text:
    PLEADING — RAILROADS
    [Cuyahoga (8th) Circuit Court,
    January 12, 1906.]
    Marvin, Winch and Henry, JJ.

      Lake Shore & M. S. Ry. v. Myrtle B. Kearns, Admx.
    1. Admission of Ownership of Railroad Includes Appurtenances.
    An admission by a defendant that it owns and operates a certain steam railway as alleged in the petition includes an admission of the ownership of side-tracks, ears and appurtenances mentioned in the petition.
    2. Knowledge of Defective Door of Car on Siding not imputed. ■
    A brakeman riding in the open door of a through train, injured by a defective door of a car standing on a siding of which he had no notice and no opportunity of discovering it except 'When riding by when the instinct of self-preservation would impel him to avoid, raises no inference of negligence on his part and justifies an instruction that he had neither actual knowledge nor equal means with his employers of knowing of such defect.
    Error.

      Brewer, Cook & McGowan, for plaintiff in error.

      H. Remington, E. J. Pinney and C. W. Dille, for defendant in error.

      Affirmed no opinion, Lake Shore & M. S. Ry. v. Kearns, 75 Ohio St. 605.

   HENRY, J.

This was an action for death by wrongful act, brought by the administratrix of the estate of James M. Kearns, an employe of the Labe Shore & M. S. Ry., who was killed at a point between Coe and Kirtland streets in the city of Cleveland, August Bl, 1902, while riding as a brakeman on an east bound freight train. It is supposed that he was sitting in the open doorway of a car, facing the north, and it is clear that he was injured by the projecting door of a freight ear standing on a side-track next north of the main track on which his train was moving. The railway company here seeks a reversal of the judgment recovered against it by the administratrix, because of divers alleged errors in the record.

Complaint is made, first, because the trial judge asked witness Broughan, the train conductor, regarding the car with the projecting door, “was that owned and operated by the Lake Shore & M. S. Ry ? ’ ’ and also because the witness was allowed to make answer and affirm that it was. It is said, however, that this question and answer, however erroneous, could not be prejudicial, because they relate only to a matter admitted by the pleadings to be true. We think this is a complete answer. The petition, after alleging defendant’s corporate character, avers that it “owned and operated a steam railroad, known as the Lake Shore & M. S. Ry., passing through” the locality where this casualty happened, and where as it further avers, “another track of defendant lay parallel with the one upon which said train was running and immediately north thereof.” The petition further alleged that the car with the projecting door was placed on that track by defendant.

The answer, by its first defense which is concisely phrased, denies generally everything in the petition which it does not expressly admit. But among the admissions is this, “That the defendant is a corporation, owning and operating a steam railroad, as alleged in said petition.” This is a plain admission of the ownership and operation by the Lake Shore & M. S. Ry. of the railroad described in the petition and including those usual appurtenances of train, side-track, cars, etc., therein mentioned. Had the railway company desired to except from its admissions some or all of these usual appurtenances so mentioned in the petition, its answer should have particularly pointed out such exceptions. We think the pleadings clearly admit that the car with the projecting door was owned and operated by the Lake Shore & M. S. Ry., and that the answer of the witness to the same effect was not prejudicial'error.

It is claimed, secondly, that the proof fails to show that this car or door was defective. We think, however, that this is a plain inference from the fact, which was clearly proved, that the door projected out from the side of the car at an angle of forty-five degrees.

A third assignment of error is that the evidence fails to disclose any notice to the railway company of such defect; but See. 3365-21 R. S. (Sec. 9015 G. C.) dispenses with affirmative proof of such notice in such cases.

The plaintiff in error urges, fourthly, that there is an utter want of proof that the decedent did not know of the defect and had no means equal with his employers of knowing it. This proof was, of course, indispensable. Hess v. Columbus, S. & H. Ry., 58 Ohio St. 167, 170 [50 N. E. 354]. We think, however, that such proof was supplied as fully as the nature of the case would admit, or require. There is no proof as to how long the defect had existed or been visible, but it is highly improbable that the car door should have been thus projecting toward, and so dangerously near, the main track of this railroad for any considerable length of time without being noticed and reported or removed by the employes on passing locomotives or trains. The only opportunity that Kearns could have had of seeing it, so far as we can infer from the record, was while passing by on a train as on this occasion. The opportunity would probably not be so good while passing in the opposite direction on the other main track. At any rate, we think it fair to infer that this was an extremely dangerous condition and had not persisted long enough to afford him opportunity to see it, or, at least, that if he had seen it, the instinct of self-preservation would have impelled him to avoid it. It was not a case of taking chances, but of exposure to certain injury; and we think the jury might well have been instructed to find from all the evidence that the decedent had neither actual knowledge nor means equal with his employers of lmowing of this defect. Without deciding that the court’s charge upon this subject was correct, we hold that since the proof requires the finding necessarily implied in the jury’s verdict, there can be no prejudice in the instruction which they received.

It is claimed, lastly, that the agreement, as to watchfulness at all times and special care while on the sides or tops of moving ears, which Kearns made when he was employed, was violated by him, and that he was guilty of contributory negligence in failing to see this danger and in needlessly exposing his body beyond the side of the ear when not required to do so. And it is claimed that the court erred in what it charged and what it refused to charge upon this subject. We think there was nothing in his employment or his agreement requiring him to keep a lookout ahead on this occasion or forbidding him to sit or stand in the doorway of a car, if that is what he did. The presumption is that he was not negligent and there is absolutely nothing in the evidence to overcome that presumption. The judgment is affirmed.

Marvin and Winch, JJ., concur.


source: Caselaw Access Project

author: EENRY, J.

license: Public Domain

text:
    ERROR — JUDGMENTS
    [Cuyahoga (8th) Circuit Court,
    January 12, 1906.]
    Marvin, Winch and Henry, JJ.
    O. E. Lydrickson v. Charles Brenner et al.
    1. Collection of Judgment not Enjoined unless Good Defense Shown.
    To maintain an action to set aside a judgment it is necessary to allege and prove that there is a good defense to the cause of action.

      2. Error to Review Order Dissolving Temporary Injunction. Quaere.
    Whether or not error may be prosecuted to reverse an order of the court of common pleas dissolving a temporary restraining order, quaere.

    Error.

      McGrath & Stern, for plaintiff in error.

      J. C. Block and Peniger & Kastriner, for defendant in error.
   EENRY, J.

This proceeding in error is prosecuted to reverse an order of the court of common pleas of Cuyahoga county granting a motion to dissolve a temporary restraining order allowed in an action to enjoin the collection of a judgment recovered by Brenner against Lydrickson before a justice of the peace. The motion to dissolve was heard on the petition alone, no affidavits or other evidence being offered. The action is still pending below.

We are in doubt whether the allowance, of this motion is reviewable on error before final judgment in the court below.

The superior court of Cincinnati in general term has held that the dissolution of a temporary restraining order is not thus reviewable. Cincinnati College v. Cincinnati, 1 C. S. C. 255.

The circuit court of Hamilton county has taken the opposite view. Chicago, St. L. & P. Ry. v. Hamilton, 2 Circ. Dec. 259 (3 R. 455).

The Supreme Court apparently, still regards the question as an open one. Taylor v. Standard Brick Co., 66 Ohio St. 360, 366 [64 N. E. 428].

Inasmuch as we have reached a conclusion on the whole case which makes it practically unnecessary to decide this question, we prefer to rest our decision upon the merits of the controversy, remarking, however, that the remedy by appeal, under Sec. 5226 R. S. (Sec. 12224 G. C. et seq.), is not fraught with doubt, and may perhaps afford an exclusive method of reviewing orders of this character.

The summons in the primary case was not endorsed with the amount sued for, as required by See. 6475 R. S. (Sec. 10235 G. C. et seq.) but was in that respect- blank. It is claimed that it is therefore void under Sec. 602 R. S. (Sec. 1734 G. C.). “Void” and “voidable” are terms not always used with precision, even in statutes. It was said by Martin, J., in the case of Robbins v. Clemmens, 41 Ohio St. 285, 286-7, that in case of actual service “by copy, accompanied by defects, in the summons, or its copy, the judgment might be voidable only,” since the defendant “has an opportunity to appear and take advantage of the irregularity before, or after, judgment.” And it is claimed here that, inasmuch as there is a plain remedy at law, injunction will not lie. This is not true of void judgments. And in any event, whether the judgment here assailed be void, or as we think, merely voidable, there is this prerequisite to the maintenance of an action to enjoin its collection, viz: that a valid defense to the action be shown to exist. Greene v. Woodland Ave. & West Side St. Ry., 62 Ohio St. 67, 76 [56 N. E. 642].

Here the petition alleges that the plaintiff has such a defense, but it is not shown what that defense is. In the absence of other evidence on the hearing of the motion to dissolve the temporary restraining order, it was not error to grant such motion, and the order of the court of common pleas is therefore affirmed.

Marvin and Winch, JJ., concur.


author: HENRY, J.

text:
    MORTGAGES — RECORD
    [Cuyahoga (8th) Circuit Court,
    January 19, 1906.]
    Marvin, Winch and Henry, JJ.
    Amos Burt Thompson v. The Chagrin Falls Electric Co. et al.
    1. Recorded with County Recorder Valid.
    Mortgages of real and personal property of telegraph, telephone or other like companies are valid when filed with the county recorder in counties in which the property intended to be covered thereby is situate, according to the provisions of Sec. 3256. R. S. (Sec. 8683 G. C. et seq.) and a mortgage so recorded operates as a valid lien upon the property of the company from the date the law became effective, notwithstanding the fact that the recording was at an earlier date.
    2. Provision for Recording Certain Class of Mortgages Constitutional.
    Section 3256a R. S. (Sec. 8706 G. C.), providing for the recording of mortgages of the real and personal property of telegraph, telephone and other like companies with the county recorder, is not class legislation and is constitutional.
    Appeal.

      A. B. Thompson, for plaintiff.

      C. L. Gates, Carr, Stearns & Chamberlain, E. P. Wilmot, White, Johnson, McCaslin & Cannon and Weed, Miller & Nason, for defendants.
   HENRY, J.

This is a consolidation of five appeals, by divers cross-petitioners, from the judgment of the court of common pleas of Cuyahoga county. The original action was begun to foreclose a real estate mortgage given by defendant to plaintiff. The issues between the original parties have all been disposed of and the mortgage indebtedness paid.

During the pendency of the action below, A. D. Pettibone, as trustee of another mortgage given by defendant, intervened and procured the appointment of a receiver of all of the property of the defendant. The basis of fact justifying his intervention was that certain chattels covered by his mortgage were claimed by plaintiff to be fixtures and subject to the latter’s mortgage. Other unsecured creditors of the defendant thereupon intervened, claiming that the receivership was general, and involved the administration of defendant’s entire property as an insolvent for the benefit of all its creditors. The decree below provided for a sale of all the property, which was made accordingly, and the entire proceeds were ordered paid to the lien-holders. On account' of a deficiency of assets, the general creditors were left without any relief, and several of them appeal.

Pettibone, trustee, in this court, moves to dismiss all the appeals because the appellants are not proper parties to the action, alleging that their claims were not connected with the transaction which is the subject-matter of the original suit. This motion must be overruled. Whether the receiver was .rightly or wrongly appointed, the appointment was in fact made, and the plant was operated by him at a profit, producing a fund which is in the hands of the court for administration. Appellants are in fact parties with claims upon this fund. The circumstances of the appointment as shown by the transcript and original papers in the case, disclose, independently of the oral and other evidence adduced before us, that the receivership was intended by the court to be general, embracing the interest of all creditors secured and unsecured, and the decree holding Pettibone’s mortgage valid most vitally affected the interests of all unsecured creditors.

On the merits the issue here is as to the validity of Pettibone’s mortgage. It is claimed that it was a chattel mortgage and it appears that it was not filed with the township clerk of the township where the property was located and where the electric company had its principal place of business, but instead was recorded in the office of the recorder of Cuyahoga county.

Pettibone, trustee, relies however, first on the possession of the receiver being his possession, thus dispensing with the necessity of filing; but we have already shown that the receivership was as we think general, and therefore not to be construed as giving him who applied therefor such possession as he claims. Second, Pettibone further relies on Sec. 3256a R. S. (Sec. 8706 G. C.), passed, it is true, after this record was made but providing that:

“Such mortgage (referring to those mentioned in Sec. 3256 R. S.; Sec. 8683 G. C. et seq.) of real property and personal when heretofore or hereafter made by a company organized to operate a line or lines of telegraph, telephone, district telegraph messenger service, or for the purpose of supplying gas or electricity (or hot water), for lighting, fuel or other purposes, shall be held to be duly recorded if the same is recorded in the office of the recorder of deeds in the county and each of the counties in which the real or personal property intended to be mortgaged is situate or employed; and the mortgage so recorded shall be held to be a good and sufficient lien from the date of the filing of the same for record in each county where it is recorded as well upon the personal as the real property of the company. ’ ’

No question is made as to whether this act can validate the lien of a mortgage recorded before this act took effect. The language of the act and the absurdity of recording again a mortgage that is already recorded, warrant the conclusion that the act is in this sense and to this extent retrospective.

■ It is claimed, however, that it applies only to mortgages covering both real and personal property. But Pettibone’s mortgage in terms includes chattels affixed to the realty. These may be personalty as between the parties while they are at the same time and as to third parties parcel of the realty. And the basis of Pettibone’s intervention in this action is this very distinction. His mortgage is executed so as to comply with all requirements of a mortgage of both realty and personalty and we hold that it is a mortgage of both.

It is urged further that this act is class legislation and therefore void as in violation of Art. 1, Sec. 2 of the Constitution. We do not agree with this contention. The act points out a method of affording public notice of liens on the property of certain public service corporations that are peculiarly likely to have chattel property extending through various townships of the same and different counties, and much of that property of an incorporeal nature the exact situs whereof by townships is often difficult to determine. We can not say, therefore, that the legislature was not actuated by good reason in making this discrimination. Under the authorities we can not hold this act unconstitutional unless we can affirm that no such reason exists.

We hold, therefore, that Pettibone’s mortgage constitutes a valid lien on defendant’s property. A decree may therefore be taken substantially as in the court below.

Marvin and Winch, JJ., concur.


text:
    INJUNCTIONS — COMPENSATION AND SALARIES
    [Cuyahoga (8th) Circuit Court,
    June 19, 1906.]
    Marvin, Winch and Henry, JJ.

      Robert C. Wright, Aud. v. State, ex rel Linn.
    Equity will not Enjoin Payment of Salaries Equitably Due but not Legally Collectible.
    Where county employes continue to perform labor after the law-under which they were employed was so changed as to discontinue their employment unless they should be re-employed in a particular manner, the county commissioners having passed a resolution appropriating money to pay the sums to which they would have been entitled if they had regularly re-employed, equity will not interfere to enjoin such payment, but leave the parties as it finds them.
    Error.

      Fred F. Klingman and C. M. White, for plaintiff in error.

      Stage & Armstrong, ./. 0. Mansfield and P. H. Kaiser, for defendant in error.

      Affirmed no opinion, State v. Wright, 77 Ohio St. 623.

   HENRY, J.

This is a proceeding to reverse the judgment of the court of common pleas in an action brought in favor of Sec. 1278 R. S. (Sec. 2922 G. C.), by a taxpayer in the name of the state, to enjoin the auditor of Cuyahoga county from compensating three persons for services rendered as assistant county draughtsmen in making and correcting the tax maps of said county during the period of three months next succeeding April 26, 1904, when the law under which they had been appointed by the commissioner was so changed by “An act to amend Secs. 2789a and 27895 R .S. (Secs. 5551 and 5552 G. C.) ” (97 O. L. 489), as to discontinue their employment unless they should be re-employed by the county surveyor under authority from the commissioners.

They were not so re-appointed, and it is clear they could not recover in any actions brought by them. The commissioners have, however, passed a resolution reciting the foregoing facts, asserting that the county is equitably bound to compensate these persons, and appropriating therefor the sums thus due to them, and it is alleged and admitted that payment will be made unless enjoined. A demurrer to the state’s petition was overruled in the court below, and defendant not desiring to answer, final judgment was rendered, perpetually enjoining the payment.

It will be observed that the county has all the time had the statutory authority to have work of this character done, and that the commissioners, before the amendment, had directed it to be done. Unless the law so requires, equity should not, under such circumstances, after the completion of the work, enjoin payment therefor. Many cases may be found where recovery of compensation has been denied to the party claiming it, where he has himself invoked the court’s assistance. Many others may be found where the courts have interposed to prevent the carrying out of illegal contracts. Still others exist wherein the payment of unconstitutional obligations, or those resting on no basis of statutory authority, has been enjoined. The decisions cited by defendant in error fall, we believe, into one or another of these classes, and none of them rules this case. The circumstances alleged in the petition seem to warrant the application of the principle laid down in Buchanan Bridge Co. v. Campbell, 60 Ohio St. 406 [54 N. E. 372], that “courts will leave the parties to such unlawful transaction where they have placed themselves, and will refuse to grant relief to either party.”

We do not regard the alleged unconstitutionality of the original act or the alleged illegality of the original employment of these draughtsmen by reason of the provisions of See. 2834-y as material here, where the services in question were rendered after the amendment of the act although it is conceded that compensation therefor could not be collected by action at law.

Here the statutory authority of counties to have work of this character performed is clear, the work has actually been done, the appropriation for paying for it has been made, and payment will be made unless affirmative relief can be granted upon principles of equity. Article 10, Sec. 5, of the constitution does'indeed provide that “No money shall be drawn from any county treasury except by authority of law; but on the authority of Buchanan Bridge Co. v. Campbell, supra, we think affirmative relief can not be granted, and the judgment below will be reversed.

On Rehearing

After announcing the decision of the court in the case, I came to entertain serious doubts of its correctness; and, at my request, oral argument was allowed upon the defendant in error’s application for a rehearing. The amendatory act of April 26, 1904 (97 O. L. 489), is far from clear, and the county commissioners seem originally to have interpreted it as a mere continuation of the pre-existing authority of the county to employ map-makers, coupled, however, with the permissive power to appoint the county surveyor for that purpose and have him appoint assistants in such number not exceeding four, and at such pay, not exceeding $1,500 per annum, as the commissioner should determine. On the theory, apparently, that the new legislation was merely by way of amendment, and that the new powers conferred were merely cumulative and additional to those previously possessed, the board of county commissioners allowed the existing situation to continue for two or three months without change.

Without meaning to endorse this construction, my brethren are nevertheless of the opinion that, considering all the facts of this case, the judgment already rendered by this court herein ought not to be disturbed. We are not free from doubt in the premises, and I may say, for my brethren as well as for myself, that we desire the force and effect of our decision to be restrained to the peculiar facts of this case.

Marvin and Winch, JJ., concur.


text:
    CRIMINAL LAW — TELEGRAPHS AND TELEPHONES
    [Cuyahoga (8th) Circuit Court,
    May 15, 1906.]
    Marvin, Winch and Henry, JJ.
    Charles Malata v. State of Ohio.
    1. Criminal Statutes must be Restricted to Their Descriptive Terms.
    A statute defining a crime or offense can not be extended by construction to persons or things not within its descriptive terms, though they appear to be within the reason and spirit of the statute.
    2. Molesting or Destroying Telephone Wires Not a Violation of Law Regarding Telegraph Wires.
    Section 3471 R. S. (Sec. 9191 G. C.), does not extend the operation of Sec. 3461-3 R. S. so as to make the intentional injuring, molesting and destroying of telephone wires a criminal offense within the provisions of that statute.
    Error.
   HENRY, J.

This proceeding in error was brought to reverse the conviction' and sentence of plaintiff in error for unlawfully and intentionally injuring, molesting and destroying wires of the Cleveland Telephone Co., in violation of Sec. 3461-3 R. S.

This section is a part of the magnetic telegraph act (45 O. L. 34) which the state claims is made applicable to telephone lines by See. 3471 R. S. (Sec. 9191 G-. C.). The latter section reads as follows

‘ ‘ The provisions of this chapter shall apply also to any company organized to construct any line or lines of telephone; and every such company shall have the same powers and be subject to the same restrictions as are herein prescribed, for magnetic telegraph companies.”

It will be observed that this section does not in terms provide that the offenses defined in this chapter with respect to telegraph property shall be construed to include like offenses with respect to telephone property. And we think the case is within the rule of State v. Meyers, 56 Ohio St. 340 [47 N. E. 138] that “A statute defining a crime or offense can not be extended, by construction, to persons or things not within its descriptive terms, though they appear to be within the reason and spirit of the statute. ’ ’

This would clearly suffice to dispose of the ease before us, were it not for a dictum in Cincinnati Inc. Plane Ry. v. City and Sub. Tel. Assn., 48 Ohio St. 390, 423 [27 N. E. 890; 12 L. R. A. 534; 29 Am. St. 559], that “without this section (3471) making the provisions of the chapter relating to telegraph companies expressly applicable to telephone companies, we think that the term ‘telegraph’ as a mode of transmitting messages of communications, is sufficiently comprehensive to embrace the telephone,”

Granting that this is the law with respect to the civil aspects of the legislation referred to, we can not overlook the principle that a criminal statute is not thus liberally construed, nor the fact that when Sec. 3461-4 E. S. (Sec. 12511 G. C.), was passed the telephone was wholly unknown and undreamed of. It is, indeed, a method of long distance communication analogous to the telegraph. But it is not merely a development of the telegraph. It is a novel and revolutionary invention. And statutory crimes with respect to telegraph property can not, by mere construction, be so extended as to apply to telephone property.

The indictment does not contain allegations sufficient to bring it within the purview of See. 6863 E. S. (Sec. 12477 G. C.), penalizing the malicious destruction of property in general.

It follows that the judgment below must be reversed for error in overruling the demurrer to the indictment upon the ground that it alleges no punishable offense under the laws of Ohio.

The further assignments of error are in our opinion unfounded. The use of the word “misdemeanor” in See. 3461-4 (12511), to characterize a crime punishable by imprisonment in the penitentiary is not in conformity with See. 6795 E. S. (Sec. 12372 G. C.), distinguishing and defining felonies and misdemeanors. But this circumstance does not, we think, violate the right of the party accused to be informed of the nature and cause of the accusation against him as provided by Art. 1, Sec. 10, of the constitution of Ohio. It is true that the incidents of procedure are not altogether the same for misdemeanors as for felonies. But Sec. 3461-4 was enacted before that distinction was defined by statute; and, except perhaps as to the mere word itself, it is not repealed thereby, nor is its meaning rendered fatally uncertain. Though called a misdemeanor when enacted, the punishment provided for the offense is such as to bring it now within the definition of a felony.

The remaining claims of plaintiff in error we do not deem it necessary to refute.

The judgment below is reversed and the cause remanded with instructions to sustain the demurrer to the indictment.

Marvin and Winch, JJ., concur.


text:
    GIFTS — LIENS
    [Cuyahoga (8th) Circuit Court,
    1906.]
    Marvin, "Winch and Henry, JJ.
    John Hicks v. Elizabeth A. Bool et al.
    Donor of Real Estate with Interest Reserved has an Eqiutable Lien.
    "When one buys real estate and causes it to be deeded to another under a verbal agreement that the donee shall pay to the donor interest on his investment during his natural lifetime; Held: That the donor has an equitable lien upon the real estate to enforce payment of interest as agreed.
    Appeal.
   HENRY, J.

That this suit should either have been brought by the one party or defended by the other is as absurd as it is deplorable. And our decision can not be construed as a vindication of either, inasmuch as it necessarily proceeds upon principles that have not been mooted before us.

The plaintiff and defendant are father and daughter. By agreement between them, the former bought a house and lot which he caused to be conveyed to the latter as a gift; she, however, to pay him interest on the purchase price during his life. He asserts that this obligation was to be secured by mortgage, and she denies it, or other contract lien upon the property. The payments have been regularly made and the daughter is able, willing and ready to continue them. This suit is brought merely to enforce the alleged agreement for a lien. There is also a prayer for general relief.

The evidence fails to show an express agreement for such a lien, and the plaintiff having intended a gift to his daughter, no trust can result from the mere fact of his having paid for property taken in her name. The gift was, however, subject to the condition subsequent, that the stipulated payments be made. Had the title to the land emanated directly from the father, a vendor’s lien would no doubt have arisen. As the matter stands, the daughter accepted the land, with its attendant burden: That burden is a contract obligation, and therefore cognizable at law. But since it would be inequitable for her to retain the benefit dissociated from the burden, the latter must also be regarded in equity as a charge upon the former. This equitable lien, or charge, arises not from any express agreement therefor between the parties, but by mere implication of law as to their presumed intention. Yearly v. Long, 40 Ohio St. 27; Wright v. Franklin Bank, 59 Ohio St. 80 [51 N. E. 876]; and that part of the opinion found on page 94.

The strength of this implication consists in the facts that the father,' instead of making a direct gift of money to his daughter, saw fit to invest it in fixed property, which he'caused to be conveyed to her, upon her assumption of the burden which he imposed therewith.

The plaintiff may therefore take a decree declaratory of the equitable charge herein defined. But inasmuch as his daughter’s sole default, either actual or threatened, consists in a simple denial of this abstract proposition of law, we think the plaintiff should pay the taxable costs of having his interest in the premises judicially determined.

Marvin and Winch, JJ., concur.


text:
    CONTRACTS — SALES
    [Cuyahoga (8th) Circuit Court,
    December 22, 1905.]
    Marvin, Winch and Henry, JJ.

      J. A. Spitzig v. Osborn Engineering Co.
    Sale of Contract Benefits Includes Right of Action on Account.
    A sale by an individual of all the tangible property of the business of that individual and all “outstanding contracts” transfers to the purchaser the right to bring an action on account of services performed by the individual.
    Error.

      Affirmed no opinion, Spitzig v. Osborn Engineering Co. 78 Ohio St. 397.

   HENRY, J.

This proceeding in error is brought to reverse a .judgment for $1105.23 recovered by the Osborn Engineering Co. against J. A. Spitzig in the Cuyahoga common pleas, in an action upon an account for engineering services rendered by F. C. Osborn (the predecessor in business of the Osborn Engineering Co.), preliminary to the construction of the line of the Cleveland & Southeastern Ry. Co., of which Spitzig was president.

It is claimed here, first, that the record fails to show that the plaintiff company ever acquired or was the owner of the account, and secondly, that the services in question were, not rendered to Spitzig but to his company.

The sale of the assets and business of Osborn to the Osborn Engineering Co. is shown by a certain writing purporting to transfer all the tangible property of .the business and all “outstanding contracts.” This it is claimed is insufficient to transfer the account which is the foundation of this action. Osborn himself was, however, permitted to testify that the account was included in the transfer. Accounts of this sort in question belong to the class of contractual relations which the parties have not expressed but which the law implies, so that an action upon an account properly sounds in contract. We think this account was a contract, and it is clear that it was outstanding. If there is any ambiguity in the expression, Osborn’s testimony dispelled all doubt.

On the other question, the evidence shows that Spitzig was promoting the railroad project and had a paper corporation behind him, which, however, was never financed. Before the project fell through Spitzig furnished all the cash and paid all the bills. There never was any cash in the corporate treasury. The correspondence between Osborn and Spitzig shows that Osborn knew of the existence of the corporation and recognized Spitzig’s official relationship thereto. But the evidence does not conclusively show that he dealt with the corporation rather than with Spitzig personally. We think it was peculiarly a question for the jury. The jury were properly directed to consider what holding out Spitzig had made in the premises, and whether Osborn was thereby induced to believe and did believe that he was dealing with Spitzig personally. We find no error in the record and the judgment is affirmed.

Marvin and Winch, JJ., concur.


text:
    MALICIOUS PROSECUTION
    [Cuyahoga (8th) Circuit Court,
    December 22, 1905.]
    Marvin, Winch and Henry, JJ.

      William Schultz v. Baltimore & O. Ry.
    Proof that no Evidence in Support of Criminal Charge was Offered Competent in Malicious Prosecution.
    In an action for malicious prosecution founded upon a criminal proceeding before a magistrate, it is competent to prove by any competent witness who was present that no evidence in support of the criminal charge was offered or given by defendant.
    Error.

      Herman, Preusser, for plaintiff in error.

      Kline, Tolies <& Goff, for defendant in error.

      Reversed, Baltimore & O. Ry. v. Schultz, 76 Ohio St. 627.

   HENRY, J.

The action below was for malicious prosecution, and the court directed a verdict for defendant.

Schultz and one Joe Bierce were arrested for stealing, on warrants issued from the police court pursuant to an affidavit made by the railroad company’s detective, one Haley Wilson. "When Schultz’s case was called for trial, a nolle prosequi was entered.

Thereupon he sued the railroad company for damages. On the trial of the latter cause he sought to show no evidence had been offered against him in police court. J. W. Sykora, Esq., a bystander in that court, and a witness for plaintiff in the court of common pleas, was asked on direct examination “What if any evidence was offered by Haley Wilson in police court to support the charges made against William Schultz?” and “who testified against Mr. Schultz?” The witness answered that “Wilson tried to testify what he heard from Joe Bierce, and he was stopped; no other evidence was, as to Schultz, then given or offered,” and that “no one testified against him.” On motion of the defendant, these answers were taken from the jury’s consideration, upon the theory that Wilson had in fact testified and that the witness Sykora could not be heard to explain or detail what that testimony amounted to. We think this was error under the rule of John v. Bridgman, 27 Ohio St. 22. In that case the court said by Whitman, J., at pages 39 and 40:

‘ ‘ But it is supposed that it was error to allow the testimony of Eury, who said ‘there was nothing in the testimony of John to implicate Elizabeth Bridgman;’ and of Thomas Bridgman, who said ‘that there was no testimony to implicate her that he heard of. ’ And it is claimed that this was testifying as to the effect of the evidence. We do not so understand it. It was only a form of words by which the witnesses meant to say that they heard no testimons'-, or that there was no testimony given, against Elizabeth Bridgman. But while we think that the testimony to prove that no evidence was given before the magistrate, in support of the charge by the defendant below, clearly competent.” * * *

The similar testimony excluded, in the case before us, tended to prove want of probable cause and had some slight tendency also to show that the prosecution had been maliciously instigated. On this the plaintiff should have been allowed to go to the jury. For error in excluding this evidence and in directing a verdict for defendant, the judgment below is reversed and the cause remanded.

Marvin and Winch, JJ., concur.


text:
    SALES — TRIAL
    [Cuyahoga (8th) Circuit Court,
    February 26, 1906.]
    Marvin, Winch and Henry, JJ.
    E. J. Aldefer v. Cleveland Store Fixture Co.
    Question of Acceptance One for Jury on Issue of not Conforming to Specifications.
    Upon an action for the purchase price of fixtures when the defense is made that the fixtures were not according to specification and were not accepted, the question of acceptance or nonacceptance is one for the jury.
    Error.

      Wilcox, Parsons & Burch, and White, Johnson, McCaslim & Camón, for plaintiff in error.

      Wm. A. Hill, for defendant in error.
   HENRY, J.

This proceeding in error is prosecuted to reverse a judgment for $653.34 recovered at the September term of the common pleas court, by the Cleveland Store Fixture Co., for the unpaid balance alleged to be due on a written contract for the erection of certain fixtures in plaintiff in error’s store in Akron. The defense was that the fixtures did not conform with the contract in divers particulars. A small portion of the goods furnished under the contract were actually shipped back, but the remainder were put in place by the company’s representative, on the plea, acquiesced in by Aldefer acording to his testimony, that it was then raining and the goods could not be left out in the weather. Aldefer testifies that he then and thereafter protested that the fixtures were not in accordance with the contract, and that the company’s representative promised some changes which were never made. But the court below ruled that he had accepted the fixtures within the rule of Bowman Lumber Co. v. Anderson, 70 Ohio St. 16 [70 N. E. 503] and charged the jury to disregard the claims of the defendant except as to certain minor matters.

We think the evidence on this subject should not have been excluded from the consideration of the jury, and that under that evidence the question 6f acceptance was one for the jury.

For error in excluding evidence of the nonconformity of the fixtures furnished with the contract and for error in refusing the fifth request to charge, the judgment is reversed and the cause remanded.

Marvin and Winch, JJ., concur.


text:
    LANDLORD AND TENANT
    [Cuyahoga Circuit Court,
    June 11, 1906.]
    Marvin, Winch and Henry, JJ.
    Morgan Wood v. Paul C. Searles et al.
    Tenant Knowing Condition at Leasing may not Surrender Premises because Untenantable.
    A tenant may not surrender premises under Sec. 4113 R. S. (Sec. 8521 G. C.), because unfit for occupancy, wben tbe only change in the premises is from natural wear and decay, and tbe condition of tbe premises was fully known to bim at tbe timie tbe lease was made.
    Error.
   HENRY, J.

The parties to this proceeding in error stand in the relation opposite to that in which they stood in the original action. That was an action for rent of a house which the tenant had vacated during the term because of its becoming untenantable from the bad condition of the plumbing and sewer connection. The lease contained a printed clause, in language similar to that of Sec. 4113 R. S. (Sec. 8521 G-. C.), providing that the tenant should not be liable for rent after surrender of the premises in case they should without his fault be injured or destroyed by the elements or other cause so as to become unfit for occupancy. At the close of all the evidence the court below directed a verdict for the landlord, upon the ground that neither the statute nor the clause in the lease contemplated a condition resulting merely from natural wear and decay as in this case. We do not find it necessary to pass upon that precise question, because it is perfectly plain from the plaintiff in error’s evidence contained in the bill of exceptions, at pages 19, 22, and his letter exhibit C, that the condition complained of by the tenant was well known to him when the lease was executed, and that it was for premises in this condition that he covenanted to pay rent. True the consequences to health therefrom may not have been fully appreciated by him; but the condition itself did not change materially after the term began. And both the statute and the clause in the lease are prospective in their operation and hence do not apply to this understood and pre-existing condition.

For a like reason the court’s exclusion of evidence of an alleged custom in Cleveland requiring landlords to make such repairs could not possibly be prejudicial. The circumstances surrounding the negotiations of the lease show clearly that the contract of the parties and the reservation of the stipulated rental were agreed upon by taking into consideration the existing condition of the premises without reference to any repairs.

The judgment below is affirmed.

Marvin and Winch, JJ., concur.


text:
    PAYMENTS
    [Cuyahoga (8th) Circuit Court,
    1905.]
    Marvin, Winch and Henry, JJ.

      Dime Savings & Banking Co. v. Richard O’Rourke.
    1. Creditor has Right to Apply Involuntary Payments.
    Creditors have the same right to apply involuntary payments that they have to apply voluntary payments when the debtor makes no designation as to method of application.
    2. Assignment of Securities Generally does not Deprive Creditor of Right of Application.
    The mere fact that securities had been assigned to a creditor as “security generally for any indebtedness that might be owing to it,” does not mfean that any sum realized from those securities must be applied pro rata to reduce the various claims but it may apply such sums as it sees fit.
    Appeal.

      Affirmed no opinion, Madigan v. Dime Savings & Banking Co. 76 Ohio St. 576.

   HENRY, J.

This appeal involves two phases of the doctrine of the application of payments. The facts are set forth in a stipulation and need not here be rehearsed. The additional evidence adduced (except perhaps certain Illinois decisions) does not, in our opinion, vary the rights of the parties.

As to the Chicago branch of the matter, the application of the proceeds of the sale of such part of the substituted securities as were sold must be determined upon the same principle as if they had been realized by judicial sale of a like portion of the property originally levied on. It may be considered that the judgment debtor in such ease could not direct the application of an involuntary payment of this sort. As to the creditor’s right of application we see no reason for a distinction between voluntary and involuntary payments. Here the plaintiff must of course apply the payment in reduction of the judgment. But as to the two notes represented by the judgment, the doctrine of merger can not be pressed to deprive plaintiff of the right to apply such payment on the note which is less secured. 2 Am. & Eng. Ene. of Law, 459; Gaston v. Barney, 11 Ohio St. 506; Monson v. Meyer, 190 Ill. 105 [60 N. E. 63]; Baker v. Kinsey, 41 Ohio St. 403, 409.

The defendant, not being a party to the judgment in Chicago, is not concerned therewith. As co-surety with the judgment debtor on only one of the two notes, he is not entitled to any voice in determining the application of a payment by the latter, who is surety on both. The plaintiff can pursue the sureties in such order and to such extent as it sees fit, provided it does not relinquish any security of either in which the other is entitled on principles of contribution to participate. To this extent the defendant is, of course, entitled, .in respect of any payment that he may make, to be subrogated to the rights of the plaintiff in the Chicago securities.

As to the other branch of the controversy, the stipulation recites that:

“The bills and accounts receivable had been duly assigned to the Dime Savings and Banking Co., as security generally for any indebtedness which might be owing to it by said company, and without any direction as to how the proceeds should be applied.”

The defendant now contends that the word “generally” must be construed as a direction to apply the proceeds pro rata to all the items of indebtedness.

Obviously such construction of the stipulation would be self-contradictory. Moreover the fact that a security applies generally to several obligations does not deprive the holder of his right to apply the proceeds of such security to any of them in his discretion. Northern National Bank v. Lewis, 78 Wis. 475 [47 N. W. 834].

The plaintiff may take a decree in accordance with this opinion.

Marvin and Winch, JJ., concur.


text:
    ASSIGNMENTS — PAYMENTS
    [Cuyahoga (8th) Circuit Court,
    June 4, 1906.]
    Winch, Henry and Laubie, JJ.
    Judge Laubie of Seventh Circuit Sitting in Place of Judge Marvin.
    Ralph Gray v. Leopold Dautel.
    An Order for Payment of Money Generally not Assignment.
    An order given by a contractor on the owner of a building which the contractor was erecting, requesting the owner to pay a certain sum to a certain person “and charge the same to me” is not an assignment of the money due him, but a mere order for the payment of money, which must be accepted before it becomes binding on the drawee.
    Error.-

      Hogan & Parmely, for plaintiff in error.

      Hills <& Van Derveer, for defendant in error.
   HENRY, J.

Levi Wherry & Son, having a carpentry contract under the defendant in error, bought lumber therefor from the plaintiff in error to whom they gave the following order on defendant in error:

“Cleveland, Ohio, Oct. 4, 1901.
“Messrs. L. Dautel & Son,
‘ ‘ City.
“Please pay to Ralph Gray thirty-five hundred dollars ($3500.00) and charge the same to our account.'
“Levi Wherry & Son.”

On the following day plaintiff in error collected on this order all that was then due Levi Wherry & Son, to wit, $1,500, leaving $2,000 still owing thereon. Defendant in error, on making this payment, endorsed on the order: “Paid $1,500. This order is not acknowledged in full. L. Dautel & Son.”

Afterwards defendant in error paid to or for Levi Wherry, & Son on the same contract (which was the only one between, the parties) various sums, in cash, or upon their orders, amounting to about $1,200 which plaintiff in error now seeks to recover, upon the theory that the order above quoted an equitable assignment of Levi Wherry & Sons’ pecuniary interest in the contract, not exceeding the amount of the order, whether accrued or to accure. The defendant in error contends that inasmuch as the order is not expressed to be paid, out of a particular fund it can not operate as an assignment of such fund in whole or in part, but is merely an order, or bill of exchange, drawn upon the defendant in error personally, and the circumstances that there was only one account or contract between the parties does not operate to change its effect.

Counsel have been diligent in searching for precedents and their very excellent briefs have greatly aided us. Without attempting to review the authorities cited, we find that the law, as we view it, is most cogently stated in the first two paragraphs of the syllabus of Hurd v. Johnson Park Inv. Co. 34 N. Y. Supp., 915, as follows:

“An order given by a contractor on the owner of the building which he was erecting, requesting the owner to ‘pay to the-order of H, $1,049.47, when the same is due me by the terms of the contract,’ is an equitable assignment to the payee of the fund to become due to the amount named in the order.
“Orders given by a contractor on the owner of the building-which the contractor was erecting, requesting the owner to pay a certain sum to a certain person, ‘and charge the same to me,’' is not an assignment, but a mere order for the payment ■ of. money, which must be accepted before it becomes binding on the drawee.”

It follows that the distinction contended for by defendant in error is sustained and the judgment below is affirmed.

Winch and Laubie, JJ., concur.


text:
    INSURANCE
    [Cuyahoga (8th) Circuit Court,
    June 15, 1906.]
    Marvin, Winch and Henry, JJ.
    Supreme Lodge Knights and Ladies of Honor v. Louise Kopittke.
    In Mutual Benefit Insurance False Warranties in Application Whether Material or Immaterial Voids Policy.
    When a party in order to effect insurance upon his life, states that the answers and declarations made by him in his application to participate in a benefit fund of a fraternal society and in his medical examination are true, and agrees that they are to he treated as warranties and made a part and parcel of the contract and that if untrue the policy shall be void; Held: That the society is not liable if any of the statements are untrue and that the agreement of the parties removes the question of the materiality of the warranties from the consideration of the jury.
   HENRY, J.

This proceeding was commenced to reverse a judgment recovered by the defendant in error, in an action for a death benefit upon a certificate of membership issued to her husband, John C. Kopittke, January 14, 1903, by the Supreme Lodge Knights and Ladies of Honor, a fraternal order, the plaintiff in error here. John C. Kopittke died April 5, 1904, of an inflammation of the brain, which was not shown to be in any way referable to his previous infirmities concerning which it is claimed that he had made false representations when he took out his certificate.

Incorporated in the certificate itself is the following language :

“This relief fund certificate is issued upon the following conditions:
“First. That the statements made by the member in the contract known as ‘Application for Membership in Relief Fund’ and answers to questions in applicant’s statement to the medical examiner, known as ‘Medical Examiner’s Certificate,’ upon the faith of which this relief fund certificate is issued are true and shall be treated as warrantees.”

In the application for relief fund membership the decedent stated :

“I hereby agree and contract that my compliance with all the laws, rules and regulations covering said fund now in force, or that may hereafter be enacted by said order, and that my answers to the questions propounded or propounded by the medical examiner, are full, correct and true, as the expressed condition and warranty upon which I am to be entitled to participate in its relief fund as the constitution and laws of the order provide.”

The decedent further stated in his application:

“I hereby warrant the foregoing statement, and each of them, and also the statements and answer to questions in my medical examination, to be true and correct. I expressly contract and agree that any untrue statement or answer, or my suspension, or expulsion from, or voluntarily severing my connection with the order, shall forfeit the rights of myself and my family or dependents, to all benefits and privileges therein.”

In the medical examiner’s certificate we find the following questions and answers:

“Q. Has the applicant undergone any surgical operation? A. No.
‘ ‘ Q. Have you had any serious illness, local disease, or personal injury ? A. No.
“Q. Have you fully recovered? A. Never sick.
‘ ‘ Q. How long since you were attended by a physician, or have personally consulted one ? A. A long time.
“Q. For what disease? A. Nothing except slight cold.
“Q. Give name and residence of physician? A. None.”

Kopittke answered “no” to all other questions as to whether he had had any disease, and closed the applicant’s statement to medical examiner as follows:

“I hereby declare that I am the person whose name is written upon the second page of this statement * * * and that the answers as written herein are as given by myself to the medical examiner and that I have not made any mis-statements or concealed facts in relation to my past or present condition. ’ ’

As a matter of fact he had undergone a slight surgical operation, three years before at the Huron Street Hospital Clinic, for the removal of a very small suppurating gland in his neck. Anaesthesia was administered to him and he remained at the hospital over night. This trouble had existed for perhaps two months, and he was under occasional observation of the surgeon for séveral weeks.

The jury, moreover, in answer to interrogatories specially found that the deceased had undergone a surgical operation about May 5, 1900; but their general verdict was for the plaintiff, the trial judge having charged them, in part, as follows:

“Notwithstanding the express provision in the certificate of membership and thé application for membership as to such statements and answers being warranties, it is not the policy of our law to treat them as strict warranties, so that if there be any slight or trivial mis-statement of fact therein, the policy will be avoided however, immaterial to the risk proposed to be assumed such mis-statement may be. Although the answer to a question is untrue in effect, it will not necessarily avoid the policy, unless the fact untruly stated, or denied, be material. It is for the jury to say from the testimony whether or not the decedent gave any full and untrue answer to questions -propounded to him in the suit referred to, and if so, whether or not such misstatement was material in the sense I have explained to you.”

This charge is assigned as error, and we think it is erroneous. In Aetna Life Ins. Co. v. France, 91 U. S. 510 [23 L. Ed. 401] the syllabus is:

“Where a party, in order to effect an insurance upon his life, agreed that if the proposal, answers, and declarations made by him — which he declared to be true, and which were made a part and parcel of the policy, the basis of the contract, and upon the faith of which the agreement was entered into — should be found in any respect untrue or fraudulent, then, and in such ease, the policy should be null and void; Held: That the company was not liable if tbe statements made by tbe insured were not true.
‘ ‘ The agreement of tbe parties that tbe statements were absolutely true, and that their falsity in any respect should void tbe policy, removes tbe question of their materiality from tbe consideration of tbe court or jury. ’ ’

And this is quoted with apparent approval in Connecticut Mut. L. Ins. Co. v. Pyle, 44 Ohio St. 19, 30 [4 N. E. 465; 58 Am. Rep. 781]. True tbe syllábus states tbe rule less broadly than in tbe former case, but this was evidently because tbe facts did not require tbe application of tbe principle in its full breadth. Tbe undeniable severity of this rule caused tbe enactment of Sec. 3625 R. S. (Sec. 9391 G. C.), which abrogates it with respect to life insurance companies generally, as pointed out in Hancock Life Ins. Co. v. Warren, 59 Ohio St. 45, 53 [51 N. E. 546]. But this section can have no application here because fraternal orders are expressly exempted from its operation by See. 3631-14, R. S. (Sec. 9465 G. C.).

It is urged, however, that tbe term “surgical operation” must not be taken in its technical sense, which would involve tbe absurdity of including such trivial matters of domestic surgery as tbe pricking of a boil or tbe picking out of a sliver; and that tbe jury should be allowed, under proper instructions, to find that tbe removal of a suppurating gland tbe size of a shot under tbe skin of tbe neck is not within tbe common understanding of tbe phrase in question, though they are without instructions, for none were asked, as to tbe proper significance of tbe words. Presumably they used their common understanding when they adopted and approved tbe language of counsel and witnesses in thus describing tbe incident referred to. And we can not say that an occurrence such as this, in which Kopittke deliberately went to a hospital clinic, was anaesthetized, and suffered tbe application of tbe knife to bis neck for tbe healing of a small but persistent and discharging sore, remained over night at tbe hospital to recuperate and continued under tbe surgeon’s supervision for some weeks in all, is not enough to impress tbe patient and every one else aware' of tbe facts, that a surgical operation has taken place, somewhat trivial it may be, but unmistakable to every one of common understanding, professional and lay minds alike.

It was thus an untrue representation which Kopittke made, and the truth of which he expressly agreed should be regarded as a condition on the faith whereof his certificate was issued, when he stated that he had never undergone a surgical operation and that he had not consulted a physician for a long time and then only for a cold. We hold that this prevented any right to participate in the relief fund from arising under the provisions of the certificate and application; and that the court’s charge as quoted is erroneous and that the judgment must therefore be reversed. And upon the indisputable facts as shown by documentary evidence and the special findings of the jury we now proceed to render the judgment which the court of common pleas should have rendered and enter final judgment for plaintiff in error.

Winch, J., concurs.

Marvin, J., dissents.


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

text:
    RAILROADS
    [Hamilton (8th) Court of Appeals,
    June 5, 1914.]
    Swing, Jones and Jones, JJ.

      Pittsburg C., C. & St. L. Ry. v. George Stugard, Admr.
    Railway not Liable for Injuries at Crossing to Driver Obstructing His Own View.
    When it appears that the intestate, a driver who was killed at a railway crossing, was walking beside his wagon, which was between him and the railway track and was piled high with lumber so as to obstruct the view of an approaching train, and .there is evidence that the whistle was blown for the crossing, it is error in an action for damages on account of his death to overrule a motion to direct a verdict for the railway company.
    Error.

      Maxwell <& Ramsey, for plaintiff in error.

      T. J. Edmonds, J. E. Shepard and Nelson <& Hickenlooper, for defendant in error.

      Motion to certify overruled by Supreme Court, December 1, 1914.

   JONES (E. H.), J.

This action was brought in the superior court by George Stugard, administrator of the estate of John B. Yastine, against the plaintiff in error, for damages on account of the death of said intestate, which is alleged to have resulted from injuries received by him. While driving a wagon along Erie avenue at the intersection of said avenue with the track of the plaintiff in error company, Yastine’s wagon was struck by a train, and he received injuries which resulted in his death.

The evidence shows that at the time of the accident Yastine was driving his team, and that he himself was walking on the left side of the load of lumber, which was piled so high upon the wagon as to obstruct his view of the train which was approaching from his right at the rate of thirty miles per hour.

We think that the evidence satisfactorily shows that the whistle was sounded for this crossing at the proper distance, and that therefore the claim of negligence on the part of the railway company in the management of its trains is not well supported by the evidence.

The decision of the court, however, will not rest upon the failure to show negligence on the part of the railway company. We find no escape from the conclusion that the proximate cause of the death of the intestate was his own negligence in failing to look or listen for the train, and that if he had done either he could and would have seen the train in ample time to have avoided his injury*. There is no conflict in the evidence but that the emergency whistle was sounded as soon as the engineer and fireman discovered his peril, and at least three whistles were sounded in rapid succession a short distance from the crossing, and that after the sounding of this signal the decedent, being upon the ground, had ample time and opportunity to have reached a place of safety. The warning whistle for this crossing was sounded by those in charge of the locomotive about 1100 feet from the crossing. These men not only testified to this, but the whistle was heard by Mr. Bailey, who was at the time near the crossing and saw Yastine driving along with the load of lumber.

There is no' reason given why Vastine could not have heard this whistle as well as Mr. Bailey, and if he did not hear it the noise of his wagon must have been responsible for his failure so to do. This being the ease, it was his duty to have stopped the noise of his wagon so as to have made his listening effective. See Baltimore & O. S. W. Ry. v. Stewart, 31 O. C. C. 527 (12 N. S. 250); Ohio Trac. Co. v. Smith, 33 O. C. C. 610 (15 N. S. 124).

The evidence shows, too, that he was prevented from seeing this approaching train by the lumber upon his wagon. It is claimed that there were obstructions to his view such as lumber piles and a mound of earth with a fence upon it, but we think that he was prevented from seeing up the track by the lumber upon his wagon and that if he had stepped from behind this barrier, within twenty or thirty feet of the track, he would have had no difficulty in seeing the approaching train.

The evidence of his negligence is so strong, as gathered from all the facts and circumstances of the case, as to become a question of law, and the request for a directed verdict in favor of the defendant, at the close of all the evidence, in the court below, should have been granted. The judgment of the superior court will therefore be reversed, and judgment may be entered here for plaintiff in error.

Swing, J., concurs.

Jones, J.,

dissenting.

I can not agree with the- majority of the court that the record presented here shows no negligence on the part of the defendant below or conclusively shows contributory negligence on the part of the plaintiff below.

There-is evidence of negligence on the part of the railroad company, and in my opinion no direct evidence of contributory negligence on the part of plaintiff, and in the absence of evidence to the contrary there would be rather a presumption that plaintiff looked and listened before attempting to cross Baltimore & P. Ry. v. Landrigan, 191 U. S. 461 [48 L. Ed. 262; 24 Sup. Ct. 137]. Different minds might reasonably arrive at different conclusions, and this record presents a case where in my opinion, it was the duty of the court to submit the questions, both of negligence and contributory negligence, to the jury under proper instructions and it would have been error for the court to direct a verdict for the defendant. Cleveland, C. & C. Ry. v. Crawford, 24 Ohio St. 631 [15 Am. Rep. 633]; Cincinnati St. Ry. v. Snell, 54 Ohio St. 197 [43 N. E. 207; 32 L. R. A. 276]; Steubenville & W. Trac. Co. v. Brandon, 87 Ohio St. 187 [100 N. E. 325]; Gibbs v. Girard, 88 Ohio St. 34 [102 N. E. 299; 1914 C. Ann. Cas. 1082].

The jury having passed upon the question of negligence and of contributory negligence, I do not think that the record is of such character that the reviewing court should say that their verdict is so manifestly against the weight of the evidence that it should be set aside.


text:
    CORPORATIONS — SALES
    [Cuyahoga (8th) Circuit Court,
    October 29, 1906.]
    Marvin, Winch and Henry, JJ.
    J. L. Wadsworth v. F. H. Edwards.
    Sale and Option to Purchase Stock Distinguished.
    When the owner of shares of stock enters into an agreement with another wherein that party agrees to take over the stock at a certain price on or before a certain date and the owner agrees that he will transfer the stock at any time before the date mentioned upon .the tender of the amount specified, the transaction is an option to purchase and not a sale and the owner can not, upon the failure of the other to pay for and take the stock, maintain an action for the purchase price.
    Error.

      Carr, Stearns & Chamberlain, for plaintiff in error.

      C. C. Wise, for defendant in error.
   HENRY, J.

Tbe parties to this proceeding in error stand related as they stood below. The case originated in a justice court and was appealed to the common pleas, where a jury trial was waived and judgment rendered for the plaintiff, but only in a nominal sum. This he alleges was error, for his’ action being on a contract of sale, repudiated by the buyer, and for the purchase price of the goods sold, he urges that he should have recovered all or nothing. We think he should have recovered nothing.

The contract was as follows:

“Cleveland, Ohio, Nov. 15, ’04.
“Agreement between F. H. Edwards of Cleveland, Ohio, as party of the first part, and J. L. Wadsworth, of the same place, party of the second part.
“Now by this agreement witnesseth, that party of the first part hereby agrees to take over on or before the expiration of six months from date above mentioned, from the party of second part, a certain two shares of stock, known as certificate No. 23, same being for two shares of stock in the company known as the American Metallic Packing & Supply Co., of Cleveland, Ohio. The consideration for the same to be one hundred dollars each or a total, of two hundred dollars.
“It is also agreed that at any time prior to the time mentioned that if the party of the first part shall tender the party of second part the sum mentioned ($200) that the two shares of stock shall be immediately transferred, and shall become the property of first party.
“Witness our signatures.
“Cleveland, Ohio, Nov. 15, 1904.
“F. H. Edwards.
“J. L. Wadsworth.”

The facts are embodied in an agreed statement which is set forth in the bill of exceptions as follows:

“In addition to the admission of the execution of the instrument set forth in plaintiff’s petition, the parties hereto admit that on the 15th day of May, 1905, being six months from date of the contract, the plaintiff called upon defendant and stated to the defendant that he had with him a certain certificate of stock No. 23, the same being the certificate named in the agreement set forth in plaintiff’s petition o'f the American Metallic Packing & Supply Company, and that he was willing and ready to perform all the conditions required by him in said agreement to be performed, and' defendant refused to perform or do anything further with the contract.
“Defendant also admits that a short time previous to May 15, 1905, in conversation with the plaintiff he told him, the plaintiff, that he did not consider himself bound by the terms of this contract, and that when the date for its performance should come he would refuse to perform.
“The aforesaid stock before and up to the time suit was brought stood on the books of the company in the name of J. L. Wadsworth.’’

From this statement and the pleadings it appears that the defendant did not avail himself of his option to buy said shares of stock pending the date of expiration of the contract period, but the plaintiff sought to accept and enforce his option to sell on that date. That the agreement was nothing else than a contract for reciprocal options is manifest from the fact that in the last paragraph Wadsworth’s agreement to sell at any time during the contract period is expressly conditioned upon Edwards’ tender of $200 and in the preceding paragraph Edwards ’ agreement to buy at or before the end of the contract period is accompanied by no corresponding covenant by Wadsworth to sell. He might sell or not, as he chose, unless Edwards tendered the price. And Edwards might buy or not, as he chose, unless Wads-worth tendered the stock. Each option was the consideration supporting the other. To exercise either option required an affirmative voluntary act by the party accepting. To show such acceptance is not enough to plead and prove a readiness to fulfill and perform by the party accepting, or even an actual fulfillment and performance of “all things in the said contract to be by him fulfilled and performed. ’ ’ The plaintiff here may have done all that, without accepting the option afforded him by the contract. But this is all the petition avers, or the agreed statement shows, was in fact done. No acceptance by the plaintiff of his option is either pleaded or proved.

If the obligation of the defendant to buy the said shares of stock had been absolute, without such acceptance, his repudiation of the contract would of course dispense with tender of the shares by the plaintiff as a basis for damages for the breach, though perhaps not as a basis for an action for the agreed price (Elsas v. Meyer & Co. 21 B. 346). But here the tender, however good it may have been, was insufficient without a notification by plaintiff to the defendant that he had elected to exercise his option to sell, or, what would be equivalent, a formal demand for the price agreed upon.

The petition and the proof here are therefore alike insufficient to sustain plaintiff’s action. We find no error in the record and the judgment below is affirmed.

Marvin and Winch, JJ., concur.


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

text:
    ADVERSE POSSESSION — HIGHWAYS—RAILROADS
    [Hamilton (1st) Court of Appeals,
    August 9, 1913.]
    Swing, Jones and Jones, JJ.

      Hamilton Co. (Comrs.) v. Cincinnati, H. & D. Ry.
    Encroachment by Railroad Abutments in Turnpike or County Road not Obtained by Adverse Possession.
    The claim of the railway company of title by adverse possession to a part of tbe county road in question can not be maintained as against tbe charter provision of the original turnpike company safeguarding the rights of the traveling public thereon for all time.
    Appeal.

      Pogue, Campbell & Groom, for the plaintiff.

      Waite & Schindel, for the defendant.

      Reversed, no opinion Cincinnati, H. & D. Ry. v. Hamilton Co. (Coms.), 92 Ohio St. 513; Common pleas decision, see Hamilton Co. (Coms.) v. Cincinnati, H. & D. Ry. 23 Dec. 426.

   JONES (E. H.), J.

We find upon the issues joined in favor of the plaintiff; and that the prayer of its petition for a mandatory injunction herein shoiild be granted.

With the exception of the question of title by prescription we feel that the questions in this case are decided by the Supreme Court of our state in its opinion in the case of Lake Shore & M. S. Ry. v. Elyria, 69 Ohio St. 414 [69 N. E. 738] and upon that question the learned judge who wrote the opinion in that ease stated:

“As to the plea of the statute of limitations made in the answer it is sufficient to say that it is the well settled law of this state that encroachments upon a public highway never ripen into a title by adverse possession. ’ ’

It is true that there was no issue of the statute of limitations in that case, and it may be well claimed that it is not a controlling authority upon that point.

In determining whether or not a title has been acquired by adverse possession or prescription the court must be governed by the facts in each particular case, so that in this case wé have been unable to gather much assistance from cases cited by counsel in their briefs and oral arguments. Looking for a moment at the facts in this case, it appears that this road was opened and used by the turnpike company shortly after its original charter in 1834, and whether on the particular part crossed by the Cincinnati H. & D. Ry., it was a state or county road prior to becoming a turnpike the evidence is not clear, but it was in existence at least sixty feet wide as a public highway at the time the Cincinnati H. & D. Ry. was built, and the railway company has failed to show any title to any part of the land included within this highway. Its only claim is that the abutments or their predecessors have existed there since about the year 1851, but exact proof has not been made. The original construction of these abutments was certainly not intended to close the highway or incommode the traveling public upon it and at the time, of their original construction there remained undoubtedly sufficient room to accommodate the public travel between them. It can not be assumed that their construction and use was under a claim that the railway company could lawfully exclude the public from the use of any part of said highway, and no claim can be made by the railroad company under title by prescription that would not be much stronger if they could show a title by grant.

In the Elyria case above cited the court has shown that municipal authorities had no power to make a grant of a public highway for the purposes of such a pier or abutment that could prevent the public from demanding its removal when the necessity of travel required it.

The turnpike company becomes, in a way, a trustee for the state, and no power is shown in a turnpike company to grant its turnpike or such part thereof to a railroad company as would interfere with the rights of the traveling public thereon. The charter under which this turnpike was granted by a special law found in 32 O. L. 157, in which the state reserved the right to purchase the entire turnpike, or to allow a county to purchase such part of the turnpike as lay within its boundary, at any time, upon the payment of a certain sum, and convert the toll turnpike into a free public highway, shows that the public retained a valuable interest in the turnpike as a public highway which could not be granted away, and which under the ordinary rule that the statute of limitations can not be pleaded against the state would render any claim made by the defendant railway company by adverse possession insufficient. Outside of the statutory right retained in the original charter the ordinary rule is that an abandoned turnpike becomes a public highway.

Judgment will therefore be rendered for plaintiff, as above stated.

Swing and Jones (O. B.) JJ., concur. '


text:
    NUISANCE — RES AD JUDICATA
    [Cuyahoga (8th) Circuit Court,
    November 12, 1906.]
    Marvin, Winch and Henry, JJ.
    Mary Krazeweski v. Berea (Vil.)
    1. Res Adjudícala no Bar Unless Issues are Identical.
    In an action for nuisance the issue of res adjudicata is not raised by averments that the property involved and the nuisances complained of are identical with those involved in a former suit without averment of the identity of issues joined.
    2. City Liable for Maintaining Defective Sewer.
    A municipality is liable in damages for maintaining a defective sewer in such condition that sewage is allowed to seep or percolate through the subsoil, and into the cellar of an adjoining property owner.
    Error.

      Blandin, Bice & Ginn, for plaintiff in error.

      A. W. Lamson, for defendant in error.
   HENRY, J.

In this proceeding in error the parties stand as they stood below. The action there (wherein a verdict for the defendant was directed) was for damages for injury to plaintiff’s dwelling and to her enjoyment thereof, because of sewage seeping into her sub-cellar from a faulty sewer of the village of Berea in the street opposite her premises. A second cause of action likewise complains of foul odors from the neighboring open mouth of said sewer and the deposit therefrom which lodges on a shelf of rock between it and the river below.

The answer denies that the sewer is faulty and denies that plaintiff has suffered injury therefrom. It avers also that plaintiff acquired title to the premises shortly before the commencement of her action, having, however, with her husband and children, for many years before, occupied said property, in the same condition as that in which it has since been and now is; that during that period her husband, as head of the family and with her connivance, had commenced two actions for damages for injury to their possession and enjoyment of said premises by the same alleged nuisances as are complained of now, and that both said actions were, to the knowledge of plaintiff when she acquired the said title, “fully decided and determined against the claim and contention” as made by her husband.

The reply alleges that the former litigation related to the family’s possession and enjoyment of the property and not, as here, to the fee; also that plaintiff was then the equitable and beneficial owner of the property, having only recently acquired the legal title, but without being successor in title to her husband.

With respect to the matters last mentioned, it is enough to say, first, that the wife is shown to have been the real owner of the property ever since the alleged nuisance arose, and, secondly, that whatever might be the merits of a proper plea of former adjudication, no such defense is presented on this record. The identity of the nuisances and of the property involved in these three suits is averred, but not the identity of issues joined Koelsch v. Mixer, 52 Ohio St. 207, 211 [89 N. E. 417]. We therefore say nothing about the further questions of identity of parties and of subject-matter.

We see no reason why the court should have excluded evidence or directed a verdict with respect to the second cause of action alleged in the petition below, unless it was on the assumption that there had been a former adjudication of that matter. This reason, as we have indicated, is not well founded and the evidence excluded at pages 15 and 21 of the bill of exceptions should have been admitted.

As to the first cause of action, it is contended by counsel for the village that no defect in the sewer has been proved, and, at all events, that no causal connection is shown between the alleged faults in the sewer and the flooding of plaintiff’s sub-cellar. But evidence was offered of a stream of water entering the cellar through a hole made by thrusting a bar horizontally into the soil towards the sewer when the mouth thereof was choked with ice, and of the instant subsidence of that stream when the ice was removed. This event, it is true, occurred more than four years before the commencement of this action, and hence without the period for which damages for a continuing nuisance may be recovered Lawrence Ry. v. O’Harra, 50 Ohio St. 667, 679 [36 N. E. 14]. But it was perfectly competent for the plaintiff to show that the sewer had previously occasioned similar damage, for the purpose of proving that the same cause thereafter might probably have produced the like effect Findlay Brew. Co. v. Bauer, 50 Ohio St. 560 [35 N. E. 55; 40 Am. St. 686]. It was of course necessary to show further that the condition of the sewer remained unchanged. It follows that the. court erred in excluding the evidence tendered at page 35, of the incident-just referred to, for its tendency was to show that the sewer was in some way defective so as to permit the escape of sewage through the soil towards plaintiff’s cellar. 5 Thompson, Negligence, Sec. 5894.

But it is said on behalf of the village that the mere percolation or seeping of sewage through the soil to and into another’s premises is not an actionable wrong, for the rule is analogous to that of the interception or diversion of percolating natural waters. This question is, however, expressly reserved in Elster v. Springfield, 49 Ohio St. 82, 94, and 101 [30 N. E. 274] and the clear weight of authority- is against the contention made. Mears v. Dole, 135 Mass. 508; Beatrice Gas Co. v. Thomas, 41 Neb. 662 [59 N. W. 925; 43 Am. St. 711]; Wheatley v. Baugh, 25 Pa. 528 [64 Am. Dec. 721]; Kinnaird v. Standard Oil Co. 89 Ky. 468 [12 S. W. 937; 7 L. R. A. 451; 25 Am. St. 545].

It is, however, the settled law that where a municipality brings either sewage or surface water and casts it upon another’s land where it would not of itself naturally flow, it must ordinarily answer in damages therefor. The rule and its limitations are clearly shown in Gilluly v. Madison, 63 Wis. 518 [24 N. W. 137; 53 Am. Rep. 299]; Barry v. Lowell, 90 Mass. (8 Allen) 127 [85 Am. Dec. 690], and Cincinnati v. Penny, 21 Ohio St. 499 [8 Am. Rep. 73],

For the error in excluding the evidence offered at pages 15, 21 and 35, and in directing a verdict for the defendant the judgment below is reversed and the cause remanded.

Marvin and Winch, JJ., concur.


text:
    INTOXICATING LIQUORS
    [Cuyahoga (8th) Circuit Court,
    January 14, 1907.]
    Marvin, Winch and Henry, JJ.
    In Re Intoxicating Liquors (Residence Local Option).
    1. “Jones Law” Constitutional.
    The “Jones law” providing for local option in residence districts is a valid exercise of legislative power and is constitutional.
    2. Bill of Exceptions, Perfected in Mayor’s Court within Ten Days.
    In proceedings under the “Jones law,” hills of exceptions in a mayor’s court must he taken pursuant to the provisions of Sec. 6565 R. S. (Sec. 10359 G. C. et seq.) and must he presented to the mayor for allowance within ten days.
   HENRY, J.

This proceeding in error is brought to review the decision of the mayor of the city of Cleveland, wherein he held a petition filed under the Jones law to be sufficient. Among the papers filed here is a document purporting to be a bill of exceptions, presented to and signed by the mayor, on December 30, 1906; This bill, we are not able to entertain or consider for two reasons:

First, because the transcript contains no minute of its presentation to, or allowance by the mayor, and,

Secondly, because the allegation of the bill itself, could we look at it, is that it was presented and allowed December 20, as aforesaid, which is more than ten days after the date of the mayor’s decision on December 5, or the overruling of the motion for a new trial on December 8th.

Without- deciding whether or not a motion for a new trial is necessary or permisible in a case of this kind before a mayor of a city or village, it is clear that, in the absence of other provision, the bill of exceptions must be taken, pursuant to the provisions of Sec. 6565 R. S. (See. 10359 G-. C. et seq.), if at all, notwithstanding that the Jones law provides for proceedings in error to this court, whereas said section seems to contemplate proceedings in error to the common pleas court merely. Said section provides, that not less than five nor more than ten days after the decision of the mayor, or the overruling of the motion for a new trial, as the case may be, shall be allowed for the reduction to writing of the exceptions taken. The bill of exceptions must, therefore, be presented to the mayor for allowance within the period named, and for failure so to do in this case, we hold that there is no bill of exceptions before us whereby we can review the errors alleged, in so far as the same are exhibited only in the bill.

It is suggested by counsel for plaintiff in error, that the provisions of the Jones law give concurrent jurisdiction to the mayor and to any judge of the common pleas court, and requires the circuit court, upon petition in error to review the case upon its merits — implying, when taken together, that the provisions of the code of civil procedure in regard to the perfecting of bills of exceptions, must be applied not only when the decision to be reviewed is made by a judge of the common pleas, but also in cases wherein the decision to be reviewed is that of the mayor. And it is urged, that in the absence of any express provision, allowing the filing of a motion for a new trial, in any case before a mayor, other than jury cases, necessity requires this construction of the law, in order that a review of the weight of the evidence may be made by this court. If the justice code does not provide for a motion for a new trial in such a case as this, a resort must be had, it is claimed, to the code of civil procedure, in order that such a motion, alleging that the decision of the mayor is against the weight of the evidence and contrary to law, may be filed and overruled, so as to afford a basis for seeking a review of those grounds of error in this court. And, it is further urged, that if this construction of law is correct the bill of exceptions was taken in proper time.

Inasmuch, however, as the transcript fails to show that any bill of exceptions at all was taken, we do not find it necessary to pass upon the merits of this reasoning farther than to say that See. 6565 seems to us to apply in this ease, since by its terms it is made to apply to “all cases” before justices and mayors.

It is further claimed here that the transcript from the mayor’s court filed here is insufficient, in that it is certified merely as being a copy of the “records” in his office in this case, and that it is otherwise fatally informal.

The Supreme Court of this state has held that the proceedings of justice courts and other inferior tribunals of limited jurisdiction, must be viewed with indulgence of mere irregularities, as distinguished from a total want of jurisdiction; and applying that principle to the transcript here in question, we think the certification and contents are sufficient to advise us of the proceedings had and the decision rendered by the mayor. The transcript certified by the city clerk of the city of Cleveland, and filed with other papers in this ease is, in our view, of no significance.

Looking then to this transcript. The petition in error alleges no error disclosed therein which we need discuss, excepting the question of the constitutionality of the Jones law, which was formally saved, but was not argued before us. Without the benefit of such argument, we shall not enter into any detailed examination of the question. Suffice it to say, that the constitution of Ohio having expressly provided that the general assembly shall have power to pass laws to regulate the traffic in intoxicating liquors, and to provide against the evils resulting therefrom, we think the legislature is invested with plenary power to deal with the subject at its discretion at least as fully as it is authorized to exercise the police power for the common welfare and public safety. Without the more specific aid of counsel in pointing out alleged defects in the law, we are unable to say that it violates any provisions of the constitution, or that it is in any degree unenforceable. The judgment below is therefore affirmed.

Marvin .and Winch, JJ., concur.


text:
    COURTS — CREDITORS BILLS
    [Cuyahoga (8th) Circuit Court,
    January 14, 1907.]
    Marvin, Winch and Henry, JJ.
    Sigmund Lederer et al v. John P. Brunner.
    Insolvency Court has no Jurisdiction to Entertain Creditor’s Bill, When.
    The insolvency court has no jurisdiction under Sec. 548-35 R. S. (Sec. 1637 G. C.) to entertain a creditors’ bill for the purpose of subjecting a distributive share of assets assigned and being administered by the court.
    Appeal.
   HENRY, J.

This is an appeal from the Insolvency Court of Cuyahoga County taken to this court pursuant to the provisions of .the last clause of Sec. 548-35 R. S. (Sec. 1637 Ch C.)

The facts, so far as pertinent, are as follows:

The defendant, Brunner, made an assignment for the benefit of creditors, December 2, 1905. On May 31, 1906, the plaintiff filed his petition in the insolvency court where said assignment matter was pending, seeking to invoke the jurisdiction given by the above cited section to said court, “in all actions * * * for the recovery of assets assigned to an assignee for the benefit of creditors. ’ ’

As a matter of fact the claim set forth in the petition amounted merely to a creditor’s bill. It alleged that the plaintiff had an unsatisfied judgment against a certain insolvent bakeshop company, to which the assignor in insolvency owed a sum of money, and it sought to subject to the payment of this judgment, such part of the assets assigned, as might become due on distribution, to the bakeshop. This, we hold, is not within the contemplation of the section above cited. The action here is not “for the recovery of assets assigned,” but rather for the subjection of a distributive share thereof.

We hold that the insolvency court has no jurisdiction to entertain a creditor’s bill of this character, and for that reason the petition here will be dismissed.

Marvin and Winch, JJ., concur.


text:
    EQUITY
    [Cuyahoga (8th) Circuit Court,
    January 21, 1907.]
    Marvin, Winch and Henry, JJ.
    Colonial National Bank v. Henry F. Johnson et al.
    Prior Assignment of Security Prevails Over Later Assignment of Same Security.
    When two equities are equally strong that which is prior, in part of time will prevail. Hence, when a pledge to one has been made of a note and mortgage securing it, and subsequently another purchases a note, executed. by the same maker, to which the former note and mortgage were intended as collateral security, the former pledge will be given priority in the proceeds of the mortgage.
    Appeal.
   HENRY, J.

This cause is a consolidation of two actions brought by different banks to foreclose a single mortgage. That mortgage was given August 26, 1895, by Henry F. Johnson to George H. Ford,, trustee for Boughton-Ford Co., ostensibly to secure notes aggregating $8,000. In truth, however, Johnson (who was doing individually and in partnership different kinds of business, under different trade names) then owed his bankers, Boughton-Ford &. Co., about $6,000, an indebtedness, the amount of which,- however, soon afterwards became and has since continued to be many times that amount. The mortgage and notes for $8,000' were intended merely as collateral security to Johnson’s debt given formal expression in a supplemental mortgage executed three months afterward.

In the meantime, however (there is some uncertainty about-the date, but we find that it was between the dates of the two-mortgages), Boughton-Ford & Co., being largely indebted to thePainesville National Bank, assigned to the latter as collateral security for their debt, the original Johnson mortgage and notes-The Painesville bank did not know the real object of the mortgage, nor did Johnson know the Boughton-Ford & Co. were thus parting with it. But in the view we take of the case the question of notice is not material.

A long time after this transaction Boughton-Ford & Co. discounted considerable amounts of Johnson paper with Cleveland banks, including the plaintiff in this action. It does not appear that the Cleveland banks then knew of or relied on the security of the Johnson mortgage. Boughton-Ford & Co. soon afterward, in 1904, failed, and their trustees in bankruptcy hold among the bank’s assets a book account and notes against Johnson for sums in excess of the amount of the mortgage. To that extent, at least, the debts so evidenced originated about the time of the execution of the mortgage, and long prior to the acquisition by the Cleveland banks of any interest therein. Johnson is also insolvent, and the Cleveland banks and the Painesville bank respectively each claim to have a prior right to share in the security of his mortgage, and either claim will exhaust the security. The claim of the trustees in bankruptcy must obviously be postponed to those of the Cleveland and Painesville banks.

Their relative rights are, as we view them, very simple. It is argued in behalf of the Cleveland banks, that a mortgage not being negotiable, is subject even in the hands of a bona fide holder, to all the equities between the original parties; and also that the mortgage notes in this case, inasmuch as they were assigned to the Painesville bank as security for a pre-existing debt, are subject to the same equities. "We assent to both these propositions, but we are unable to apply them here. We think that there was nothing in the transaction between Johnson and Boughton-Ford & Co. that forbade an assignment of any or all of the latter’s claims against the former, together with the security therefor. Of course the Painesville bank acquired no higher or better right to enforce the mortgage and mortgage notes than Boughton-Ford & Co. would themselves have had, i. e., to enforce them as collateral security merely. And that, in effect, is what it now seeks to do, and what it has all the time been entitled to do, because in acquiring the Johnson mortgage and notes, it acquired and has ever since retained, at least an equitable title in like amount to Boughton-Ford & Co. claims against Johnson, which the mortgage and notes were given to secure. In applying the proceeds of the mortgage to the Painesville bank’s claim, the claims of Boughton-Ford & Co.’s trustees in bankruptcy against Johnson will of course be reduced in like amount.

The Cleveland banks’ claims stand on no better footing than that of the Painesville bank save that the Cleveland banks have possession of and undisputed legal title to the Johnson paper on which their claims to participate in the mortgage are founded. The Painesville bank had a pledgee’s right and title to the Johnson mortgage and notes. Its equity is equally strong with the Cleveland banks, and being prior in time is superior in merit.

A decree may be drawn according to the view thus expressed.

Marvin and Winch, JJ., concur.


text:
    GUARDIAN AND WARD
    [Cuyahoga (8th) Circuit Court,
    January 21, 1907.]
    Marvin, Winch and Henry, JJ.
    Henry Urban, Guardian, v. John Urban.
    Jurisdiction of Probate Court to Appoint Guardians for Inebriate under Application for Imbecile.
    The probate court has no jurisdiction to find one an intemperate and appoint a guardian for him under favor of Sec. 6317 R. S. (Sec. 11011 G. C.) where the application for the appointment of a guardian alleges imbecility and is made under favor of Sec. 6302 R. S. (Sec. 10998 G. C.)
    Error.
   HENRY, J.

The proceeding in the probate court was brought to vacate a prior order of that court appointing a guardian for one John Urban, and the judgment here sought to be reversed vacates that order of appointment.

The chief ground alleged for such vacation is that the original order was made without jurisdiction. The bill of exceptions here shows that an application was made to the probate court for the appointment of a “guardian of the person and estate of John Urban, an intemperate, and who resides at number-Rhodes avenue, Cleveland, Cuyahoga county, Ohio.”

The facts on which this application is based, are briefly, as follows:

“Said John Urban is an imbecile, wholly incapable of looking after himself and his property, and unfit to. ’ ’

The word “intemperate” near the beginning of the foregoing quotation, is substituted for the word “imbecile” which had been first written there and then crossed out. The order of appointment of the guardian was based upon the finding that John Urban was in fact an intemperate.

Upon the application for an appointment of a guardian for an imbecile, as provided by Sec. 6302 R. S. (Sec. 10998 G-. C. et seq.) three days notice is required to be given to the next of kin of the alleged imbecile. The procedure upon an application for the appointment of a guardian for an intemperate is provided for by Sec. 6317 R. S. (See. 11011 G-. C.) which requires five to ten days notice to the intemperate himself.,

It is clear that the application and notice were intended to conform with the requirements of the former section and that the requirements of the latter section were not complied with, except that an attempt was made to amend the' application by interlineation, as a basis for the court’s finding that the person complained of was an intemperate instead of an imbecile.

The journal entry in the probate court recites that John Urban was in court, and hence it is claimed that the five or ten days previous notice to him was waived by his appearance. If there be any uncertainty about the equivalence of the words “in court” with the expression “entry of appearance” the plaintiff in error here complains, show that the court erred in excluding the evidence tending to show that the journal entry was intended to convey this idea, and in refusing to entertain plaintiff in error’s application to have thé journal amended, nunc pro tunc, to correct this uncertainty, if any.

Upon the other1 side it is urged that it is quite immaterial whether or not John Urban entered his appearance in this proceeding after the attempt was made to amend it from a proceeding for the appointment of a guardian for an imbecile into a proceeding for the appointment of a guardian for an intemperate, because the facts as alleged in the above quotation from the original application after its amendment, are such as to preclude the court from finding the application to be sufficient, under Sec. 6317 (11011).

The statute provides for the appointment of a guardian when .the person complained of “is incapable or taking proper care of himself or herself, or his or her property, by reason of intemperance or habitual drunkenness.” The application alleged that the person complained of was “an imbecile, wholly incapable of looking after himself and his property, and unfit to.”

This allegation may be, and no doubt is quite sufficient as a basis for the appointment of a guardian for an imbecile, but it affords no basis, under the statute, for the appointment of a guardian for an intemperate.

It follows, that unless the court is authorized in the course of the hearing to allow the nature of the proceeding to be changed, and to make an order based not upon the allegations of the application, but on proof of some other and different facts, the appointment of the guardian in this case was without authority at law and void.

The case of Rosebrough v. Ansley, 35 Ohio St. 107, seems to us to be in point, paragraph 1 of the syllabus reading as follows:

“A judgment for a sum greater than the amount due upon a cause of action as stated in the record is erroneous; and the previous consent of the parties that such judgment might be rendered does not cure the error. ’ ’

And in Spoors v. Coen, 44 Ohio St. 497 [9 N. E. 132] the 4th paragraph of the syllabus is as follows:

“The judgment of a court upon a subject of litigation within its jurisdiction, but not brought before it by any statement or claim of the parties, is null and void, and may be collaterally impeached.”

The ease at bar is, of course, a direct attack upon the original order of the probate court.

Upon the facts and authorities above mentioned, we hold that the original order of the probate court was not improperly vacated, and that there is no error in this record, and the judgment of the court of common pleas is-affirmed.

Marvin and Winch, JJ., concur.