that winter or fall after the deed was given, was using the land, and the plaintiff stopped him from using it, drove his brother back with the team, would not allow him to cross, and he brings this action for the trespass, and asks to have them enjoined from crossing.

The first question that arises is, Were those deeds absolute, or were they intended as. a security and a mode of releasing the security ?

It appears that a written agreement was made at the time that this deed was made by Mrs. Sherwood to Bates in April, '1899. It was supposed that was lost. It was left with the justice of the peace who made the deed and who drew up the writing, and he testifies and Mr. Bates testifies as to its contents; but the young man, the defendant, went to the justice of the peace about the time he received the deed to see this writing, and lie copied it, and he testifies that he copied the whole of the writing.

The contents of the writing as given by the justice and by Mr. Bates do not correspond exactly with the writing that he produced in this copy. The copy that he produced was simply this:

“April 10, 1899. This is to certify that J. D. Bates will deed ten acres of land to Mrs. Sherwood or either of her sons for $324 any time before December 1, it being the same ten acres sold to Bates by A. A. Sherwood [that was the mother] on this day.”

No doubt other matters were there talked about, but we be^ lieve that this writing involves all that was put in it at the time. Other matters were talked about, no doubt, and might have been-agreed upon, but this writing was the contract which was entered into as to deeding back this land.

Now it is.not necessary to discuss this whole matter as to how the parties acted and what they did, but we think those deeds were absolute deeds; that-she had no right or authority to redeem that land, except by reason of this contract. It was a deed absolute, intended to be such, and if she wanted to buy back the land and have it deeded to herself or her sons by December 1, 1899, she could do by paying Bates $324. No interest was charged by Bates. He gave up the note, gave up the mortgage, and, taking all the surrounding facts and the testimony as it is before us on this question, we have concluded that those deeds were deeds absolute; that he was an absolute purchaser of the land, not taking the deed as security, and that when he deeded it back, he made a deed absolute to the defendant.

Then the next question' that arises is, what effect has that upon the use that had been established of this way for more than twenty-one years? In other words, the easement that had been established over this land by reason of user? We meet this proposition: After the way had been thus established by- long user of over twenty-one years, the property — the ten-acre piece —comes into the same ownership as the land over which the easement passes, both in the same person; that we think would destroy the easement, and the easement being destroyed by reason. of the ownership, the defendant would no longer have any right to pass over it by reason of the easement being established by user.

The next question in the case is, what effect did the giving of the deed by the plaintiff to the defendant have upon the right of defendant to pass over this land, and that involves several questions, as I have stated. In the first place, it is disputed, does the ten acres join the plaintiff’s land; they corner together, but the plaintiff’s land passes by the corner of the other land to some distance, far enough so that they have driven in there either over the plaintiff’s land or over his land and other land.

Now the question is, whether there is a way large enough there for a team to pass. They used this ten acres of land; it is woodland, and the Sherwoods got their wood there, and they passed in and out frequently in getting their firewood. These lands nearly corner, but Bates’ land laps over the ten acres some distance ; it is in dispute what that distance is, and it appears that the fence that comes up against the side of the ten-acre piece near the corner, between Mr. Warren and the plaintiff in this case; it is claimed that fence has been moved onto plaintiff’s land, and, that being so, if it is so, or suppose it is over, the way into this land has been narrowed up at least three or four feet according to some of the witnesses.

Then there is no dispute that at that corner of Mr. Sherwood’s land and the party who owns the land lying by the side of his, or by the ten-acre piece there, the corner between him and his neighbor is marked by a stone, and the testimony seems to be quite conclusive that the wagons, in passing in and out of the ten-acre lot onto the plaintiff’s land have gone astride of that stone marking that corner. Whether that stone is correct or not there is no evidence to show. The mere fact that a stone was set there is shown by the evidence. As to whether or not this fence has been moved is in dispute; but one thing is certain, that teams did pass in and out there for a long time; it was so used, and the neighbor, if any of his land is being used, is not here making any complaint. But the fact is established that these two pieces do join, to some extent at least, and that extent is such that the plaintiff’s land has been used in passing to. and from the ten-acre piece, and such .use seems to be possible yet. And it has been practical so far, and we do not see any reason why, under this evidence, it may not continue to be so, and it affords a sufficient gap to reach one piece of land over the other.

The evidence is pretty strong in this case that Mr. Warren, in laying over that fence between him and the plaintiff, laid it over onto the plaintiff three or four feet, but he swears he put it in the same place. Mr. Bates swears he did, and it is quite conflicting, and whether it is on the true line or not there is no évidence to show, but the evidence is strong that it was moved, quite strong in this case, and we could easily see there might be a motive on the part of Mr. Warren to gain more land and on the part of the plaintiff in this case to cut off this way over his land to allow Mr. Warren to gain some land there by reason of laying the fence over. But, however, we think the lands do abut so a way is possible. The evidence shows there is no other way to reach this land; no road touches upon the ten acres, and he has no other way by which in law he is permitted to reach his land unless it is in this manner. He is cut off entirely from the use of his land so far as the evidence shows. He can not appropriate a way; he is cut off, has got to force a way out somewhere if he can not get it through this, or else his land is useless, and the party who has taken the mortgage upon it his mortgage is worth nothing except what it would sell for to some one who has land adjoining.

In view of all the facts, are the parties to be held to have contemplated a way? As we say, the plaintiff was making the deed absolute of this property. If he was not making a deed absolute, then, as I have already stated, the defendant has a right of way by user, by long use. If he simply took the deed from Mrs. Sherwood as a security, then it would not cut off the right to pass over this way by reason of the easement being established by long use. If he took it by deed absolute, then he knew when he deeded this land to the defendant that there was no other possible way to reach the land except over his woodland. He knew that way had been long used, and he must have known that the defendant would expect to continue in its use. Knowing all these facts, he must have contemplated that that way would still be used, and the defendant, knowing all these facts, would, it seems to us, take it for granted that he should pass to and from that ten acres as it had always been reached. That being true, and there being no other way, and a way of necessity being required in the case, as the facts warrant, we think the defendant has a right to pass over this land in reaching his woodland, so long as he does no injury and follows the same marked path, and the plaintiff’s petition will be dismissed.

C. 'A. Metcalf, for plaintiff in error.

I. A. Webster, for defendant in error.


text:
    PROCEEDINGS IN AID OF EXECUTION.
    [Circuit Court of Cuyahoga County.]
    Anthony Carlin v. Hower & Higbee.
    Decided, November 24, 1902.

      Debtor of Judgment Debtor — Having Admitted Ms Indebtedness in. Proceedings in Aid of Execution — Is Estopped from Denying the Debt in a Subsequent Action — Appeal—Justice of the Peace.

    1. The debtor of a judgment debtor, against whom proceedings in aid of execution have been brought before a justice of the peace, has the right of appeal from the finding of the justice as to the fact of his indebtedness, and therefore can not claim that he has been denied the right of trial by jury upon that question.
    2. In a subsequent action brought by the judgment creditor in the common pleas court for recovery of the sum ordered by the justice to be paid to him, the debtor against whom the order was directed, and upon whose admission of indebtedness it was made, is es-topped from then denying the indebtedness.
    Marvin, J.; Caldwell, J., and Hale, J., concur.
    The parties here are reversed from what they were in the court of common pleas, but the terms “plaintiff” and “defendant” in this opinion refer to the parties as they were in the original ease.
   The plaintiff brought a suit against Anthony Carlin and another, but no service was had upon the other defendant, so that no attention need be paid to him in this opinion.

■ The petition sets out that the plaintiff recovered a judgment against one Quigley before a justice of the peace; that such judgment has never been paid; that thereafter proceedings such as are authorized by Section 6680-1, Revised Statutes, et seq., were had before the same justice; that the defendant was duly notified, and that the same came on to be heard before said justice on May 2, 1899. “And thereupon, on said second day of May, 1899, such proceedings were duly had in accordance with such statute that, it appearing by the admission of said defendants, Anthony Carlin and Rose Carlin (the other defendant), that they were then indebted to said Quigley in a sum sufficient to satisfy said judgment and costs of said proceedings, which sum was then due and payable, by the consideration of said justice of the peace, this plaintiff duly recovered an order against said defendants, Anthony Carlin and Rose Carlin, ordering them to pay to this plaintiff the sum of $165.90,” and that the defendants have failed to pay any part of the amount so ordered to be paid.

To this petition the defendant, Anthony Carlin, filed an answer, in which he admitted the recovery of the judgment by the plaintiff against Quigley, and that the proceedings in aid of execution were had upon such judgment, as is set out in the petition. The answer1, however, specifically denies that the defendant is now, or ever was, indebted in any sum whatever to said Quigley, and there is also a general denial, which puts in question the issue of whether he admitted before the justice of the peace upon proceedings referred to that he was so indebted.

Upon motion of the plaintiff, which is a partnership, judgment was awarded it upon the pleadings, and it is to reverse this judgment that the present petition in error is filed.

This raises the question of the effect of the order made by the justice of the peace in the proceeding before him under the statute referred to.

It is urged on the part of the plaintiff in error that the defendant is not estopped from denying his indebtedness to Quigley by this order of the justice. It is said that the proceedings provided for in the statute are summary, and that the defendant would, if he is not now permitted to deny the indebtedness, be precluded from having the question of his indebtedness to Quigley .tried by a jury.

This action was brought under favor of Section 6680-5, Revised Statutes, which reads:

“If the justice shall make an order, pursuant to the preceding section, directing the payment of money by the person, partnership or corporation, against whom the aforesaid proceedings are instituted, and if such person, partnership or corporation fail to comply with said order, the judgment creditor may proceed against such person, partnership or corporation by civil actionj and thereupon such proceedings may be had as in other civil actions, and judgment may be rendered in favor of the judgment creditor for what shall appear to be owing the judgment debtor by such person, partnership or corporation, not exceeding the amount of such order and the costs of the proceeding against such person, partnership or corporation'. An appeal shall lie from such proceedings to the common pleas court in like cases and manner as from other judgments of the justices of the peace.”

It will be noticed that an appeal is provided for in this section. The language, “An appeal shall lie from such proceedings to the common pleas court in like cases and manner as from other judgments of the justices of the peace” is perhaps not altogether clear as to what may be appealed from.

It has been held, however, by the Circuit Court of Lucas County, in the case of Deveaux v. Leslie, 18 C. C., 482, that under this section an appeal lies from the order of payment made by the justices, and in the opinion Judge Haynes calls attention to the fact that if it was not intended by the statute to give an appeal from such order, there was no occasion to provide for an appeal at all, because the civil action provided for in the section to be brought against the debtor of the judgment debtor would be appealable under the general statutes providing for appeals."

We are disposed to concur in this judgment of the Lucas county court and to hold that the defendant, Carlin, might have appealed from that decision, and if so, the contention that he would be deprived of a trial by jury upon the question of his indebtedness to Quigley is disposed of. But, it is urged, that even if this be true, since the provision of the statute is that, upon suit being brought against the debtor of the judgment debtor, “such proceedings may be had as in other civil actions, and judgment may be rendered in favor of the judgment creditor for what shall appear to be owing the judgment debtor by such person, partnership or corporation not exceeding the amount of such order,” etc., implies that the judgment may be for a less amount than the amount of the order, and that, therefore, the defendant must be permitted to set up that he is not indebted to the judgment debtor. Though this is not without some weight, we think it is not sound. Whatever defense Carlin could have made in an action brought against him upon a judgment, he could doubtless make in this ease, and no other.

Ben G. Starr, for plaintiff in error.

White, Johnson, McCaslin & Gannon, for defendant in error.

In 3 Freeman Executions (3d Ed.), Section 423a, p, 2269, speaking of proceedings in aid of execution, it is said:

“The orders made in supplementary proceedings involve the determination of issues of fact and the application thereto of rules of law; and, as they settle the rights of the parties before the court, they must be given the effect of res judicata in all subsequent proceedings between those parties and others in privity with them. Hence, if by such orders money is adjudged to be paid or property to be delivered, they establish the right of the one party to such payment or delivery and the duty of the other to make it.
“The parties before the court are the judgment debtor, the judgment creditor and the persons cited to appear or voluntarily appearing. All these are bound by the order or judgment of the court or judge, because they are parties thereto and entitled as such to seek redress by some revisory proceeding if the order is erroneous.”

Our conclusion, therefore, is that the facts set up in the answer filed by the defendant do not constitute a defense to the facts set out in the petition, and that the judgment of the court of common pleas was right, and the same is affirmed.


text:
    ADVANCEMENTS EVIDENCED BY PROMISSORY NOTES.
    [Circuit Court of Crawford County.]
    John L. Tobias v. Jennie C. Richardson et al.
    Decided, January Term, 1904.

      Advancements — Evidenced by Promissory Notes — Belonging to an Estate which Remained Unadministered for Eighteen Years — Cause of Action Accrued, When — Statute of Limitations — Does not Bar a Claim on a Note as Such, When — Note not Part of the Estate, But an Advancement — And Debtor Heir Must Account to the Estate— Interest not Allowable after Ancestor's Death — Administrators— Jurisdiction — Partition.
    1. A contention as to the right to recover on a promissory note does not raise a question of jurisdiction but of title to the note.
    2. A cause of action accrues within the meaning of the statute of limitations when there co-exists a demand capable of present enforcement; a suable party against whom it may be then enforced; and a party who has a present right to enforce it. But the statute having begun to run is not suspended by the subsequent failure of any one of these conditions. It follows, therefore, that when a note becomes due after the death of the payee, the fifteen year ■ limitation begins to run from the administrator’s appointment; but if a cause of action on the note accrues during the lifetime of the holder, the statute of limitations begins to run from that date, and the death of the holder and failure to appoint an administrator of his estate would not suspend it.
    S. A debtor heir, who makes claim on distribution, is required to account to the estate for- the debt he owes, and the amount he is to receive .will depend upon the result of the accounting; if his debt is evidenced by promissory notes, they may in a suit for partition be regarded as advancements, and interest upon them can only be computed up to the date of the death of the ancestor.
    Mooney, J.; Day, J., and. Norris, J., concur.
    Error to Crawford Common Pleas Court.
   These proceedings in error [John L. Tobias v. Jennie C. Richardson et al, and Jennie C. Richardson et al v. Daniel M. Tobias] both originated in the same action which was commenced in the court -of common pleas. The action was partition and the parties to it were the heirs at law of one William B. Tobias, deceased. The lands involved descended to the heirs from their said ancestor. The petition stated that John L. Tobias, Daniel M. Tobias and Jennie C. Richardson were each seized in fee of the undivided one-sixth part of said lands, and Marcus A. Charlton of the undivided one-thirtieth part thereof. By separate answers and cross-petitions Jennie C. Richardson and Marcus A. Charlton deny that the interest of said parties were truly stated in the petition, and alleged that their ancestor died intestate, seized in fee of the lands described in the petition, and leaving the parties as named and described in the petition as only heirs at law; that said intestate left no personal estate for distribution; that said defendants, John L. Tobias and Daniel M. Tobias, at the time of the death of said intestate, were each indebted to him upon certain described promissory notes, which are now due and have never been paid; that each of said debtor heirs holds his interest in said lands subject to his indebtedness; that said amounts so owing be taken into account in making partition and that these cross-petitioners participate in the partition and have as their shares the one-sixth and one-thirtieth part of the lands respectively after, the shares of each of their said debtors are charged with the amount of the indebtedness to the estate.

John L. Tobias and Daniel M. Tobias, by separate answer, plead, first, in substance, a general denial; second, the statute of limitations; and in addition, John L. Tobias denies the jurisdiction of the court. Cross-petitioners join issue as to the statute of limitations by reply. The lands were ordered ,sold. A sale was made. Partial distribution of the proceeds ordered, but enough of the fund was retained to abide the further order of the court to adjust the rights of the parties in case the averments of the cross-petition, as heretofore stated, be well taken. After the partial distribution, all of the heirs, owning in the aggregate a seven-fifteenth interest in the estate, relinquished all their rights in and to the controversy, heretofore stated, to the cross-petitioners and thereupon and upon their own motion were dismissed from the action. The interests in the estate may be here stated, with relative exactitude, as one-sixth each to John and Daniel, and six-fifteenths to Jennie C. Richardson and four-fifteenths to Marcus A. Charlton.

Upon request, the common pleas stated separately its findings of fact and conclusions of law. From the facts found it appears that the parties are heirs of said intestate and are seized of and own the respective shares of the estate “in the pleadings alleged ; ’ ’ that the ancestor died August 18, 1882, leaving no personal estate for distribution, and seized of the real estate described in the petition; that no administrator of said estate was appointed until July 30, 1900, when an appointment was made and the administrator took possession of the two promissory notes hereinafter described; that at the time of the death of the ancestor, defendant, Daniel M., was indebted to him on a promissory note dated March 3, 1881, for $150, interest seven per cent., due one day after date, and upon which one year’s interest was endorsed as paid to the ancestor; and defendant, John L. was indebted upon a note dated November 1, 1881, for $50, due in one year, interest six per cent., upon which no payment had been made.

It appears from the record that the administrator of the ancestor’s estate procured from the- probate court a certificate showing the amount of the deficiency of the personalty to fully administer the estate; that he filed this certificate in the original action and that, upon partial distribution, the amount so certified was paid to the administrator from the proceeds of the sale. The trial court found the indebtedness of Daniel M. to be barred by the statute, and as to him the cross-petitions were dismissed, and further found that the amount of the note of John L., with interest, should be accounted for as part of the fund for distribution and distribution was ordered accordingly. The losing parties thereupon commenced these proceedings in error to reverse the adverse judgments of the common pleas.

Plaintiff in error, John L. Tobias, contends that said cross-petitions were based upon promissory notes, the title to which is not in the heirs, but in the administrator, and the court of common pleas was without jurisdiction in the action. It seems, however, upon the point suggested, that the question is not one of jurisdiction, but of the cross-petitioners’ right to recover. If A brings an action to recover upon a claim due B, then A must fail, but his failure is not due to any defect in the jurisdiction, of the court in which the action is brought, but is due to the fact that the court, in the full exercise of jurisdiction, determines that A has no title to the asserted demand, and has, in consequence, no right to recover.

By Section 4980, Revised Statutes, an action can be brought upon a promissory note only within fifteen years after a cause of action accrues thereon. The original action was commenced February 27, 1902. Both of the promissory notes referred to in the pleadings were thus more than fifteen years overdue. If now the cross-petitions in the action filed in March, 1902, be deemed petitions in actions to enforce the promissory notes, it becomes of first importance to determine when the cause of action accrued in each case.

A cause of action may be said to accrue when there co-exists (1) a demand capable of present enforcement; (2) a suable party against whom it may be then enforced; and (3) a party in being who has a present right to enforce it. In this view it may be noted that a party may be vested with a present right to enforce a claim when, by reason of a disability, he may not be able to maintain a present action in his own name and on his own behalf. No one will contend that a cause of action can accrue unless it accrues in favor of some one in being and against some one in -being. The note of John L. Tobias became due, by its terms, after the death of the payee, William B. Tobias. Upon that note no cause of action accrued to the ancestor, because, during his lifetime, there was no breach of the contract to pay. W]hen, by its terms, the note fell due, no cause of action accrued because, by reason of the failure to have an administrator appointed, there was no one in being who had a present right to enforce it. In fact, as an asset of the personal estate, no cause of action accrued on the note until July 30, 1900.

The statute of limitations is immaterial so far as barring a p.1 aim on the note as such of John L. Tobias. When the note of Danial M. Tobias fell due and was not paid, a cause of action accrued thereon, for the breach of the contract to pay was then a present cause of action with William B., a proper plaintiff, and Daniel M., a proper defendant in the action. The statute then commenced to run, and, unless something intervened to stop it, the cause of action on the note is barred. It is argued here that, inasmuch as William B. Tobias died shortly after the cause of action accrued, and the right to sue was thereafter suspended until 1900, because no administrator was appointed, the statute should cease to run during the same interval. The statute does not require that certain.conditions shall continue to exist; that the statute may continue to run, but only prescribes the condition upon which the statute will commence' to run, and provides that at the end of the period, unless certain disabilities exist, the action is barred. The case of Daniel M. is not within any exception named in the statute or recognized by our courts, and so the claim against him, considered merely as one upon his note, is barred by the statute of limitations.

But the causes of action, or the claims made by the cross-petitioners, can not be well founded upon either of these notes as such. The notes are personal property, assets of the estate, and the title to them is in the administrator, and these cross-petitioners have no right to enforce them whether the causes of action thereon be barred or not.

The original action was one to partition real estate among co-tenants, and so, as a court of equity, the common pleas was asked to apart the lands so that each party might have in severalty that part of the joint estate to which in law and in. equity he was entitled. The heirs had held this land in common since 1882, when it descended to them. Each heir took a certain share of this land at the moment of the death of the ancestor, and whatever title and interest each then took he now has undiminished and unaugmented. . At that time it seems there was no personal estate of the intestate for distribution. The ancestor’s property, as far as we are advised, consisted of this land and these notes; and this property, the law, by its policy,- casts upon these heirs to be divided equally per stirpes. A debtor heir, who makes claim on distribution, is required to account to the-estate for a debt he owes, and receive his share of the joint estate by the result of his accounting.

“When the lands of the intestate descend to his children, there being no personal estate for distribution, the interest of each child in the lands, is subject to his indebtedness to the intestate” (Keever v. Hunter, 62 Ohio St., 616).

“It is inequitable and at variance with the policy defined in our statutes, to permit one to share in an estate which is diminished by his default and to the prejudice of those whose rights are equal to his” (Keever v. Hunter, supra, page 619).

On the same page of the opinion Judge Shauck says:

“I't is not important whether, to secure equality in cases of this character, we adopt the doctrine of equitable set-off, as has been done by some courts, or, for that purpose, regard the debt as an advancement, as has been done by others. ’ ’

It appears later in the opinion that the theory of advancement is inclined to, if it is not adopted by the court. In the original case here both of the debtor heirs had the right to have an administrator appointed and the duty to pay their notes. They failed to exercise the right and to discharge the duty. Under these circumstances, when upon the facts two views may be entertained, by one of which the failure to pay the notes and to take the necessary precedent steps for that purpose is wrongful, and by the other the retention of the money due is rightful, it should not rest with the debtor to say that his ambiguous conduct should receive such a construction as would make him a wrongdoer and enable him to work injustice to his co-heirs. We think, under the circumstances of this case, that, by operation of law and with the implied consent of all the heirs, the debts of both John and Daniel were converted into and became advancements from the personal estate at the death of the ancestor ; and we believe that these debtors should now be estopped to deny that such is the situation. So considered and as among the heirs the notes would then cease to be personal assets of the estate, and the administrator would have no duty in respect to them, nor evén on distribution to recognize them, since there is no personal estate to distribute, and by the application of Section 4171, Revised Statutes, to the case, the desired equality would be effectually preserved. That section provides that if an advancement be made from personal estate, and it exceeds the share that would come from the, personal estate to the person receiving the advancement, he shali receive so much less of the real estate as will make his whole share equal, as near as can be estimated, to that of the other heirs of the same degree.

In the event 'of such advancements being made, it is evident that a division of the estate of both kinds is necessary to a determination of the question of interest of the person advanced in the kind of property in which the advancements were equalized. So that, in the case here, John and Daniel never in fact inherited each the one-sixth of these lands, but they did inherit so much less than one-sixth each as would enable their debts to the estate to be considered as advancements and equalized. Their shares were not definite and charged with a specific lien as a debt, but the whole land constituted a fund to equalize the advancements and be the source of an equal division to the heirs. John and Daniel did not each hold the one-sixth part of this land as his own so as to be enabled to say that the statute of limitations has run against a lien upon a definite share, but all the heirs, as tenants in common, held the land, each .to have such share therein as, upon equalizing the advancements, should be determined. The other heirs, it seems to us, have the undoubted right to hold possession of the land until one chief purpose of the common possession has been realized, to-wit, until the advancements have been equalized. It appears affirmatively that the personal estate of the intestate has been fully administered and the debts all paid. In such case clearly, under the case already cited, we are not concerned with possible claims of the administrator to these notes.

We have adapted the theory of advancements in this case, and, to be consistent, that theory must be followed throughout the entire case.

Section 4172, Revised Statutes, is as follows:

“If the value of the estate, real or personal, so advanced, is expressed in the deed of conveyance, or in the charge thereof, made by the intestate, or in the receipt in writing, given by the person receiving such advancement, it shall be considered and taken to be of that value, in the division and distribution of the estate, otherwise it shall be estimated at its value when advanced. ’ ’

At the death of the intestate, Daniel M. owed him, in principal and interest, to that day on his note, $154.81; and at the same time the amount of principal and interest on John’s note was $52.65, and it was at that time that these debts became advancements, and at that time a quantum of interest in the land taken by inheritance became fixed. Counsel for cross-petitioners insist here, with emphasis and truly, that the right then fixed remains unchanged. These debts, as such, ceased longer to exist, and by inheriting a less share in the real estate than they would otherwise be entitled to, the debts were in effect paid. Upon what principle can either of these debts eontimie to bear interest? We are convinced that they should not do so. We are aware of the cases in which it is held that advancements, after the death of the intestate, shall bear interest; but thése cases are at variance with the provisions of Section 4172, Revised Statutes, and with the equitable holding in Hosmer v. Sturges, 31 Ohio St., 657, as well as with the theory that the debtor heirs inherited less of the land by reason of their indebtedness. No interest should be charged upon these amounts after the ancestor’s death, but the sums to be equalized should be $154.81 to Daniel and $52.65 to John, and no more.

Finley & Gallinger, for plaintiff in error.

C. F. Schaber and S. W. Bennett, for defendants in error.

These two proceedings in error will be ordered to be consolidated and distribution of the residue of the fund will be ordered accordingly.


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    SUBROGATION OF ONE DISCHARGING A MORTGAGE DEBT.
    [Circuit Court of Greene County.]
    Ellen M. Knox v. W. W. Carr et al.

    Decided, October 31, 1901.

      Liens — Judgment Lienor May Marshal — Though Prior Liens will Exhaust the Fund — Subrogation as to a Mortgage Debt — Paid to the Administrator of the Mortgagee.

    1. A judgment lienor may prosecute a suit to marshal liens and for sale of property, although prior liens will exhaust the fund to be derived from the sale.

      2. Where payment is made of a mortgage to the administrator of the mortgagee, and the one making the payment is a member of the household of the mortgagor, and holds a mortgage upon other real estate of the same mortgagor, and acts upon the advice of counsel, and believes she is obtaining security for the payment, and the administrator acts under the same belief, she is not a volunteer, but is entitled to be protected under the mortgage.
    Wilson, J.; Sullivan, J., and Summers, J., concur.
    Appeal from Court of Common Pleas of Greene County.

       Affirmed by the Supreme Court without report (Knox v. Carr, 68 Ohio State, 575).

   This case comes into this court on appeal. We will simply state our conclusions without reviewing at length the evidence in the case, or arguments of counsel.

Ellen M. Knox brings an action to marshal the liens against the real estate of Wallace W. Carr, and sets out in her petition that she has a judgment which is a lien upon his real estate. This is not controverted. There was a contention in the early stages of the ease that she had no right to prosecute this action, for the reason that there were other and prior liens which would exhaust the funds derivable from the sale of the lands. We think she had the right to prosecute the action, and for an order of sale of the premises described in the petition, and decree may be entered in her favor.

The main contentions in the case grow out of the cross-petition as filed by the different defendants.

The first one in order is upon the cross-petition filed by Emma Runyan, now represented by the supplemental cross-petition of Charles L. Spencer, setting out a mortgage executed in 1876, by Wallace W. Carr, upon the real estate in the petition described. The mortgage is admitted. The question is whether it is barred by the statute of limitations; and whether or not it is barred depends upon an alleged payment on the two notes secured by the mortgage, in 1894. If that payment was made, it is not barred; if it was not made, it is. We conclude from the testimony of Emma Runyan that that payment was made; therefore the claim upon the mortgage is not barred, and the party representing the mortgage in this action is entitled to recover upon the mortgage to the extent of $500, the amount paid by him for the claim — he not claiming a right to recover more than that against the principal defendant, Wallace W. Carr, who was bis client. A decree may be entered in bis favor for the sum of $500, with interest from the date of tbe payment of the money. It is not necessary, in that view of the case, to determine whether or not the plaintiff has the right to interpose the plea of the statute of limitations, or whether or not Wallace W. Carr has, at this time, the right to withdraw his plea of the statute of limitations.

The next claim in order is under what is known as the Jobe mortgage. The claim under this mortgage is made by Alice S. Totten, and the defendant Charles L. Spencer.

We are of the opinion that Mrs. Totten is entitled to be subrogated under this mortgage to the rights of the administratrix. She at the time of the transaction, which is disclosed in the evidence, was a part of the household of the mortgagor, she and her daughter living with him. She had a mortgage claim against the defendant, Carr, secured upon other real estate. It might become a claim against the real estate which was included in this mortgage, if her security was not sufficient to satisfy it. She paid this money, understanding she was investing it; she did it under the advice of counsel; she thought she took security for it; the administratrix thought she was giving her security for the payment. Under this state of facts she is not a volunteer. She brings herself clearly within the doctrine of the ease of Miller v. Stark, 61 Ohio St., 413. Indeed, her case is stronger than was the ease of Miller as there reported. And she is entitled to be protected under this mortgage, not by virtue of the assignment of the order of sale to her, or by virtue of the assignment of the mortgage and the notes to her, but by reason of the fact that she paid the money under the circumstances that she did; so that her rights are entitled to be protected under that mortgage. This includes the right of Mr. Spencer to recover upon the $241 note, which is, in fact, payment by her, under the circumstances of the case, upon this mortgage.

The next claim is that of Alice S. Totten against Wallace W. Carr, upon her mortgage. The defense to this is payment. The court is not impressed that the circumstances and facts disclosed with reference to the family arrangement between these parties amounted in equity to a payment of any part of her claim. We think she is entitled to recover upon her mortgage.

George Arthur, Horace L. Smith and John B. Knox, for plaintiff.

Little & Spencer and Charles H. Kyle, for defendants.

Antedating all these claims is the claim of Charles L. Spencer for taxes. That claim is conceded, so that in the decree the claims of the parties will stand in this order:

First, the right of Mr. Spencer to recover his taxes; second, the right of Mr. Spencer to recover under his supplemental cross-petition, $500 and interest; third, the right of Alice S. Totten and Mr. Spencer to recover what they paid out under the Jobe mortgage; fourth, the right of Alice S. Totten to recover the amount still due upon her mortgage against Wallace W. Carr; and, fifth, the right of Ellen M. Knox to recover upon her judgment against the property.

The costs will be paid out of the proceeds of the sale of the real estate.


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    SPEED OF AUTOMOBILES WITHIN MUNICIPAL LIMITS.
    [Circuit Court of Franklin County.]
    Campbell M. Chittenden v. The City of Columbus.
    Decided, September, 1904.

      Ordinances — Subject Expressed, in Title — Speed of Automobiles and the Carrying of Lamps and Horns — Reasonableness of Limit of Speed to Seven Miles an Hour — Proper Discrimination as to Speed of Vehicles — Uncertainty as to Boundary of District to Which Ordinance Applies.

      1. The introduction of a second subject into tbe second section of an ordinance would not render the first section invalid, where that section is complete in itself; but the introduction into an ordinance limiting the speed of automobiles within certain municipal limits, of a section providing that automobiles must be provided with lamps and horns, is germane to the subject of the ordinance, and not in contravention with Section 1694, Revised Statutes.

      2. An ordinance limiting the speed of all vehicles to seven miles an hour within certain municipal limits is not so unreasonable as to demand its invalidation by the courts..
    3. Such an ordinance is not discriminating against automobiles, because another ordinance permits street cars to run at a more rapid rate, since automobiles having no certain course are much more dangerous to persons using the streets.
    4. It is competent for council to prescribe different rates of speed for different portions^ of the municipality, according to the width of the streets, their use and the density of the population.
    5. Uncertainty as to the boundaries to which an ordinance is made to apply will be solved by a court by considering streets mentioned as boundaries which do not meet as if extended to the meeting point, and by regarding the first river on the west as intended, where a river in that direction is mentioned without naming it.
    Dustin, J.; Sullivan, J., and Wilson, J., concur.
    Plaintiff in error was arrested, tried and fined $25 and costs' by the Police Court of the City of Columbus, for running an automobile at unlawful speed within certain city limits, in violation of city ordinance No. 16867, which prohibits aia excess of seven miles per hour.
   On error to the common pleas court the judgment of the police court was affirmed. This action is brought to reversé said judgment of affirmance.

On behalf of plaintiff in error it is claimed—

1st. That the ordinance under which plaintiff in error was arrested and fined is invalid, because a violation of Section 1694, Revised Statutes, which provides that “No by-law or ordinance shall contain more than one subject, which shall be clearly expressed in its title.” The title of said ordinance is as follows:
“An ordinance, No. 16867, to regulate the speed of animals, bicycles, tricycles, automobiles, motor .cars and other vehicles, ridden, driven or propelled upon and along the streets, avenues, alleys and other public ways of the city of Columbus, Ohio, and repealing certain other ordinances.”

The first section of the ordinance does “regulate the speed,” as the title indicates, and nothing else.

The second section provides that certain vehicles of those mentioned in the first section shall carry lighted lamps between sunset and sunrise, and give warning of imminent danger by sounding a bell, whistle, horn or gong.

It is claimed that this section embraces a new subject, not covered by the language of the title, and therefore the whole ordinance is invalid. If this were true, it would not, in our opinion, invalidate the first section, under which plaintiff in error was tried, because that section is complete in itself, and may stand (if otherwise valid), regardless of the invalidity of the second.

Again, it has been held in Ohio, that a similar constitutional provision is directory, and not mandatory. But we think the ordinance does not, under a true construction of Section 1694, Revised Statutes, “contain more than one subject.”

The purpose of regulating the speed is to reduce the probability of accident in the more crowded streets of Columbus, and the regulation as to lamps and gongs is germane to the subject. But for that, the vehicles mentioned could run with more impunity at night than in the daytime, because, without lighted lamps, their location and speed could nót well be observed by the officers of the law.

This precise question was made in the case of Bergman v. The Railway, in 88 Mo., 678, where it was held that an ordinance purporting to regulate the speed of trains in city limits is not invalidated because the second section has reference to their equipment. The court, in its opinion, on page 683, refers to its previous decisions with reference to legislative acts alleged to be in violation of a constitutional inhibition (existing also in Ohio) similar to the statute in question, and says:

“This court has been repeatedly called upon to construe it with reference to the validity of acts of the Legislature, and it has uniformly been held that an act containing a section relating to matter germane to the general subject expressed in the title, is not obnoxious to such constitutional inhibition, the object of the inhibition being to prevent the practice of joining in the same bill incongruous subjects having no relation in connection with each other and foreign to the subject embraced in the title, and that a liberal construction should be placed on the constitutional provision rather than embarrass legislation by a construction whose strictness is unnecessary to the accomplishment of the beneficial purpose for which it was adopted.”

We think that principle is sound, and, applying it to the ordinance before us, find that the subject treated of in the second section is germane to the general object and purpose of the ordinance as indicated in its title.

2d. It is said that the ordinance is unreasonable, in that it limits the speed of all the vehicles named to seven miles per hour; and that the enforcement of the ordinance against bicycles would virtually banish them from the streets. The legislative body of the city, composed of its citizens, has, with full knowledge of all the circumstances and after due deliberation, fixed seven miles per hour as a proper rate of speed. If that be now considered unreasonable as to bicycles, it may be readily amended. It is not so unreasonable as to demand its invalidation by this court.

3d. It is said that the ordinance is partial and discriminates against automobiles because another ordinance allows street cars to run at a greater rate. There is nothing in the bill of exceptions to show that that is the case, and the court does not take judicial knowledge of ordinances. However, we think that it would be a very proper discrimination, because street cars are confined to their tracks and can be easily avoided, whereas automobiles have no certain course, and on that account are much more dangerous to the pedestrian.

4th. It is said that the ordinance is void for uncertainty, because the boundary streets of the district do not meet; that there are two rivers on the west, and it is uncertain whether the Olentangy or Scioto river is meant by the word “river,” and because the northeast corner (the lines being extended) contains a piece of territory beyond the city limits; also because different rates of speed are prescribed for different portions of the described district.

We think that where streets are mentioned as boundaries and do not meet, their lines are to be considered as if extended to the meeting point; where a river on the west is mentioned without naming it, the first river in that direction is meant; where outside territory is included, the ordinance can not, of course, operate in that portion, but that fact does not invalidate it within corporate, limits.

Kinkead, Merwine <& Schumacher, for plaintiff in error.

J. M. Butler, O. B. Garter and Outhwaite, Linn & Thurman, for defendant in error.

As to the different rates of speed allowed in different portions of the prescribed territory, it may be said that it is not for plaintiff in error to complain. There is no uncertainty whatever in his case. He was clearly operating within the seven mile per hour limits. But we think it is within the province of the city council to prescribe different rates of speed in different portions of the city, according to the width of the streets, their use and the density of population.

Through an inadvertence or a typographical error, a sentence in Section 1 is broken by a period. The court will read it as a comma, according to the manifest intent.

Plaintiff in error made no defense whatever upon the merits of the case, taking refuge behind the supposed invalidity of the ordinance. ¥e find no error in the proceedings of the courts below, and think the judgment of the common pleas court should be affirmed.