author: JONES, P. J.

text:
    TAXES AND TAXATION.
    [Cuyahoga (8th) Court of Appeals,
    January 23, 1918.]
    Jones, Gorman and Hamilton, JJ., of the first district, sitting hy designation.
    George M. Potter et al. v. P. C. O’Brien (Treas.), Cuyahoga Co.
    1. Deliberate Disregard of Tax Laws by Tax Officials Corrected by. Court of Equity.
    Deliberate disregard and intentional violation of proper tax laws by the officials charged with their execution, which result in gross inequalities in valuation and thus destroy the rule of uniformity in taxation required by the constitution, furnish grounds for relief in a court of equity under Sec. 12075 G. C., even where the property to be relieved is itself not placed at a valuation beyond its true value in money.
    2. Tax Inequalities Resulting from Incapacity of Tax Officials Require Consideration by Tax Boards Before Resort to Courts.
    ’Where such inequalities arise only because of the incapacity or faulty judgment of the tax officials, or where the proper tribunals provided in the system of taxation have not first been appealed to in vain, no such relief can be afforded by the courts.
    Appeal.

      Chapman, Howland, Niman & Younger and F. C. Hodmen, for plaintiff.

      Samuel Doerfler, Pros. Atty., T. S. Dunlap, Asst. Pros. Atty., and A. E. Clevenger, for defendant.
   JONES, P. J.

This ease was first presented on demurrer to the amended petition as finally amended in this court. It is an action brought by the owner of certain real estate in the village of Clifton Heights seeking to enjoin the collection of excessive taxes upon such real estate. -

The amended petition contains allegations setting out the method by which the tax duplicate of Cuyahoga county was made up by the taxing officers, wherein, it is claimed, the tax valuations made in 1910 and in 1914 and 1915 were in part used, together with certain reassessments of new valuations made in 1910, to make up the duplicate for the year 1916.

So far as objection is made to the power of the taxing officials to adopt the valuations used in previous years, no matter how made, where they find them to be proper, instead of making different and new valuations entirely independent of and without regard to any former valuations, the matter is res adjjudicata. The Supreme Court has spoken in the case of Zangerle v. State, 94 Ohio St. 453 [115 N. E. 1012]. Defendants claim this case entirely disposes of the case at bar for the reason that it involved the legality of the tax duplicate of 1916 upon which the valuations herein complained of are found.

The only question raised in that case was whether tax valuations of previous years, whatever the legal standing of the officers by which they were made, could be considered and adopted as the valuations of the tax officers engaged in making the tax duplicate of 1916, or whether these officers were not bound to disregard such previous valuations entirely and to list and value for taxation all real and personal property subject to taxation in the county constituting their assessment districts in accordance with the requirements of the statute. A consideration of the record and report of that case shows that it involves only the question of method, and that no question of results obtained or of want of uniformity in valuations was raised, or considered by the court.

The amended petition in this case, however, in addition to its objections as to method, charges in substance that while the district assessors assessed the real estate of plaintiff and the other lands in Cleveland Heights at their true value in money, all other lands of the county and state were valued at not to exceed fifty per cent of their true value which were their valuations on the duplicate of 1910; that while the real estate of plaintiff had increased in value between the years 1910 and 1916, the value of all other lands in the county and state had likewise improved in the same proportion, and to value part on one basis and part on the other was to create unjust discrimination. This gross discrimination in valuations is alleged to have been intentionally made by the assessors and eounty auditor, with full knowledge of the lack of uniformity in valuations, as a result of a determined plan on their part, and pursuant to a general agreement between the county auditors of the state that the valuations of 1910 would otherwise be continued throughout the state. While no malice is charged against the auditor or assessors, or any desire on their part to injure or defraud plaintiff, it is claimed that in law such intentional action on their part worked an unlawful discrimination and operated as a fraud upon the rights of plaintiff. It is claimed that no provision is made by statute for * redress against such inequalities other than an appeal to the courts such as is made in this case.

This action is brought under authority of Sec. 12075 G. C. Systems of taxation usually provide for an appeal from the tax assessors to some board vested with powers of equalization. In the so-called Parrett-Whittemore law (106 O. L. 246 and 433), provision was made for such a board in the board of revision. The powers of this board were, however, limited to valuations made in a current year in State v. Coffinberry, 94 Ohio St. 451 [115 N. E. 1005] ; and the board was found to be an illegal body without power, in State v. O’Brien, 95 Ohio St. 166, where certain sections of the Parrett-Whittemore law were declared invalid. In the absence of a statutory board of equalization, an appeal to the court remains as plaintiff’s only remedy. Zangarle v. Thompson, 95 Ohio St. 262 [116 N. E. 41].

The Supreme Court in the early case of Exchange Bank v. Hines, 3 Ohio St. 1, interpreted Article 12, Sec. 2, of the constitution, at page 15, as follows:

“What is meant by the words, ‘taxing by a uniform rule’? And to what is the rule applied by the constitution? No language in'the constitution, perhaps, is more important than this; and to accomplish the beneficial purposes intended, it is essential that they should be truly interpreted, and correctly applied. ‘Taxing’ is required to be ‘by a uniform rule’; that is, by one and the same unvarying standard. Taxing by a uniform rule requires uniformity, not only in the rate of taxation, but also uniformity in the mode of the assessment upon the taxable valuation. Uniformity in taxing, implies equality in the burden of taxation; and this equality of burden can not exist without uniformity in the mode of the aseassraeots as wall as in the rate of taxation. But this is not all. The uniformity must' be coextensive with the territory to which it applies. If a state tax, it must be uniform all over the state; if a county, town or city tax, it must be uniform throughout the extent of the territory to which it is applicable."

This construction has been uniformly adhered to in later cases. Hill v. Higdon, 5 Ohio St. 243, 246 [67 Am. Dec. 289]; Zanesville v. Richards, 5 Ohio St. 589; Wasson v. Wayne Co. (Comrs.) 49 Ohio St. 622, 635 [32 N. E. 472; 17 L. R. A. 795]; State v. Jones, 51 Ohio St. 492, 505 [37 N. E. 945].

Probably the case most frequently cited as an illustration of the relief granted by a court where a settled rule or system of making valuations of property has been followed, which results in a gross discrimination, in disregard of this rule of uniformity, is Cummings v. National Bank, 101 U. S. 153 [25 L. Ed. 903]. This case originated in Ohio and the opinion of the court fully discusses the Ohio law, and in it. is found the language above quoted from Exchange Bank v. Hines, supra. The facts are applicable to the instant case, clauses 3 and 4 of the syllabus being as follows:

“8. That when a rule or system of valuation for purposes of taxation is adopted by those whose duty it is to make the assessment, which is intended to operate unequally, in violation of the fundamental principles of the constitution, and when this principle is applied not solely to one individual, but to a large class of individuals or corporations, equity may properly interfere to restrain the operation of the unconstitutional exercise of power.
“4. That the appropriate mode of relief in such cases is, upon payment of the amount of the tax which is equal to that assessed on other property, to enjoin the collection of the illegal excess."

Other cases of improper discrimination are found in Raymond v. Chicago Trac. Co. 207 U. S. 20 [28 Sup. Ct. 7], and Johnson v. Wells Fargo Co. 239 U. S. 234 [36 Sup. Ct. 62].

A recent case on this question of discrimination in value is Greene v. Louisville & I. Ry. 244 U. S. 499 [37 Sup. Ct. 673]. On pages 515 and 516 the court uses the following language:

“It is equally plain that it makes no difference what basis of valuation. — that is, what percentage of full vafee — may be adopted, provided it be applied to all alike. The adoption of full value has no different effect in distributing the burden than would be gained by adopting 75 per cent, or 50 per cent, or even 10 per cent, as the basis — so long as either was applied uniformly. The only difference would be that, supposing the requirements of the treasury remained constant, the rate of taxation would have to be increased as the percentage of valuation was reduced. * * * Therefore, the principal if not the sole reason for adopting ‘fair cash value’ as the standard for valuations, is as a convenient means to an end — the end being equal taxation. But if the standard be systematically departed from with respect to certain classes of property, while applied as to other property, it does not serve but frustrates the very object it was designed to accomplish. It follows that the duty to assess at full value can not be supreme in all cases, but must yield where necessary to avoid defeating its own purpose.”

This case also quotes at some length (pp. 516, 517 and 518) from Taylor v. Louisville & N. Ry. 88 Fed. 350, in which the opinion was rendered by Judge Taft by whom the question is fully discussed. On page 374 of this opinion the following language is pertinent here:

“If any board which is an essential part of the taxing system intentionally, and therefore fraudulently, violates the law, by uniformly undervaluing certain classes of property, the assessment by other boards of other classes of property at the full value, though a literal compliance with the law, makes the whole assessment, considered as one judgment, a fraud upon the fully assessed property. And this is true although the particular board assessing the complainant’s property may have been wholly free from fault or fraud or intentional discrimination.”

But it is said that our own Supreme Court has declined to follow the federal court in these eases, and counsel rely upon Wagoner v. Loomis, 37 Ohio St. 571. It is true the court in that ease failed to grant relief from what it found to be “gross, if not scandalous inequality” between the burden of taxation upon bank shares and upon other property. But it held that the record did not disclose but that this inequality might have re-suited from incapacity in the taxing officers. It distinctly declined to inquire (p. 582) whether relief might be given.

“in case of fraudulent conspiracy, or combination or rule adopted by those whose duty it is to fix the taxable -values of property, for the purpose of imposing upon some property, or class of property, more than its just share of the public burdens,”

and expressly found

“No such combination or rule of action is shown in the case before us.”

For that reason only it distinguished Cummings v. Bank, supra, and Pelton v. Bank, 101 U. S. 143 [25 L. Ed. 901], and further said:

“But even in such cases, equity will not afford relief to a complainant who can not show that the burden imposed on him is greater than it would have been, if the laws had been faithfully executed, by taxing all property by a uniform rule, and according to its true value in money; and also, that the tribunals provided in the system of taxation, for redress against inequalities, had been appealed to in vain. ’ ’

Counsel for defendant claims that the relief sought by plaintiff is “directly in the teeth” of the decision in this case, and a cursory 'reading of the syllabus might so indicate. But when considered with the facts as set out by the court, it is found that the federal cases above set out, relied upon by plaintiff, are not inconsistent with the law of Wagoner v. Loomis, supra. Clauses 3, 4 and 5 of its syllabus are as follows:

“3. Inequalities in the valuations, made under a valid law, of property for taxation, do not constitute grounds for enjoining the tax, in the absence of fraudulent discriminations by the agents and officers charged by the law with the duty of making such valuations.
“4. Even in such case equity will not relieve a taxpayer whose property is not assessed in a greater amount than would have been imposed upon it, in case all the taxable property of the state had in fact been assessed, by a uniform rule and according to its true value in money.
“5. A petition for such injunction, which shows that the plaintiff’s property ivas valued only at 80 per cent of its true value in money, while other property in the county was valued at only 40 per cent of its value, and avers that such valuations were unequal, unjust and illegal, does not state sufficient facts.”

In “3” observe the words “in the absence of fraudulent discriminations.” Such discriminations are charged in the instant case. Under “4” there must be a showing of assessment to “a greater amount than would have been imposed,” etc. Such a showing is alleged here. Under “5” the facts alleged appear insufficient because as stated in the opinion (page 582) the discrimination is not alleged to be the result of a “ fraudulent conspiracy or combination, or rule,” etc. Plaintiff’s petition contains such allegations.

McCurdy v. Prugh, 59 Ohio St. 465 [55 N. E. 154], is also relied upon by defendants. The principle is thus stated in clause 2 of the syllabus:

“’Where property has been valued for taxation and taxed at its true value in money it is no defense against the payment of such tax that all other property within the state, through the mistaken or imperfect judgment of the taxing officers and equalizing boards, has been valued for taxation materially below its true value in money.”

It will be noted that this case denies relief where the discrimination complained of arises through the mistaken or imperfect judgment of the taxing officers and boards.

Among the state cases cited by counsel for plaintiff which support his petition are: Chicago, B. & Q. Ry. v. Atchison Co. (Comrs.) 54 Kan. 781 [39 Pac. 1039] ; Citizens Nat. Bank v. Lyon Co. (Comrs.) 83 Kan. 376 [111 Pac. 496] Lively v. Missouri K. & T. Ry. 102 Tex. 545 [120 S. W. 852]; Randall v. Bridgeport, 63 Conn. 321, 323 [28 Atl. 523] ; Ute Creek Ranch Co. v. McBride, 20 New Mexico 377 [150 Pac. 52]; First Nat. Bank v. Christensen, 39 Utah 568 [118 Pac. 778]; People v. Woodbury, 133 N. Y. Supp. 137 [74 Misc. Rep. 130].

No case has been cited which denied relief from gross inequality in valuation for taxes because of the fact that the property upon which relief has been sought has not been valued beyond its true value in money where it is clearly shown that more than its just share of the burdens of public taxation has been imposed through the operation of an unjust and unconstitutional law, or by deliberate and intentional disregard of proper laws by the officials charged with their execution.

The fact that plaintiff in his amended petition admits that his real estate was assessed at its true value in money is not a sufficient reason for denial of relief when the other allegations of the petition are considered. The primary purpose of requiring taxes to be levied according to the true value of property is to secure the “uniform rule” which the constitution imposes. It is no answer to a complaint that property has not been taxed by the required uniform rule to say that the property for which relief is sought is not listed beyond its true value in money where it appears that the requirement of uniformity has been intentionally violated by listing all other property at less than its true value. This matter has been so clearly and fully discussed in the cases cited above (especially in the opinion of Judge Taft in 88 Fed.), that it is only necessary to refer to them.

The demurrer to the amended petition is overruled.

The case proceeded to be heard upon the pleadings and the evidence.

In the amendment to defendant’s answer res ad judicata is pleaded, relying on the case of Zangerle v. State, supra, which has been previously discussed. The answer also pleads payment of taxes by plaintiff on the same valuation in 1915, as an estoppel. This plea can not be allowed, as plaintiff is not seeking to recover any part of the 1915 taxes so paid, and such payment would not prevent him in any way from criticizing the duplicate of 1916. The answer, outside of certain admissions, contains a general denial, and therefore an issue of fact is raised.

While a careful consideration of the evidence leads the court to believe that great inequalities appear in the tax valuations of the county which would not exist if all the provisions of the law had been fully observed, yet we are unable to find that the allegations of the petition have been so proved, by clear and eonvincing evidence to the satisfaction of the court, as to require the relief sought.

Judgment must therefore be entered for defendant.

Gorman and Hamilton, JJ., concur.


source: Caselaw Access Project

author: POLLOCK, J.

license: Public Domain

text:
    INSURANCE.
    [Guernsey (7th) Court of Appeals,
    November 14, 1917.]
    Pollock, Metcalfe and Farr, JJ.
    Old Colony Insurance Co. et al. v. A. Schultz & Co.
    1. Policy Saved From Forfeiture by Evidence of Copy of Inventory.
    The owner of a stock of merchandise does not forfeit his claim to indemnity in a policy of fire insurance which required him to take an inventory of his stock of goods once a year, and keep a set of books showing a complete record of all purchases and sales, either for cash or on credit, and to keep the last Inventory and such books in a fire proof safe at night, or in some secure place not exposed to fire which would destroy the building where such business is carried on, when the insured had taken an inventory and kept the books required, and was accustomed at night to remove them from the building as required by the policy, but on the night of the fire they were left in the building through the forgetfulness of an employee and burned, if the insured is able and willing to produce the original pencil copy of the inventory and duplicate copies of the purchases and the pass book of the bank substantially showing his cash sales, together with the pass books of his customers showing his credit sales.
    2, Policy not Necessarily Rendered Void by Inadvertence to Comply With the Iron Safe Clause.
    The failure of the insured, after his stock of merchandise covered by his policy of fire insurance has been destroyed by fire, to produce the books and inventory as required by the “iron safe clause” in the policy, does not render the policy null and void if the books were by the unintentional negligence of the Insured left in the store building and burned in the fire that destroyed the stock of merchandise and building, if the inBuredis able and willing to produce a copy of the inventory and written evidence substantially showing his purchases and cash and credit sales from the time the inventory was taken until the time of the fire.
    [Syllabus approved by the court.)
    Error.

      Mooney & Edmunds, Lewis & Brucher, Green & Cromley, and Scott & Scott, for plaintiffs in error.

      Charles 8. Shepard, for defendant in error.
   POLLOCK, J.

On December 18, 1915; A. Schultz & Company, a partnership, was engaged in conducting a general store near one of the coal mines of this county. On the evening or night of that day the building in which they were conducting this store took fire, and the stock of goods contained therein was totally destroyed. At the time of the fire the Old Colony Insurance Company, the Columbiana County Mutual Insurance Company, the Firemen’s Insurance Company, tbe Itiehland County Mutual Insurance Company and the Knox County Mutual Insurance Company, each had issued a policy of insurance in the amount of $1,000 indemnifying A. Schultz & Company against loss of their stock of goods by fire.

After the loss of this property the insurance companies refused to pay the amount of the indemnity provided in their policies, and separate suits were brought in the court below by this partnership against each company. A jury was waived and the cases submitted to the court, and judgment was rendered in favor of the insured and against each defendant company. Each of these insurance companies is prosecuting a separate action in error in this court to reverse the judgment against it for errors which it claims occurred in the trial and judgment of the court below. The same question is involved in each of these cases and they were submitted to this court together, and will be so disposed of.

All of these policies contain what is known as the “iron safe clause,” and the .question to he determined requires a construction of that clause.

The insured had been for some years prior to this time conducting both a general dry goods store and a grocery store in the building that was destroyed. They had kept their property insured from the time they began business. Some of the companies, whose policies are involved in this suit, first insured the stock of goods of this partnership in the fall of 1911. Each poliey was drawn for one year and at the end of the year a renewal policy was issued by the companies, and defendants below do not deny that at the time of this fire they had policies covering the stock of goods. This “iron safe clause” reads as follows:

“Iron Safe Clause. The assured under this policy hereby covenants and agrees to take an inventory of the stock hereby covered, at least once every twelve months during the life of this policy, and unless such inventory has been taken within one year prior to the date of this policy, one shall be taken in detail within thirty days thereafter, and to keep a set of books showing a complete record of business transacted, including all purchases and sales both for cash and credit, together with the last inventory of said business, and further covenants and agrees to keep such books and inventory securely locked in a fire proof safe at night, and at time when the store mentioned in the within policy is not actually open for business, or in some secure place, not exposed to a fire which would destroy the house where such business is carried on; and in case of loss the assured agrees and covenants to produce such books and last inventory, and in the event of a failure to produce the same, this policy shall be deemed null and void, and no suit or action at law shall be maintained thereon for any such loss. ’ ’

The testimony in regard to the compliance with the provisions of these policies — and we might say there is substantially no conflict of any kind in the testimony — showed that during the life of these policies A. Schultz & Company had made an inventory as required by the policies about the first of January of each year, and the last inventory was made in January prior to the fire. That inventory was recorded in a book which the insured called the ledger. The bills showing the purchase of goods, after the inventory was taken, and the prices paid therefor were also entered in this book. They also testified that they kept a record showing the cash sales and the sales on credit, and that these books were kept in the store during the time it was open for business. They did not have a safe in the store and their custom was to place the books in an oil cloth cover and one of the partners would take the books to his house at night. Sometimes on very stormy nights the partners would sleep in the store. They testified that on such occasions the books were laid on a chair near the bed on which they slept.

On the evening of this fire they closed the store about six o’clock. It was raining and very dark and the roads were very muddy. A Schultz, who seems to have had general charge of the books, says that he wrapped the boobs in the ordinary way and started out of the store to go home, intending to walk to the street ear line. After learning the condition of the evening he went back into the store and handed the books to a man named Callihan — one of their clerks — and told him to put them in the wagon in which this man Callihan and one of the other partners were going to ride to the city. Callihan and the other partner were taking some groceries in .the wagon to deliver to customers on their road home. Callihan testifies that he laid the books on the counter near the door, and went and got some groceries’which he was to deliver and placed the groceries in the wagon. He testifies that he thought he took the books from the counter where he had laid them and placed them in the wagon, but without doubt he did not do this, and the books were left in the store where Callihan had laid them and were destroyed by the fire.

It must be conceded that this was a violation of the terms of the contract of insurance.' These books of account were either to be kept, when the store was closed, in a fire-proof safe, or they were to be taken away from the building, in order that they would not be destroyed in case the building was burned.

It is earnestly urged by the insurance company that the mere fact that the books were within the building, when the store was not open for business, and were destroyed by fire, prevents a recovery regardless of it being an inadvertent or forgetful act," while the insured urges that they have substantially complied with the provisions of the policies of insurance arid that their indemnity under the policies should not be forfeited by reason of the unintentional act of this young man.

The act of Callihan was the act of the insured. He was in their employ, and they placed their books in his care, and are bound by his act just the same as if one of.the partners had left the hooks in the store.

Questions growing out of the construction and performance of the "iron safe clause” in a fire insurance policy have been before the courts of this country many times, but it would not be profitable to attempt to consider all of these cases, much less to undertake to harmonize all the holdings of the courts.

The plaintiffs in error have called out attention, among other cases, to the case of Allred v. Hartford Ins. Co. (Texas) 37 S. W. 95, which was an action ón a policy of insurance, containing the "iron safe clause,” on a stock of goods where the insured had complied with the provisions of that clause of the policy by keeping the necessary books, but through inadvertence the books were not placed in the safe and were destroyed by a fire which burned the buildings and the stock of goods. Held: That there was a breach of the warranty by the insured and that he could not recover.

To the same effect is the case of Goodman v. North British Mercantile Ins. Co. 19 So. 132.

The holding in these cases is based on the principle that this provision in the insurance clause was a warranty, and must be strictly complied with by the insured in order to authorize a recovery. The facts in each of these cases are quite similar to the facts in the case which we are now considering.

The insured has called our attention, among other cases, to that of Connecticut Fire Ins. Co. v. Jeary, 60 Neb. 338 [83 N. W. 78; 51 L. R. A. 698], where it was held that the provisions of the iron safe clause in a policy of insurance, "should be construed conjointly, and that, to work a forfeiture of the policy, there must be a failure to perform all the conditions named, and not any particular one of them.”

And again to the case of the Western Assurance Co. v. McGlathery, 115 Ala. 213 [22 So. 104; 67 Am. St. 26], where it was said that this clause "has received a fair, reasonable interpretation, so that it may not work forfeitures, or defeat the claim of the innocent insured to the indemnity promised by the policy.”

The wide variance in the decisions of the several courts in the many actions growing out of this clause in insurance policies results from the different views taken of it by the courts; those requiring strict compliance with the provisions of this clause, in order to recover, construe this provision as a warranty, while those placing upon it a liberal construction construe it as a condition subsequent and that its enforcement would work a forfeiture of the indemnity named in the policy otherwise payable.

No doubt can exist but that the Supreme Court of this state in the several cases which have come before it containing conditions which would work a forfeiture have followed the latter rule. In the case of West v. Citizens’ Ins. Co. 27 Ohio St. 1 [22 Am. Rep. 294], in the opinion on page 10, the court said:

“None of these rules is more fully established or more imperative and controlling than that which declares that it must be liberally construed in favor of the insured, so as not to defeat, without a plain necessity, his claim to indemnity, which, in making his insurance, it was his object to secure; and when the words ‘without violence’ are susceptible of two’interpretations, that which will sustain the claim and cover the loss must in preference be adopted.”

And again the court said in Union Central Life Ins. Co. v. Pottker, 33 Ohio St. 459 [31 Am. Rep. 555], “forfeitures are odious.”

In the opinion in Webster v. Dwelling House Ins. Co. 53 Ohio St. 558, 563 [42 N. E. 546; 30 L. R. A. 719; 53 Am. St. 658], Spear, J., said:

“ * *. * forfeiture is a deprivation or destruction of a l’ight in consequence of the non-performance of some obligation or condition. * * *
“A primal rule is that forfeitures are not favored either in equity or at law; indeed, it is declared as a universal rule that courts of equity will not lend their aid to enforce a forfeiture. Following as a corollary from this, provisions for forfeitures are to receive, when the intent is doubtful, a strict construction against those for whose benefit they are introduced.”

In the syllabus of this case on page 558, the court said:

“Rules followed in courts of equity respecting forfeitures may be available in a suit at law where the facts make their application necessary to the ends of justice.”

Other cases might be cited from the courts of this state to the same effect, but the above is sufficient.

It should be said that the cases in which the courts of this state have construed conditions in a policy of insurance, in which their enforcement would work a forfeiture, were mostly construing the words or language of the clause of the policy under consideration, and not the acts of the insured in complying with that condition of the policy, but we think that if a liberal construction in favor of the insured should be placed upon the language of the policy in order to avoid a forfeiture, the same construction should be applied to the acts of the insured in complying with the provisions of the policy.

This act of the young man in leaving the books in the store — ■ whether you call it forgetfulness or inattention — was an unintentional negligent act. He left the books in the store unintentionally, but they'were left there and destroyed, and this provision of the policy was violated by that act.

The question of the effect upon the insured of a negligent violation of the provisions of this clause in an insurance policy was before the federal court of appeals in the case of Insurance Company v. Kerney, 94 Fed. 314, and the court said:

tt.* * * it requires the insured to produce them after the fire, if within his power to do so, and casts upon him the responsibility for their loss in all cases where' such loss is due to a wrongful or fraudulent act on his part, or to his culpable negligence.”

The same case came before the Supreme Court of the United States, Liverpool & L. & G. Ins. Co. v. Kearney, 180 U. S. 132 [45 L. Ed. 460; 21 Sup. Ct. 326], and this court said:

“Failure of an insured to produce the books' * * * means a failure to produce them if they are in existence when called for, or if they have been lost or destroyed by the fault, negligence or design of the insured.”

No doubt, the failure to produce the books required by the iron safe provisions of the policy may work a forfeiture of the indemnity in the policy even if such failure is caused by the unintentional negligence of the insured, if such act affects substantially the right of the insurer under the contract. In this case the insured did not produce the books required to be kept by this provision of the policy for the inspection of the insurer. Whether this was such a failure to perform the conditions of the contract of insurance that would work a forfeiture in the indemnity of the policy, depends upon whether the failure was excusable or inexcusable.

The one question then to be determined is whether leaving the books in the store on the night of the fire, under the circumstances in which they were left, and their destruction as a result of that act, prevents recovery on the policy. The consequence of an unintentional negligent act is never inflicted upon the negligent party for the mere purpose of enforcing a penalty or forfeiture, but only to recompense some one who has suffered by reason of that act. If by the unintentional negligent act of one party to a contract the other contracting party has lost a substantial legal right under the contract, the party who has been guilty of negligence should lose the benefit of his contract rather than the other party; but if on the other hand the other contracting party has not. been deprived of any substantial contract right by reason of such negligence he should not be permitted to stand on his technical rights under the contract in order to defeat the other party of his beneficial interest in the contract.

This provision in the insurance policy was inserted for the benefit of the insurance company that it might have a better or more accurate way of ascertaining the amount of loss suffered by the insured in case of fire, and the amount the company would be required to pay under its policy. That was a contract right which the insurer had under the conditions of the policy, and if by this unintentional negligent act of the insured it has substantially lost the means of determining the value of the insured property destroyed by the fire the insured must suffer the loss of the indemnity in the policy; but, on the other hand, notwithstanding the loss of these books by the negligence of the insured, if the insured is able to produce substantially the same proof that would have been available to the insurer had the books been preserved, the insurance company ought not to be permitted to stand upon the technical performance of this condition of the policy in order to defeat the recovery of the indemnity provided for in the policy.

What do the facts show in this case? The insured had the original pencil copy of the last inventory, and produced it, which, so far as an inventory is concerned was a compliance with the provisions of this clause. The insured was required to keep an account of its purchases from the time of the making of the inventory down to the time of the fire. The testimony shows that it did keep this in the same book that it recorded the inventory, but this book was destroyed by fire; and also the original bills of its purchases were destroyed by this fire, but but it secured duplicates from the wholesale houses from which it purchased, and produced the duplicates at the trial. These duplicate bills would furnish the insurance company as much information, and they would be able to trace their reliability just as readily, as though they were the original bills or the entries in the book.

The insured was also required to keep a cash account and an account of their credit sales. The only evidence of the cash account that the insured could produce was the pass book between the partnership and the bank with which it did business. We have examined this book and it- seems that deposits were not made on every day, but they were made in fairly regular order, and that only a day or two intervened between the deposits. If the partnership had kept a personal book and noted in it the cash accounts just as they are noted in this book and produced that book, it would have been a compliance with the provisions of the policy. We are unable to see why the pass boob, with the amounts noted by the bank, would not be as reliable as a boob kept by the partnership.

It is further urged that this boob should not be accepted in lieu of the one required by the policy, for the reason that the insured had intermingled funds received from the sale of goods not covered by the insurance, with the deposits from the sale of those covered by the policy. The insured could not receive any advantage from the intermingling of these funds, but counting all of the deposits shown by this book as cash sales of the goods covered by the policy it would not reduce the loss of the insured, as shown by the testimony, below the amount of the insurance, and tile, insurance companies would still be required to pay the total amount of their policies.

"We come next to the requirement that they were to keep an account of their credit sales. These, were kept but destroyed by the fire. The insured in conducting their store issued pass books to their credit customers. After the fire the insured examined these pass books in the hands of their customers to determine the amount of their credit sales. The insured could and would have produced these books for the inspection and examination of the insurers, had they desired or been willing to accept those as proof of the credit sales.

We think that if the insurers, when they learned of the destruction of the books, instead of refusing to pay the policies, •had made a reasonable- effort to examine the inventory and accounts which the insured could and would have produced for (their inspection and examination, they could have determined fes accurately as if they had the books, the loss which the insured sustained. From the record in this case we have no doubt that the value of the property insured by the plaintiffs in error and which was destroyed by the fire, largely exceeded the indemnity in the policies. There is no indication that the fire was the result of the wrongful act of the insured. It would be an injustice to the insured to enforce a forfeiture of the indemnity provided by these policies by reason of the unintentional negligence of the insured, when the insurer did not lose any substantial means of determining the amount of the loss of the insured.

Judgment of the court below is affirmed in all the cases,

Metcalfe and Farr, JJ., concur.


author: KUNKLE, J.

text:
    BASTARDS — DIVORCE—WILLS.
    [Greene (2nd) Court of Appeals,
    November, 1917.]
    Kunkle, Allread and Ferneding, JJ.
    Reamy A. Wilson v. De Etta Wilson et al.
    1. Child in Ventre not Rendered Illegitimate by Divorce of Parents After Conception arid Before Birth.
    A decree of divorce between parents of an unborn cbild does not affect the legitimacy of the child, even though such legitimacy was effected by the parents marrying after this child was conceived. Such child therefore, is an heir at law of the father and as such has an interest to contest his will.
    2. Motion in Nature of Plea in Abatement in Will Contest.
    Notwithstanding all defendants have answered to the merits in an action to contest a will, a motion in the nature of a plea in abatement denying plaintiff’s heirship and his interest in the subject matter, is properly determinable before the issue as to the validity of the will is submitted.
    [Syllabus approved by the court.]
    Appeal.

      Marcus Shoup and W. L. Miller, for plaintiff in error.

      M. J. Hartley and C. L. Darlington, for defendants in error.
   KUNKLE, J.

Plaintiff in error (plaintiff in tbe lower court) brings an action to contest tbe will of William M. Wilson.

Plaintiff in error claims that be is tbe only cbild and beirat-law of said William M. Wilson.

The legatees, devisees and tbe executor named in tbe said will are made parties defendant in this case.

Defendants below filed an answer consisting of a general denial of all tbe facts contained in tbe petition except as to tbe death of William M. Wilson; tbe fact that he left surviving him his wife De Etta Wilson; that his will has been duly proved as such: that the said De Etta Wilson is bis executrix and that tbe persons named in tbe petition are devisees and legatees thereunder.

Subsequent to tbe filing of said answer, two of tbe defendants, namely: Nellie Yanllorn Moorebead and Mary YanHorn Smith Dare, filed a plea in abatement in which they deny that plaintiff in error is a child or heir at law of William M. Wilson deceased, and further state that the plaintiff in error is not related to said William M. Wilson, and has no interest whatever in the subject matter of the suit.

Thereupon the ease came on for hearing upon the said plea in abatement, and was submitted to the court upon such plea and the evidence.

The trial court found that the plaintiff in error was not an heir-at-law of William M. Wilson, deceased, and had no interest in his estate and had no right to maintain this action.

The plea in abatement was therefore sustained and the petition dismissed.

From such judgment, plaintiff in error prosecutes error to this court.

We have carefully read the record in this case and considered the various authorities cited in the briefs of counsel. We shall not, however, attempt to discuss either the evidence or the authorities in detail, but will merely announce the conclusion at which we have arrived after a careful examination of the record and authorities cited.

In brief, however, it appears from the record that the said William M. Wilson was married to Ida J. Dawes on January 10, 1876 at Logansport, Indiana; that at the time of said marriage, the said Ida J. Dawes was pregnant and that a child was bom to her June 23, 1876 at Cincinnati, Ohio.

The testimony tends to show that shortly prior to the marriage of the said William M. Wilson and Ida J. Dawes the said Wilson attempted to induce Ida J. D'awes to go to Dayton, Ohio, for the purpose of having an abortion committed, and that her refusal to do so angered the said Wilson; that he did induce her, however, to go to Cincinnati for the same purpose; that she went to the hospital of Dr. Reamy at Cincinnati, where the said Wilson had arranged for her treatment. The record discloses that in the meantime the family of Ida J. Dawes became alarmed and sought out the said William M. Wilson and demanded that he disclose the whereabouts of the said Ida J. Dawes.

It appears that as a result of these efforts, Ida J. Dawes was brought back to Logansport, Indiana, the home of herself and also of the said Wilson.

A family conference was held with the said Wilson, which resulted in his agreeing to marry the said Ida J. Dawes. The mother of Ida J. Dawes insisted upon the marriage for the purpose of giving the expected child a name. The following appears on page 5 of the record, namely:

“He (meaning the said Wilson) said he would marry her but he would not live with her. He wasn’t going to be disgraced and would not have this thing made public but he would marry her. And my mother said she simply asked for a name for the child. He was willing and brought his license and the minister — an Episcopal minister.”

The marriage ceremony was performed at the home of Ida J. Dawes in the presence of members of her family and John C. Nelson, a friend of the said Wilson, the said Nelson, who testifies in this case, being invited by Mr. Wilson to accompany him.

Immediately after the marriage, the testator left his said wife and did not subsequently live with her.

Shortly after the marriage of the said parties and before the birth of the said child, the said parties were divorced by the circuit court of Cass county, Indiana. The wife secured the divorce and also an allowance for alimony.

In her complaint for divorce she asked for alimony for the support of herself and to pay the expenses of her expected sickness and also asked for the custody of her unborn child.

The court found the facts stated in the complaint to be true; granted the divorce • awarded her alimony and also the custody of the unborn child.

Among other things, it is urged by counsel for plaintiff in error that the trial court erred in hearing and considering the special plea in abatement which was filed by two of the defendants after they had joined with the other defendants in filing an answer to the merits of the case.

Counsel for plaintiff in error concede that their client’s right to maintain an action to contest the will may be properly raised and determined on a motion in the nature of a plea in abatement but they insist that such plea was waived in the case at bar by reason of the fact that all of the defendants filed an answer to the merits of the case.

In a suit to contest a will, the statute requires that an issue be made up and tried as to whether the paper writing in question Is or Is not the valid last will and testament of the testator. This, therefore, is the only issue contemplated in the final submission of the ease to the jury.

The question of plaintiff’s interest or right to maintain the suit should therefore be made by a special plea and should be tried and determined before the trial upon the Issue as to the validity of the will. The answer which was filed in this case is in substance a general denial and is therefore not inconsistent with a plea in abatement for the reason that such plea also denies the allegations of the petition as to the heirship of plaintiff in error.

If the plaintiff in error is not an heir of the decedent, then he has no interest in the subject matter and cannot maintain this action.

We think the trial court properly heard the case upon the plea in abatement.

Upon the question of the heirship of plaintiff in error, after a careful consideration of the record and especially of the acts and the conduct of the said William M. Wilson, we are of opinion that the evidence establishes the fact that the said William M. Wilson was the father of plaintiff in error and that the marriage in question, under the circumstances, disclosed by the record, was an acknowledgment upon the part of William M. Wilson of the paternity of this child.

Upon the marriage of the said Wilson and Ida J. Dawes, the unborn child became legitimate and was capable of inheriting from the father under the common law.

In the case of Miller v. Anderson, 43 Ohio St. 473 [36 N. E. 605; 54 Am. Rep. 823], the opinion of Judge Atherton contains a general discussion of the common law rule in respect to the legitimacy of children.

We think this discussion applies to heirship and the right of inheritance, although the issue in that case was limited to proceedings under the bastardy statutes.

Among the authorities discussed by Judge Atherton in the decision above referred to is the case reported in Tioga Co. v. South Creek (Tp.) 75 Pa. St. 453, in which the following language is used:

“That the parents should be permitted to bastardize the child is a proposition which shocks our sense of right and decency and hence the rule of law forbids it.”

Further mention is also made by Judge Atherton of the following rule, viz:

“This doctrine is recognized in Parker v. Way, 15 N. H. 45; Davis v. Houston, 2 Yeates (Pa.) 289; Page v. Dennison, 1 Grants Cases 377; S. C., 29 Pa. St. 420 in which case the court in addition hold that: ‘Whether the child is begotten in or out of wedlock, if marriage precedes the birth, the presumption of paternity is the same, and it can only be bastardized by proof of non access. ’ ’ ’

There is also discussed in this decision the case of State v. Romaine, 58 Iowa 46, 48 [11 N. W. 721], wherein the rule is announced that:

“If a woman be pregnant at the time of the marriage and if pregnancy be known to the husband, he should be conclusively presumed to be the father.”

Reference is also made therein to the case of State v. Herman, 35 N. C. (13 Ired.) 502, wherein the Supreme Court of North Carolina holds, that:

“A child bom in wedlock, though born within a month or day after marriage, is legitimate by presumption of law and where the mother was visably pregnant at the marriage it is a presumption Juris et de jure that the child was the offspring of the husband. ’ ’

Without further citing authorities, we think the rules above announced are well established.

Under the common law, the child was considered as being in legal existence and capable of inheriting as a legitimate child from the date of the marriage between the natural father and mother, irrespective of the shortness of the time of the birth of the child after such marriage.

If the unborn child is legitimatized by the act of marriage, then in our opinion the child cannot thereafter be bastardized nor rendered illegitimate by any subsequent act of either of its parents.

It is in effect conceded by counsel for defendants in error that if the decree for divorce between the father and mother of this child had been withheld until after the birth of the said child, that the child would then be legitimate as it would have been born during actual wedlock.

Under the statutes of our state, as well as at common law, we are of opinion that a decree for divorce between the parties does not effect the status of children. We think this rule would include children en ventre as well as those actually bom.

It appears from the record that the decree for the divorce in question does not undertake to bastardize the unborn child,, but recognizes it as a feature of the marriage and fixes its custody.

The law favors the legitimacy of children and it would be a harsh rule which would permit a decree for divorce between the parents to so operate as to bastardize an unborn child which would be considered legitimate had the entry of divorce been withheld a day, a week, or for any period of time after the birth of the child.

We think a holding to the effect that a decree for divorce can operate to change the status of an unborn child is contrary to the humane policy of the law.

We have considered this case as one arising under the Ohio law for the reason that the law of Indiana, to which reference is made, is not plead nor proven, and the presumption is that the law of the fomm controls the rights of the parties. Erie Ry. v. Welsh, 89 Ohio St. 81 [105 N. E. 189]; Coffinberry v. Blakeslee, 38 O. C. C. 462 (22 N. S. 34); Wettstein v. Bank, 38 O. C. C. 472, 475 (20 N. S. 201, 204).

Upon a careful consideration of the entire record and the authorities cited, we are forced to the conclusion that the judg- • ment of the trial court is contrary to the evidence. Such judgment will therefore be reversed and the cause remanded for further proceedings.

Judgment reversed.

Aliread and Ferneding, JJ., concur.


author: JONES (O. B.), J.

text:
    COURTS — DIVORCE AND ALIMONY — ERROR.
    [Hamilton (1st) Court of Appeals,
    June 14, 1916.]
    Jones, Jones and Gorman, JJ.
    Carrie E. Collard v. Martin T. Collard.
    Findings of Fact by Trial Court as to Decree of Alimony Rendered by Court in Sister State Conclusive on Review In Absence of Bill of Exceptions.
    The law of another state must be proved as a fact and made part of the record and, in the absence of a bill of exceptions, a finding of facts by the trial court is conclusive on review. Hence, a trial court having found that a court of another state having given judgment for alimony payable in monthly installments, that judgment is as to installments already past due “subject to modification, alteration and change, and that said amount already due was and is at all times under the control of the chancellor making the same,” this court is bound by such finding.
    Error.

      Harper, Allen & Curts, David Lorbach and Leonard Carver, Jr., for plaintiff in error.

      John Nichols and Matt. Herold, for defendant in error.
   JONES (O. B.), J.

The action in the court below was to recover a judgment for arrearages due in monthly payments of alimony allowed by a judgment of the circuit court of Campbell county, Kentucky.

The defense made in the answer was that the alimony was payable in installments, and that under the law of the state of Kentucky all judgments for alimony are subject to modification and change by the court thereof making the same and that said judgment would not support an action as on a final judgment for a fixed sum, in this state, and said judgment is subject to modification by the courts of Kentucky, and is not a final judgment for a fixed sum.

These allegations were denied by reply; a jury was waived; and the cause was tried to the court, which, on request of the parties, made a separate finding of its conclusions of fact and conclusions of law. No bill .of exceptions was taken.

The conclusion of facts so found by the court is as follows:

“That the plaintiff by the consideration of the Campbell circuit court of the . county of Campbell and state of Kentucky, on the 18th day of May, A. I>. 1905, recovered a judgment for alimony against the defendant herein, payable in monthly installments of fifty ($50) dollars each, on the first day of each month after the making of said order; that at the time of the filing of this action, the defendant had failed to pay said monthly installments of alimony until the payments then in arrears amounted to the sum of $1,200, and that up to the time of the filing of the petition herein there has been no modification, alteration or change in the judgment rendered by the circuit court of the county of Campbell and state of Kentucky.
“The court further finds as a matter of fact that at the time, and ever since the said decree was rendered against the defendant in the Campbell circuit court of the county of Campbell and state of Kentucky for said monthly payments of alimony, that said decree as to installments of alimony already due, under the decree, are subject to modification, alteration and change, and that said amount already due was, and is, at all times under the control of the chancellor making the same. ’ ’

The law of another state must be proved as a fact, and such fact to be considered by an appellate court must be made a part of the record. In the absence of a bill of exceptions, a finding of facts made by the trial court is conclusive upon this court. We are therefore bound in this case by the finding of the trial court thar the judgment for alimony being in monthly payments is, as to installments already past due, “subject to modification, alteration and change, and that said amount already due was and is at all times under the control of the chancellor making the same.”

It might be stated that if we were free to consider the statutés of Kentucky and the numerous eases cited in oral argument and in the briefs of counsel, we might probably arrive at a different conclusion in regard to the finality of the judgment so far as past due installments are concerned, in view of the fact that no application has been made for any modification, alteration or change. But being bound by the finding of facts, as' we have stated, we must find that the judgment for alimony is so discretionary with the circuit court of Campbell county, Kentucky, that even in the absence of an application to modify the decree, no vested right exists upon which the court here can act. In other words, the judgment, in the condition in which it is found to be by the trial court, is one to which the case of Lynde v. Lynde, 181 U. S. 186, 187 [45 L. Ed. 814], will apply, and not a ease in which the later and broader doctrine announced in the case of Sistare v. Sistare, 218 U. S. 1 [30 S. Ct. 682], would be applicable.

The judgment below is therefore affirmed.

Jones (E. H.) and Gorman, JJ., concur.


author: HOUCK, J.

text:
    PROCESS.
    [Knox (5th) Court of Appeals,
    October 25, 1917.]
    Powell, Houck and Shields, JJ.
    Edward Blackburn v. Webb Peoples.
    Summons in Foreclosure of Common Law Lien Not Issued for Service Outside of County.
    No authority exists for issue or service of summons outside of the county upon a nonresident defendant who has been sued for foreclosure of, a common law lien.
    [Syllabus by the court.]
    Error.

      Wm. M. Koons and Wm. G. Korns, for plaintiff in error.

      J. W. Barry, for defendant in error.
   HOUCK, J.

This suit was originally commenced in the common pleas court of Knox county, the plaintiff in error being the plaintiff below and the defendant in error being the defendant below.

The cause of action set forth in the petition was for the foreclosure of a common law lien claimed to be held by the plaintiff on a certain Ford automobile owned by the defendant, upon which plaintiff had made certain repairs and performed work and labor thereon. Plaintiff claimed there was due him for such repairs and such labor the sum of $272.57. The prayer of the petition is for the recovery of said amount and for an order of court to issue to the sheriff of Knox county, Ohio, directing him to advertise and sell said machine and apply the proceeds of said sale in payment of the amount as found due the plaintiff, and for general relief.

The plaintiff resides in Knox county, the defendant in Morrow county, Ohio. A summons was issued on said petition directed to the sheriff of Morrow county, Ohio, and personal service was had upon the defendant, Webb Peoples. A motion was filed by defendant attacking the jurisdiction of the court on the ground that defendant was a resident of Morrow county, Ohio, and that service had been made in that county. The court of common pleas sustained said motion, and to the sustaining of same error is prosecuted to this court.

The defendant in error contends that the petition in error should be dismissed because there is no final order or judgment entered in the case from which error can be prosecuted. He further insists that the motion to quash the service of summons was properly sustained by the trial judge.

Passing the question as to whether or not the judgment in this case is one from which error can be prosecuted, and going to the merits of the case, we know of no authority in law for the issuing of a summons in a foreclosure of a common law lien outside of the county in which the plaintiff resides. The summons in this case was served upon the defendant, who was not a resident of the county in which it was issued, and it was not served upon him within the county in which it was issued, and we are bound to hold and do hold that the common pleas court had no jurisdiction over the person of the defendant in the present case.

Counsel for plaintiff in error contend and urge that because a summons can be issued to an adjoining county in a foreclosure proceeding that it necessarily follows that the same procedure is proper in the foreclosure of a common law lien. In the case of the foreclosure of a mortgage the statute clearly provides for such procedure, but we know of no statute with reference to common law liens, and we have been unable .to find an adjudicated case wherein it was held that a summons could be issued to an adjoining county where it was sought to foreclose a common law lien.

- Thus it follows that the finding of the common pleas court will not be disturbed in the judgment entered in this case. Judgment affirmed.

Powell and Shields, JJ., concur.


author: RICHARDS, J.

text:
    ELECTRICITY — INJUNCTION.
    [Sandusky (6th) Court of Appeals,
    October 6, 1916.]
    Kinkade, Chittenden and Richards, JJ.
    Ferdinand Saner v. Lake Shore Electric Ry.
    Injunction Lies to Remove High Tension Electric Wires Erected Over Land not Adjoining interurban Railroad.
    An owner of real estate not adjoining an electric interurban railroad may maintain an action of ejectment to require the removal of high tension electric wires which the company has erected over his land without his consent and uses for the transmission of power in the operation of its cars.
    [Syllabus by the court.]
    Error.

      D. B. Love, for plaintiff in error.

      0 ’Farrell & Rimelspach, for defendant in error.
   RICHARDS, J.

This case was in this court once before and on that occasion the judgment in favor of the railroad company was reversed on April 22, 1915, and the case remanded to the court of common pleas. After the case was remanded to that court the plaintiff filed an amended petition abandoning the claim for damages and asking only that the defendant be ejected from the premises.

The plaintiff is the owner of a portion of out-lot number 156 in the city of Fremont, on whieh lot he had erected a foundation preparatory to the construction of a dwelling house. The defendant has constructed across this lot and over the foundation three high tension wires each carrying approximately eighteen thousand volts of electricity used in the operation of its electric railroad. After the plaintiff rested his ease the court directed a verdict for the defendant on the ground that the plaintiff had a remedy by compelling the defendant to appropriate an easement over the lot for the construction and maintenance of its wires, and the sole question in this ease is whether under these circumstances the plaintiff has the right of ejectment.

It is said that the owner of the life estate had granted the right to the railroad company to erect and maintain these wires, but however that may be, on the expiration of the life estate the right granted no longer existed.

We have had some difficulty in this case.over the right of a person to maintain ejectment against a public service corporation engaged in the transportation of passengers and freight, and we are aware of the decisions which prohibit the sale of a portion of a railroad and likewise prohibit ejectment of a section of a railroad from a given piece of land, and holding that the remedy is to cause, in the one case, a sale of the whole road, and that the remedy in the other is damages. But in the-case now under consideration the claimed right of the company is simply for the maintenance of these three high tension wires and we think the rule thus announced ought not to be extended or made applicable to this kind of a case, especially in view of the fact that these wires make a circuit of a considerable distance through the northerly portion of the city along a route away from the right of way of the defendant company. It is clearly no objection to the right to maintain ejectment that no poles have been or will be actually erected by the defendant company upon the land of the plaintiff for his land extends to the sky above and his right to maintain ejectment is the same as if poles had actually been constructed and were being maintained upon his land.

Holding that among the rights of the plaintiff is the right to maintain ejectment, the judgment will be reversed and the case remanded to the court of common pleas for further proceedings. We may suggest that if an order of ejectment should be granted in this case its execution should be suspended for such reasonable length of time as will allow the defendant company to readjust or reconstruct its lines of wires.

Chittenden and Kinkade, JJ., concur.


text:
    WILLS.
    [Madison (2nd) Court of Appeals,
    December 5, 1917.]
    Kunkle, Allread and Perneding, JJ.
    Alice C. Chandler v. Minnie Dockman et al.
    Will Signed at Bottom of Top Page of Will Apparently Fastened in Transposed Order, Signed at End of Will.
    A will consisting of two typewritten sheets of paper fastened together by brads or paper fasteners, the bottom sheet containing the introductory phrases and dispository items, and continuing on the top sheet with an item appointing executors, the testimonium clause, signed by testatrix and properly attested, it being apparent that the first page is on the bottom and, the second page on top, is signed at the end thereof as required by Sec. 10505 G. C.
    [Syllabus approved by the court.]

      Murray & Emery, for plaintiffs in error.

      G. R. Hornbeck and Huggins, Pretzman <& Davies, for defendants in error.
   KUNKLE, J.

This is a proceeding to contest the will of Harriett Stouffer, deceased. The will of the deceased consists of two typewritten sheets of paper which were fastened together by brads or paper fasteners.

This instrument was presented to the probate court of Madison county, and an application was made to probate the same as the valid last will and testament of Harriett Stouffer. The probate court refused to probate the same.

An appeal from the judgment of the probate court was taken to the court of common pleas and that court admitted the will to probate, as being the valid last will and testament of the said Harriett Stouffer.

Plaintiffs in error then filed a petition in the common pleas court of Madison county to contest the said will. The ease was submitted to the court upon the pleadings and an agreed statement of facts. Upon the undisputed facts, the trial court instructed the jury to return a verdict finding that the said instrument was the valid last will and testament of said deceased. From such judgment, error is prosecuted to this court.

In brief, it is contended that the instrument in question is not the valid last will and testament of said deceased because the same is not signed at the end thereof, as required by Sec. 10505 G. C.

This contention is based upon the fact that the signature of the testator and of the attesting witnesses is upon the first or upper page as the sheets are fastened together.

The following is a copy of said will as it appears in the record, marked Exhibit No. 1, namely:

(Top Page)
Fift, I hereby appoint my husband, Abram J. Stauffer and J. R. Woods of Plain City, Madison County, Ohio, as Sole Executors of this, my last Will and testament.
In Witness whereof, I hereunto set my hand at Plain City, County of Madison, this 12th day of June 1914.
Signed and Sealed by said Harriett Stouffer
Harriett Stouffer, who at the same time
published and declared the same, as and
for her last will and Testament, in the
presence of us, who, in her presence,
and in the presence of each other, and at
her request, have hereto Subscribed our names
as witnesses.
John H. Shultz Jos Nunamaker
(Bottom Page)
The last will and testament of Harriet Stouffer?
In the Name of the benevelant Father of all.
I, Harriet Stouffer of the village of Plain City, County of Madison, in the State of Ohio, being in good health of body, and of sound and Disposing mind and memory, and being desirous of settling my worldly affairs while i have strength and capacity so to do, do make, publish, and declare this my last will' and testament.
First, I give and bequeth to my beloved husband, Abram J. Stouffer, all my xml estate and personal Property that i may' possess at my dead in fee Simple, and at his head if there is any left to be distrubed as follows to-wit, to my sister Marry Bowers, the sum of One Dollar, to my Neisses Effie Converee, Allice Chandler, Roby Beach and Charles Guy the Sum of one dollar each.
To Minnie Dockman and Ettie Dockman two hundred Dollars each.
To the Presbyterian Church of Plain City, Two Hundred Dollars.
Second. It is my wish that wen the above bequeths are paid that my Executors herein after named shall see that John Guy my Brother if in need shall hold in trust for him whatever they may deem sufficient for his wants before any distribution is made of the remainder of my estate that may be left at the death of my Husband Abram J. Stauffer.
Third, Whatever property both personal or real that may be left after Clouse first and Second in this will has been complied with shall be devided as follows, to-wit, to Ellen Shank the one Eight of the estate Left, to Marry Ann McKinneys Children, one Eight., Thurman Guy one third and to Rhoda Fraham and her Hears Two Thirds ?
Fourth, If any of the within named Parties herein should become dissatisfied with the distribution made by me or attempt by law or otherwise to set this will aside, they shall forfeit all rights to share there under and their interest whatever it may be shall revert to the other Heirs herein mentined.

It clearly appears from an inspection of the original will that the lower or second sheet as fastened together was intended to be the first part of the will and that the first or upper sheet as fastened together was intended to be the concluding portion of the will.

The lower or second sheet of the will begins as follows:
“The last will and testament of Harriet Stouffer?
In the Name of the benevelant Father of all.
I, Harriet Stouffer of the village of Plain City, etc.”

This instrument then proceeds with regular continuity-down to the bottom of said page and ends with paragraph No. 4, and commences at the top of the first or upper page with paragraph No. 5 and proceeds with regular continuity down to the testimonium clause thereof, which was clearly intended to be the end of the will.

The signature of the testator immediately follows such testimonium clause.

The attestation clause appears to the left of the testator’s signature upon said sheet and is immediately followed by the signatures of the subscribing witnesses.

A careful examination of the will convinces us that the end of the will, within the meaning of See. 10505 G-. C., is the blank line evidently intended for signature immediately following the testimonium clause. This is the place at which the will in question is signed.

We think this holding is not inconsistent, but in harmony-with the rule announced by our Supreme Court in Irwin v. Jacques, 71 Ohio St. 395 [73 N. E. 683; 69 L. R. A. 422] ; Sears v. Sears, 77 Ohio St. 104 [83 N. E. 1067; 17 L. R. A. (N. S.) 353; 11 Ann. Cas. 1008] and Mader v. Apple, 80 Ohio St. 691 [89 N. E. 37; 23 L. R. A. (N. S.) 515; 131 Am. St. 719].

In the case of Irwin v. Jacques, supra, Judge Price in announcing the decision says:

“There should be some continuity in the expression of the testator’s wishes and if a part of the will is aside from the continuity of the language, such as the marginal matter in this case, there should be some word or character used as reference to the place it should occupy in relation to the other provisions, so that the end of the will may be ascertained. ’ ’

Under the rule of continuity of expression so announced, we think the beginning and end of this will can be definitely fixed by an examination of the context.

In Sears v. Sears, supra, the court in substance held: that the end of the will was the blank line for signature immediately following the testimonium clause, and the will in that case was held invalid because the testator did not sign at such place, but wrote her name as a part of the testative clause immediately following.

In Mader v. Apple, supra, the will was held valid, where the testator signed upon the blank line immediately following the testimonium clause notwithstanding the fact that there was a considerable blank space between the testimonium clause and the dispositive part of the will.

In this case, Judge Crew, among other things employs the following language :

“While the leaving of a blank space such as found in this will was imprudent in that it afforded an opportunity for fraudulent practice, nevertheless, the leaving of such blank is not on itself sufficient to invalidate the will. By usage and custom, in every orderly constructed will, the testimonium- clause is universally recognized and adopted as the formal conclusion and end of such will, unless from the instrument itself a contrary intent appears. * * *”

In the case of Stinson’s Estate, 228 Pa. 475 [77 Atl. 807; 30 L. R. A. (N. S.) 1173; 139 Am. St. 1014], the court, commencing at the bottom' of page 477 states:

“His written declaration is his animus testandi; when it is fully expressed his will is finished and the end of it reached. It is there that his signature must appear as evidence that it is his will. What he regards as the end of his will and that must manifestly be regarded as the end of it from an inspection and reading of the writing is the end of it under the statute, which contains nothing about the spacial or physical end of it. ’ ’

From a careful consideration of the authorities pertinent to this issue and of the instrument in question, we have reached the conclusion that the instrument under consideration was signed by the testatrix at the end thereof and that the trial court upon the undisputed facts correctly instructed the jury to return a ver-. diet in favor of the validity of the will.

Finding no prejudicial error in the record, the judgment of the lower court will be affirmed.

Allread and Ferneding, JJ., concur.


text:
    ERROR — OFFICE AND OFFICERS.
    [Lucas (6th) Court of Appeals,
    March 31, 1916.]
    Klnkade, Chittenden and Richards, JJ.
    Charles W. McGuire v. Charles M. Milroy et al.
    Judgment of Common Pleas in Election Contest for Mayor Reviewable in Court of Appeals.
    By virtue of the provisions of Sec. 12247 G-. C., as amended 103 O. L. 431, the judgment of a court of common pleas rendered in a proceeding to contest the election of a mayor of a city, may he reviewed on error in the court of appeals.
    [Syllabus by the court.]
    Error.

      Bay & Cordill said Julian H. Tyler, for plaintiff in error.

      J. K. Hamilton, S. S. Burtsfield and George P. Hahn, for defendant in error.
   RICHARDS, J.

This proceeding in error grows out of a contest of the election held on November 2, 1915, for mayor, in the city of Toledo. As a result of that election the election officials returned that • Charles M. Milroy was duly elected to the office of mayor. Shortly thereafter proceedings were commenced in the court of common pleas to contest the election, by filing in that court a notice of appeal, the same being filed by Charles W. McGuire as contestar, and the eontestees named therein being Charles M. Milroy, George A. Murphy and Carl H. Keller. This proceeding was heard in the court of common pleas before three judges of that court sitting together for that purpose, and by the judgment of that court, as rendered by said judges, it was found that Charles M. Milroy was duly elected mayor of the city of Toledo, and it was ordered and adjudged by the court that the notice of appeal be dismissed and that the contestar pay the costs; of the proceeding.

A petition in error was filed in this court to reverse this judgment, and Charles M. Milroy, by his counsel, has filed a motion for an order dismissing the petition in error for the reason that this court has no jurisdiction of the matters complained, of therein. This ease has been submitted to this court upon said motion only, and the sole question to be now adjudicated is whether this court does or does not have jurisdiction on a proceeding in error of this character.

Article 2, Sec. 21, of the constitution of Ohio empowers the general assembly to determine before what authority and in what manner the trial of contested elections shall be conducted. This provision of the constitution empowers the general assembly to confer jurisdiction upon any of the courts to hear and determine election contests; and it is held in Thompson v. Redington, 92 Ohio St. 101 [110 N. E. 652], that authority conferred by virtue of this provision is not judicial power but political power. See also Link v. Karb, 89 Ohio St. 326 [104 N. E. 632].

Pursuant to the authority thus conferred by the constitution, the general assembly has enacted, in Sec. 5169 G. C. that in cities the election of a mayor may be contested in the manner provided for a contest of the election of county officers. Other sections of the General Code provide the manner of such contest, it being enacted in Sec. 5148, that it is to be by appeal to the court of common pleas; and Sec. 5151, that the contest shall be heard and determined by the court, if then in session, and if not then in session, at the next term thereafter. Section 5152 G. C. provides for the method of conducting the trial; and the following section provides that any matter involved in the proceeding may be determined by the court on motion, otherwise the ease shall be heard in its regular order upon the docket. This section concludes with a provision that the court shall render judgment against the party failing in the action, for all costs of the contest.

Counsel for the contestee claim that the judges of the court of common pleas, in sitting as a court to determine the contest, were not exercising judicial power, but were only in the exercise of political power, and that, therefore, any judgment which may have been rendered can not be reviewed on error by this court. The right of review on error is, of course, a matter which must depend on statute, and unless conferred by statute such right does not exist. It is provided in Art. 4, See. 6, of the constitution, that courts of appeals shall have jurisdiction to review, affirm, modify or reverse the judgments of courts of common pleas and other courts of record, as may be provided by law. Following this constitutional provision, Sec. 12247 G. C. as amended 103 C. L. 431, provides, in substance, that a judgment rendered, or final order made, by a court of common pleas or by a judge thereof, may be reversed, vacated or modified by the court of appeals. Our Supreme Court in a number of cases has sustained proceedings in error brought to reverse judgments rendered by courts of common pleas in election contests. These decisions have apparently been rendered without giving particular consideration to the question whether the lower court was in the exercise of judicial power or political power, the court reaching the conclusion, under the section to which reference has just been made, that the right of the upper court to review such judgments was thereby conferred. Numerous cases of this character are cited by counsel, but I only need call attention to one or two. See Lehman v. McBride, 15 Ohio St. 573; and Powers v. Reed, 19 Ohio St. 189. The Supreme Court in rendering these and like judgments was evidently not much concerned with the question as to whether the power that was being exercised was political power or judicial power, but assumed that in either event the right to prosecute error existed by virtue of the statutes applicable to actions generally. True, the contest of an election is not a civil action, but a special proceeding; but the statute for prosecuting error applies as well to final orders, and judgments rendered in special proceedings, as to civil actions. The question was before the supreme court of Indiana and that court held that the right of proceeding in the upper court to set aside a judgment rendered in an election contest existed by virtue of the general statutes. See Weakley v. Wolf, 148 Ind. 208, 213 [47 N. E. 466].

The method of procedure as indicated in Secs. 5148 to 5153 G. C., to which attention has been called, clearly indicates that the court is required to proceed substantially in the manner in which courts usually proceed in the trial of ordinary litigation, excepting that the issues are not made up by pleadings, and provides that after the trial shall have been concluded, the court shall render a judgment based on the-evidence and the law. These provisions indicate that the court is invested with all the indicia of judicial action. I call attention to 3 Corpus Juris, 373, where the learned authors of the article on appeal and error state, is well-chosen language and in very guarded terms, the rule applicable to the exercise of such authority. It is as follows:

“It may be stated as a general rule that, where any power is conferred upon a court, to be exercised by it as a court, in the manner and with the formalities of a court, and in its ordinary proceedings, the action of such court is to be deemed judicial, ii’respeetive of the original nature of the power, and the determination of the court thereon may be, therefore, appeal-able.”

It was held in Moore v. Sharp, 98 Tenn. 65 [38 S. W. 411], that a court in determining an election contest involving the office of sheriff, does not sit as a special tribunal but as a court in the exercise of its judicial functions.

In a republican form of government the right to exercise the elective franchise is one of the most valuable rights, and in order that it may be preserved and protected, the right is provided to contest the election of any candidate for office. If the- judgments of the courts rendered in determining mére property rights are subject to review by proceedings in error, much more so should the judgments of tribunals determining the right to an office filled by election. We can not believe that either the people, in adopting the constitution, or the general assembly in providing for the contest of elections for such an important office as that of mayor of a city, intended to make the judgment rendered in the court of common pleas absolutely final, but are clearly of the opinion that such judgment is one which, within the language of Sec. 12247 G. C. as amended 103 O. L. 431, may be reviewed on error in the court of appeals.

The motion to dismiss the petition in error will, therefore, be overruled.

Chittenden and Kinkade, JJ., concur.


text:
    CRIMINAL LAW — DEPOSITIONS—PURE FOOD LAWS.
    [Shelby (2nd) Court of Appeals,
    December 15, 1917.]
    Kunkle, Allread and Ferneding, JJ
    Charles J. Yunker v. State of Ohio.
    1. Application for Commission to Take Depositions in Criminal Prosecution In Discretion of Trial Court.
    Discretion to grant a commission to take depositions in a criminal prosecution, for which provision was made by Art. 1, Sec. 10, of the constitution, is reposed by Sec. 13668 G. C. in the trial court and unless it clearly appear of record that the trial court abused Its discretion in refusing an application for such commission a reviewing court will not reverse the order below.
    2. Application for Commission to Take Depositions In Prosecution for Violation of Food Laws before J. P. Properly Denied.
    An application for a commission to take depositions in criminal prosecutions being limited by Sec. 13668 G. C. to- issues of fact joined upon indictment, a justice' of the peace in a prosecution for violation of the pure food laws, and not instituted upon indictment, properly overrules such application.
    3. Illegal Sale, not Identity of Purchaser, Constitutes Offense of Selling Improperly Labeled Imitation Extract.
    The gist of offense in a prosecution for selling improperly labeled imitation extracts Is the illegal sale and the Identity of the purchaser is not an essential element of the offense.
    [Syllabus approved by the court.]

      Charles C. Hall, for plaintiff in error.

      Joseph McGhee, Atty. Gen., and 8. L. Connors, for defendant in error.
   KUNKLE, J.

Plaintiff in error was charged, tried and convicted before C. R. Hess, J. P. of Clinton township, Shelby county, Ohio, with selling to Stanley Bryan a certain quantity of an imitation vanilla extract for which no standard exists, and which was not labeled “artificial” or “imitation” and the formula printed in the manner provided for the labeling of “compounds” or “mixtures” and their formula, in this, to wit: The word “artificial” and the formula were not printed upon the package as required by law.

Error was prosecuted from the judgment of said justice of the peace to the court of common pleas and the judgment of the justice of the peace was affirmed.

Error is now prosecuted to this court from the judgment of the court of eommon pleas affirming the judgment of the justice of the peace.

Various errors are assigned in the petition in error but the ones which are chiefly relied upon are:

(1) That the trial court erred in refusing to issue a commission upon the application of plaintiff in error, to take the testimony of Joseph O. Dea in the state of New York.

Article 1, Sec. 10, of the constitution in brief specifies that provision may be made by law for the taking of the deposition by the accused or by the state, to be used for or against the accused, or any witness whose attendance cannot be had at the trial, always securing to the accused the means and opportunity to be present in person and with counsel at the taking of such deposition.

The above constitutional provision merely authorizes the legislature to make provision for the taking of a deposition.

It is optional with the legislature to make such provision.

By virtue of this provision the legislature of this state adopted See. 13,668 G. C. This section provides that when au issue of fact is joined upon an indictment and a material witness for the defendant or for the state resides out of the state or, residing within the state, is sick or infirm or about to leave the state or is confined in prison, such defendant, or the prosecuting attorney may apply, in writing, to the court or a judge thereof in vacation, for a commission to take the deposition of such witness or witnesses. The court or judge may grant such commission and make an order stating in what manner and for what length of time notice shall be given to the prosecuting witness or to the defendant, before such witness or witnesses shall be examined.'

It appears from a reading of this section that even when an issue of fact is joined upon an indictment a discretion is reposed in the trial court as to whether such application should or should not be granted.

A reviewing court would therefore not be justified in reversing the ruling of the trial court thereon unless it clearly appeared from the record that the trial court had abused its discretion in refusing such request.

The record in this case does not disclose such a state of facts.

It being optional with the legislature to make provision for the taking of such depositions the trial court could grant such application only in the eases specified by the legislature.

The legislature by Sec. 13668 limited the court's authority to grant such application in cases wherein an issue of fact was joined upon an indictment.

No indictment was returned in this case. No indictment could be returned before a justice of the peace.

The issue of fact was joined upon an affidavit, not an indictment, and we are of opinion that the justice of the peace for this reason did not err in overruling the application for the commission.

(2) It is also claimed by counsel for plaintiff in error that the affidavit in question should have charged that the sale was made to the Venus Chocolate Company instead of to Stanley Bryan, the agent and employee of the Venus Chocolate Company.

From an examination of the Ohio authorities cited in the brief of counsel for defendant in error we are clearly of opinion that the offense in question consisted of making the illegal sale.

The identity of the purchaser is therefore not an essential element of the offense and we do not think a material variance exists as claimed by counsel for plaintiff in error.

(3) It is further claimed that the article in question was sold to the Venus Chocolate Company as imitation vanilla; that said company knew exactly what they were securing; that the record fails to show that the proper label was not on this package when the same arrived in Sidney, and that therefore the judgment in this case is clearly against the weight of the evidence.

We have carefully read the record in this ease insofar as it relates to the grounds of error urged by counsel for plaintiff in error.

We shall not undertake to discuss the testimony in detail, as counsel are familiar with the same, but from an examination of the record we would not feel justified in finding that the judgment is against the manifest weight of the evidence.

After a careful consideration of the record and authorities, we find no error in the record which we consider prejudicial to plaintiff in error and the judgment of the court of common pleas will be affirmed and cause remanded for execution.

Allread and Ferneding, JJ., concur.


text:
    BASTARDS.
    [Clarke (2nd.) Court of Appeals,
    January 5, 1918.]
    Kunkle, Allread and Ferneding, JJ.
    State ex rel. Mary Roden v. Edward N. Cregar.
    Married Woman Cannot Maintain Bastardy Proceedings.
    A proceeding in bastardy cannot be maintained by a woman married at the time of the birth of her child and at the time of filing the complaint to a man other than defendant.
    [Syllabus approved by the court.]

      T. 3. McCormick, for plaintiff in error.

      Stafford & Arthur, for defendant in error.
   KUNKLE, J.

This is a proceeding in bastardy which was originally brought before a justice of the peace under Sec. 12110 G. C.

This section provides:

“When an unmarried woman, who has been delivered of or is pregnant with a bastard child, makes a complaint in writing, under oath, before a justice of the peace, charging a person with being the father of such child, he thereupon shall issue his warrant, directed to any sheriff or constable of the state, commanding him to pursue and arrest such accused person in any county therein, and bring him forthwith before such justice to answer such complaint. ’ ’

Without undertaking to quote in detail from the record, it is sufficient to say that the same discloses that the child in question was begotten September 26, 1916; that Mary Roden, the complainant, was married February 12, 1917; that the child in question was bom June 13, 1917; that the complainant was, at the time of the birth of the child; at the time the proceeding was instituted before the justice of the peace, and still is, a married woman, being the wife of a man other than defendant in error.

Can this proceeding, under such a state of facts be maintained? . We have carefully considered the briefs which have been filed by counsel. Without attempting to discuss the authorities so cited in detail, we are of opinion that under the reading of Sec. 12110 G. C., and under the Ohio decisions, such as Haworth v. Gill, 30 Ohio St. 627; Miller v. Anderson, 43 Ohio St. 478 [3 N. E. 605; 54 Am. Rep. 823], etc., this action can not be maintained.

We are also of opinion that the case cited by counsel for plaintiff in error in the case of Parker v. Nothomb, 65 Neb. 315 [93 N. W. 851; 60 L. R. A. 699], is clearly distinguishable from the case at bar.

A consideration of the Ohio cases, in our opinion, requires a holding to the effect that the action can not be maintained.

The judgment of the lower court Avill therefore be affirmed.

Allread and Ferneding, JJ., concur.


text:
    COURTS — EXECUTORS AND ADMINISTRATORS.
    [Knox (5th) Court of Appeals,
    October 25, 1917.]
    Powell, Houck and Shields, JJ.
    Elva Loney, Exr. v. W. W. Walkey, Admr.
    Probate Court Alone Vested With Authority In Matters Pertaining to the Settlement of Estates.
    The common pleas court is without jurisdiction over an action brought by an executor against his coexecutor for an accounting. Such an issue must be presented to and finally determined by the probate court.
    [Syllabus by the court.]

      Error.

      L. G. Stilwell, D. B. Rawlins, J. B. Graham, R. L. Garr, for plaintiff in error.

      F. 0. Levering and P. A. Berry, for defendant in error.
   HOUCK, J.

The parties here stand in the same relation to each other as in the court below. The errors complained of are:

First, to the overruling of the demurrer to the answer of defendant.

Second, in the sustaining of the demurrer to the reply filed by the plaintiff to the answer of defendant.

Third, to the court sustaining a motion to dismiss plaintiff’s case and rendering a judgment for defendant.

An inspection of the petition of the plaintiff in error, who was the plaintiff below, clearly shows that the basis of the action and the relief sought was an accounting between Julia A. Loney, as executrix of Beuben C. Loney, deceased, and Elva Loney, as co-executor thereof.

To us this is a new procedure, and we are unable to find any authority in law for it. The probate court is by law created for the purpose' of hearing and determining all questions with reference to accounts of administrators, executors, guardians, etc., and in the settlement of all estates the rights of the parties therein as to the funds belonging to the estate, and in the administration thereof must first be determined by that court.

The issues raised in the case now before us for review upon the petition, answer, and reply, clearly show that the common pleas court, and this court as well, is and are wholly without jurisdiction in the premises, because the issues raised by the pleadings must first be passed upon and finally determined in the probate court.

It therefore follows, from what we have already said, that we find no prejudicial error in the record, and that the judgment of the common pleas court must be affirmed.

Judgment affirmed.

Powell and Shields, JJ., concur.