author: Rohn, J.

text:
    (Third Circuit — Crawford Co. Circuit Court
    September Term, 1896.).
    Before Day, Price and Kohn, JJ.
    THE O. S. KELLY COMPANY v. BERNARD LOBENTHAL, et al.

      Chattel mortgage — Refiling—
    (1) . Under section 4155, Revised Statutes, it is not required of a person authorized to make the affidavit for the re-filing of a chattel mortgage, to name or enumerate the mortgagors, or state under oath more than the amount of the claim secured, that it is just and unpaid, together with a statement exhibiting the interest of the mortgagee in the property at the time the same is made and claimed by virtue of the mortgage.

      Subrogation — Equity—
    (2) . A purchaser of chattel property from a mortgagee having possession, will, in equity, be subrogated to all the rights and equities of such mortgagee in and to the mortgage covering the same, to the extent of his interest therein, as against a subsequent mortgagee seeking, in proceedings in foreclosure, to recover the same.
    Interest—
    (3) . The interest of such purchaser in the property, by subrogation, is the amount paid not exceeding its entire value; and where it is shown or conceded that such purchaser paid full value for such property, he will be Bubrogated to it's entire interest, and his title thereto protected in equity as against a suit in foreclosure by a susbequent mortgagee claiming the same.
    Error to the Court of Common Pleas of Crawford county.
   Rohn, J.

On January 26,- 1892, the plaintiff in error in this case filed its petition in the court below against Bernard Lobenthal, John Lobenthal, The Citizens National Bank of Gallon, Dill and Reister, H. C. Carhart and John J. Shumaker, for the purpose of obtaining a judgment against Bernard'- and John Lobenthal upon two certain promissory notes, and foreclosing a certain chattel mortgage upon personal property, described in its petition. The defendants, The Citizens National Bank of Galion, Dill & Reister, H. C. Carhart and John J. Shumaker were made parties defend-ant in the action on the ground that they claimed some interest in the property described in plaintiff’s petition, which it was asserted, was subordinate to its claim.

- To this petition, The Citizens National Bank of Galion filed its separate answer and cross-petition, asking judgment against Bernard and John Lobethal upon a balance due it upon a certain promissory note for $600,and also,the foreclosure of a certain chattel mortgage given to secure the same. John J. Shumaker answered separately, also, to the petition of the plaintiff, first by answer, and secondly by an amended answer,-alleging, in substance, that in May, 1891, be, with the consent and authority of the defendant, The Citizens National Bank of Galion, and with the knowledge and approval of the defendants, Bernard and John Lobentfhal, purchased a certain Mansfield Traction Engine, for the sum of $425, its full value, which sum was paid to the bank, and credited upon the Lobenthal note; and which engine' was at that time included in. the chattel mortgage of said bank securing its note of $600; and that by reason of such purchase and payment he, Shumaker, was subrogated to all the rights and equities of the bank in and to said traction engine, by virtue of the chattel mortgage in favor of the bank to the amount paid therefor. This same engine is claimed by the plaintiff in this case by reason of its mortgage, though given subsequently to the mortgage held' by the' bank-. ....

Upon substantially this state’of facts issue was made up and a-trial had'in tie court below, which found the equities in relation to the engine in controversy in favor of the defendant John J‘. Shumaker, and rendered judgment accordingly. The plaintiff now prosecutes error in this court, alledging error:

First, in over-ruling its motion for a new trial.

Second, Error in over-ruling the plaintiff’s motion ' to make amended answer of -defendant John J. Shumaker more definite and certain.

• Third, that the facts set forth in the answer and amended answer of the defendant John J. Shumaker, are not sufficient in law to maintain the action or support the judgment against the plaintiff in error, ■

Fourth, that the judgment was given for said John J. Shumaker and the Citizens National Bank of ’Gabon, when' it ought to have been given for the plaintiff.

The first error assigned, is the overruling the motion of the plaintiff for a new trial. This assignment of error, includes-all the other assignments, and, consequently, all will be considered together or under one head’.

The undisputed facts in this case, as disclosed from’ the record and proceedings, are:

First, that the defendants Bernard Lobenthal and John Lobenthal,on or about the 19th day of April, 1890, executed and delivered their certain chattel mortgage to one A. F. Lowe to secure the payment of a note to said Lowe for the sum of $600, and that among the property thus mortgaged was an engine known as ‘‘A Mansfield Traction Engine.”

Second, that the mortgage thus received by Lowe was deposited'with the Township Clerk of Jefferson Township, Crawford County, Ohio, on the 21st day of April, 1890, -it, being averred, and not denied, that the mortgagees lived in that township, and the mortgage was properly filed as required by section 4151, Rev. Stat.

Third, that on or about the time of the execution and delivery of said mortgage and note, Lowe, who was then the cashier of the Citizens National Bank of Gabon, transferred the same to such bank.

Fourth, that the mortgage was re-filed, as follows:

March 26, 1891, by A. F. Lowe, Cashier of Bank; March 15, 1892, by A. F. Lowe, Cashier of Bank; March 9, 1893, by A. F. Lowe, Cashier of Bank; March 8, 1894 by A.’ F. Lowe, Cashier of Bank.

Fifth, That on the 10th day of July, 1890, the plaintiff in this action, the O. S. Kelly Company, obtained from the defendants Bernard and John Lobenthal, a certain chattel mortgage, securing two promissory notes mentioned and described in this petition, and conveying, among other property, the same “Mansfield Traction Engine” described in the first mortgage to Lowe — there being no question but that .this mortgage was properly filed and re-filed, until the commencement of this action.

Sixth, That this engine, covered by both mortgages, was purchased by John J. Shumaker for $425 cash, from Bernard and John Lobenthal, with the full consent of The Citizens National Bank of Gabon which then held Lobenthal’s note for $600 secured by this mortgage made to Lowe, and which also had possession of the engine in question; and, further, that the amount of the purchase money of the engine was, by common consent and agreement of the Lobenthals, Shumaker and the bank, credited as part payment on the $600 note held by the bank, and the bank relinquished all claim to the engine in question after receiving its full value in money.

The whole and sole contention comes up between the plaintiff, The O. S. Kelly Co., and the defendant John J. Shumaker.

From the facts as they now appear, the plaintiff claims that by virtue of its mortgage it has'the first and best lien on the engine in question, and-asks to have the same sold, and the proceeds applied toward the payment of its judgment secured by the ^consideration of the court below, against the Lobenthals on the notes secured by its mortgage.

The defendant_°John J. Shumaker asks to be subrogated to all the rights and equities bf the Citizens National Bank, in and to the mortgage held by it, covering this same engine -and securing the same note upon which it credited the $425 paid by him for the en'gine.

It is evident, before the defendant Shumaker can claim subrogation to the rights and equities of the bank by •and through the mortgage executed by the Lobenthals to Lowe, that it must first appear to the satisfaction^ of the court, that the chattel mortgage so held by the bank was in all respects perfect, and created a good and sufficient lien on the engine in question, prior to the mortgage of the plaintiff company. This raises the question, as made by the pleadings and evidence, whether the Lobenthal-Lowe •mortgage, which it is conceded was executed prior to the mortgage of plaintiff, was properly re-filed end kept alive under the statutes of this state by the bank until the commencement of this action. It is unnecessary to do more than refer to the question relating to the filing of the mortgage in the proper township of Jefferson, for the reason, as stated before, it is averred and not denied, that the Lobenthals resided in the township where the mortgage was filed. Then the only question regarding "the sufficiency of the Lobenthal-Lowe mortgage relates as to whether the same was properly, re-filed within thirty days preceding th.e expiration of each successive year, as provided by the statutes of this state, until the commencement of this action. For this purpose it will only be necessary to consider the first re-filing made March 26, 1891, as, before the expiration of the next year, this action was commenced, to wit: January 26, 1892. It is claimed by the able argument of plaintiff’s counsel, that there is nothing to indicate any connection between the amount claimed by Lowe when the mortgage was executed and the amount claimed upon the re-filing referred to — that is: that the amount claimed in the first instance was from Bernard and John Lobentbal, and upon re-filing from Bernard alone and that it does not correspond with the conditions of the mortgage. For a proper determination of this question it is only necessary to refer to sections 4154 and 4155 of the Revised Statutes of the state, which provides:

“Section 4154. The mortgagee, his agent, or attorney, shall, before the instrument is filed, state thereon, under oath, the amount of the claim, and that it is just and unpaid, if given to secure the payment of a sum of money only; and if given to indemnify the mortgagee against a liability as surety for the mortgagor, such sworn statement shall set forth such liability, and that the instrument was taken in good faith to indemnify against loss that may result therefrom. ”

“Section 4155. Every mortgage so filed shall be void, as ■against the creditors of the person making the same, or ■against subsequent purchasers or mortgagees in good faith, after the expiration of one year from the filing thereof, unless, within thirty days next preceding the expiration of the said term of one year, a true copy of such mortgage, together with a statement verified as provided in the last section, together with a statement exhibiting the interest of the mortgagee in the property at the time aforesaid, claimed by virtue of such mortgage, is again filed in the office where the original was filed.’’

These statutes we think have been substantially complied with by A. F. Lowe, Cashier, or in other words, agent for the bank. It nowhere appears necessary for the person, authorized to make the affidavit under the statute for the re-filing of a chattel mortgage, to name or enumerate the mortgagors, or to, as in this case, state under oath more than the amount of the claim, that it is just and unpaid, together with a statement exhibiting the interest of the mortgagee in the property at the time the same is made and claimed by virtue of the mortgage. Was the interest of the then mortgagee exhibited by the affidavit made? We think it was, as it advised all parties interested of the interest of the bank in the property covered by the mortgage. This being true, we think the chattel mortgage was properly refiled, and was, at the time of the commencement of this action, superior to the mortgage of plaintiff.

The next and only question which remains for the court to consider, can the defendant Shumaker, as purchaser from the Lobenthals and bank of the engine, be subrogated to the rights and equities of the bank in and to the mortgage covering the same as against the mortgage of plaintiff? It is claimed,and not without reason, on the part of the plaintiff’s counsel, that subrogation in this case cannot be made in favor of Shumaker, because “one of the prerequisites to the exercise of the right of subrogation is the complete discharge of the debt: a partial payment will not suffice.” In other words,that before Shumaker could claim subrogation, he would have been compelled to discharge the entire debt due the bank; and that the bank’s rights would' have to “be entirely divested,” before Shumaker could be substituted or subrogated in its place as to its rights under the mortgage. Subrogation is the substitution of another person in the place of a creditor, to' whose rights he succeeds in relation to the value of the property, not exceeding the original debt. This sounds purely in equity, and is founded upon equitable principles, It is an equitable assignment by 3ubrogation, and “is enforced” says Pomeroy’s Equity, vol. 3, sec. 1211, “whenever the person making the payment stands in such relations to the premises or to the other parties that his interests, recognized either by law or by equity, can only be fully protected and maintained by regarding the transaction as an assignment to him, and the lien of the mortgage as being kept alive, either wholly or in part, for his security and benefit.” And Pomeroy further says in the succeeding section, ‘‘The doctrinéis also justly extended, by analogy, to one who, having no previous interest, and being under no obligation, pays off the mortgage or advances money for its payment, at the instance of a debtor party, and for his benefit; such a person is in no true sense a mere stranger and volunteer.”

Applying these principles to the question under consideration, can it be said that Shumaker was a mere ‘‘stranger and volunteer,” when at the instance of Lobenthal and the bank, he paid his money, full value as shown by the evidence, for the engine? But it is said Shumaker did not pay the entire debt due the bank. That is true, but he paid the entire debt to the bank in so far as the bank had any claim against the engine; it released the engine to Shumaker so far as its claim was concerned; it looked to other property covered by the mortgage for the balance of the debt due to it from the Lobenthals; and a majority of the court are of the opinion that there can be no trouble íd extending the equitable doctrine of subrogation or assignment of this mortgage, under all the circumstances, to Shumaker for his protection for the full amount paid by him to apply on the mortgage debt to the bank. There can be no conflict between the bank and Shumaker, as the bank claims no interest in the property purchased from it, and there cah be no trouble in extending to Shumaker all the rights and equities which the bank had in and to the mortgage covering the engine in question.

There can be no doubt of the equities in this case being with Shumaker' — be gains nothing by the result of this suit, except a protection, by the court, of an article of personal property for which he paid full value. The plaintiff, on the other hand, loses none of its security which it had in the first instance, and still has, subject to the prior existing mortgage held by the bank, and now extended to Shumaker for his protection. - ■

Edward Vollrath, for Plaintiff in Error.

Finley, Beer & Bennett, for Defendant in Error.

A majority of the court are of the opinion that there was no error in the proceedings and judgment of the court below, and finding that the equities were with the defendant John J. Shumaker, the judgment of the court below will, therefore, be affirmed, with'costs. Execution awarded and cause remanded for execution.

Price, Judge, dissents.


source: Caselaw Access Project

author: Smith, j.

license: Public Domain

text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Nov. Term, 1897.)
    Before Cox, Smith and Swing, JJ.
    FRANK SCHMIDT v. THE VILLAGE OF ELMWOOD PLACE.

      City ordering sidewalk — Notice to property otvner—

    A city has no power to lay a side-walk and assess the abutting property for the cost of it, until the owner has been notified to lay it,and has had the opportunity to do so.

      Resolution for improvement of street — Notice to property owner jurisdictional—
    The notice to the property owner of the resolution declaring the necessity of improving the street, is necessary to confer jurisdiction upon the municipality to make the improvement, and a failure to give such notice is not a mere technical irregularity or defect within the meaning of curative section 2389, R. S., but invalidates the assessment.
    Appeal from the Court of Common Pleas of Hamilton county.
   Smith, j.

In 1892, the Village of Elmwood Place made an assess-meat by ordinance for sidewalk improvement on two lots owned by the plaintiff, the assessment on each lot being for $12.66.

In June, 1893, the defendant made another assessment for the improvement of Linden street on which the lots fronted, in the sum of $87.78 on each of said lots. It is admitted that no notice was ever given to the plaintiff who was a non-resident of said village, but a resident of the county, of the passage of any resolution by the defendant of the necessity of either of said improvements, and that plaintiff had no notice of the fact of said improvements until after they were made. In all other respects it is conceded that the regular and legal steps were taken. . It is sought to enjoin the collection of the whole of these assessments on the ground that no notice was ever given to the plaintiff of the passage of either resolution declaring the necessity of such improvement, and if this is not sufficient, that such assessment was for more than 25 percent, of the value of the lots after the improvement was made, and praying that it be limited to 25 per cent, of the value of the property after the improvement was completed.

1st. As to the sidewalk assessments: The proceedings of the municipal authorities as to the making and repair of sidewalks, and the assessment therefor, are prescribed by sec. 2329, Revised Statutes. This section provides for the passage of a resolution declaring that certain sidewalks shall be constructed, and for a written notice to be given to tbe owner or his agent (if a resident of the municipal corporation) of each parcel abutting on the sidewalk of the passage of such resolution. If the owner is a non-resident, and neither he or his agent can be found, notice is to be given by publication in some newspaper of general circulation in the corporation. Sec. 2330 gives such owner thirty days after service of notice to construct such sidewalks. If he d.oes not do so, the authorities are to do it at the expense of the owner of the property abutting thereon, and the same, with a penalty of 20 per cent., shall be a lien on the abutting property and be collected as other assessments. In the 11 C.C. Rep., 69 it was held that “the city has no power to lay a sidewalk and assess the abutting ' property for the cost of it, until the owner himself has been notified to lay it and has had the opportunity to lay it.” We think this is good law, and.as.notice was not given in this case, the assessment for the sidewalk will be enjoined.

2nd. As to the effect of the failure to serve plaintiff with a copy of the resolution declaring the necessity of improving the street. Did this render the whole assessment void, or under the provisions of our curative statutes as to assessments, can the court properly, in an action brought by the corporation to collect the assessment, or in one brought by the owner to enjoin it, in a case where no notice of the proceedings to improve has been given as required by sec. 2804, allow such part of the assessment as is a proper charge upon the property to be .collected in the one case, or to stand in the other?

See,2289,Revised Statutes, was theoriginal curative sec-' tion.and provides,in substance, that in any action,brought by the municipality to recover the amount of the assessment or enforce the lien thereof,“if it shall appear that by reason of any technical irregularity or defect, whether in the proceedings of the board of improvements, or of the council, or any other officer of the corporation, of in the plans or estimates, the assessment has not been properly made against any defendant, or upon any lot or parcel of land sought to be charged, the court may nevertheless, on satisfactory proof that expense has been incurred .which is a proper charge against said defendant, or lot or parcel of land in question, render judgment for the amount properly chargeable against such .defendant or on such lot or land, but in such cases the court shall make such order for the payment of costs as may be deemed equitable and proper.” — As stated, this seems to be applicable only to actions brought by the municipality, but we have no doubt but the same rule should be applied to cases where an owner of land seeks to enjoin an assessment on account of some “technical irregularity or defect.”

But we are of the opinion that the failure to give the notice required by law, is not a mere technical irregularity or defect' — 'but on the contrary, is necessary to confer jurisdiction upon the municipality,and unless it is given,that the assessment can not be legally made upon the property of a person entitled to such notice. We do not say that there must be a literal compliance with the terms of the statute to give such jurisdiction. For instance, as held by this court in the-Green case, 7 O. 0. Rep., 238, that notice may be served, but not in strict compliance with the statute, and then it would constitute a technical irregularity or defect which would bring the case within the provisions of sec. 2289. But where no notice is given or attempted to be given, and the municipality proceeds to assess the land of the owner, the case is different. As held in 47 Ohio St., 217, the purpose of this notice is not merely to notify the owner,so that he may claim damages if he desires to do so. He is entitled to it for other purposes, and if his rights in this respect are disregarded,he is entitled to have the assessment held invalid. We think this view is warranted by the decisions of the supreme court in 18 Ohio St., 85; 27 Ohio St., 527; 34 Ohio St., 468, and 43 Ohio St., 75.

We think it is strengthened, too, by the provisions of sections 2289a, 22896, and sections 2289c, and 2289d, as enacted Jan. 11, 1893, vol. 90 O. L., page 5. By this legislation, it was in effect provided, that where the municipal authorities heretofore or hereafter should have failed to pass ordinances for assessments in the manner provided by the statute, (and a failure to do so, rendered the assessmenfc invalid as held by the supreme court), and. in other respects specifically mentioned - have failed to observe the provisions of the statute, that if it still appeared that some part of the assessment was a- just claim upon the land, that it might be collected nevertheless, or that the whole assessment should not be enjoined or held invalid. But there is no pretence that any of these sections applies to a case where no notice was given as required by law.

Burch-& Johnson, for Plaintiff.

Scott Bonham, for the Village.

In the case at bar, Schmidt, the plaintiff, in his petition avers that without prejudice to his rights and by way of compromise he had tendered to said defendant the sum of $45 for each of said lots in' payment of the full amount of the assessments made thereon, and is ready and willing to pay the same still. If the defendant is willing now to accept said amount in full of its claim, the decree may be taken in its favor for that amount,and the rest here enjoined. If not, the whole will be enjoined, saving the right to the defendant (if any it has), under sec. 2290, to order a re-assessment. In either event the costs will be adjudged against the defendant.


author: Parker, J.

text:
    (Sixth Circuit — Lucas Co., O., Circuit Court
    Jan’y. Term, 1898.)
    Before King, Haynes -and Parker, JJ.
    THE SUN OIL COMPANY v. THE OHIO FARMERS.’ INSURANCE COMPANY.

      Insurance — Fire caused by third party — Bight of Insurance Co. to sue for damages—
    (1.) If insured property is destroyed by fire through the fault or negligence of another than the insured, the insurer, upon payment of the loss, will be subrogated to the rights of the inspred to the extent .of the indemnity paid. __

      Interrogatories for jury — Befusal by court to submit—
    -.(2.) It isjnot error for,a court to refuse to submit interrogatories to a jury at the request of a party, when such request is absolute and unconditional, and not with the qualification and condition that they are to be answered in the event that a general verdict is returned.

      Same- —Improper interrogatories—
    (3.) A court is not bound to and should not propound interrogatories upon questions having no legitimate bearing upon the issues, or the answer to which can have no influence on the general verdict.

      Same — Interrogatories requested to be submitted as a whole—
    (4.) Where a party requests the court to propound all or none of a series of interrogatories, some of which are proper and some of which are improper, it is not error for the court to refuse to submit the whole or any part of such series.
   Parker, J.

This case comes into this court by petition in error from the common pleas, where the Ohio Insurance Company was plaintiff, and the Sun Oil Company was defendant. The petition filed by the plaintiff below sets forth that it is a duly incorporated insurance company, authorized to do business in the state of Ohio; that the defendant, The Sun Oil Company, is also an incorporated company, engaged in the business of mining for and producing petroleum oils; that on the 16th day of September, 1893, the plaintiff insured George Bowe and William M. Bowe against loss or damage by fire, to their barn, hay, grain, fodder and seed and certain other property, in an amount not exceeding $1017,25. That while said contract of insurance was in force, certain of this property was destroyed b} fire; that the amount of the loss so occurring was $1017.25, which the plaintiff was-required to and did pay to the Bowes. The petition then proceeds to charge that this fire occurred through the fault and negligence of The Sun Oil Company; that while it was engaged in the prosecution of its business of mining and drilling for petroleum oil, it used a certain boiler to operate a certain engine and machinery, in proximity to this barn and other property so insured. That upon the day the fire occurred there was a high wind prevailing and blowing from the direction of this boiler toward this barn and other property; that the Sun Oil Company failed to use proper screens or other precautions to prevent sparks from being emitted from the smoke-stack of this boiler; that they burned wood' under the boiler, which caused large sparks, and a great many of them,and that on that account,'and on account of the prevailing wind or gale, their action was negligent, and that in consequence of this negligent action, certain litter in and about the barn was fired, and the fire was communicated therefrom to a straw-stack next to the barn, and this property was so destroyed.

The answer denies the allegations upon which the conclusion of negligence is founded.

The claim of the insurance company was for $1017.25, which it had been required by the Bowes to pay in consequence of this fire. They claim that by operation of law they became subrogated to the rights of the Bowes as against The ¡Sun Oil Company. The case went to a jury, and the jury returned a verdict in favor of the plaintiff below for the full amount claimed, and upon this verdict a judgment was entered.

The principal contention here, on behalf of the plaintiff in error is: that the case stated in the petition was not made out by the proofs; that if any case was made out by -the proofs, it was one widely varying from that stated in the petition — -that there was either a failure of proof,or a material variance. This contention was based chiefly upon the claim that it was fairly established by the evidence that there was no negligence on the part of defendant below in the use of the sort of fuel that was used under this boiler, and that there was no negligence in not using a screen or spark-arrester over the smoke-stack. It does not appear to have been claimed on behalf of the plaintiff below that these acts,either of them,amounted to negligence per sé; but that, under the circumstances, considering the proximity, of the barn and these inflammable materials, and the gale that was blowing from the direction of the engine towards the barn, and the further fact, which appears in the evidence, that the servants of the defendant below who were operating this boiler had been cautioned against the danger — that all of these facts and circumstances combined amounted to negligence on the part of defendant below.

After a careful consideration of this question, we do not And that there was any failure of proof, or variance, which required the court below to act upon the motion of the defendant below to arrest the case from the jury.

It is also contended that the verdict is against the weight of the evidence. We do not deem it necessary to go through this bill of exceptions and review the evidence, but we have read it and considered it, and it seems to us that the jury was justified in finding as they did — that the defendants below were guilty of negligence; that the verdict is amply sustained, as I have intimated. The engine was situated but a short distance — some 300 or 350 feet — from this barn, straw-stack, litter, etc., and the wind was blowing in that direction, and sparks were blowing out of the smoke-stack; and, in addition to these considerations,, a fire had been communicated from this boiler to a fence-post, or part of a fence,-between the boiler and the barn, and npon this fire being extinguished, the attention of these servants of the defendant, The Sun Oil Company, was called to the fact that fire had been so communicated from their boiler, and they were cautioned against operating the boiler as they were operating it under the existing conditions; they were told that it would probably result in the burning down and destruction of the premises of the Bowes. They seem to have recognized (he fact that the operation was dangerous, and promised to correct their mode of operation so that the danger would be averted; but it appears that they did not do so, and the fire resulted.

This contention seems to have been based on the theory of counsel for plaintiff in error — that the insurance company was bound to make out the same kind of a case of negligence against the Sun Oil Company as it would be required to make out m order to successfully resist an action upon the part of the Bowes upon the insurance policy. To resist this action upon the policy successfully, or to give a right of action to the insurance company against the Bowes, if the act had been their act — the setting of fire to this property — 'it would have been necessary to show that the negligence was so gross as to amount to wilfullness or fraud. It is contended that the rights of the insurance company against the tort feasor are no greater than the rights of the insurance company against the insured; but we are not cited to any authority in support of this contention,and we know of none. We regard it as a novel proposition, and one in support of which we can think of no good reason.

The rule as to the insurance company, that is to say affecting the right of the insurance company against the insured, grows out of and is modified by the contract of insurance. The Sun Oil Company, the defendant below, is not privy to this contract: it has no rights under it. Its rights against the insurance company are not enlarged by it, nor are the rights of the insurance company against it in any way reduced, qualified, or limited by it. The consideration does not proceed from the Sun Oil Company to the insurance company, and no promise runs from tbeinsurance company to the Sun Oil Company. The rule is too well settled to admit of any doubt, or to require any discussion or the citation o'f any authorities, that if the insured property be destroyed through the fault or negligence of another than the insured, the insurance company, upon payment of the loss, will be subroga,ted to the rights of the insured owner to recover from the wrong-doer to the extent that the insurance company has been obligated to pay, and has paid. The rights of the insurance company under such circumstances are precisely those of the owner against the wrong-dcer.

The rules of law applicable to the case appear to have been very fully, clearly and correctly given by the court in its charge to the jury. There are certain exceptions noted to the charge, but we do not deem it necessary, in view of the course the discussion has taken, to say more than this in reference to the charge. We find no error in it.

It was also contended on behalf of the plaintiff in error that the court below erred in failing or refusing to submit to the jury certain written interrogatories which it is said were submitted by counsel for the defendant below to the court for that purpose and with that request. These interrogatories are spoken of by counsel for plaintiff in error as if.they were the same thing as the special verdict provided for by the code. There seems to be a material difference and distinction between the two, and one that should be considered in order that what has been held with ■ reference to each and the application of what we shall say here shall be understood. The law with reference to special verdicts and special interrogatories seems to have been incorporated into a statute,for the first time,in the state of New York,although a similar practice obtained in this country before that, both in courts of law and courts of equity — especially in the latter. The other states appear to have followed in their enactments the New York code pretty closely, and our statq. ute upon the subject appears to be almost, if it is not exactly, identical with the statute of Indiana. There appears to have-been a great many decisions in the state of Indiana under this statute. In our state, there are not so many. When questions arise upon these special verdicts, we are usually referred to the decisions of the courts of Indiana, which are very full and numerous. I call attention, without reading, to sec. 5200, Revised Statutes, which defines special and general verdicts, and read section 5201, which is a counterpart of section 546 of the Indiana code:

“In all actions the jury, unless otherwise directed by the court, may, in its discretion, render either a general or special verdict; but the court shall, at the request of either party, direct them to give a special verdict in writing upon all or any of the issues, and in all cases when requested by either party, the court shall instruct the jurors, if they render a general verdict,to find specially upon particular questions of fact, to be stated in writing, and shall direct a written finding thereon, and the verdict and finding must be 'filed with the clerk and entered on the journal.”

Bee. 5202, — (which is the same as sec. 547 of the Indiana code), provides: ‘‘When the special finding of facts,” (not the special verdict), “is inconsistent with the general verdict, the former shall control the latter, and the court may give judgment accordingly.”

Answers to interrogatories (the propounding of which seems to be the form in practice, of stating in writing the particular questions of fact upon which the finding of the jury is desired), control the general verdict, but do not dispense with it. The special verdict differs, from this finding as to particular facts or issues, in that it is a finding by the jury upon all facts or issues upon which evidence is submitted, without interrogatories, and it dispenses with the general verdict. In other words,, a general verdict has no place in a case where a special, verdict is returned, whether such special verdict is returned by direction of the court, on its own motion, ‘or by request of the parties, or by the jury without any direction from the court.

This distinction is pointed out in a number of Indiana cases. I call attention to the case of The Louisville, New Albany & Chicago Railway Co. v. Balch, 105 Ind. Reports, 98. Referring to sections 546 and 547 of the Indiana code, the court says:

“These sections of the statute clearly provide for two kinds of verdicts, a special and general verdict.- They do not together form one verdict, but are separate and distinct.

“A general verdict is a finding generally for the plaintiff or defendant upon the facts and’ the law as given by the court in instructions. A special verdict is a finding of the facts only. In this, the jury have nothing to do with the law. The court does not instruct them as to the law, but in the rendition of the judgment, applies the law to the facts found by the jury.” Citing Indianapolis, etc., Ry. Co. v. Bush, 101 Ind. 582.

“There is a marked distinction between a special verdict, and interrogatories propounded to the jury. These are allowed only in case a general verdict is found, and are allowed for the purpose of discovering whether or not the jury have rested their verdict upon sufficient, material and consistent facts. They may be propounded in reference to one or more of the material facts in the case. Such interrogatories cannot accompany a special verdict, because the special verdict is itself the finding of the facts. It is perfectly. consistent to allow interrogatories to accompany a general verdict, for the reasons stated, but it would not be consistent to allow both a general and special verdict in the same case, for the reason that one finds both the law and the facts of the case, while the other finds the facts only, leaving the law for the court in the rendition of the judgment. Each is a mode different from the other, in reaching the final conclusion in the case, and settling the ultimate rights.of the parties.

“The jury, unless otherwise directed, may find either a general or special verdict; but if, upon the request of either party, they are required' to' find a special verdict, they should not return a general verdict also. These views are fully sustained by the well considered case of Todd v. Fen-ton, 66 Ind. 25. ”

There is more discussion of the question in the authority from which I have read,

It has been held with reference to special verdicts — and the statute is clear upon the subject — that it is sufficient for counsel to demand that a special verdict shall be rendered.

But it is held that the court is not bound to comply with a request to submit interrogatories, unless coupled with the qualification that the same are to be answered only in case a general verdict is returned. ' If no verdict is returned, or if a special verdict is returned, the jury may not be required to answer the interrogatories, There are a great many decisions to this effect. A I call attention briefly to one or two.

The Cleveland, Columbus, Cincinnati & Indianapolis Ry. Co. v. Bowen, Adm'r., in the 70 Ind. p. 478:

“A jury can only be required to answer special interrogatories conditionally upon their finding a general verdict, and then only when so instructed by the court, upon the request of one or both the parties. The submission of interrogatories to the jury is a judicial act, and the record ought in some way to show affirmatively that the interrogatories were submitted to the jury in the manner and under the circumstances contemplated by the statute, before any question can be made upon such interrogatories in the supreme court.” ■. ..

In 91 Ind., 252 (Taylor v. Burk, Ex’r.), reading from the syllabus:

“There is no error in the court’s refusal to propound an interrogatory to the jury, at the request of a party, when such request is absolute and unconditional, and not in the event they render a general verdict.”

With those authorities in mind, let us look at the bill of exceptions and see what occurred upon the trial of the case at bar. The first mention that seems to have been made of the interrogatoires is by the court. ' The court says:

“With regard to the questions of the special verdict, I would say that I have given them such atiention as I have been able to in the short time allowed me. While I think under the law they are handed up to the court in time, yet they should have been handed up a little before they were handed up. I am also of the opinion that a portion of them are improper questions to submit, and they being asked for as a whole and attached together, I must refuse to submit them as a whole. There are certain questions there that, if they had been handed up detached, I would submit to the jury, or if they are hereafter detached and broken up, I will instruct the jury upon them and have them answered. Exceptions by Mr. James.”

It is then noted that the “special verdict, marked S, V, as hereinafter shown and attached as part hereof,” was made a part of the bill of exceptions. It seems that after the jury were sent out, the court again called attention to these interrogatories, as shown in the record; to-wit:

“Immediately after the jury had retired the court said to counsel for defense that the special questions and answers might be cut apart, and that he would submit certain ones as being pertinent and proper. That it was not too late to call the jury back and give them further instructions as to the special verdict; and thereupon counsel for the defense explained to the court that the questions were prepared very early in the case and before he knew fully what would be the special claim of the plaintiff, and while he thought that ¿he first two questions were perhaps not important in view ,of the claims made upon the trial and argument, yet he .deemed the entire list of questions pertinent and proper,and that he desired to have them all answered, and desired to have them all submitted as proper; that he preferred to have them all given, or none, and proposed to stand or fall on the .list as a whole, and saved his exception.”

It does not appear, except by implication, that the court ■was requested to submit these interrogatories at all — that is •,to say, it does not appear except by the language of the .court after the jury had gone out.

It appears that certain interrogatories had, in some way or other, gone into the hands of the court, and the court made certain 'remarks in reference to them, and announced his decision to not send them all to the jury,and Mr, James excepted, from which it is implied that Mr. James,who was counsel for defendant below, desired to have the interrogatories submitted. That is the only way it appears. That is scarcely sufficient to make the failure of the court to send these interrogatories in, reversible error. Every presumption is in favor of the absence of error. Prejudical error must appear affirmatively. We think we should follow the Indiana decisions above referred to. The court was not requested to submit these interrogatories to be answered in case a general verdict was returned. We may say that it appears by fair inference or implication, that there was a request to send these interrogatories to the jury, but it cannot be said — there is nothing to justify us in saying — that the request was that these interrogatories should be answered in the event that the jury should return a general verdict; and we hold, that it is not improper upon the part of the court to refuse to send in even proper interrogátories, unless the request is]coupled with this condition. But the court is not bound to submit improper interrogatories. It appears by what occurred after the jury-retired, that a series of interrogatories had been submitted, with a request that all should be submitted to the juyy, or none. We are clear that if there were any of these interrogatories — any one or more of the series — which should not have been submitted to the jury, or that the court was not bound to submit to the jury, that that would justify the court in declining to submit any — under the circumstances.

It is argued|that the court, notwithstanding this request of counsel, should have passed upon the interrogatories and decided which were proper and which were improper, and should have given^to the jury those which it deemed proper; but we do not agree with this-view. We do not think the court was bound to sift the wheat from the chaff, and especially in view of the request of counsel that all should be given, or none. The rule as to requests to charge the jury, to the effect jthat if some of a series of connected propositions are bad, it is not error to refuse the whole (19 Ohio Reports, 337); and that,if a charge is asked as an entirety, and part of it is unsound,it is not error to refuse the whole, involves a principle that applies in its logic to interrogatories,since the action of the court in each case has to do with guiding the jury to proper conclusions, and therefore, a similar rule should be applied. Confusing or misleading the jury by the submission of improper questions in one case, may be as fatal to the ends of justice, as confusing or misleading it by improper instructions in the other.

In support of what I have said, to the effect that the court is not bound to submit interrogatories which are improper, I cite Thompson on Trials, sec. 2681, which reads as follows:

“Many loose questions are often submitted to a jury which can have no effect upon the general verdict, which ever way it may be returned. The object of these special findings is, not only to secure a more useful and minute examination of the component parts necessary to a general verdict, but either to confirm or antagonize that verdict, which ever way it may be returned. An interrogatory, therefore, the answer to which will in no way control the general verdict, should not be submitted. They should be limited to material and controverted questions of fact. Each question submitted should be limited to a single, direct and material controverted issue or fact, and in such a way that the answer will necessarily be positive, direct and intelligible. Facts not put in issue by the pleadings, need not be found. It is no objection to a question that it is leading; it is rather to be desired. The form should be such that it can be answered positively. The particular form in which it shall go to the jury, is always under the control of the court, and it is not bound to submit one in the exact from requested. ”

In support of these different propositions a great many authorities are cited, chiefly from the Indiana Reports, to-wit:

27 Ind,, 400: “Where the questions propounded require the jury to find the evidence, rather than facts, or where they relate to matters having no material bearing upon the rights of the parties, the court may refuse to submit them to the jury.”

108 Ind., 481: “It is not proper to submit to the jury interrogatories which merely, call for an expression of opinion upon a question of law involved in the case, nor interrogatories the answers to which can have no influence on the general verdict.”

85 Ind., 33: ‘‘It is not error to refuse to submit to the jury an interrogatory as to a question of fact not involved in the issues, or as to a question of law. ”

Certain of the interrogatories which were not submitted, because of the refusal of the court to. submit, and of which complaint is made, read as follows:

“1. Do you find that there was any negligence on the part of the defendant in locating the well, with the boiler and engine to generate power therefor, at the point on the Bonawit farm where it was located?”

That is entirely immaterial: it is not claimed or contended that there was any negligence on the part of defendant in locating the well, boiler or engine.

‘‘2. Was it negligent for the defendant to burn wood in Its boiler in the drilling of such well?”

It is questionable whether that should have been submitted, because it was the burning of the wood with the high wind prevailing, and other circumstances, which were alleged to have been negligence.

And so as to the spark-arrester, in the third question.

“6. From the circumstances surrounding the premises and as shown by the evidence to exist at that place at that time, might not the fire have originated from some other source?”

Now, clearly,the court was not required to submit to the jury a question which would oblige the jury to speculate upon how this fire might have originated in some other way than that which the testimony shows. The question for-the jury was whether or not the fire was communicated from this boiler? Having decided that, either affirmatively or negatively, that was all they were required to decide upon that subject.

James & Beverstoclc, for Plaintiff in Error.

Potter & Emery, for Defendant in Error.

The next question is: “If not,why not?’

Because of these questions, which the court was not bound to submit to the jury,and should not have submitted to the jury, as well as because the interrogatories were not submitted with the request that they be answered in the event that a general verdict should be returned, we hold that the court did not err in refusing to submit these interrogatories to the jury, even though some of the questions-were proper,and, if submitted alone, with a proper request,, should have gone to the jury.

The judgment is affirmed.


author: Smith, J.

text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Nov. Term, 1897.)
    Before Cox, Smith and Swing, JJ.
    THE CITY OF CINCINNATI v. MAGGIE EGAN.
    -Evidence—
    Where the question whether the city or the property owner on a street, in the course of improvement of the same,had built a retaining wall to protect such owner’s property and' building thereon from injury by a fill in the street, and was-responsible for the negligent manner in which the same was built whereby such owner’s building was damaged, and the-city claims that such wall was built by the contractor having the contract for the improvement of the street, under a private arrangement between the contractor and the property owner to which the city was not a party, it is competent for the city to prove that it did not authorize the building, of the wall, and did not pay for its cost.
    Error to the Court of Common Pleas of Hamilton county.-
   Smith, J.

The judgment sought to be reversed in this case was rendered in an action brought by Maggie Egan against the city to recover damages. Her petition contained three separate causes of action. In the first she'sought to recover $2000 damages for an alleged injury by the city to her lot and the improvements thereon,abutting on a street, which she claims was, without warrant of law, filled to a great height in front of her property, In the second she sought to recover $700 damages, averring that to maintain and support the fill made on said street in front of her premises, the city built a high retaining wall along the same, shutting in her dwelling house, cutting off her access thereto, and depriving her of the necessary light and air from her premises, and built it so carelessly and negligently, that it afterwards cracked and allowed water and sewage to pass through the same and on to the foundation of her house, undermining the same, and greatly injuring it. In the third cause of action it is averred that in the construction of said wall, the city appropriated therefof a strip of her ground four feet wide and thirty-eight feet long,' and that the same is used by it as a necessary part of the street, and she has thereby been deprived of her property rights therein to her damage $800. The answer of the defendant, in substance, is a general denial of the averments of the petition, and sets up facts which it-is claimed show that the improvement was •legal and valid, and that for several reasons the plaintiff was not entitled to recover any damages. As a further answer to the second and third causes of action, it says that the retaining wall in question was placed there by the . defendant or her agents, This is denied by plaintiff’s reply.

At the trial of the case in the court of common pleas the evidence tended to prove that the city had contracted with a Mr. Neidemeyer to construct this improvement of the street in front of and on either side of plaintiff’s premises. That it was a general contract to do work,such as filling and excavation, at certain prices per yard I believe, and so much for masonry per perch. There was no stipulation in the contract'as to this wall. The city offered evidence tending to prove that it was in fact built under a contract between Patrick Egan, th.e father of the plaintiff, and Mr. Neidemeyer, the contractor, who had made the other improvement for the city. The evidence as to this was, that Egan asked Neidemeyer if he had made up his mind how much he was going to charge for doing it. That he answered, yes — $3 per perch, provided he would allow him to use old perch (stone?) in the wall which then stood there — And to this Egan replied, “All right, go ahead and build it.”

In addition to this the city sought to prove by W. H. Bosh or L. F. Bosh, who were assistant city engineers, and one of them the officer in charge of this improvement, that no authority or direction had been given by the engineer in charge, to the contractor, to construct this retaining wall, and that in computing the estimate of the amount due from him to the city for work done on the street improvement, no estimate for the work done on this wall by him was made, and that the contractor, or his assignees,never received any pay from the city for such wall, The court refused to allow this evidence to be given, and the city duly excepted.

In this action we are of the opinion that the court erred to the prejudice of the defendant. The claim of the city was that it had never authorized this wall to be built by Neidemeyer, and had nothing to do with it, but that it was done by some one else; and there was evidence tending to show that it was done under an arrangement between Egan and the contractor. But why was it not competent for the city further to prove that it did not authorize Neidemeyer to do so, and that the cost of the wall was not included in the estimate of the amount payable to him under his contract with th® city, and that he nevar was paid anything for this wall by the city ? We see no good reason for its exclusion. The question whether it had been built by the city was one of the issues in the case, and any evidence fairly tending to prove that the city had not built .the wall, was competent •and relevant, and we think the evidence rejected was of that character.

The verdict of the jury was a general one in favor of the plaintiff for the sum of $--This or a part of it may have been on account of the claim made in the second and third causes of action — 'and as the amount found due on each cause ■of action cannot be ascertained,it follows that the judgment must be reversed.

We see no other error in the case.


author: Swing, J.

text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Jan. Term, 1898.)
    Before Cox, Smith and Swing, JJ.
    HENRY RANSICK v. THE STATE OF OHIO.

      Bill of exceptions before J. P. — Need not be copied into docket—

    Sec. 6565, R. S., applies to the taking of exceptions before a justice of the peace, in all cases, civil as well as criminal, and therefore, by the express provision of this section, the bill of exceptions is not required to be copied into the record or docket of the justice.

      Same — Must be filed with clerk within ten days—
    A bill of exceptions taken before a justice of the peace must be filed with the clerk of the common pleas within ten days to avail plaintiff in error.

      Oleomargarine — Pure butter not containing SO per cent, of butter fats—

    There is nothing in see. 4200-19, R.-S., either when construed literally or when construed together with the other sections of the act and considered with reference to the evil to be remedied — that leads to the belief that the legislature intended to enact that an article, admitted to be pure butter, should be called and designated as oleomargarine, provided said pure butter should not contain at least 80 per cent, of butter fats.
    Error to the Court of Common Pleas of Hamilton county.
   Swing, J.

The plaintiff in error was arrested and convicted before a justice of the peace, for exposing oleomargarine for sale without having a placard in a conspicuous place as provided by statute. The case was taken to the court of common pleas, where the judgment of the justice of the peace was affirmed, and the case is in this court on error to this judgment.

In the court of common pleas, the court was of the opinion that the judgment of the justice should be affirmed, on the ground that the bill of exceptions not being copied into the record, there was no proper bill of exceptions, and the court therefore did not pass upon the other questions in the case which were, first, whether on the admitted facts the plaintiff in error was guilty of an offense; and second, whether it is necessary that the bill of exceptions should be transmitted with the papers to the clerk of the common pleas within ten days from the decision, in order to secure to the party his rights under the statute. These questions however, all arise in this court.

First — Is it necessary that the bill of exceptions be copied at length upon the docket of the justice and a transcript of the docket record be filed with the petition in error? Prior to the amendment to sec. 6565, Revised Statutes, 90 O.L., 358, this was undoubtedly required, and whether it does now, or not,depends upon whether this section applies to criminal cases before a justice as well as to civil cases. In our opinion, this section does apply to criminal cases, and is the only provision of the statute which does make any provision for the mode of taking exceptions before a justice — and if it does, by the express provision of this section, the bill of exceptions is not required to be copied into the record or docket. The language of the section is broad and comprehensive. It says: “In all cases before a justice of the peace,whether tried by jury or by the justice. * * .’’and if sec. 6565 does not apply to criminal cases, there is no provision in the statutes which makes_provision for the taking of exceptions in such case before a justice. . No such oversight as this can reasonably be entertained to have been made, and if it does apply as to the manner of taking of such exceptions, it must also be held to apply in all its provisions. And if it doe3, the bill need not be copied into the record.

The civil code does not contain any such statement as sec. 6565 contains, that “in all cases,’’and therefore, sec.7304, Rev. Stat. which relates to criminal cases, provides that the rules governing civil cases shall apply to criminal cases; but the justice’s section having provided for “all cases before a justice,” it was not necessary that there should be any similar provision for criminal cases before a justice, provided “all cases” meant “all cases,” both civil and criminal, and not simply “all” civil cases. ■ We are clearly of the opinion that the section is intended to apply to all cases tried before a justice.

We took this position in the case of Bosodi v. The State, in 13 C. C., 275, but the question was not then distinctly put in issue, and probably was not therefore a direct authority, and on that account we here state more fully our reasons for so holding.

Second. — 'As to whether is was necessary that the bill of exceptions should be filed with the clerk within ten days in order to avail plaintiff in error. This question was determined in the above cited case, and we adhere to the views therein stated.

Third. — Was the plaintiff guilty of an offense? The evidence clearly showed that what the plaintiff in error did was to expose to sale an article of pure butter, made from the milk and cream of cows, without any foreign substance of any kind in it; but said pure butter contained, according to the chemical analysis, something less than 80 per cent, of butter fats.

Tafel & Schott, Attorneys for Plaintiff in Error.

O. J. Benner, Attorney for Defendant in Error.

It is claimed on behalf of the state, that this article, admitted to be nothing but pure butter, is not pure butter, but oleomargarine, by reason of sec. 4200-10- -sec. 4,Revised Statutes, which section reads as follows:

“The word oleomargarine, as used in this act, shall be construed to mean any substance not pure butter of not less than 80 per cent, of butter fats, which substance is made as substitute for, in imitation of, or to be used as butter.”

We see nothing in th9 literal construction of this section, or when construed together with the other sections of^the act and considered with reference to the evil to be remedied, that leads us to believe that the legislature intended to enact that an article, admitted to be pure butter, should be called and designated as oleomargarine, provided said pure butter should not contain at least 80 per cent, of butter fats.

We think the judgments of the court of common pleas and the justice of the peace, should be reversed and said cause is remanded to the court of common pleas for further proceedings according to law.


text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Nov. Term, 1897.)
    Before Cox, Smith and Swing, JJ.
    SMITH & NIXON v. G. & E. SIMPER and LAURA WHITE.

      Chattel mortgage, not filed, has priority over subsequent mortgage with notice—
    A chattel mortgage,although not filed as the statute directs,has priority over a chattel mortgage subsequently executed to a third party and properly filed, where such subsequent mortgagee has notice at the time of the existence of the first mortgage.

      Evidence — Rebuttal—
    Where in replevin the defendant attempts to prove his right to the possession of the article by producing a chattel mortgage under which he acquired such possession, it is competent for the plaintiff to introduce evidence to defeat defendant’s claim under such chattel mortgage, and defendant would then be entitled to introduce evidence in rebuttal.

      Replevin suit under chattel mortgage — Holder of other mortgage not bound to become party—
    A party holding a chattel mortgage is not bound to intervene and set up his claim in a replevin suit instituted by a third party holding a chattel mortgage on the same property, if not made a party to such suit, hut may afterwards commence an action for the recovery of the property under his own chattel mortgage.
    Error to the Court of Common Pleas of Hamilton county.
   Smith, J.

The plaintiffs in error commenced an action in replevin against the defendants in error to recover the possession of a piano which they (the plaintiffs) claimed to own, and which they averred was unlawfully detained from them by the defendants. The defendants, Q-. & E. Simper, by their answer,simply denied the averments of the petition.

At the trial the plaintiffs,in support of their claim,offered in evidence a mortgage given to them by Laura White on the piano when she was the owner of it, to secure the payment of the purchase price thereof, and proved the amount due to them therefor, and that the condition was broken, and a demand for its possession and a refusal to deliver it, andthatthereupontheyreplevied.it. It further appeared on cross-examination of their witness, that the mortgage had never been filed as the statute provides. Plaintiffs then rested.

By way of defense, the Simpers offered in evidence a mortgage on the piano and on other property executed to them by Laura White, after the execution of the mortgage by her to Smith & Nixon — and that the same had been duly filed. That on default of payment, they had taken the property from her in replevin proceedings against her.

By way of rebuttal the plaintiffs called Mrs. White as a witness and sought to show by her, that at the time she executed the mortgage to the Simpers she had no knowledge that it was a mortgage or in any way a lien on her property. That she was then not indebted to them in any sum, but that on the contrary they were indebted to her; and were so when the property was replevied. That she did not know that the piano was covered by the mortgage, and that she had notified the Simpers that Smith & Nixon then had a mortgage thereon. This evidence was all excluded by the court on the ground that it was not proper evidence in rebuttal, and plaintiffs excepted.

In this we think the oourt erred. As against any subsequent mortgages executed by Mrs. White with notice to the mortgagee of the prior mortgage on the piano to Smith & Nixon the mortgage to Smith & Nixon was a good and valid one, though not filed. Such subsequent mortgage with notice of the prior mortgage, is not a bana fide mortgage, and the first mortgage, though not filed, has priority over it. 7 Ohio St., 198; 17 Ohio St., 488; and 11 C. C., 193, recently affirmed by the supreme court. So, too, if there was nothing due on the Simper mortgage when they replevied the property under it, it gave them no right to hold the property as against a prior mortgagee though the mortgage of the latter was never filed.

The claim of the Simpers was first asserted in this case when they offered their mortgage in evidence. Smith ¿z Nixon had then a right to show that it was not a valid mortgage, or good as against them — cr had been paid, or was a forgery, or any other matter which would show that the Simpers had no claim to the property under it. The contention of counsel for the defendants in error is that if such evidence were allowed, then that the Simpers would have the right to rebut this rebutting evidence, and this is not allowable. Of course they would have such right, for our statute, sec. 5790, Revised Statutes, expressly gives it to them. It provides, in substance, that the party who would be defeated if no evidence were offered must first produce his evidence, and the adverse party must then produce his evidence, and that the parties shall then be 'confiued to rebutting evidence. Clearly in this case the evidence sought to have been introduced,if admitted,could have been rebutted by the Simpers.

It is further urged that such evidence should not have been allowed in this case, but that Smith & Nixon should have set up their.claim in the'replevin suit of the Simpers against Mrs. White. But so far as appears in this case, they were not parties to that proceeding, and were not bound to become parties thereto, but could properly assert their claim to the piano in this action. It is further objected that all of the evidence offered in this case is not set out in the bill of exceptions. If the reversal of the judgment was sought on the ground that the verdict of the jury was against the weight of the evidence the objection would be good. But such is not the case. The only error assigned is that the court erred in excluding evidence, and to raise this question it is not necessary to have before us all the evidence in the case. For the reason stated, the judgment which was against the plaintiffs, will be reversed, and a new trial awarded.


author: Hale, J.

text:
    (Eighth Circuit — Cuyahoga Co., O., Cir. Court
    Oct. Term, 1897.)
    Before Hale, Marvin and Caldwell, JJ.
    THE GERMAN-AMERICAN SAVINGS BANK CO. v. LOUIS J. GROSSMAN.

      Set-off — By banlc, of claim not yet due, against deposit of insolvent party—
    A bank having a deposit, subject to check, from an insolvent depositor who is also indebted to the bank, may apply and set-off that deposit against the indebtedness of such insolvent debtor of the bank, although the same is not yet due.
    S. Isaac & Son, being insolvent, on the 8th day of February, 1896, made a assignment to Louis J. Grossman, defendant in error, by deed filed in the probate court of Cuyahoga county, Ohio.
    Prior to said February 8th, 1896, S. Isaac & Son were customers of and depositors in The German-American Savings Bank of Cleveland, Ohio, plaintiff in error, and as such depositors had on deposit, as a general deposit with said bank, on said February 8th, 1896, and at the time of their assignment, the sum of $148.54.
    ■ At the time of said assignment S. Isaac & Son were insolvent and indebted to said bank in the sum of $1500.00, evidenced by two unmatured promissory notes of $500.00 and $1000.00 respectively, given by said S. Isaac & Son to said bank.
    That said deposit of $148.54 was a balance of said S. Isaac & Son's deposit and account with said bank, and that said deposit account included not only the general money deposits o£ said firm, but also included the loans to said firm by said promissory notes not due by their terms at the time of said assignment, and that said loans were made because and for the reason that said 3. Isaac & Son were customers of and depositors in said bank, and had a general deposit account with said bank.
    Said bank retained and applied said balance of deposit toward the payment of said notes, and refused to pay over said deposit to the assignee upon his demand for the same.

      W. H. Beams, attorney for aijd on behalf of the bank cited the following cases:
    Schunk, Assignee, v. Merchants National Bank, Cin. Sup. Ct., 16 Weekly Law Bulletin, 363; Wagner v. Stieglitz, 22 Ohio St., 297, 302; Armstrong, Receiver, v. Warner, 49 Ohio St., 376; Bank v. Hemingray, 34 Ohio St., 381; Thomas v. Exchange Bank, 35 (Iowa) Lawyers’ Annotated Rep., 379, Cin., N. O. & T. P. Ry. v. Cit. Nat. Bank, 24 Bulletin, 198, at page 207.

      L. J. Grossman, in his own behalf, offered the following authorities:
    Treasurer v. Bank, 47 Ohio St., 503, 522; Covert v. Rhodes, 48 Ohio St., 66, 71; Bank v. Brewing Company, 50 Ohio St., 151; Ross v. Johnson, 1 Handy, 388; Sec. 5077 Rev. Stat. of Ohio; 27 Ohio St., 355.
   Hale, J.

The case of The German American Savings Bank Company v. Louis J. Grossman comes here on error to the court of common pleas.

Grossman is the assignee of Isaac & Sons, a firm that was, prior to the 8th of February, 1896, doing business in this city; they were doing at least a portion of their banking business with the plaintiff in error, The German American Savings Bank Company.

On the 8th day of February, 1896, that firm made an assignment for the benefit of their creditors, at which time they had on deposit with The German American Savings Bank Company, subject to check, $148.54. The firm was indebted to the bank in-the sum of $1,500 on two promissory notes, one for $500 and the other for $1,000, not due at the time of the assignment. The assignee made demand upon the bank for the deposit which the firm had at the time. The bank refused to pay, claiming the right in equity to set off and apply the deposit to the indebtedness which Isaac & Sons owed the bank.

The case was tried in the court of common pleas without the intervention of a jury, substantially upon an agreed statement of facts, resulting in a judgment for the defendant in error, and the question is whether a bank having -a deposit subject to check may apply and set off that deposit against the indebtedness of an insolvent debtor of the bank.

We think the case of Armstrong, Receiver, v. Warner et al., 49 Ohio St., 376, has a very decided bearing upon that question. In that case, Armstrong was receiver of the Fidelity National Bank, At the time that bank went into his hands, as receiver, Warner was indebted to the bank upon a claim not then due. Warner brought an action against the receiver to compel the application of his indebtedness to the bank, upon the indebtedness which he owed the bank; he undertook to make a set-off. The lower court sustained Warner in his contention — sustained the right of set-off under the circumstances named. The supreme court affirmed that holding, and Judge Williams, speaking for the court .upon that subject, says: .

“The remedy of set-off has been much enlarged in equity, -and is there administered in cases where, under ' the strict rules of law, it would not be available. Thus, at law a joint demand cannot be set off against a several one, nór a several demand against a joint one, but equity adopts a different rule where, on account of the insolvency of one of the parties, the other is in danger of losing his claim; and generally,equity will enforce the right of set-off by decreeing the compensation of mutual demands so far as they equal each other, where they have grown out of the same or connected transactions, or the one has formed in whole or in part, the consideration of the other and the party against whom the se-oft is asserted is insolvent.”

The case of The Nashville Trust Company v. Bank, 91 Tenn., 336, is directly in point, sustaining the contention of the bank.

W. H. Beavis, for Plaintiff in Error.

L, J. Grossman, for Defendant in Error.

The case of Thomas et al. v. The Bank, Lawyers’ Reports Annotated, 379, is also directly in point, sustaining the contention of the bank. It is from the Iowa Supreme Court.

There are many other cases giving support also to this contention, which I will not stop to cite.

It is, very generally held, however, that the insolvency of a debtor affords sufficient grounds for the application of the doctrine of equitable set-off. And we hold, under all the facts of this case, on the agreed statement of facts upon which the case was determined, that the equitable grounds for the allowance of the seLoff claimed by defendant below are present in the case under consideration, and that the set-off should have been allowed under the proof produced.

It follows, then, that the judgment of the court of common pleas should be reversed, and the case remanded for a new trial.


text:
    (First Circuit — Hamilton Co,, O,, Circuit Court
    Oct. Term, 1897.)
    Before Cox, Smith and Swing, JJ.
    ALBERT BETHEL v. CINCINNATI STREET RAILWAY COMPANY.

      Street Railroad — Footman stepping in front of approaching car between street crossing — Failure to look—

    Where there are two street railway tracks in a street, a party who is walking behind a wagon being driven on one track which prevented him from seeing a car approaching on the other track, and who stepped on such other track without looking whether a car was approaching on the same, it being between street crossings — is guilty of such contributory negligence as will prevent him from recovering damages for injuries sustained by being run down by . such approaching car.

      Same — High speed of cars between street crossings is not negligence—
    While street cars at street crossings must so regulate their speed and give such warning of their approach that footmen using ordinary care may cross in safety, yet the rule between crossings is different, and footmen must be aware that cars between crossings run at a high rate of speed and are not under control,and can not be stoppt d instantly, and the motorman need not apprehend that a footman between crossings will put himself on the track without first observing whether a car is approaching.

      Operation of street cars — Judicial notice.

    Courts will take judicial notice of how street cars are operated.
    Error to the Court of Common Pleas of Hamilton county.
   Swing, J.

This case is here on error to the judgment of the court of common pleas. It was an action in that court by Bethel against the Street Railway Company, for damages for injuries caused by Bethel being run over by one of the defendant’s cars. The case came to trial before a jury,and at the conclusion of the plaintiff’s evidence, the court, on motion of the defendant, directed the jury to return a verdict for the defendant. This it is claimed was error, as was also the act of the court in refusing, during the hearing of the plaintiff’s evidence, to permit the plaintiff to amend his petition and set up that the defendant was negligent in failing to provide an approved safety guard devise, by reason of which the plaintiff was injured.

The principal question in the case is whether, upon a consideration of the evidence, it tended to prove that the plaintiff was injured by reason of the negligence of the defendant.

The facts in the case are substantially as follows: Bethel was struck and knocked down and run over by a car of the defendant, two of his toes being crushed so as to require amputation, The casualty occurred between Freeman Avenue and Carr Street, one night in the city of Cincinnati. At this point there are two tracks of the railway on which cars run in opposite directions. Bethel was on the north side of the street, and attempted to cross the street when he was struck by the car, which was going east. A market wagon was going west on the west track of the railway, and as this wagon passed, Bethel walked immediately in the rear of it on the east railway track, and right in front of the car.- There was no evidence which tended to show that the moterman saw Bethel approaching the crossing before he stepped on the track, nor was there any evidence which tended to show that after Bethel got on the track and the motorman saw his perilous condition, that he could by any means have avoided the accident. There was no evidence which tended to show that the car was run at a negligent rate of speed,or that if the speed was too high, that that was the approximate cause of the accident.

It seems to us that the admitted facts in this case bring ¡the question under the rule of law announced in the fourth •and fifth propositions of the syllabus in the Crawford case, fin 24 Ohio St., p. 681, which is as follows:

“4. In an action for damages for alleged negligence, the -question of'negligence on the part of the defendant, or of •contributory negligence on the part of the plaintiff, is a mixed question of law and fact, to be decided by the jury under proper instructions from the court.”

”5. But if all the material facts touching the alleged negligence be disputed, or be found by the jury and admit of no rational inference but that of negligence, in such case, the question of negligence becomes a matter of law merely,and the court should so charge the jury.”

And there ,ean 'be no rational inference in this ca$^, tyu,! rthat -the .aee'ident was caused by the negligence qjf ijljn? jj>l¡ai¡nitiff. Be stepped «pon the track right íd ^vgn,f[ qf i^e rand before doing so, he did pot takv, -ascertain whether a car was aggroaeliiV' ' 10 mot. The railway company ee»5*' on that track or .-guará against nM - - , "‘j n0‘ P°*“bIJ be ?” «>« ¿sum® that . - ”“cb -B ‘to- It had a right to K. between crossings no one would attempt to the track without first taking means to ascertain Whether a car was approaching or not. There is no evidence tending to show that the motorman had any reason to think that any. one would attempt to cross the track as soon as the car passed the market wagon. While Bethel must have known* and was bound to know that a car might be coming from the direction which was not within his vision by reason of the market wagon between him and the direction of the approaching car, yet after the'passing of the market wagon he did nothing to inform himself as to whether a car might not be approaching on the track which he intended to cross,, but he stepped immediately on the track right in front of the car, so that it was impossible for the motorman to have stopped the car and have avoided the accident after Bethel came on the track.

It seems clear to us,beyond question, that the cause of the-accident was not by reason of any negligence of the street railway company, for one can not see what it could have done to have avoided it. And it seems equally clear to us that the accident was caused by the defendant’s failing to take precautions to inform himself whether a car was approaching on the track upon which he stepped, as a man of ordinary prudence, we think would have done.

It is said in the Schwartz ease, 8 C. C. 484 that courts would take judicial notice of how street cars are operated, for courts will not be ignorant upon matters of universal knowledge. It is stated in a Cincinnati Almanac that the street cars of Cincinnati carried during the year 1897, 60,000,000, passengers about 150 times the entire population, and it would .seem but reasonable to say, that probably nothing is of more universal knowledge m this city than the manner in which street cars are operated.

The substitution of the electric for the horse and cable-cars was largely caused, no doubt, by the demand of the-public for more rapid street car transportation. Street caraare in this day a public necessity, and can only be efficient when affording rapid transportation. The same distances ara probably covered now in less than one half the time consumed by the old horse cars. In order to do this, the old custom of the horse cars, to stop at any point to take on or let off passengers, has been done away with, and regular stopping places have been established at street crossings and a few public places. Between crossings the cars are, ánd must be run at a rapid rate compared with the speed of the old horse car, but at the crossings the cars ■ must be under control. Judge Spear, speaking for the court in the case of the Cincinnati St. Ry. Co. v. Snell, 54 Ohio St., 205,says: “* * gives the foot passenger such a right at street crossings as to make it the duty of drivers of vehicles, whether wagons, wheels, or cars, to so regulate their speed, and give such warning of approach at whatever cost of pains and trouble on their part, as that the foot man using ordinary care himself and barring inevitable accident, may cross in safety.” The rule between crossings must be different. The footman knows that at these points the cars run at a high rate of speed; they are not under control, and can not be stopped instantlj, and furthermore the motorman has no reason to apprehend that a footman between crossings will carelessly and without first observing put himself on the track of the railway, for men of ordinary prudence do not do this. It is no hardship upon the footman to require him to take this precaution to guard against approaching cars between crossings; if this was not required of him,rapid transit could not be had, and the great body of the public would be greatly injured. These remarks however are made solely with reference to the facts in this case.

As to the other question, whether the court erred in refusing to grant the plaintiff leave to amend his petition. We are of the opinion that there was no abuse of the discretion vested in the judges. It does not appear that the cars were not provided with proper guards, and it does not appear that any known guards or proper guards would have avoided the accident, and it does not appear bnt what all the facts wanted to be set up were not well and accurately known to the plaintiff long before the case came to trial.

Joseph Cox, Jr. and W. E. Bundy, for Plaintiff.

J. W. Warrington, for Defendant.

For these reasons the judgment of the court of common pleas is affirmed.


author: Adams, J.

text:
    (Second Circuit — Clark Co., O., Circuit Court
    February, 1898.)
    Before Adams, Shearer and Wilson, JJ.
    (Judge Adams of the 5th Circuit taking the place of Judge Summers. )■
    THE STATE OF OHIO EX REL. HORACE W. STAFFORD, PROSECUTING ATTORNEY OF CLARK COUNTY, v. JOHN M. GOOD.

      Election — Garfield law — Members of the regular committee of the party acting as agents of candidate—
    While a candidate may pay an assessment to the' committee of his party, and have nothing further to do with the management and conduct of his campaign, and then the committee or the members thereof would not be his agents in the management of his campaign, yet the question of agency is a question of fact, and a candidate for an office can make the regular chosen committees of his party his agents in the management of his campaign for that office.

      Same — Money expended by agents of candidate for his benefit—

    It makes no difference, so far as the law is concerned, whether the candidate paid any money directly and out of his own pocket, or whether it was paid for him and for his benefit * by his friends and agents. If the amount thus paid out exceeds the amount allowed by law as the limit of his expenses, his election is void.
   Adams, J.

The case of the State of Ohio ex rel, Horace W. Stafford, Prosecuting Attorney of Clark county, against John M. Good as mayor of the city of Springfield, is a proceeding brought under the provisions of the corrupt practices act, commonly known as the Garfield law,against John M. Good, charging him with having violated the provisions of the Garfield law in numerous instances, and asLing that by reason of his alleged violations of that law his election to the office of mayor of the city of Springfield be. declared void and the office declared vacant.

These allegations of the violations of the Garfield law are set out in the plaintiff’s petition and an amendment thereto. The defendant, in answering, admitted many of the allegations of the petition and amendment thereto, but denies generally all of the allegations relating to any violations of the Garfield law. It is on the'issues made by these pleadings, and the evidence, that this case has .been submitted to this court.

The recent decision of the supreme court in a case that went to that court from Adams county, makes it unnecessary for this court to consider many questions that might have been asked in this case as to the constitutionality of the Garfield law, for that decision of the supreme court stands in its entirety. It is simply the duty of this court to determine those facts upon the evidence,and having determined those facts, to determine whether,as a matter of law, a judgment of oust.er should be rendered against the defendant. Good was elected mayor of the city of Springfield at the election in the spring of 1897. His statement of expenses filed under the law shows an expenditure of $5 in securing the nomination, and an expenditure of $45, in securing his election. It is claimed that he exceeded this latter amount very greatly in securing his election to the office. It appears in proof here that shortly after his nomination for the office of mayor, that the central committee was to sofSteit for him; whether it was the central committee of Clark county, or the central committee of Springfield, there seems to be a large discrepancy among the witnesses. One witness testified that it was the central committee of the county, which chose a sub-committee; and another an executive committee for the management of the campaign in the city of Springfield.

It is’ claimed on the one side that Good was responsible for the expenditures made by this committee, and it is claimed on the other hand that this executive committee was the regular appointed committee andchosen representative of the party; that they were not the agents of the candidate within the meaning of the act.

It seems to the court, that while a candidate may pay in an assessment to the committee of his party and have nothing further to do with the management and conduct of the campaign, that'the committee would not be, or the members of the committee would not be. his agents in the management of that campaign. But the question of agency is a question of fact, and the candidate for the office can make the regular chosen committee of his party his agents in the management of his campaign for that office.

The nature of the testimony submitted to the court makes it unnecessary that I should take up and attempt to review the conflicting statements made by various witnesses here. This court has considered the testimony in the light of all the circumstances; the interests of the witnesses on either side; the importance of the issue to the defendant, Good; the importance of the issue to the public if there have been violations of the law of the state, and that the penalty and punishment of that law should be imposed. We have weighed the evidence and considered the law of ‘all those facts and circumstances. This proof establishes beyond controversy that Elliot and Burnett were the agents of Good in the management of this campaign; this proof establishes beyond controversy that Good expended money himself and through his agents,Elliott and Burnett, for the furtherance of his election; that he paid to Edward Garrett, through Elliott, for the furtherance of his election the sum of $25; that he himself paid to John A. Wright, for the same purpose, the sum of $7.50; that he paid to T. A. Gross for the same purpose the sum of $10.00, and that he paid Captain Rudd, the captain of the colored military company, the sum of $50.00 for the purpose of the furtherance of his election, and that he received $100.00-to be used for the furtherance of his election from a man by the name of John Snyder, and that sum did not go into the hands of the treasurer of the committe, but that it was paid out to Armstrong, and by him expended as all this money was expended, in buying liquors and paying voters for the election.

We further find that when Good was present, and conducting his campaign for the election,and making the rounds to the various saloons in this city, that Burnett was buying for his benefit the beer at Gaier's saloon, which amounted to $35.00; that he paid for beer at the dance of the German Red Gross Society, $45.00; that Elliott pa*id for the same purpose at Grimmer’s saloon the sum of $6.00, and on the same occasion Burnett paid $5.00. These sums that were expended by Burnett and Elliott for beer, were on occasions when Good was present, when the expenditure was made in the furtherance of his election to the office of mayor of the city of Springfield.

The court holds- that it makes no difference, so far as the law is concerned, whether Good paid out money directly and out of his own pocket, or whether it was. paid for him and for his benefit by his friends and agents, Elliott and Burnett.

These amounts make a total of $283.50,-none of which is accounted for in Good’s certificate of his campaign expenses. This amount exceeds $139.00, considered to be the limit of his lawful expenses in this campaign, by $144.50.

So we find that this certificate of expenses was wilfully false in the particulars that it does not state these amounts that I have enumerated,' and we also find that all these expenditures were for illegal purposes.

Horace W. Stafford, and Heifer & Heifer, for State.

Bowman & Bowman, and Hagan & Hagmi, for Defendant.

Three other matters were insisted upon in the hearing as to ante-election promises claimed to have been made by Good. One claimed to have been made to Bolán, one to the members of the Trades Assembly,and one to the witness Hartman.

We think that the proof fails as to the alleged promise to the witness Hartman, but we think the greater weight of the evidence is in favor of the contention that Good did promise to Bolán a place as an active member on the board of public affairs, and that he did make to the members of the Trades Assembly the promise to appoint a man to a position on some board, out of a list of men to be selected toy them.

We find that those promises were in fact made, and that those promises,as a matter of law,were all illegal; that they were such as under the Garfield law would render Good ineligible to be elected to the office, and under section 11 of the statute, it makes his election void and the office of mayor of the city of Springfield vacant, and it is the judgment of the court, that for these various violations of the provisions of the so-called Garfield law, that the election of Good to the office of mayor of the city of Springfield is declared void,and the office is adjudged to be vacant.

A judgment of ouster will be rendered.'


text:
    (Eighth Circuit — Cuyahoga Co.,O , Circuit Court
    Jan. Term, 1898.)
    Before Hale, Marvin and Caldwell, JJ.
    WILLIAM H. HUDSON et al. v. FERDINAND VOIGT.

      Practice — Where, reply necessary but not filed, case being tried as if reply filed without objection—
    Where, in an action for damages for assault and battery, the answer sets up the defense of justification, a reply to such defense should be filed. But where no reply is filed, but the case is tried and dealt with by court and jury as if a reply had been filed without any objection being raised by the defendant, a verdict and judgment will not be set aside, on error, on account of the omission of filing a reply.

      Action for damages for assault and battery — Attorney fee—
    An action for damages for assault and battery belongs to that class where the jury might in their discretion include a reasonable attorney fee for counsel of plaintiff as part of the damages, but evidence as to the value of such attorney fee would not be competent.
    Error to the Court of Common Pleas of Cuyahoga county.
   Hale, J.

The case of Wm, H. Hudson and others against Ferdin- and Voigt comes here on error to the court of common pleas. Several exceptions are made upon the record.

The action was brought by Voigt, defendant in error, against the plaintiffs in error, to recover damages for an injury he (Voigt) had received from an assault and battery, inflicted upon him by the plaintiffs in error, as he alleged.

The first defense was a general denial in substance.

The second defense was a plea of justification; that the plaintiffs in error were first assaulted by Voigt, and used only such force as was necessary to repel that assault.

There was no reply to this defense. The case went to trial, and evidence was adduced on both sides as to the transaction— all the evidence that could possibly have been introduced had there been a reply.

The charge of the court dealt with that question precisely as if there had been a reply, and, so far as we are able to ascertain from the' record, no such question was made in the court below that a reply was essential, or no objection was made to the submission of that question to the jury because of the fact that there was no reply.

Now,conceding that a reply would have been better and, perhaps, essential — I think the practice is to reply to a defense of that kind — -we see no prejudice to the plaintiffs in error by reason of the omission of a reply.

The whole case was tried and dealt with by court and jury precisely as it would hav-8 been, had such a reply been filed.

In the charge of the court, the court told the jury they might allow,as part of the compensatory damages, a reasonable attorney fee, although no evidence had been offered upon the subject of the value of those attorney fees. While such evidence has been held by the supreme court to be incompetent, but clearly, under the rulings of the supreme court, this case belongs to that class of cases in which the jury might, in its discretion, include in their award of damages a reasonable attorney fee to counsel representing the plaintiff in the case; and while the charge was very meager upon that point, although very profuse generally and prolix, we are satisfied that the jury was not authorized, under that charge, to go any further in the assessment of the damages than the law would authorize. There was no request to make more definite and certain, and we are inclined to hold there was no prejudice to the plaintiff in error by reason of that charge.

Complaint is made that in the charge also the court state that not only the persons who did the beating, but those who aided by word of mouth and encouraged the commission of the act, would be responsible, Exception is taken to the manner in which that is stated. We suppose it means no more than if the court had said to the jury, ‘ ‘Whoever aids in an assault, is equally guilty with the party who does the pounding.” I say that, so far as the questions of law are made, we see no good.reason for disturbing the verdict on that ground.

Coming to the facts of the case, it seems that the defendant in error had loaned to one of the plaintiffs in error, Richards, the sum of One Hundred and Fifty Dollars $150.00). To secure its payment, he (Voigt) had taken a note of the daughter of Richards, Martha Richards, for the sum of One Hundred and Fifty Dollars ($150.00), and a chattel mortgage upon certain property, said mortgage being executed by the daughter. The note became due.

These facts are conceded, as far as I have stated them.

The note became due, and Voigt took possession of the property-covered by the chattel mortgage,and removed that property to his own home. In the evening of the day on which the property was removed by Voigt, J. G. Richards and his son, ancl Hudson (who was a constable), and his son went to the house of Voigt — the business place of Voigt — for the purpose of reclaiming the property. Prior to that visit, a suit in replevin had been commenced, and Hudson, the constable, had a writ of replevin in his possession. He was under instructions, as it appears from this bill of exceptions, to obtain the property if he could do so, without serving the papers; that is, he was to get the property if he could, and not use his writ,

In the transaction at the house, either in serving the writ, or in obtaining the property, or in an endeavor to obtain the property, Voigt was very severely handled, quite badly bruised and used up and landed in the county jail by Hudson.

Now, if the evidence of the defendants, the plaintiff in error, was the true history of that transaction, this judgment is decidedly wrong, because it could be inferred from the testimony that Hudson was attempting to serve his writ of replevin, was met by a revolver, and in taking care of himself as against the assault of Voigt, whatever injury was done to Voigt was done by reason of that fact. But the testimony on the part of Voigt shows that there was no attempt there to serve the writ of replevin, but Richards and this man Hudson were acting without serving the writ, and that they were acting simply and solely in the capacity of private individuals up to the time of this assault; and if the true history of the transaction is given by Voight and his wife, and those who testified in his behalf, then there was no justification for this beating of Voigt by Hudson and those who were with him.

Hessenmuller Bemis, for Plaintiff in Error.

O. E. Schtoan, for Defendant in Error.

Now, this was a question of fact submitted to the jury. There was evidence in the case, from which the jury might have, decided the case either way,either for or against Voigt ■ — for or against the plaintiffs in error. It was left to the jury as to which they would believe. They found in favor of Voigt, and that was sanctioned by the trial court.

Now, under the rule that pertains in this state, we would not feel justified in this conflict of testimony, in disturbing this verdict on account of its being against the weight of the evidence.

The rule is very well settled in this state, that it must be very clearly against the weight of the evidence to authorize this court to disturb the verdict.

Finding no error upon this record, the judgment of the Court of Common Pleas is affirmed.