text:
    ACTIONS AGAINST EXECUTORS.
    Court of Appeals for Hamilton County.
    John G. Roth et al v. Joseph Hummel, Executor.
    Decided, June 7, 1913.

      Construction of Section 10878, Limiting the Time for Bringing Suits Against the Seirs, Widow and Next of Kin of a Decedent.

    The provisions in the General Code 10878 (R. S. 6218), requiring suit to be commenced against the heirs, widow and next of kin of a decedent within one year after the time when the right of action shall first accrue, is not merely a statute of limitation relating to the remedy, .but is a necessary qualification of the right to maintain such an action.

      II. P. Kaufman, Denis F. Cash and F. J. Dorger, for plaintiffs in error.

      H. A. Reeve and Cogan, Williams db Ragland, contra.
    Jones, O. B., J.; Swing, J., and Jones, E. H., J., concur.
   This proceeding in error is brought by the distributees, who were the children and next of kin of John C. Eoth, deceased, to reverse a judgment against them taken upon the bond of Frank Fehr as executor of Theresa Aulbach, deceased, on which bond John C. Eoth was one of the sureties. Eoth died and his estate was fully administered and distributed before the settlement of the account of Frank Fehr as such executor, so the action below ¿vas brought against Fehr’s representatives and those of the other bondsman and the distributees of the estate of John C. Eoth, under Sections 6217 and 6218 of the Eevised Statutes (being before the enactment of the General Code).

A demurrer was died by Eoth’s distributees to the petition and amendment thereto both general, that the petition did not state a cause of action, and special in that “the action was not brought within the time limited for the commencement of such actions.” This demurrer was overruled, to which ruling they excepted. Afterwards they answered, and on trial judgment was entered against them.

The account of Frank Fehr as executor of Theresa Aulbach, deceased, ivas filed in the probate court which, upon settlement of same May 1, 1902, found that there was due from him as executor of said estate some three thousand five hundred dollars. Fehr’s successor as executor of Theresa Aulbach, who was plaintiff below, gave notice May 10, 1902, of his intention to appeal from this finding and judgment of the probate court to the court of common pleas. The transcript and original papers were filed in the common pleas court on August 4, 1902, on appeal from the probate court. As the statute in order to perfect such appeal required same to be filed “by the person appealing” on or before the second day of the term of said court next after the undertaking or notice was given (R. S. 6409), which day was the first Tuesday after the first Monday in July, it will be seen that the transcript and papers were filed a month too late. This state of facts appearing to the common pleas court it dismissed the appeal on June 3, 1908.

In Biddle v. Phipps, 2 C. C., 61, it was held that the person appealing must file the transcript. And in Downing v. Downing, 3 C.C. (N.S.), 623, 625, that a failure to file the transcript in time is fatal. And in Brown v. Wallace, 66 O. S., 57, the Supreme Court has laid down the rule as follows:

“As the right of appeal exists only by virtue of the statutes, in order to give appellate court jurisdiction the statutory provisions must be strictly followed.”

The common pleas court never having obtained jurisdiction of this appeal,. it was dismissed. This practically decided that there never had been any pending appeal and the judgment of the probate court had been at all times after its entry in full force precisely as if no attempt had been made to appeal it.

The defendant in error was himself responsible for the delay caused by his abortive attempt, and plaintiffs in error were not in any way a party to these proceedings or responsible for same.

Section 6217 of the Revised Statutes provided:

“After the settlement of any estate by an executor or administrator and after the expiration of the time limited for the commencement of actions against Mm by the creditors of the deceased, the heirs, next of Mn, widow as next of kin, devisees and legatees of the deceased, shall be liable by action in the common pleas or superior court, in the manner provided in the following sections, for all debts which could not have been sued for, against the executor or administrator, and for which provision shall not have been made as hereinbefore provided. ’ ’•

And Section 6218 provided:

“Any such creditor whose right of action shall first accrue after the expiration of the time of such limitation * * * may recover the same against the heirs, widow as next of kin and next of kin of the deceased, and the devisees and legatees under his will, each one of whom shall be liable to the creditor to an (amount) not exceeding the value, whether of real or personal estate, that he or she shall have received under the will, or by the distribution of the estate of the deceased * * * and provided further, no such suit shall be maintained unless it be commenced within one year next after the time when the right of action shall first accrue, except” (then follow exceptions for disabilities of infancy, lunacy, etc.).

Without the provisions of these statutes there would be’ no right of action against John G-. Roth and his brothers and sisters. They did not sign Fehr’s bond as executor and had no relations whatever to plaintiff or the claim sued upon. Their father however was a surety on the bond, and if he had then been alive or his estate had been unsettled or in the hands of his executrix, he or she could have been sued on the bond at any time within ten years from the time the right of action accrued. (R. S. 4984, G-. C. 11226.) But as alleged in the petition John C. Roth’s estate had been settled in April, 1901, and the probate court refused plaintiff’s application to appoint an administrator de bonis non with the will annexed November 25, 1907. There could therefore be no action against him or Ms estate. And R. S. 6217 and 6218 furnish the only authority for any proceeding against his distributees.

Plaintiff’s cause of action first accrued when the probate court settled the account of Fehr as executor. Newton v. Hammond, 38 O. S., 430.

The order finding the amount due from him to the estate became a judgment in favor of the estate to which the succeeding executor was entitled. Slagle v. Entrekin, 44 O. S., 637.

In this case therefore plaintiff’s cause of action accrued May 1, 1902, and no suit could be maintained thereon against plaintiffs in error unless it was commenced within one year from that date. The petition was filed August 31, 1908, more than five years too late.

The argument of defendant in error that because the action arises upon an executor’s bond under R. S. 4984 (G-. O. 11226), it can be brought within ten years, overlooks the fact that this section was itself “subject to the qualifications in R. S., 4976,” which was as follows:

‘ ‘ Civil actions can only be commenced within the periods prescribed in this chapter, after the cause of action accrues; but where a different limitation is prescribed by statute that shall govern. ’ ’

R. S. 6218 does prescribe a different limitation of one year and as it and the ten year limitation of R. S. 4984 both start from the time the cause of action accrues, the latter must yield to the former by virtue of the express terms of R. S. 4976. If this were not the rule we could hardly conceive of a case where the one year provision of R. S. 6218 would apply. Take a ease where it was desired to pursue distributees on a claim arising on a verbal contract by the same argument suit could be commenced in six years and not in one as the statute provides. So if it were upon a promissory note it might be prosecuted in fifteen years and not be limited to one year, and so with every other class of the claims, rendering the one year provision entirely nugatory.

Our Supreme Court has passed on this question in Railroad v. Mowatt, 35 O. S., 284, where a claim on behalf of a property holder for damages caused by change of grade made by a railroad in occupying a city street was limited by the terms of the action to two years instead of the general statute of limitations for tort of four years. See also Shierberg v. Shierberg, 5 Bull., 753.

There is no right to proceed against the distributees of an estate except upon the terms named in the statute. In the case of Railroad v. Hine, 25 O. S., 629, for damages because of wrongful death, the statute giving a right of action, contained a qualification “provided that every such action shall be commenced within two years after the death of such deceased person.” After the death had occurred, by a change in the law, this provision was omitted and suit was brought after two years had expired. The court held that the restriction qualified the right itself and no repeal could be had to affect rights of the parties already accrued.

Plaintiff therefore had no right of action against Roth’s distributees under the petition when filed and their demurrer should have been sustained. Judgment reversed as to plaintiffs in error and judgment will be entered for them here.


source: Caselaw Access Project

license: Public Domain

text:
    ACTION AGAINST RAILWAY FOR. LOSS BY FIRE.
    Court of Appeals for Clermont County.
    The Pittsburg, Cincinnati, Chicago & St. Louis Railway Company v. William B. Applegate.
    Decided, May, 1913.

      Railways — Proof Establishing Liability of Company for Loss by Fire on Land Adjoining Right-Of-Way — Owner Not Concluded by First Estimate of Loss — Interrogatories.
    1. A judgment against a steam railway company for tlie value of a building and contents, burned in the night time on land adjoining the company’s right-of-way, will not be set aside on the theory that the fire originated from sparks from a chimney of the building, rather than from a passing locomotive, where the evidence warrants the conclusion that the sparks came from a locomotive and the jury have so found.
    2. In an action for recovery of damages on account of a loss so occurring, it is not error to refuse to submit to the jury the second and fourth of the following interrogatories: “(1) Was the fire caused by a spark from one of the chimneys on plaintiff’s house? (2) If you answer ‘yes,’ state which chimney emitted the spark; (3) Was the fire caused-by a spark from one of defendant’s locomotives? (4) If you answer ‘yes,’ state which of the three locomotives emitted the spark?”
    3. The fact that the amount of the judgment exceeds the amount of the loss as stated by the plaintiff in a letter to the company written soon after the fire, does not afford ground for setting the judgment aside, where evidence detailing the loss and given at the trial supports the finding of the jury as to the amount of loss sustained.

      Maxwell & Ramsey, for plaintiff in error.

      Louis Hicks, W. A. Hicks, 8. A. West and E. H. Speidel, contra.
    Jones, E. TI., J.; Swing, J., and Jones, O. B., J., concur.
   The action was brought by defendant in error to recover damages from plaintiff in error caused by burning of a building and stock of merchandise belonging to defendant in error and located in the village of Branch Hill. The petition alleges that the fire was caused by sparks emitted from a locomotive engine, “operated by said defendant over and upon the said Little Miami railroad, which fell upon and set fire to the said dwelling-house and store-room of said plaintiff,” etc. Judgment was recovered below against the railroad company for $4,100, and it is sought by this proceeding in error to reverse said judgment.

By statute a railway company is held liable in this- state for damages caused by fire originating upon land adjacent to its right-of-way, if such fire is ignited by sparks from an engine operating upon such right-of-way, and it is under this statute that the petition in this case was drawn. To show that the fire was so caused evidence was offered, mainly from the engineers operating the engines passing Branch Hill on the night of the fire, showing that said engines — particularly two of them which passed just a short time before the fire was discovered — were emitting sparks' in great numbers; that the wind carried said sparks in the direction of the Applegate dwelling-house and storeroom. Other witnesses testified that the fire started on the side of the roof next to the railroad tracks, and it was also shown that there was no fire on said roof at the time said engines passed.

The defendant below made little or no effort to controvert this testimony, but attempted to and did show that “there was a fire in the stove in said store up until six or seven o ’clock that evening, or within four or five hours .of the time that the fire broke out, and that there was a grate fire in the portion of the building occupied as a dwelling upon which fire fuel was placed as late as seven o’clock on said evening. From this evidence the jury was asked to draw the deduction that a fire may have ignited from one of these sources; but they refused to do so, and must have been satisfied from the evidence that the fire originated from the sparks thrown by .the engine. This was a question of fact which the jury alone was to determine.

We think, therefore, that the verdict is sustained by the evidence, and must decline to reverse the judgment on that ground as requested by plaintiff in error. The authorities cited by counsel for the railway company, we think, do not support the contention that the verdict was not sustained by the evidence in this case, as in those cases negligence was alleged and had to be proven. In this case the only proof necessary to establish the liability of the defendant was that the fire originated from the sparks of the engine.

Another alleged error was the refusal of the court to submit to the jury interrogatories 2 and 4. The court agreed to submit interrogatories 1 and 3 to the jury, but üpon his refusal to submit 2 and 4 the former were withdrawn and exceptions noted.

The interrogatories were as follows:

“1. Was the fire caused by a spark from one of the chimneys of plaintiff’s house.
“2. If you answer ‘yes,’ state which chimney emitted the spark.
“3. Was the fire caused by a spark from one of defendant’s locomotives ?
“4., If you state ‘yes,’ state which of the three locomotives emitted the spark,”

The court properly refused to give the second and fourth interrogatories. It was not necessary for the jury to find which chimney it was, as their affirmative answer to the first interrogatory would be decisive of the case and compel a verdict for the defendant. With reference to interrogatory No. 4 a like objection occurs to us: if • the jury should answer No. 3 in the affirmative, the railroad company would be liable regardless of what the number of the particular engine was which .emitted the spark, and as the evidence showed that at least two of the engines passed the property just a short time before the fire, throwing sparks in the direction of the house, it would obviously be impossible for the jury to tell which one it was. We think it was as unnecessary as it was impossible for them to answer this question, for the reason that if they answered No. 3 in the affirmative, that answer would conclusively fasten liability on the defendant company.

It is also urged that this judgment should be set aside for the reason that it exceeds in amount the loss as stated by Mr. Applegate in a letter written to the company shortly after the fire. In view of Mr. Applegate’s evidence given at the trial, detailing his loss, and the finding of the jury thereon, we do not feel that his letter written shortly after the fire should be given the weight or have the effect contended for by counsel.,

The portion of the charge of the court objected to follows, in substance, the law as laid down by our Supreme Court in the case of Lawrence R. R. Co. v. Cobb, 35 O. S., 94.

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


text:
    INEFFECTIVE EFFORT TO REPEAL FRANCHISE.
    Circuit Court of Cuyahoga County.
    State of Ohio, ex rel David E. Evans, v. John H. Orgill et al.
    Decided, October 21, 1910.

      Franchise Ordinance — Does Not Require Publication — Acceptance— Repeal.

    1. An ordinance of a municipality granting a franchise does not require publication.
    2. When a public service corporation has duly accepted a franchise granted it by a municipality, the franchise can not be withdrawn by repealing the ordinance granting it.

      James E. Mathews, for plaintiff in error.

      J. 3. Price, Kline, Tolies <& Morley and Newton D. Baker, contra.
    Henry, J.; Wincii, J., and Marvin, J., concur.
   The Legislature in Sections 4224 and 4227 of the General Code having clearly diseriminatfed between an ordinance of a general nature and one granting a franchise, and having required only the former to be published,_ it follows that the ordinances of the city of Cleveland passed December 6, 1909, granting franchises to the Cleveland Underground Rapid Transit Railroad Company required no publication. Those ordinances having been duly accepted by said company, the subsequent attempted repeal thereof by the council January 17, 1910, was ineffective to abrogate the contract then already completed. Our conclusion is in accord with that in State, ex rel, v. The Oakwood Street Railroad Company, 11 C.C.(N.S.), 263, affirmed without report in 81 Ohio State Reports, 502.

The ordinances granting the franchises in question having been seasonably accepted and the attempted repeal being, ineffectual, it further follows that the proposed referendum election, a petition for which has been duly filed and certified to the board of elections, should not be enjoined. Upon the result of that election the validity of the so-called subway franchise will turn.

The demurrer interposed by the plaintiff to the answer in this case is overruled, and the plaintiff not desiring to plead further, the petition is dismissed.


text:
    REMEDY OF AN EXCLUDED POLICE COURT INTERPRETER..
    Circuit Court of Cuyahoga County.
    State, ex rel Louis Rubinstein, v. Hyland B. Wright, Auditor.
    Decided, October 28, 1910.

      Police Court Interpreter — Excluded from- Office — Mandamus Against Police Judge and Not City Auditor Proper Remedy.

    Under a statute which provides that the police judges of certain cities may appoint an interpreter of the police court, one who claims the right to said office from which he has been excluded by said judges who have appointed another in his stead may test it by mandamus against the police judges to restore him to his place, and not by mandamus against the city -auditor to issue him a warrant for his pay during the time he is so excluded.

      Westenhaver & Boyd, for plaintiff.

      Newton D. Baker, contra.
    Henry, J.; Winch,- J., and Marvin, J., concur.
   This is an appeal of an action in mandamus to compel the city auditor of the city of Cleveland to issue vouchers for two installments of pay alleged to be due to the relator as police court interpreter, who claims to be the lawful -incumbent of the office provided for by General Code, Section 4589, as follows:

“The business of the court shall be dispatched with all speed consistent with a full, fair trial or hearing of the case. In cities where there is more than one police judge, the judges of,the police court may appoint an interpreter for the court, and in case they fail to agree, the clerk of the court may appoint such interpreter, for the term of two years, who shall receive as compensation fifteen hundred dollars per year; the interpreter shall attend all sessions of the court and obey all orders of the judges thereof. He- shall receive no fees while acting in the capacity of the interpreter, and the judges may for adequate cause remove him. ’ ’

The facts as agreed to by the- parties are essentially as follows :

That the relator was first appointed -May 10, 1904, and reappointed May 25, 1906, upon certificate of the police judges that they failed to agree. The judges then in office were succeeded on January 1, 1907, by the present incumbents, who took no action in regard to the appointment of a successor to relator until June 1, 1910, when they appointed Samuel Greenwald; Greenwald qualified and has since been recognized by the judges as the incumbent of the place, except that an acting police judge has, on several different days since Greenwald’s- appointment, recognized the relator, who, whether recognized or not, has continued his attendance and tendered performance of the duties of an interpreter. The relator has taken this course in pursuance of his reappointment May 24, 1910, by the police court clerk, who acted in the premises on the theory that mere omission of the judges to appoint amounted to a failure to agree upon an appointment, notwithstanding that the judges had never given the matter consideration during their incumbency. Between the date of the relator’s last appointment and the date of Greenwald’s appointment, a period of eight days, the relator served as police interpreter.

It is urged that if the position is an office, quo toarranto to determine the right of the claimant thereto and not mandamus is the proper remedy; and if it is only an employment by the city, mandamus still will not lie because there is an adequate rémedy at law in damages for wrongful discharge. James v. Allen Co., 44 O. S., 226; Gobrecht v. Cincinnati, 51 Ohio St., 69.

But in State, ex rel, v. Baldwin, 77 Ohio St., 532, it was held:

“Mandamus is the proper remedy to restore a party to the possession of an office from which he has been illegally removed. ’ ’

The rest of the syllabus shows that the rule applies to any public position. The relator there was a police detective and the court said, by Summers, J., at p. 553:

“The restoration of relator to his office and the ousting of the person who was appointed to succeed him does not present a case of determining title to an office, because his removal was absolutely void the pretended appointment is a mere nullity.
“The mayor being without jurisdiction there is no controversy as to the relevant and controlling facts, and proceeding to render the judgment that the circuit court should have rendered, it is ordered that a peremptory writ of mandamus as prayed for issue against the respondent as mayor.”

At page 540 he cites with approval, City of Chicago v. The People, 210 Ill., 84:

‘1 This was a proceeding in mandamus by a police patrolman to compel the city of Chicago and the general superintendent of police to place his name upon the roster of police patrolmen, from which it had been omitted and excluded by a former general superintendent of police, and to place his name upon the police payroll, from which it had been omitted and excluded; also to compel the civil service commissioners of the city to certify his name to the comptroller of said city as a person entitled to pay as a police patrolman of the city, and to compel the city to pay the petitioner his salary for the time he had been excluded. It was held that his discharge was unwarranted because the trial board was not constituted as required by the rules of the civil service commission, and because he was not given an opportunity to be heard in his own defense. It was also held that if the trial had been held in the manner pointed out by the statute that then the action of the civil service commission would not be reviewable by the courts. A mandamus for the money was refused, but the lower court was directed to enter a judgment awarding a writ of mandamus commanding the civil service commissioners and the general superintendent of police and the comptroller of the city of Chicago forthwith to place the name of the petitioner upon the roster of police patrolmen and upon the police payroll of said city of Chicago, to the end that .the relator may at once enter upon the performance of his duties as a police patrolman with the same right to continue in the performance thereof and receive salary therefor as he had prior to his unlawful removal, and that the judgment so entered should not prejudice the right of the relator to assert his claim for right of salary for the period intervening between Ms removal and restoration in any appropriate form of action, nor the right of the city of Chicago to interpose any lawful defense thereto.”

This, we hold, is applicable here. The police judges are not parties to this proceeding and the only possible remedy by mandamus would be against them to restore the r.elator to Ms place, and not against the city auditor for his pay while he is de facto deprived of his place..

In State, ex rel, v. Mayor, etc., of Newark, 58 N. J. Law, 12, the syllabus is:

‘ ‘ The writ of mandamus can not be used to compel a municipality to pay damages for its illegal discharge of an employe.
“Salary having been paid by a municipality to a de facto incumbent of an office can not be recovered from the mumcipality by the de jure officer.
“Where, upon a demurrer to a replication to a return to an alternative writ, it appears upon the pleadings that the relator is entitled to only a part of what he demands in his alternative writ, there must be a judgment against the relator. ’ ’

Whether mandamus would lie in any ease we do not now decide, in view of the doubt which arises concerning the proper construction of the phrase “fail to agree” in the statute, from the language of the Supreme Court, in construing another section, in Siegfried v. R. R. Co., 50 Ohio St., 294.

At page 296 the court says:

“To fail, implies an effort or purpose to succeed. One can not, properly, be said to fail in anything he does not undertake, nor, in an undertaking which he voluntarily abandons.”

The right of the clerk to appoint under the circumstances of this ease is thus not free from doubt.

So also is the right of discharge “for adequate cause” by merely appointing a successor, in view of the holding in State, ex rel, v. Sullivan, 58 Ohio St., 504.

The petition is dismissed because no relief by mandamus can be granted on the facts in this case, against the city auditor.


text:
    RIGHTS OF ABUTTER. WITH RESPECT TO STREETS VACATED.
    Circuit Court of Cuyahoga County.
    Emilie Bohm v. James T. Kelley et al.
    Decided, October 28, 1910.

      Streets — Vacation by Council — Bights of Abutters Therein Under Section 3789, General Code.

    The provisions of Section 3729, General Code, regarding the vacation of a street by a municipal council, that the right of way and easement in the street so vacated of any lot owner shall not' be impaired, do not apply to streets the land for which has been appropriated by the municipality.
    Henry, J.; Winch, J., and Marvin, J., concur.
   In this appeal issue is joined by demurrer to the answer. The action is one for injunction against interference with plaintiff’s alleged easement or right of way over a portion of defendant’s land abutting on the south side of Lorain street in the city of Cleveland and situated in the acute angle formed by and lying east of the intersection of said street with Dennison avenue. Before 1899, Lorain street was 66 feet wide, and east of the land in question it was widened to 80 feet by appropriating 7 feet on each side of the street. This action left a jog of 7 feet on each side of the street, some three or four rods east of the said intersection of Lorain street and Dennison avenue. Plaintiff owns the triangular lot which abuts on both streets just east of their intersection, and defendant owns the lot next east of that, the said jog in Lorain street falling in the boundary line between them. Recently the city, by order of council duly made, vacated the small portion of Lorain street which had been taken from defendant’s lot by eminent domain when the street was widened; and the defendants, assuming that this seven foot strip has thus reverted to them, are about to erect thereon a brick building flush with the old street line, as re-established by said vacation proceedings. But the east end of the strip in question is, by reason of the jog aforesaid, a part of plaintiff’s west boundary line. Plaintiff, therefore, claims the rights of an abutter in respect to the portion of the street so vacated, and founds his action here upon the right defined by General Code, Section 3729:

“The order of the council vacating or narrowing a street or alley which has been dedicated to public use by the proprietor, shall, to the extent to which it is vacated or narrowed, operate as a revocation of the acceptance thereof by the council, but the right-of-way and easement therein of any lot owner shall not be impaired thereby.” v

It is manifest, however, that this section applies only to land in a street “which has been dedicated to public use by the proprietor” and not to that which has been appropriated to street purposes by exercise of the power of eminent domain. In the latter case those injured by an order of council vacating so much of the street as had theretofore been appropriated, have no remedy against him to whom the land has all the while belonged subject only to the public easement which the order of vacation abrogated.

Petition dismissed.


text:
    SALE OF A SALOON UNDER. FALSE REPRESENTATIONS.
    Circuit Court of Cuyahoga County.
    I. P. Masten v. S. S. Levy and Andrew L. Kraffert.

    Decided, November 9, 1910.

      Action Sounding Both in Tort and Breach of Contract — Evidence— Either Relief Qrantahle.

    The intermingling of allegations of fraud and breach of contract, concerning the same transaction, do not necessarily commit the pleader to a single theory of his right to recover. He may introduce evidence in support of both aspects of his case and recover on either or both, according to the proof made.
    W. D. Meals and B. J. Saiuyer, for plaintiff in error.

      J. M. Shdllenberger and J. Be Kaiser, contra.
    Henry, j.; Winci-i, J., and Marvin, J., concur.

       Affirmed without opinion, Masten v. Levy, 86 Ohio State, 363.

   The action below was brought by plaintiff in error here upon a promissory note for $500 made and delivered to him by the defendants in error Levy and Kraffert. Masten sold to Levy and Kraffert August 22, 1905, a saloon business at Nos. 7 and 9 East End avenue for $3,000, of which $2,000 was paid down and two notes for $500 each were given to cover the balance of the purchase price. One of these notes was afterwards paid and the action below was upon the remaining one. The defendant Kraffert was served, but filed no pleading. Levy answered admitting the facts as above set forth and alleging by way of further answer and also by way of cross-petition, that- the transaction in question was evidenced by a contract which was put in evidence, and is as follows;

“Cleveland, O., Aug. 22, 1905.
“This agreement entered into between I. P. Masten-first party and Levy and Kraffert second party, witnesses:
“In consideration of bill of sale executed this day between said parties, first party agrees to deliver to second party on or before the 1st day of September, A. D. 1905, a lease of -saloon at No. 9 East End Ave., Cleveland,. Ohio, from September 1st, 1905, until June, 1909, executed by the Cleveland Sandusky Brewing Co. with the same condition printed in copy of lease hereto attached with rental at $60 per month.
“First party agrees to not go into the retail saloon business within three miles of said location during term of said lease, or continuance of said second parties- ’ or assignees in said location. Said first party to conduct business until September 1st, as his own, second party to have all receipts and pay all bills from the time of signing these presents.
“First party to stay and assist second party in becoming acquainted with said business for a period of not less than thirty days.
“First party to secure for second party same right of control of brand of whiskey known as ‘Full Weight’ the same as he has.
“Second party to have right to use sign and name of first party as now on said building.
“(Signed) I. P. Masten.
“Attest:
“B. J. Sawyer.”

The form of lease mentioned in this contract was never attached, and the bill of sale referred to therein discloses that he contracted to sell all wines, liquors, cordials-, beer and cigars then in stock and contained in the saloon at No. 9 East End avenue.

The answer and cross-petition further alleges that the foregoing contract was violated by Masten in several particulars, to-wit:

First, in that he failed to deliver the lease called for therein and that the provision in the contract to the effect that the lease was “to be executed by the Cleveland Sandusky Brewing Company” was interpolated by or for Masten after the execution of the contract and without the consent of the purchasers.

Second, that Masten misrepresented the quantity of whiskey in stock by express statements that there were. three barrels thereof on hand; whereas in fact there were only some twenty-four gallons in all.

Third, that an ice box and certain screens in the saloon were represented by Masten to belong to him and to be among the items of property covered by tbe contract of sale; whereas in truth they were the property of third parties and were never delivered to the defendants.

Fourth, that Hasten failed to assist defendants in becoming acquainted with the trade.

Fifth, that Hasten’s failure to deliver the lease called for by the contract and his delinquency in other respects resulted in the utter loss of the good will of said business and its complete ruin and loss, so that the same was closed out and at public sale was bought in by Hasten, who thereupon resumed business in that location.

All this is charged to have been done by Hasten in pursuance of a preconceived plan to defraud Levy and Kraffert. Levy also avers that he requested Kraffert to join with him in demanding the relief prayed for in his cross-petition, to-wit, the cancellation of the note sued on by plaintiff, and damages in the sum of $5,000, but that Kraffert refused to comply with said request.

Issue was joined by reply which denied that Hasten had in any way violated the contract. Upon trial of the issues a verdict and judgment were rendered for the defendants, allowing nothing upon the note sued on, and awarding damages on the cross-petition in the sum of $900.

The errors here complained of all relate to the question: “What is the true theory of the cause of action asserted in the cross-petition”? The plaintiff in error says in his brief, “It is true that the cross-petition contains allegations of fraudulent representation, but on the whole the defendant Levy’s action as set forth in said cross-petition is one for breach of contract; at all events it was ultimately so construed by the trial court,” etc., and it is urged that the court erred in admitting evidence of fraud. The charge, it is said, similarly confuses two irreconcilable theories of the case, made by the cross-petition.

We do not agree with plaintiff’s contention that the court erred in these particulars.

In Gardner v. Corwine, 57 Ohio St., 246, suit was brought by G-ardner against Corwine to recover damages for breach of warranty in the sale of a horse. The petition alleged, in addition to the warranty and its breach, that the defendant knew at the time of the sale that the animal was not what it was warranted to be. It was there contended that the effect of the averment charging the defendant with knowledge of the falsity of the warranty was to make the action one for deceit or fraud, and therefore that proof of such knowledge was essential to the plaintiff’s right of recovery; otherwise the petition would include two inconsistent causes of action which could not be joined. In the opinion of the court, Williams, J., says at page 255:

“Whether there is more than one cause of action stated in the petition is a question upon which difference of opinion may exist. But it need not now be determined. If there are two, one for breach of the warranty and the other for fraud, they grow out of the same transaction, and may be properly joined in the same petition. * * * In favor of the view that there is but one cause of action stated, it may be said, there was but a single transaction between the parties, the negotiations resulted in the sale of the horse; there was but one wrong of the defendant, the sale of an unsound animal as and for a sound one; and there is but one right of the plaintiff growing out of the wrong, that is, to have redress for the injury he sustained in consequence of it, and for which he can have but one recovery. And a statement of all the facts of the transaction, with a demand for the relief desired, as one .cause of action, seems more in harmony with our reformed system of pleading than the repetition of them, which becomes necessary, in part at_least, in their statement as separate causes of action.” (

Elsewhere in the same opinion he says further:

“And it is competent, we think, for a plaintiff to state in his pleading all the facts of the transaction which enter into his right to recover, as he believes them to be, though they present different grounds of recovery, and admit of different modes or measures of relief; and he may ultimately have that relief to which the allegations proved, show him entitled.”

From the entire opinion it is manifest that the intermingling of allegations of fraud and breach of contract' concerning the same transactions does not necessarily commit the pleader to a single theory of his right to recover. He may introduce evidence in support of both aspects of his case and recover on either, or both, according to the proof made. In other words, the case presented upon the record before ns may be viewed as involving the elements both of fraud and of breach of contract without any inconsistency. We discover no error in the admission of evidence upon the both aspects of the issue, and we find no error in the charge of the court upon the case as made by the evidence. The entire record is free from substantial or prejudicial error to the plaintiff in error and the judgment is affirmed.


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    RIGHTS OF CHATTEL MORTGAGEE AS AGAINST ASSIGNEE OF MORTGAGOR..
    Circuit Court of Cuyahoga County.
    C. F. Minnick et al v. S. E. Dettelbach et al.
    Decided, November 9, 1910.

      Appeal — Does Not Take Up Separate Branch of Oase Previously Disposed of — Affidavit to Chattel Mortgage — Indebted Equivalent to Unpaid — Possession by Mortgagee of Chattels Superior to Bights of Assignee.

    1. An appeal from the insolvency court to the court of common pleas does not take up a branch of the cause, separate and distinct from other parts of the cause, as to which the insolvency court had, theretofore and beyond the time limited for appeal, entered a judgment which reserved no further questions or directions for future determination with regard to that separate branch of the cause.
    2. A statement in an affidavit to a chattel mortgage that the mortgagor is “indebted” on the mortgage claim to the mortgagee in a certain sum, sufficiently complies with the requirement of Revised Statutes, Section 4154, that the mortgagor must state under oath that his claim is “unpaid.”
    3. Where a mortgagee of chattels takes possession of them under his mortgage before the filing of a deed of assignment by the mortgagor, his rights are superior to the rights of the assignee.

      Max TS. Meisel, for plaintiff in error.

      Carpenter, Young & Stocker, contra.
    Henry, J.; Winch, J., and Marvin, J., concur.
   This litigation originated in the insolvency court with the filing of an assignment by the Paul’s Hotel Company to the plaintiffs in error for the benefit of-said company’s creditors. Upon application made there by the assignees for an order to sell property in their possession, the defendants in error, Dettelbách and ‘Coakes, filed their cross-petition in said proceeding claiming certain items of said property as fixtures belonging to them as lessors of the hotel to the insolvent company and asserting a lien upon all the property in the hotel by virtue of a stipulation to that effect in the lease. At the April, 1908, term of the insolvency court the fixtures in question were decided in favor of the landlord, and judgment rendered accordingly. No proceedings to review this decision were taken until' the insolvency court, at its July term, had tried the lien in question.

The second question was decided in favor of the assignees and in journalizing thé judgment upon this branch of the ease the former judgment upon the fixtures branch was reiterated; thereupon both parties appealed to the court of common pleas. Upon trial of the appeal that court ruled that the fixtures branch of the case was not embraced within the scope of the appeal thus taken,-and refused to try that branch of the ease. Upon trial of the lien question the court decided in favor of the landlord; and the assignees by this proceeding in error seek to review both branches of the case upon the record of the court of common pleas.

Upon the authority of Teaff v. Hewitt, 1 Ohio St., 511, we hold that the court of common pleas ruled correctly on the first question. The syllabus of Teaff v. Hewitt is, of course, the work of the reporter and not an expression by the court. The present practice of the Supreme Court, according to which the syllabi of reported eases are prepared by the court itself, did not then obtain, and the reporter inadequately conceived the scope of the court’s decision. In the opinion by Bartley, Chief Justice, appears the following language, at page 520:

“A final decree, is one which determines and disposes of the whole merits of the cause before the court, or a branch of the cause which is separate and distinct from the other parts of the case, reserving no further questions or directions for future determination; so that it will not be necessary to bring the cause, or that separate branch of the cause, again before the court for further decision.”

In Teaff v. Hewitt, as in the case at bar, a question of fixtures was adjudicated by the trial -court, which held that certain items claimed to be fixtures were such. At a later term, the trial court took up the question as to ivhether certain other items of property, also claimed to be fixtures, were within the lien of a certain mortgage. And it was held, upon review, that the first branch of the action had been finally adjudicated at the previous term. The case is thus very like the one now before us and we see no ground for distinguishing them in the particular which is here in controversy.

The other branch of the case, we think, turns upon the construction tó be given to the sworn statement of claim endorsed upon the lease which was filed as a mortgage just before the deed of assignment was filed. The statement is as follows:

‘' State of Ohio, Cuyahoga County, ss.
“C. C. Young, being first duly sworn, says he is the agent and attorney of S. E. Dettelback and Frederick W. Goakes, the lessors and mortgagees in -a mortgage and lease of which the within is a true copy; that said, the Pauls Iiotel Company, lessee and mortgagor, is indebted to S. E. Dettelbach and Frederick W. Goakes in the sum of seven thousand five hundred dollars, payable during the ensuing year in monthly installments of six hundred and twenty-five dollars on the first day of each and every month; that such claim is just and lawful, and to secure the payment of the same, the said lease and mortgage have been executed in good faith. Signed, C. C. Young.”

It is urged that this statement does not satisfy the provisions of Section 4154, Revised Statutes, which reads as follows:

“The mortgagee, his agent, or attorney, before the instrument is filed, must state thereon, under oath, the amount of the claim, and that it is just and unpaid, if given to secure the payment of a sum of money only.”

The point made by the plaintiffs in error is that this sworn statement does not sufficiently set forth that the claim referred to therein is “unpaid.” It will b.e observed, however, that the affidavit does set forth that “the Pauls Hotel Company, lessor and mortgagor, is indebted to S. E. Dettelbach and Frederick W. Goakes in the sum of seven thousand five hundred dollars,” etc. This, we hold, is equivalent to saying that the claim is unpaid.

It was suggested upon the hearing that some of the goods covered by the deed of assignment consisted of a shifting stock of provisions, liquors and cigars, as to which the mortgage, even if properly executed, sworn to and filed, would' create no lien prior to possession taken. But it was said, in answer to this suggestion, that all goods of this character were sold under attachment by judgment creditors, and are, therefore, in no way involved in the controversy between the parties to this proceeding. There is some evidence to this effect in the bill of exceptions, but whether any of the shifting stock of goods be or be not included within the items of property sold by the assignees and therefore included within the fund here in controversy, is we think immaterial in view of the evidence which shows, or tends to show, that Mr. Young,- as agent of the defendants in error, took possession of all the property in the hotel under his mortgage before the deed of assignment was filed. It is true that persons representing the creditors were already there, but their possession, if any, could effect no lien on, or transfer of, the property, as against the lessor’s and in favor of the assignees, who are the sole parties to the present controversy. Mr. Young’s entry was prior to the filing of the deed of assignment and his rights are therefore superior to those of the assignee under that deed. At least the court of common pleas was -justified in so finding from the evidence, and our weighing of the evidence fails to disclose that the court of common pleas erred in its finding and judgment in this regard.

The judgment is therefore affirmed.


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    INSANE DELUSIONS NOT AFFECTING PROVISIONS OF WILL.
    Court of Appeals for Delaware County.
    Board of Foreign Missions of the Presbyterian Church in the United States of America v. Henry W. Bevan, and Henry W. Bevan, as Administrator With the Will Annexed of the Estate of James Bevan, Deceased.
    Decided, May Term, 1913.
    As to Qualification of Non-expert Witnesses — Hypothetical Questions, Hoio Made Competent — Estoppel Against Contestant — Mistaken Tendency on the Part of Juries in Will Cases — Delusions Not Ground, for Setting Will Aside, When.

    1. The opinions of non-expert witnesses as to the sanity of a testator are incompetent, where such witnesses do not qualify by giving the facts coming under their observation upon which their opinions are based.
    2. While it is not necessary that hypothetical questions submitted to expert witnesses should he based on conceded facts or be stated in the language of the witness, replies to such questions are incompetent where the questions are not based on facts which the testimony tends to prove.
    3. Lack of testamentary capacity is not shown by evidence of a religious conviction on the part of the testator upon the subject of foreign missions, where his delusion with reference thereto, if any existed, did not control the making of his.will, but on the contrary he disposed of his property without reference to foreign missions except and in the event of his son and only heir dying without issue.

      Over turf ■& Rough and Waight <& Moore, for plaintiff in error.

      Marriott & Freshwater and Pugh (& Pugh, contra.
    Voorhees, J.; Shields, J., and Powell, J., concur.
    Error to tbe Court of Common Pleas of Delaware County.
   This cause is in this court on proceedings in error. The case below was tried on an amended petition filed May 1st, 1909, and issue joined by answer filed February 5th, 1910, The object of the suit was, and is, to set aside the last will and testament of said James Bevan, deceased, on grounds stated in said amended petition.

The will was made on the 17th day of December, 1894, and James Bevan died February, 1903. His will was admitted to probate and record in the Probate Court of Delaware County, Ohio, on the 30th day of May, 1903.

The grounds on which the will is contested are set forth in said amended petition, and are, in substance, that at the time of making said will, and for many years prior thereto, the said James Bevan was not of sound mind and memory, but by reason of old age and sickness was mentally incapacitated from making a will or proper disposition of his property, and was persuaded and unduly influenced into signing said will by persons whose names are unknown to plaintiff, at their suggestion, influencing and prejudicing the weak mind of the said James Bevan against the interests of the plaintiff; second, that said will and the devise therein to the said defendant Board of Foreign Missions of the Presbyterian Church in the United States of America, were procured and made by the exercise of undue influence over the mind of the plaintiff’s father, the said James Bevan, so that such will or paper writing does not, because of such undue influence, express his wish or will; third, that said paper writing or pretended will is not the valid last will and testament of said James Bevan, deceased, because the same is not executed and is not signed at the end thereof as required by the statutes of Ohio, and is therefore void. Said pretended will was not signed by deceased or any one thereunto authorized by him.

To the amended petition plaintiff in error, defendant below, filed its answer, setting up his defenses:

First, after admitting a number of allegations contained in the amended petition, among which are that the defendant below, plaintiff in error, admits that it is an eleemosynary corporation organized.as alleged in the amended petition; that on the 28th day of February, 1903, James Bevan died; that on the 30th day of May, 1903, a certain paper writing, purporting to be the last will and testament of the said James Bevan, deceased, bear-mg date of the 17th day of December, 1894, was presented to and admitted to probate by the probate court of said Delaware county; that said paper writing remained in said court as a portion of the records thereof, and that letters testamentary were issued thereon by said probate court to the said Henry W. Bevan, defendant in error, as administrator with the will annexed ; that by the terms of said paper writing, the said plaintiff in error is named as devisee of said James Bevan, deceased, depending, however, on certain conditions and contingencies expressed therein.

Defendant below, plaintiff in error, denies that “said paper writing is not the last will and testament of James Bevan, deceased, for the reason that said James Bevan, at the date of said paper writing, and for many years prior thereto, was not of sound mind and memory; and denies that by reason of old age and sickness was mentally incapacitated from making a will or proper disposition of his property, and was persuaded and unduly influenced in signing said paper writing by persons whose names are unknown to plaintiff, defendant in error, at their suggestion, influencing and prejudicing the weak mind of said James Bevan against the.interests of the plaintiff.”

Defendant further denies that said paper writing and devise therein to said answering defendant “were procured and made by the exercise of undue influence over the mind of said James Bevan, so that said paper writing does not, because of such undue influence, express his wish and will. ’ ’

Said defendant further denies “that said paper writing is not the valid last will and testament of said decedent, James Bevan, because the same is not executed and is not signed at the end thereof as required by the statutes of Ohio, and is therefore void.” And further denies that said will was not signed by said decedent or any one thereunto authorized by him. The defendant denies each and every allegation in the amended petition contained not herein specifically admitted to be true.

As a second defense the defendant adopts all and singular the admissions, denials and allegations in the first defense contained as far as the same may be applicable herein, and says that the plaintiff on tbe 17th day of March, 1903, filed said will for probate and used his influence to accomplish the probate of the same; that he sought the administration of the estate of said James Bevan under said will and the appointment as administrator with the will annexed, and was appointed as such, and duly qualified on the 2d day of July, 1903, and has ever since acted under said appointment; that in making application for said appointment, plaintiff made affidavit asserting such instrument as the last will and testament of said James Bevan, and praying authority thereunder to administer said estate.

Defendant further says that plaintiff, ever since his appointment, has acted as the administrator of said estate, and has acted upon and under the terms of said will, and has administered the estate under said will as such administrator with the will annexed; that said plaintiff has received and accepted his legacy under said will and has taken possession of the real estate of which the said James Bevan died seized, and has sold property and collected money in the administration of such estate, all by virtue and under the authority of said will, for all of which plaintiff is now estopped from assailing or denying the validity of said will.

Defendant prays that an issue be made up as to whether said paper writing is the last will and testament of said James Bevan; that the same may be declared to be the valid last will and testament of said James Bevan; that the said Henry W. Bevan, plaintiff, be estopped from assailing or denying, the validity of said will; and for all other proper relief.

Upon issue so made up and joined, said cause was tried to a jury at the April term, 1912, to-wit, April 25th, 1912, resulting in a verdict and finding by the jury “that the paper writing described in the petition and produced at the trial purporting to be the last will and testament of James Bevan, deceased, is not the valid last will and testament of the said James Bevan, deceased. Signed, Eugene Nash, Foreman.”

Thereupon, the Board of Foreign Missions, defendant, excepted to said finding of the jury, and gave notice of its- intention to file a motion for a new trial, which was accordingly done within the time required by law.

Proceedings in error are prosecuted to this court. Sixteen grounds of error are set forth in the petition in error as reasons for reversal of the judgment as follows, to-wit:

1st. The court erred in sustaining the demurrer by the plaintiff below filed October 3, 1905, to answer of estoppel by defendants below.

2d. For error of the court in admitting testimony offered by plaintiff below to which the defendant below at the time excepted.

3d. For error of the court in rejecting testimony offered by defendant below upon the trial of the cause, to which ruling of the court the defendant below at the time excepted.

4th. Irregularity in the proceedings of the court by which the plaintiff was prevented from having a fair trial.

5th. Misconduct of the jury.

6th. Accident and surprise which ordinary prudence could not have guarded against.

7th. That the verdict was given under the influence of passion and prejudice.

8th. That the verdict is not sustained by sufficient evidence and is contrary to law.

9th. The verdict of the jury is contrary to law.

10th. Error of law occurring at the trial and excepted to by the defendant at the time.

11th. Error of the court in its general charge to the jury.

12th. Error of the court in giving special instructions to the jury asked by plaintiff below.

13th. The verdict of the jury should not have been for defendant and against plaintiff.

14th. Misconduct of counsel for defendant.

15th. The court erred in overruling the motion for a new trial.

16th. There are other errors manifest on the record not shown by the motion for a new trial.

All the grounds are not urged in the arguments or briefs, and we will consider such as we regard as material and necessary in reaching a correct conclusion in the case.

The first ground o£ error complained of in the petition in error, is that the court erred in sustaining the demurrer by the plaintiff below, filed October 3d, 1905, to answer of estoppel by defendants below.

As a second defense in said ■ answer it is alleged that the plaintiff filed the will of his father, James Bevan, deceased, for probate, used his influence to accomplish the probate, sought the administration of the estate under the will, and was appointed administrator, qualified, and has ever since acted as such; that in making the application for appointment he made affidavit asserting that the instrument' was the last will and testament of his father; that ever since said appointment he has acted as administrator, and has administered upon the estate; that he received and accepted the legacy under the will, and has taken possession of the real estate of which his father died seized and has sold property and collected money under the estate as administrator. From these facts he is estopped from thereby contesting the validity of the will.

In support of the demurrer, we are cited to the decision of this court in the case of Flora Leedy v. R. H. Cockley et al, reported in 14 C.C.(N.S.), page 72, but the facts in that case are so different from the facts set up as a second defense in the answer filed October 3d, 1905, in the case at bar that we do not regard the case an authority which should control this court in deciding upon the sufficiency or insufficiency of the second defense in said answer.

A history of the pleadings will demonstrate the insufficiency of said defense. The original petition was filed January 25th, 1905, and to that petition an answer was filed September 18th, 1905, in which the same defense was set up. A demurrer was interposed to that defense by the plaintiff and tne same was sustained, to which exceptions were taken.

On May 1st, 1905, the plaintiff filed an amended petition which contained practically all the averments of the original petition and some new allegations, one being that the signature to the will was not the signature of James Bevan.

To the amended petition the defendants filed an answer February 5th, 1910, and in which they repeated the second defense which was contained in their answer to the original petition.

To this answer, and to neither of the defenses therein contained was ever any demurrer filed by the plaintiff. A motion was filed to strike out this defense, but it was never heard. The amended petition superseded the original petition and the answer to the amended petitioñ superseded prior answers to the original petition.

The ease was tried on the amended petition and the answer thereto, which answer contained the plea of estoppel. Not having been demurred to, it was part of the pleadings, making up the issues upon which the cause was tried. Upon estoppel Henry Bevan was a witness. This clearly demonstrates that there was no prejudicial error in the court sustaining a demurrer to the second defense in the answer to the original petition. There was no error in sustaining the demurrer to answer of estoppel filed October 3d, 1905.

The main or principal errors are in the admission of testimony on behalf of plaintiff below, error in the proceedings of the court by which the defendant was prevented from having a fair trial.

These errors are raised in the petition in error under grounds 2 and 4, and may be considered together.

There is error in the record in the admission of testimony on behalf of the plaintiff below in this:

The non-expert witnesses did not sufficiently qualify before giving an opinion as to the mental condition of the testator at the time he made his will. All the authorities hold that non-professional witnesses are allowed to state their opinions on the trial of an issue involving mental capacity or soundness or unsoundness of mind, in connection with the facts on which the opinions are formed. The only exception to this rule of evidence is that recognized in the probate of wills and in issues to try their validity. The subscribing witnesses are allowed and required to state that in their opinion the testator was of sound and disposing mind and memory. The principle has come to be generally recognized that non-professional witnesses may give their opinion upon the question of sanity as a result of their personal observations of the person whose mental condition is in issue after stating the facts which they have observed.

Tested by this rule of law, as to the testimony of non-expert witnesses, in giving an opinion as to the soundness or unsoundness of the mind of the testator, James Bevan, we think there was error in permitting the witnesses, J. A. Clingan, W. D. Stayman, W. B. Matthews, ITenry Donivan, Henry Evans, John Soil, J. B. Jones, William Pritchard, C. M. Leonard, James M. Richey and John McClure, to give their opinions as to the soundness of mind of said testator at the time he made his will.

Error in the admission of the expert or professional witnesses in connection with the hypothetical question is equally manifest.

Hypothetical questions should be based upon facts which the evidence tends to prove. It is not required that they should be based upon conceded facts,' nor that they should be stated in the language of the witness. Meeker v. Meeker, 74 Iowa, 355.

A medical witness who has seen and examined the injured party and has testified to his condition, may state what in his opinion produced the symptons he has described. A hypothetical question may assume such facts within the range of the evidence as the party believes the evidence tends to establish. Louisville, etc., Ry. Co. v. Wood, 113 Ind., 554.

The answer of an expert witness to a hypothetical question must be supposed to rest on all of the facts stated in such .question ; and if one of these facts is not found in the case the jury must disregard the answer. Turnbull v. Richardson, 69 Mich., 400-10; People v. Foley, 64 Mich., 148-156; Lydia M. West, as executrix, etc., v. Lillian Knoppenberger, 4 C.C.(N.S.), 305.

Tested by these rules of evidence, and in connection therewith, from a comparison of the hypothetical question submitted to the expert witnesses, with the testimony in the record, it is so manifest that the hypothetical questions propounded to the medical experts were not substantially correct as shown by the evidence introduced on the trial of the case that the opinions given by the experts based upon the facts assumed in the hypothetical question are entitled to no weight. That is to say, the hypothetical facts upon which the questions were based were so exaggerated and unsupported by the evidence in the ease, the opinions were not entitled to any weight in determining the issue in the ease.

The sole value of the opinion, must of necessity depend upon the correctness of the statement of facts upon which it is based. If the facts are incorrect the opinion can have no weight or value.

Therefore, in view of the incompetent testimony given by the non-professional experts, there is manifest error in the record in this' case.

With this incompetent evidence eliminated the verdict of the jury is contrary to law, and is not sustained by sufficient evidence.

When we come to consider the law on the subject of testamentary capacity, there is no evidence to overcome the reasonableness of the will, which was made under the circumstances that James Bevan made his will. His only child was a son, twelve years of age, untried in business and uncertain of life and health; he gives him sufficient property for his life to yield him an ample income for his support in health or sickness, to-wit: the use of 245 acres of land, and two houses in the city of Delaware, and personal property in amount and value of $6,280.

In his will he gives the use of his property to his wife during her life; to his son if living at the death of his wife during his life; if the son leaves children to them in fee simple.

The verdict in this case can not be accounted for on any theory other than prejudice of the jury. The modern tendency of juries in will contests is to be governed by their own notions as to what the will should be, and how the testator, according to their individual notions, should have disposed of his property. It seems that the verdict is the result either of a misapprehension of the charge of the court as to law, or bias and prejudice in favor of the defendant in error or against the testator, Henry Bevan, and that they must have caught the spirit that was breathed forth in the testimony of several of the witnesses that they thought the old gentleman was not competent to make a will because he made a will different from what they would have made. In this case we are clearly of the opinion that the verdict of the jury is clearly and manifestly against the weight of the evidence and contrary to law. The only theory upon which the verdict can be accounted for was the bias and prejudice of the jury.

It is hardly necessary to extend the discussion further. The testimony upon the question of testamentary capacity of James Bevan, counsel for defendant in error substantially concede does not show want of testamentary capacity excepting as manifested by his religous conviction upon the subject of foreign missions. In other words, he was controlled by an insane delusion in making his will.

To avoid a will on the ground of delusion of the testator, the delusion must be an insane delusion and the will must be a product of it. Johnson v. Johnson, 105 Md., 81.

“Delusions on the part of the testatrix, though without foundation, that her sons had defrauded her, are not sufficient grounds to set aside her will passing over her sons. They still have the burden of proof to show not only that the testatrix was laboring under such delusions- at the time she made the will, but also that the will was the result of such delusions, before a court is justified in setting aside the will therefor.” Estate of Hemingway, 195 Pa., 291; same case 78 American State Reports, 815.
“Delusions can scarcely be regarded as evidence of general insanity, and when evidence of them is opposed by other evidence tending to prove the general capacity of the person whose mind is in question to attend to his own affairs, and to dispose of them with sagacity, or at least in obedience to the free impulses and motives of his mind, his- contracts and his dispositions of his property, testamentary and otherwise, must be treated as valid, unless connected in some way with his insane delusions.” Lucas v. Parson, 71 Am. Dec., 147; Maynard v. Tyler, 168 Mass., 107; Rice v. Rice, 50 Mich., 448; Hollinger v. Syms, 37 N. J. Eq., 221.

It can hardly be contended with any reason that his religious delusion on foreign missions had any connection with his will. as he disposed of his property without regard to foreign missions except on condition that his son should die leaving no issue.

This disposes of the case. It is not necessary to pass upon the other assigned errors. Judgment of the court below is reversed with costs, and the verdict is set aside for reasons stated in the foregoing opinion. Cause remanded to the common pleas for new trial and proceedings according to law. Exceptions.


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    ATTORNEY’S FEES IN ACTION BY TAX-PAYER.
    Court of Appeals for Hamilton County.
    Theodore Horstman v. City of Cincinnati.
    Decided, July 21, 1913.

      Attorney and Client — Allowance for Services in Action Brought by a Tax-payer — Effect of Amendment to Section 1119, Revised Statutes.

    Where prior to the amendment of Section 1779, Revised Statutes, an attorney prosecuting an action as a tax-payer was awarded judgment in the court below, he is entitled to an allowance which will cover all his costs in the case including a reasonable sum for services as attorney, notwithstanding that subsequent to the amendment of this statute error was prosecuted to the Supreme Court resulting in a reversal of the judgment below.

      Horstman & Horstman, for plaintiff in error.

      Coleman Avery, Assistant City Solicitor, contra.
    Jones, E. H., J.; Swing, J., and Jones, O. B., J., concur.
   This is a proceeding in error to reverse an order made in the superior court in special term overruling the motion and amendment thereto of Theodore Horstman for an allowance for his costs and counsel fees in what is commonly known as “the Rogers Law case.” The style of that ease was “Theodore Horstman, on behalf of the city of Cincinnati, versus the Cincinnati Street Railway Company, a corporation under the laws of Ohio. ’ ’ The suit was begun by Mr. Horstman to test the constitutionality of an act of the General Assembly of the state of Ohio, the city solicitor having declined, upon request, to bring the action.

Sections 1778 and' 1779, Revised Statutes, in force at the time the orginal action was commenced, read as follows:

“Section 1778. In case he fail upon the request of any taxpayer of the corporation to make the application provided for in the preceding action, it shall be lawful for such tax-payer to institute suit for such purpose in his own name, on behalf of the corporation; provided, that no such suit or proceeding shall be entertained by any court until such request shall have first been made in writing. (87 O. L., 123.)
“Section 1779. If the court hearing such case is satisfied that such tax-payer had good cause to believe that his allegations were well founded, or if the same is sufficient in law, it shall make such order as the equity and justice of the case demands; and in such case the tax-payer shall be allowed his costs, including a reasonable compensation to his attorney. (66 O. L., 175, Sec. 161.) ”

On April 29, 1902, after the original action was begun and before the judgment was entered in the superior court this latter section was amended, the amendment providing in effect that before compensation may be allowed to the attorney for the taxpayer judgment must be finally ordered in favor of such taxpayer. The judgment in the superior court was in favor of the plaintiff, but upon a proceeding in error this judgment was reversed by the Supreme Court.

Upon an examination of the pleadings and record in the ease, and owing to the fact that Mr. Horstman as tax-payer won the case in the superior court, we are satisfied that he is entitled, under Section 1779, R. S., to be allowed all his costs in this case including a reasonable compensation to himself as attorney in the superior court. The proceeding in error not having been begun in the Supreme Court until after the amendment he would not be entitled to any compensation for his legal services in said court, the decision in that court having been against him. As a part of his compensation to be allowed for his services in the superior court he is entitled to receive any money expended by him for printing briefs.

The superior court erred in overruling the motion of plaintiff in error for an allowance against the city for his costs and compensation to the extent above stated, and the judgment will be reversed and the casé remanded to that court with instructions that it proceed to determine and adjudge what would be a reasonable compensation for plaintiff in error for his services as attorney in said cause in that court, said amount, together with all costs in the superior court and Supreme Court including the costs of this proceeding in error, to be taxed against and paid by the city of Cincinnati.


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    PROCEDURE WHERE EQUITABLE RELIEF IS REQUIRED IN ACTION BEFORE MAGISTRATE.
    Circuit Court of Cuyahoga County.
    Mary Bastifell v. The Bailey Company.
    Decided, November 14, 1910.

      Justice of the Peace — Equitable Defense — Action for Reformation and Injunction.

    Where a defendant in an action before a justice of the peace requires equitable relief, such as the reformation of a written .instrument, which relief the justice can not grant, his proper course is to bring his action in the court of common pleas for reformation of the instrument and pray for an injunction to restrain the prosecution of the justice action until his rights to such relief are adjudicated.

      W. J. Wilson and D. B. Carpenter, for plaintiff.

      Feniger <& Kastriner, contra.
    ITenry, J.; Winch, J., and Marvin, J., concur.
   This case was originally brought before a justice of the peace, being, a replevin suit begun by the Bailey Company for the recovery of a piano. The transaction out of which the litigation grew was an exchange of pianos, whereby a balance of $245 was left owing the Bailey Company by Mrs. Bastifell. Upon the trial in the justice court it appeared the facts were these: About the time the exchange was effected, the Bailey Company gave a certificate, by the terms of which it undertook and agreed then and there that any installments of the purchase price due it for the piano which it had given in exchange to Mrs. Bastifell would, in case of her death, be canceled, so that the piano would become the unencumbered property of her personal representatives.

The defendant contended that the real agreement with the Bailey Company was that the obligation should be canceled in case of the death, not of Mrs. Bastifell, who purchased the piano, but of her husband, out of whose earnings the installments were to be paid. It is evident that the certificate was signed and delivered subsequently to the consummation of the exchange, though the agreement, whatever its terms, was made at the time.

The case, as before stated, was originally brought before a justice of the peace, who when confronted with the certificate, ruled against the defendant’s contention because, as he said, it varied the terms' of the written agreement. No exception was then reserved, nor was any proper offer made to prove the alleged oral agreement made between the parties at the time of the exchange of pianos; and though it may well be true, if we understand the situation, that the evidence was admissible, still the error is not properly presented in the record before us.

But, it is urged further on behalf of Mrs. Bastifell, if the justice was right in ruling out this evidence, the defendant’s contention that the certificate or agreement should be reformed and construed in accordance with the actual meaning and intent of the parties, presented an equitable defense which made it the duty of the justice to dismiss the ease and permit it to be brought in a forum which could adjudicate equitable issues.

We do not understand that this is the proper practice.

If a reformation of the certificate were required to enable the defendant to make his proper defense, he must bring his action to reform it in the only forum which has cognizance of that matter, to-wit, the court of common pleas. There, pending the action, an order temporarily restraining the prosecution of the replevin suit could be had. Manifestly, as pointed out at the hearing, if the justice had dismissed the action, it being for property valued at less than $100, we will say, and a new action had been brought in the court of common pleas, the petition in replevin would there have been demurrable because it was below the jurisdiction of the court of common pleas, and the plaintiff, having been thrown out of the justice court, would then be thrown out of the court of common pleas, as well.

We see no error in the record before us and the judgment is affirmed.


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    VALIDITY OF THE MILK BOTTLE ACT.
    Circuit Court of Cuyahoga County.
    State of Ohio v. William H. Doyle.
    Decided, November 28, 1910.

      Constitutional Law — Refilling Milk Bottles.

    The act of May 9, 1908 (99 O. L., 454), to regulate the filling and refilling of milk bottles and glass jars, is constitutional.

      Myers & Green and J. A. Cline, for plaintiff in error.

      Seidman & Seidman, contra.
    Henry, J.; Winch, J., and Marvin, J., concur.
   The defendant in error was convicted before a police justice of Cleveland Heights Village of having violated Section 1 of an act to regulate tbe filling and refilling of milk bottles in glass jars (99 Ohio Laws, 454). Said act is as follows:

“Section 1. It shall be unlawful to fill or refill, with milk, cream or other milk product, any glass jar or bottle having the name of any person, firm or corporation blown therein, with intent to sell or vend such milk, cream or other milk product, provided, that the provisions of this section shall not extend to the person, firm or corporation whose name is blown in such glass jar or bottle, or a duly authorized agent or employe thereof.
“Section 2. It shall be unlawful to.fill or refill, with milk, cream or other milk product, any glass jar or bottle, with intent to sell or vend such milk, cream or other milk product, unless such glass jar or bottle be first throughly cleansed and sterilized.
“Section 3. Any person or persons guilty of violating tbe provisions of the preceding sections of this act, shall be fined not more than one hundred dollars.”

Upon petition in error the court of common pleas reversed the judgment of conviction and discharged the plaintiff in error, upon the ground that said act is unconstitutional and void. This ruling was evidently based upon State of Ohio v. Schmuck, 77 Ohio St., 438, in which it was held:

“Sections 4364-42, 4364-43, 4364-44 and 4364-45, Revised Statutes, making it a crime to have in possession for use or sale certain bottles or other vessels without the written consent of the owner, and providing for search warrant to seize and restore such property to the owner, are invalid, being in conflict with Sections 1, 14 and 19 of Article I of the Constitution of Ohio. ’ ’

It will be noted, however, that the court in its opinion by Price, J., observes at page 454:

“It is manifest that the general public has not been offended by the commission of the act alleged in the indictment, nor does the statute in question make criminal any act in which the general public is concerned. ’ ’

In the case at bar it is contended that Sections 2 and 3 of the act above quoted are obnoxious to any constitutional limitation. But Section 1, it was successfully urged below, is unconstitutional for the same reasons that were assigned to State v. Schmuck.

It will be observed that the act now under consideration does not require that milk shall be sold only in glass jars and bottles having the name of the vendor blown therein. The requirement made by the Legislature is rather that such receptacles so marked shall not be used for the vending of milk by anyone else. The act does not prohibit the use of bottles with other peoples’ names blown therein for purposes other than the vending of milk. The sole object of the Legislature seems to be that no milk dealer shall be permitted to use a glass receptacle bearing the name of any person, firm or corporation, other than the vendor, or his principal, to the end that the public may not be misled or deceived into the belief that this important food product, extremely liable, as it is, to be tainted with germs of disease, is being marketed by a known and responsible dealer, when the contrary is the fact.

If purchasers of milk choose to patronize anonymous dealers, they are, so far as this act is concerned, at liberty, to do so; but if they desire to patronize only ones of established reputation, the Legislature has provided against such precaution being defeated by deceit and misrepresentation in the use of bottles bearing the name of another than the actual vendor.

This, we think, is an entirely proper use of the police power of the state to promote the public health and safety, and in this respect the ease is to be sharply distinguished from State v. Schmuck, supra.

Even if we were in doubt in regard to the correctness of our view, as above stated, we are still mindful of the salutary rule which requires, where the constitutionality of any statute is in question, that courts are not to declare statutes unconstitutional unless they are palpably irreconcilable with the fundamental law. We are bound to resolve our doubts, if we have any in this regard, in favor of the validity of the act, upon which this prosecution is based.

The judgment of the court of common pleas is therefore reversed and that of the police justice is affirmed.


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    VALIDITY OF TITLE TO PROPERTY SOLD BY ORDER. OF THE PROBATE COURT.
    Circuit Court of Cuyahoga County.
    Ruth C. Robinson v. S. D. Dunn.
    Decided, December 19, 1910.

      Prohate Court — Jurisdiction—Records Import Absolute Verity — Collateral Proceedings — Service.
    The probate courts of this state are courts of record, competent to decide on tbeir own jurisdiction and exercise it to final judgment. ¡Such court’s records import absolute verity, and no party to any proper proceeding therein can in any collateral pocceeding, by impeaching the truth of its findings, challenge its jurisdiction to adjudge that he was duly served with proper, notice and to award relief accordingly.

      F. ■& J. Budin and E. C. Mason, for plaintiff in error.

      Estep \<& Gott, contra.
    Henry, J.; Winch, J., and Marvin, J., concur.
   The parties to this proceeding in error stand as they stood below. There the action was brought to establish plaintiff’s title to an undivided one-third interest in certain Cleveland residence property and to compel defendant to account for the rents and profits thereof. The sole question here challenges the validity of certain probate court proceedings whereby plaintiff in error’s title is claimed to have been divested through a statutory sale made without notice to her, while she was an infant and a resident of British America.

The probate court record and files in that proceeding were .received in evidence in this ease, and the only evidence now discoverable of the kind of notice, if any, which was given to the plaintiff in error, of the pendency of said proceeding in the probate court, is the affidavit of an attorney that he “sent” her a letter, which he quotes in full. But the probate court journal shows that “the court being fully advised in the premises, finds that all parties defendant have had due notice of this action and of the substance and object of the petition, or have waived notice and voluntarily entered their'appearance in the case.” For aught we know, the court may have had abundant evidence of service of notice on the plaintiff in error besides the said affidavit. The probate courts of this state are courts of record competent to decide on their own jurisdiction and exercise it to final judgment. Such a court’s records import absolute verity; and no party to any proper proceeding therein can in a collateral proceeding by impeaching the truth of its findings, challenge its jurisdiction to adjudge that he was duly served with proper notice and to award relief accordingly. Railroad Company v. Belle Center Village, 48 Ohio St., 273.

The judgment is affirmed.


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    ALLEGED LIBEL OF A COURT STENOGRAPHER.
    Circuit Court of Cuyahoga County.
    Harriet Hunt v. The Meridian Printing Company.

    Decided, December 19, 1910.

      Libel — No Special Damages — Libel per se for Court — Classes of Libels per se — Imputation of Petition — Destruction of Property — Libel on Stenographer in her Occupation.

    1. Where in an action for libel, no special damages are alleged, the article complained of is either a libel per se', or it is not a libel at all, and this is a question for the court.
    2. Libels per se are of three classes: (1) imputing an indictable offense, involving moral turpitude or infamous punishment; (2) imputing a contagious or offensive disease or condition, tending to ostracize; (3) tending to injure one in one’s occupation.
    3. If a publication does not warrant the imputation of criminality, placed upon it by the petition, it is not libelous.
    4. The petulant destruction of another’s property of trifling worth is not a crime involving infamous turpitude or punishment.
    5. It is the duty of a stenographer to take proper care of and not to destroy valuable records and papers committed to her custody in the course of her employment as such. To impute a contrary course of conduct to her tends to injure her in her occupation, and is libelous per se.

      Charles F. Morgan, for plaintiff in error.

      Gage, Wilbur & Williams, contra.
    Henry, J.; Winch, J., and Marvin, J., concur.

       Affirmed without opinion, Meridian Printing Co. v. Hunt, 87 Ohio State, 522.

   The parties stand as they stood below. The action was libel there. The newspaper article complained of is as follows:

“Strike Against Order to Leave.
“Court Stenographers Refuse to Accept Discharge.
“Twelve judges of the common pleas court do not know that they have another strike on their hands. The strikers, two in number, neglected to inform them of their stand. Couriers went back and forth exchanging news of the trouble Friday.
“ ‘We do not know that we have been discharged by the judges,’ said Miss Harriet Hunt, court stenographer, under the title of court constable (until last Wednesday). Miss Margaret Kane nodded her approval of the declaration.
“ ‘We have no official stenographers or constables,’ echo all the judges. ‘The two we had were discharged Wednesday. Their pay stopped at once. That goes. ’
“But the constables have not gone. They were discharged because they went on strike — refused to take the testimony in the Holden murder case. Now they have declared another strike. They refused to be discharged through the newspapers.
“But the latest strike is not a walkout. To the contrary, as the stenogs are still holding forth in the official constables’ office on the third floor of the old court house.
“Word came to one of the judges Thursday that the ex-officials were occupying themselves, destroying papers and records in their possession. ‘Those papers are county property and must be accounted for’ said that particular judge. No names are to be mentioned.
“Journal clerk Burke was instructed at noon Thursday to mail the strikers a copy of the journal entry made in their case.”

The innuendo, among other things, charge that the next to the last paragraph falsely and maliciously attributes to plaintiff the commission of “the crime of malicious destruction of property not her own; ’ ’ and the petition .further alleges that:

“Said entire article, as a whole, and each part thereof, separately as above set forth, is a false, malicious and brutual libel upon plaintiff and published of her, both individually as a lady, and in her business of stenographer.”

The petition does not, however, lay any special damages, but prays generally for “judgment for damages against defendant in the sum of $25,000.” The article is therefore a libel per se, or it is not a libel at all; and this is a question for the court. Mark v. Brundage et al, 68 Ohio St., 89.

The court below sustained a general demurrer to the petition and rendered final judgment for the defendant. The plaintiff seeks here to reverse this judgment.

Libels per se embrace words of but three classes, (1) Imputing an indictable offense, involving moral turpitude or infamous punishment;'(2) Imputing a contagious or offensive disease, or condition tending to ostracize; or (3) Tending to injure one in one’s occupation.

The first and last of these are in question here. As to the first:

“By this rule the infamy of the offense or of the punishment constitutes the test whether the words are actionable, when an indictable offense is charged upon the plaintiff. * * * The nature and turpitude of the offense charged are the criteria by which to decide whether the injury is such as to be the foundation of an action. A charge of assault and battery — of -fighting at fisticuffs — of refusing to aid an officer to arrest criminals, resisting an officer in the execution of process, keeping a ferry or tavern without license, and others of the like class, though subject to indictment and punishment, and of themselves reprehensible, as violations of positive law, do not imply that degree of moral depravity which will sustain an action of slander for words spoken imputing such offense.” Dial v. Holter, 6 Ohio St., 228, 241-2.

Words libelous per se, as imputing criminalty to anyone “must first, be such as charge him with an indictable offense; and, second, the offense charged must involve a high degree of moral turnpitude, or subject the offender to infamous punishment.” Hollingsworth v. Shaw, 19 Ohio St., 430 and 433.

The crime of malicious destruction of property and its punishment are defined as follows by Section 6863, Revised Statutes (General Code, 12477) :

“Whoever maliciously destroys or injures property not his own, if the value of the property destroyed, or the injury done is one hundred dollars or more, shall be imprisoned in the penitentiary not less than one year nor more than seven years, or, if the value is less than that sum, shall be fined not more than five hundred dollars or imprisoned not more than thirty days, or both.” i

The crime of maliciously destroying public records or papers, and its punishment, are defined by Section 7095, Revised Statutes (General Code, 13088):

.“Whoever maliciously alters, defaces, mutilates, destroys abstracts or conceals the whole or part of a record, authorized to be made by law, of or pertaining to a court, justice of the peace or a state, county, township or municipal office or officer, or other public record authorized by law or a paper or writing duly filed with, in or by such court, office or officer, shall be fined not more than three hundred dollars or imprisoned not more than three months, or both.”

The petition, by its innuendo, clearly founds the imputation of criminality upon the first of these two offenses, whereas the publication as clearly imputes' the second, if it imputes either. Now, the innuendo may elucidate, construe and apply (and hence, of course, restrict), but it can not enlarge, the meaning of a libel (State v. Smily, 57 Ohio St., 34, 35). If, then, the publication does not warrant such construction as the petition seeks to put upon it, viz., an imputation of “the crime of malicious destruction of property not her own,” made punishable by Section 6863, Revised Statutes (General Code, 12477), it follows that the publication is not libelous for imputing criminality. The facts alleged in the petition for it shows that the publication did not impute to plaintiff the crime which the pleader alleges and relies on (Hamm v. Wickline, 26 Ohio St., 83). Moreover, it fails to allege whether the publication imputed to plaintiff the destruction of property worth more or property worth less than one hundred dollars. These indeed are kindred offenses; but the punishment of imprisonment in the penitentiary is necessarily visited upon anyone guilty of the one, whereas only a fine and thirty days’ imprisonment in jail is the maximum penalty for the latter offense. Infamy and turpitude are very differently related to the two cases respectively, and it can hardly be claimed that the petulant destruction of another’s property of trifling worth is a crime involving infamous turpitude or punishment.

If the charge of criminality relied on by the pleader were, as it should manifestly have been, the violation of Section 7095, Revised Statutes (General Code, 13088), prohibiting the malicious destruction of public records of papers, the maximum penalty is $300 fine and three months’ imprisonment in jail. No penitentiary sentence is possible, Section 6794, Revised Statutes (General Code, 12370). The punishment is therefore not infamous. The offense may or may not involve great moral turpitude ; but there is nothing whatever in the libel itself, or in the allegations of the petition, to indicate that the records and papers said to have been destroyed were of any particular importance, or such as, if necessary, could not readily be duplicated; and if they were not, their destruction surely involved no such “high degree of moral turpitude” as the law of libel contemplates.

We hold, therefore, that this alleged libel is not such per se so far as imputing criminality is concerned.

It is otherwise, however, as regards the claim that it is of a nature tending to injure plaintiff in her business as a stenographer. It is the duty of a stenographer to take proper care of and not to destroy valuable records and papers committed to her custody in the course of her employment as such. To impute a contrary course of conduct to a stenographer certainly tends as such to injure him, or her, in the pursuit of that occupation as to impute drunkenness to a clergyman. The injury is the same in kind if not necessarily so in degree (Hayner v. Cowden, 27 Ohio St., 292). In this, and in this only, do we think the petition states a cause of action. For error in sustaining the demurrer to the petition, the judgment is reversed and the cause remanded.


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    PREJUDICE FROM DISMISSAL OF APPEAL.
    Circuit Court of Cuyahoga County.
    Charlotte M. Phillips v. The Provident Life & Trust Company et al.
    Decided, December 26, 1910.
    The dismissal of an appeal by the appellant will be set aside at the direction of the court, if it appears that any other party to the ap- ■ pealed case will be unreasonably or unfairly prejudiced by such dismissal.

      John J. SulUvan, for plaintiff in error.

      A. A. Lamson and Stearns, Chamberlain & Boyan, contra.
    TIenry, J.; Winch, J., and Marvin, J., concur.
   A motion is interposed here by tbe plaintiff in this appeal to vacate the order of dismissal entered upon application by the' plaintiff at a former day in the present term of court. That order was made without notice to the plaintiff, appellee, upon the theory that the defendant, appellant, had the absolute right to dismiss his appeal at will. The plaintiff now urges that great injustice will be done her if this practice is allowed to prevail in the case before us. The action was originally commenced by her in the court of common pleas to recover the amount of a policy of insurance upon her husband’s life, issued to the latter in his lifetime by the defendant, the Provident Life & Trust Co. The appellant here was made co-defendant, because the plaintiff since her husband’s death had assigned said policy to the Glen-ville Bank, of which the appellant is the trustee in insolvency. In order to recover from the insuret, the plaintiff is obliged, of course, to have her assignment set aside. This she seeks to do upon the ground that the assignment was fraudulently procured. Upon the trial below she failed to obtain this prerequisite relief, and judgment was had upon the policy assigned, as aforesaid, by her to the G-lenville Bank, in favor of the latter and against the defendant, the Provident Life & Trust Company.

For some reason not fully explained, the trustee of the G-lenville Bank saw fit to appeal from this judgment generally. This he did under the statute, without having to file any appeal bond. Upon further investigation he concluded that he could gain nothing by his appeal and thereupon he dismissed the same here in open court, and entry was made accordingly. Meanwhile, however, the time within which the plaintiff might have appealed has elapsed. She apparently relied upon the appeal taken by the defendant trustee, and hence took no steps to perfect an independent appeal on her part. She desires a review of the case on appeal by this court, but if the appellant’s dismissal of his appeal is allowed to stand, she is left without remedy.

We have re-examined the right of an appellant voluntarily to dismiss his appeal. The subject was under consideration by this court in the ease of Monjou v. Local No. 106 Hotel and Restaurant Employes, etc., decided December 16, 1907. We there said in the opinion by Winch, J.:

‘‘ The question in the precise form we have it here, has never been passed upon in the reported eases. The practice, however, seems to have the sanction of the Supreme Court in the case of Irwin v. Lloyd, 65 O. S., 55.
"However, upon the claim of the plaintiff that he would be greatly prejudiced by a dismissal of the appeal in this court, and because of the lack of authorities upon the proposition first considered, we have examined the order made by the common pleas court and are prepared to say that if the defendants are satisfied with it, the plaintiff has no cause to complain. ’ ’

The weight of authority in other jurisdictions seems to be to the effect that the right of an appellant voluntarily to dismiss his own appeal is qualified, in that the right can be exercised only in the discretion of the court, and this discretion is directed in its exercise to the determination of the question whether or not any other party to the appeal will be unreasonably or unfairly prejudiced by such dismissal.

Inasmuch as the practice in this state has not been clearly settled to the contrary by the Supreme Court, we shall vacate the order of dismissal hitherto entered herein because of the manifest prejudice which will occur to Mrs. Phillips if the appellant trustee is permitted to abandon his appeal.

Motion granted and order of dismissal vacated.


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    EVIDENCE RELATING TO PROMISE OF MARRIAGE.
    Circuit Court of Cuyahoga County.
    David Carr v. Mary Dovlosky.
    Decided, December 27, 1910.

      Breach of Promise of Marriage — Evidence.
    In a suit for damages for breach of promise of marriage, evidence may be received of conversations between the parties after the marriage of the defendant to another; of his admissions to a third party of the mutual affection of the parties, and of declarations of the plaintiff made when she was about to leave her employment that she was leaving so as to prepare to get married.

      Form, & Powell, for plaintiff in error.

      Kerrmsh & Kerruish, contra.
    Henry, J.; Winch, J., and Marvin, J., concur.
   The parties stand in the relation opposite to that in which they stood below. The action there was for damages for breach of promise -of marriage, and the plaintiff below recovered a verdict and judgment.

Error is assigned upon the admission of evidence, for the plaintiff below, of conversations between the parties after the marriage of the defendant below to another woman; of his admission to a third party concerning the mutual affection of the parties; and of the declaration of the plaintiff below to a third party, from whom she was in the habit of buying meats for the restaurant where she was employed, that she was about to leave said employment and get married. We have scrutinized each of these assignments separately without finding error.

The charge is excepted to for what the court said about implied contract and punitive damages; but upon examination we discern no error in the instructions given or refused.

The judgment is affirmed.