author: WINCH, J.

text:
    CARRIERS — EVIDENCE.
    [Cuyahoga (8th) Circuit Court,
    December 14, 1903.]
    Hale, Marvin and Winch, JJ.
    Baltimore & Ohio Ry. Co. v. George C. Hubbard et al.
    1. Contract of Carrier Arbitrarily Limiting Liability for Negligence Regardless of Value, Invalid.
    A special contract of through carriage entered into between the owner of a race horse and a common carrier whereby the former agrees, in consideration of a reduced rate given by the latter, that the liability of the carrier for any loss or damage arising from its negligence shall be limited to an an\ount arbitrarily fixed without reference to, and far below, the real value of the horse, is against public policy and of no effect, notwithstanding the owner had the option to ship at the regular rate and thereby secure the full liability of the carrier.
    2. Requiring Claim for Damages to be Made Within Five Days Unreasonable.
    A provision contained in a special contract for carrying a race horse that no claim for damages shall be allowed, paid or sued for unless a Verified claim therefor be made in writing and delivered to the agent of the carrier upon whose line the loss or injury occurs within five days after the removal of the horse from the car, is unreasonable, and will not be enforced when it appears from the evidence that the owner could not have complied therewith within such period.
    3. Evidence of Pedigree and Speed Record of Blood Relation Competent.
    Evidence of the pedigree of a race horse, and the' record for speed of his blood relation, is competent for the purpose of showing the value of the horse in an action to recover damages occasioned by the negligence of the carrier in transporting him.
    4j Evidence Competent Under Petition Containing Causes of Action Ex Con-tractu and Ex Delicto.
    Where the petition sets up two causes of action growing out of the same transaction, one ex contractu and the other ex delicto, and no motion is made to compel an election, but the record shows that the plaintiff completely abandoned his action ex contractu, the action may be properly considered as one ex delicto, although the contract is pleaded more at length in such cause of action than is necessary. Hence, an- objection to the introduction of any testimony under such petition on the ground that it does not aver that plaintiff has performed all the conditions of said contract by him to be performed, which allegation may be necessary under a cause of action ex contractu, is properly overruled.
    Eeror to the court of common pleas.
    Kline, Carr, Tolies & Goff, for plaintiff in error.
    E. J. Pinney, Hoyt, Munsell & Hall, for defendants in error.
    Carrier liable for full'amount when liability limited below real value. United States Express Co. v. Backman, 28"Ohio St.'144; Union Express Co. v. Graham, 26 Ohio St. 595; Pittsburg, C. C. & St. L. Ry. Co. v. Sheppard, 56 Ohio St. 68 [46 N. E. Rep. 61]; Pennsylvania Co. v. Yoder, 25 O. C. C. 32, 33; Stevenson v. Weils, Fargo & Co. 1 O. S. C. D. 312 (33 Bull. 247).
   WINCH, J.

The defendants in error brought their action in the common pleas court against the railroad company, alleging that on September 8, 1900, they were the owners of a race horse known as Fred S., worth $1,200, and on said day delivered the same at Warren, Ohio, to the P. & W. Ry. Co. to be conveyed over its road and the,road of the B. & O. Ry. Co. and delivered safely at Wooster, for the freight charge of $22, which they prepaid; that the horse was carried by the P. & W. Ry. Co. in car No. 38,388 of the B. & O. Ry. Co. to Akron and there delivered to the latter company, which received it, and in consideration of its part of the freight money, assumed and agreed to complete the contract originally made with the P. & W. Ry. Co. and deliver the horse safely at its destination.

The petition further alleges that the railroad company did not complete the performance of its contract and did not safely convey and deliver said horse as it had undertaken to do, but, on the contrary, conducted itself negligently and carelessly in the transportation thereof; then follow two allegations of the petition, which read as follows:

“6. That when said car No. 38,388, in which said horse was 'being transported, arrived at Lodi, said defendant, by its agents' and servants, carelessly and negligently caused, permitted and allowed an engine and cars to come in collision with said car No. 38,388 with great force and violence, therein and thereby throwing said horse, Fred S., down to and upon the floor of said car, and then and thereby causing and inflicting such injuries upon said horse as to cause his death within a short time thereafter, to the damage to the plaintiffs in the sum of $1,200.
“7. The plaintiffs further say that said defendant neglected its duty and did not take proper care of said horse, nor did it safely carry and deliver the same at Wooster aforesaid, but wholly failed and neglected to carry and deliver the same to said Frazier at the city of Wooster aforesaid, by reason of which the plaintiffs have sustained damages in the sum of $1,200.”

Then follows a general prayer for judgment in the sum of $1,200, “their damages so sustained as aforesaid.”

The railroad company answered, admitting the shipping of the horse, payment of freight charge, the receipt of the horse by the defendant company at Akron and its transportation to 'Lodi, where it claims it was • removed from the car by the. plaintiffs, they claiming that it was sick, and denying all else.

As a further defense the railroad company alleges that the horse was shipped pursuant to a special written contract whereby thg plaintiffs agreed, in consideration of a lower rate of freight than the usual and official published tariff rate for the carriage of live stock, that the railroad company should not be liable beyond an agreed valuation of $100 for the horse, whether loss or damage should occur through the negligence of the P. & W. Ry. Co. or any connecting carrier, or their employes, or otherwise, and that no claim for damages should be allowed or paid, or sued for by said plaintiffs, unless a'claim therefor should be made in writing, duly verified and' delivered to the agent of the. carrier upon whose line the loss or injury occurred within five days after said horse should be removed from the car.

The railroad company further alleges that the plaintiffs had the option of-shipping the horse at a higher rate of freight and thereby receiving the security of the liability of the railroad company as a common carrier, but that they voluntarily decided to ship at said reduced rate of freight and upon the conditions of said special contract, and that the condition as to five days’ notice had not been complied with.

A reply being filed, the case was tried to a jury and resulted in a verdict for $1,200 for the plaintiffs. Motion for a new trial was overruled, bill of exceptions taken and filed in this court with petition in error alleging numerous errors, which may be classified as affecting pleadings, rulings on evidence and the charge of the court.

It is claimed by plaintiff in error that the petition sets forth an action on a contract for safe carriage, and therefore should have contained an allegation that plaintiffs below had themselves performed all of the conditions of said contract by them to be performed. This question was raised by objection to the introduction of any testimony under the petition, and was overruled.

The petition appears, however, to set up two causes of action— one on contract and the other in tort. There was no motion made to compel an election, but' the record shows that the plaintiffs below completely abandoned all claims arising out of any alleged breach of their contract and relied solely upon the tort complained of. We think the tort is,fully set up in the petition, although the contract may be pleaded more at length than it should be in an action wholly founded on a tort.

The charge of the court and many rulings on evidence are objected to on the ground that the court erred in holding, as it did, that the lim-. itation of liability and provision for five days’ notice in the shipping contract were not binding upon the owners and shippers of the horse.

We think that the law of Ohio was correctly applied to this case by the trial court.

“It is the settled law of this state that a common carrier cannot, by special agreement, relieve himself from responsibility for his own negligence, nor limit his liability for losses resulting therefrom.”

Pittsburg, C. C. & St. L. Ry. Co. v. Sheppard, 56 Ohio St. 68 [46 N. E. Rep. 61], and cases there cited. This case was decided February 2, ÍS!)1?, and was a race horse case. In November, 189’?', Judge Summers of the circuit court, second circuit, in the case of Cleveland, C. C. & St. L. Ry. Co. v. Simon, 8 Circ. Dec. 540, 545 (15 R. 123), distinguished the latter cáse from the former on the wording of the contracts. ITe says:

“In Pittsburg, C. C. & St. L. Ry. Co. v. Sheppard, supra, an examination of the record discloses that there was no agreed valuation of the horses, but the contract provided, ‘that in consideration of being released from liability, as hereinafter specified, the said company agrees tO' transport one carload of horses,’ at the reduced rates.”

■Judge Summers held:

“A contract of carriage, fairly made and signed by a shipper, agreeing upon the valuation of the property carried, with the fate of freight based on the condition that the carrier assumes liability only to the extent of the agreed valuation, will, even in case of loss through negligence, be upheld, and the shipper limited to the agreed valuation.”

Judge Parker of the sixth circuit, in another horse'case (Pennsylvania Co. v. Yoder, 25 O. C. C. 32), held otherwise, saying that Cleveland, C. C. &. St. L. Ry. Co. v. Simon, supra, did not appear to be in harmony with the decisions of the Supreme Court, and we are inclined to the opinion of Judge Parker.

If an arbitrary valuation of one hundred dollars may be agreed upon, without reference to the true value of the horse, why not an arbitrary valuation of one dollar, or any nominal valuation? Of .course a mere nominal valuation would not avoid the rule laid down in Pittsburgh, C. C. & St. L. Ry. Co. v. Sheppard, supra, and a partial exemption from liability seems forbidden by the rule laid down in United States Express Co. v. Backman, 28 Ohio St. 144, 155.

These views are perhaps sustained by Judge Spear in the case of Toledo & O. C. Ry. Co. v. Bowler, 63 Ohio St. 274 [58 N. E. Rep. 813], who says, on page 283, speaking of a carrier of freight:

“It has often, perhaps generally, been held that the carrier may not stipulate against his own negligence for a liability less than the real value of the article carried.”

This was said November 13, 1900, three years after the decision of Cleveland, C. C. & St. L. Ry. Co. v. Simon, supra.

The provision as to five days’ notice is another limitation on, the liability of a common carrier which, for like reasons, is yoid, being against public policy. In this case the record shows that the five day limitation was too .short and altogether unreasonable.

The owners of the horse could hardly have complied with it, as shown by the evidence in the case. Stevenson v. Wells, Fargo & Co. 1 O. S. C. D. 312 (33 Bull. 247), decided by the Supreme Court without report.

■ We find no prejudicial errors in the rulings of the trial court on the presentation of evidence. As. to the questions asked regarding the speed and pedigree of the horse the matter was ruled upon in the case of Pittsburg, C. C. & St. L. Ry. Co. v. Sheppard, supra, where it was held:

“In an action to recover the value of a trotting horse, evidence of his pedigree, and that some of his blood relations have a record for speed, is competent as affecting his value.”

The judgment is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    ATTACHMENT — EXEMPTIONS.
    [Cuyahoga (8th) Circuit Court,
    December 24, 1903.]
    Hale, Marvin and Winch, JJ.
    K. B. COMPANY v. James Batie.
    1. Ten Per Cent, of Debtor's Personal Earnings not Exempt.
    Ten per cent, of a debtor’s personal earnings are not exempt from execution and attachment where the claim, debt or demand for the payment of which it is sought to subject them is for necessaries furnished to the debtor, his wife or family, since April 26, 1898. Section 5430 Rev. Stat.
    2. What Affidavit Should Contain in Action for Necessaries.
    In an action for necessaries the plaintiff may have an order of attachment when the affidavit therefor sets forth merely the nature of plaintiff’s claim, that it is just, the amount affiant believes the plaintiff ought to recover, that the property sought to be attached is not exempt from execution, and, if personal earnings are to be attached, that the claim on'which judgment is sought is for necessaries,_ without mentioning any of the nine specifications in Sec. 6489 Rev. Stat., the existence of one or more of which must be stated when the action is not for necessaries.
    3. Failure to Make Demand no Ground for Discharging Attachment.
    An attachment issued in an action for necessaries should not be discharged because the plaintiff has failed to make a demand in writing for the excess over and above ninety per cent, of the personal earnings of the debtor. Section 6501 Rev. Stat.
    4. Personal Service of Demand.
    The demand in writing for the excess over and above ninety per cent, of the personal earnings of the debtor, provided for in Sec. 6501 Rev. Stat., must be served upon the debtor personally.
    b. No Presumption Against Partnership of Noncompliance with Provision Requiring Certificate Filed.
    Failure to comply with Sec. 3170-1 Rev. Stat., et seq., requiring partnerships to file certificates of the names and residences of its members as prerequisite to the bringing of actions, being established by evidence, is a defense to an action brought by a partnership, but no presumption of noncompliance with such statute will arise against such partnership, the statute being penal in its nature, and as such, requiring strict construction.
    ERROR to the court of common pleas.
    Hart & Canfield, for plaintiff in error.
    A. A. Marsh, for defendant in error.
   WINCH, J.

October 22, 1903, plaintiff brought an action against defendant before a justice of the peace to recover “the sum of $20.25 for necessaries, ■to wit, clothes sold and delivered,” and with' his bill of particulars filed an affidavit in attachment in which it was alleged:

“That said defendant is justly indebted to said plaintiff in the sum of $20.25, for necessaries, to wit, clothes sold and delivered; that said claim is just and lawful; that he believes said plaintiff ought to recover thereon the amount of $20.25, with interest as hereinbefore stated, and that the property about to be attached is not exempt from execution; that said property is the personal earnings of the defendant for services rendered by the defendant, and only ten per cent, of said earnings and four dollars is sought to be attached; that the claim for which judgment is sought is for necessaries contracted since April 26, 1898; that the said defendant is the head or support of a family, and has not in good faith, the maintenance and support of a widowed mother wholly dependent upon him. for support.”

Order of attachment was issued and served upon the employer of the defendant as garnishee, on October 28, 1903.

Thereafter mption was made by the defendant before the justice to discharge the attachment, and said motion being overruled, the matter was appealed to the common pleas court, heard by said court upon the original papers and affidavits, and the attachment was discharged.

Petition in error has been filed in this court by the plaintiff below, together with a bill of exceptions setting forth all the testimony given in the court below, from which it appears thatfthe merits of plaintiff’s claim were not contested, but the defendant based his right to a dissolution of the attachment upon the following grounds:

1. That plaintiff being a partnership, ’transacting business in this state under a fictitious name, could not maintain the action until it had complied with the requirements of Secs. 3170-1 to 3170-7 Rev. Stat., and had filed a certificate with the clerk of the court of common pleas, as therein prescribed.

2. That the property sought to be attached was exempt.

3. That there was no proof that plaintiff had made a demand in writing upon his debtor for the excess of his personal earnings, over and above ninety per cent, thereof, as required by Sec. 6501 Rev. Stat.

4. That if such demand was made, it was more than thirty days before the garnishee was served with process, and therefore would not bind any money in his hands coming due to the debtor after said thirty days.

The first objection may be considered by itself, and the second, third and fourth objections together. As to the first objection, it does not appear whether plaintiff had filed the certificate of partnership as required by Secs. 3170-1 to 3170-7 Rev. Stat.; there was no testimony on the subject. Section 3170-6 Rev. Stat. provides that if the partners shall at any time comply «with the provisions of the act, then such partnership shall have the- right to commence an action, or, if such action has been commenced, to maintain it. We incline to the construction of this statute which holds that failure to comply with it is a defense. Hartzell v. Warren, 5 Circ. Dec. 183 (11 R. 269).

The defense was not proved, and there was no presumption against the plaintiff that it had not complied with the law. The statute is penal in its nature, and should be strictly construed.

The second, third and fourth reasons alleged by the defendant require an examination of the recent amendments of the exemption and attachment laws found in 93 O. L. 321 and 94 O. L. 376.

These recent enactments make it plain that ten per cent, of a debtor’s personal earnings are no longer exempt from execution and attachment’ where the claim, debt or demand for the payment of which it is sought to subject them is for necessaries furnished to the debtor, his wife or family since April 26, 1898, the date of the passage of the first of said acts.

It also appears that in an action. for necessaries, the plaintiff may have an order of attachment when the affidavit therefor sets forth merely the nature of the plaintiff’s claim, that it is just, the amount affiant believes the plaintiff ought to recover, that the property sought to be attached is not exempt from execution, and, if personal earnings are to be attached, that the claim on which judgment is sought is for necessaries, ^without mentioning any of the nine particulars, the existence of one oi more of which must be stated when the action is not for necessaries. Section 6489 Rev. Stat. The affidavit in this case complied with this section of the statutes. The claim was for necessaries, and the property sought to be attached was the excess of the personal earnings of the debtor over and above the ninety per cent, thereof which was exempt by law,

But, it is claimed, by virtue of Sec. 6501 Rev. Stat. the affidavit should also contain an allegation that the plaintiff had made a demand in writing upon his debtor for the said excess of his personal earnings, or, in any event, that the attachment should be discharged upon a showing that such demand had not been made. These claims are based upon the following proviso in said section:

- “The person bringing an action for necessaries shall first make a demand in writing for the excess over and above ninety per centum of the personal earnings of the debtor.”

To give such construction to this clause as is claimed by counsel for defendant in error would be to hold that no action for necessaries, even without attachment proceedings, could be brought without such demand. Such was not t'he intention of the legislature.

Reading Sec. 6501 Rev. Stat. with reference to-the question here raised and stripping it of its verbiage and other matters not pertinent to this case, it provides as follows :

A garnishee may pay the money owing by him to the defendant to the constable and he shall be discharged from liability to the defendant for any money so paid, and not be subjected to costs but allowed his own costs, provided, that he may pay to such debtor riinety per cent, of his personal earnings, less the sum of four dollars for costs, and be released from any liability to such creditor; provided further, that the person bringing an action for necessities shall first make a demand in writing for the excess over said ninety per Gent, and no cost or expense shall be chargeable to the defendant debtor if he tender payment in money or a duly accepted order for the said excess of his personal earnings.

We think .that the purpose of this enactment was to enable a debtor for necessaries to save himself from costs accruing as the result of garnishment of ten per cent, of his personal earnings, by tendering payment in money or a duly accepted order for said amount. It follows that neglect to make such written demand would put the costs upon the plaintiff, or upon the garnishee^ if he should pay in the absence of such demand, for the statute reads: “No costs or expense shall be chargeable to the defendant debtor in such action if he tender, etc.,” and the authority with reference to the payment to the constable or withholding from the debtor of four dollars .over and above ten per cent, of his wages is upon the proviso that said written demand be made. That such is the construction to be put upon the statute is gathered] not only from a reading of it, as it now appears, but by a consideration of what must have been the intention of the legislature in enacting the amendment of April 16, 1900, as shown by a comparison of the law as amended with the law as it was under the amendment of April 26, 1898.

It does not follow, however, that an attachment should be discharged because either the affidavit in attachment or the proof does not show a demand in writing for the excess over and above ninety per centum of the personal earnings of the debtor, and we so hold.

An affidavit, part of the records in this case, shows that plaintiff on September 21, 1903, left a written demand for “the excess over and above ninety per centum of your, personal earnings for the week ending September 21, 1903, or in lieu thereof an accepted order on your employer” with the wife of the defendant at his residence and that she subsequently told him that she had given it to her husband. The husband’s affidavit denies receiving the demand. It is not necessary for a determination of the case on error in this court to pass upon the sufficiency and effect of said demand or its service,' but as the original action still stands undis-posed of before the justice of the peace, it may be proper to say that there was in this case a failure to prove service of the demand. The statute does not specify how the demand should be served, and it has been repeatedly held that:

“Where a statute requires the 'giving of notice and there is nothing in the context of the law or in the circumstances of the case to show that any other notice was intended, personal notice must always be given.” 21 Am. & Eng. Enc. Law (2 ed.) 583.

For error in granting the motion to discharge the attachment the judgment of the court of common pleas is reversed.


author: MARVIN, J.

text:
    MUNICIPAL CORPORATIONS — STREET RAILWAYS.
    [Cuyahoga (8th) Circuit Court,
    November 30, 1903.]
    Hale, Marvin and Winch, JJ.
    John Lockyear v. William Covert.
    Ordinance Making it Unlawful to Stop Street Cars, Valid.
    A municipal ordinance making it unlawful for any person in charge of an electric car running upon any street or avenue within the limits of the municipality to fail or refuse to stop such car at any regular stopping place when signaled so to do by persons desiring to board, or alight from, such car, is valid. The power to enact such an ordinance is granted by Sec. 7, Par. 9 of the new municipal code (96 O. L. 23; Sec. 1536-100 Rev. Stat.). .
    Habeas Corpus.
    Squire, Sanders & Dempsey; Ford, Snyder, Henry & McGraw, for plaintiff.
    Kaiser & Cannon, for defendant.
   MARVIN, J.

The plaintiff in this case files his petition, setting out that he is now in the custody of the defendant as a prisoner; that the defendant holds him under a warrant of arrest issued by the mayor of the village of Euclid.

The offense charged against the plaintiff in the affidavit upon which the warrant was issued is a violation of section two of an ordinance of said village passed September 28, 1903, which section reads:

“Section 2. It shall be unlawful for any person or persons in charge of any electric street car or cars running upon any street or avenue within the limits of said village of Euclid to fail or refuse to stop such car or cars at any regular stopping place or places when signaled so to do by persons desiring to board said car or cars or to alight therefrom.”

The facts alleged in the affidavit are:

“That on or about the ninth day of Novembei-, A. D,. 1903, at the village of Euclid, in said county and state (Cuyahoga county, Ohio), one John Lockyear in the capacity of conductor, was in charge of the electric car then running within the limits of said village upon one of the public streets thereof, to wit, Euclid avenue so called; that at said time and place said John Lockyear was signaled to stop said car at a regular stopping place in said village, to wit, stop No. 10, by said S. C. White, who desired to board said car, and that he, said Lockyear, then and there failed and refused to stop said car when signaled so to do by said White.”

The allegation of the petition is, that the section of the ordinance hereinbefore quoted is absolutely void for the want of authority on the part of said village council to pass the same.

When the case was presented to us in open court, it was stated by counsel for the plaintiff that the only purpose for the bringing of the action was to have an adjudication by this court upon the question of the authority of the council to pass this second section of the ordinance. It was there stated that no question was made as to the formalities nee-" essary to make the ordinance valid nor as to the sufficiency of the affidavit or warrant.

Somewhat to our surprise’ a brief was filed’ by the plaintiff since the hearing of the case in -open court, discussing other questions, but we regard them as wholly immaterial in determining the case now before us. We think a determination of the one question, which it is said was the only one sought to be made, is a complete determination of the rights of the plaintiff in this proceeding. The only question necessary to consider in the case is whether, under the statutes of the state, the council had authority to pass section two of the ordinance under which the plaintiff was arrested.

The act, 96 O. L. 21, Sec. 7, Par. 9, which is the section conferring powers upon municipalities, provides that the council shall have power:

“To regulate the use of carts, drays, wagons, hackney coaches, omfii-buses, automobiles, and every description of carriages kept for hire or livery-stable purposes; and to license and regulate the use of the streets by persons who use vehicles, or solicit or transact business thereon; to prevent and punish fast driving or riding of animals, or fast driving or propelling of vehicles through the public highways; to regulate the transportation of articles through such highways and to prevent injury to such highways from overloaded vehicles, and to regulate the speed of interurban, traction and street railway cars within the corporation.”

It was conceded upon the hearing but that for this last clause, “to regulate the speed of interurban, traction and street railway cars within the corporation” the council would have 'authority, under the earlier part of the section, to pass the ordinance in question. Ravenna v. Pennsylvania Co. 45 Ohio St. 118 [12 N. E. Rep. 445], But it is said that this last clause clearly indicates that the authority is not given because the legislature, in express terms by this clause, provides that the council may regulate the speed of these cars, and that this clause ,is entirely surplusage, if, by the earlier part of the section, the authority to-require cars to stop at any fixed place or places is given. This contention is not sound. But for this last clause it might very well be claimed that the council would have no authority to fix a maximum rate of speed for cars passing through the municipality upon railroads constructed upon their own private right of way, and for the purpose of giving such authority this clause may well have been added.

We hold that the municipality was authorized by the statute,herein-before quoted to pass the section of the ordinance under consideration. The petition of the plaintiff is, therefore, dismissed, and he is remanded to the custody of the defendant.


text:
    COURTS — CONSTITUTIONAL LAW — CRIMINAL LAW.
    [Cuyahoga (8th) Circuit Court,
    January 8, 1904.]
    Hale, Marvin and Winch, JJ.
    Louis Kubach v. State.
    1. Jurisdiction of Mayor of Village.
    Under Sec. 1824 Rev. Stat., mayors of villages have final jurisdiction in misdemeanor cases in which, under the constitution, there is no right to trial by jury, and such jurisdiction extends throughout the county.
    2. Section 1824 Rev. Stat., Constitutional. •
    Section 1824 Rev. Stat., is not in conflict with Sec. 10, Art. 4 of the constitution.
    3. Second Offense Must be Charged as-Such.
    In order that a person charged in one affidavit with selling liquor contrary to the statute on more than one occasion may be entitled to a jury, or punished as for a second offense, the affidavit must show a former conviction and that a particular sale is charged as a second or repeated offense. '
    4. Aggregate Penalties may Exceed Limit of One.
    Several charges of distinct sales of liquor contrary to the statute may be made in one affidavit and a fine assessed for each offense, even though the aggregate of such fines exceeds the limit of punishment for one offense.
    5. Information not Required.
    Misdemeanor cases may be instituted and tried before justices of the peace and mayors, upon the filing of an affidavit, and it is not necessary that an information be lodged with the magistrate.
    Hart, Canfield & Croke, and James M. Williams, for plaintiffs in error. .

      Albert V. Taylor, for defendant in error.
   WINCH, J.

There are eight cases before this court, numbered from 3134 to 3141 inclusive, on error to the,court of common pleas.

In the cases of Kubach v. State, Nos. 3134, 3135, and 3136, and in the cases of Gittings v. State, Nos. 3139, 3140 and 3141, the plaintiffs in error were convicted before Reuben Osborn, mayor of the village of Bay, in this county, of violations of the Sunday closing law, being Sec. 4364-20 Rev. Stat.

In the cases of Gittings v. State, Nos. 3137 and 3138, plaintiff in error was convicted before said mayor of suffering gaming, contrary to the provisions of Sec. 6933 Rev. Stat.

The defendants thereupon prosecuted error to the court of common pleas, where the convictions were affirmed, and error is prosecuted in this court to reverse the judgment of the common pleas affirming the judgments of the mayor.

In the cases for the violations of Sec. 4364-20 Rev. Stat. each of the affidavits contained several counts alleging distinct sales of intoxicating, liquor, and also charging that the defendant, on the day in question, kept his place open, contrary to the provisions of the statute.

In case No. 3135 there are four counts, three alleging separate sales* of' intoxicating liquor to the persons named, on July 26, 1903, and the fourth count alleging that the place was kept open on that day.

. In case No. 3134 there are three counts, two alleging sales to .different persons, on July 19, and the third count alleging the keeping open on that date.

In case No. 3136 the affidavit contained three counts charging two sales on August 2, and the keeping open of the place on that date.

In. case No. 3139 one sale is alleged, and the keeping open of the place on August 2.

In case No. 3140 there are three counts, alleging two sales and the keeping open of the place on July 19.

In case No. 3141 there are three counts, alleging two sales ajnd the keeping open of the place on July 26.

In the cases of Kubach v. State he was found guilty of all the sales alleged, but not guilty on each count of keeping open, and in the cases of Gittings v. State, he was found guilty of every count charged against him. In each case the mayor imposed a fine on each count on which the defendants were found guilty, so that in case No. 3135, above referred to, the ’defendant was fined $150, being $50 each on the first, second and third counts of the affidavit.

In the case of Gittings v. State, No. 3137, he was found guilty of suffering gaming by means of a gaming device, to wit, a slot machine, on July 18, contrary to the statute referred to, and in case No. 3138, he was found guilty of a like offense committed on July 19. In each of these cases he was fined $50 and costs.

On behalf of the plaintiffs in error, there are several objections made to the proceedings below. The jurisdiction of the mayor is challenged for two reasons: First, it is said that the mayor of the village of Bay has no jurisdiction to try any cases for the violation of the state law for offenses committed outside of the village of Bay; and second, that on the face of the record which is before this court, the defendants are charged with second and subsequent offenses, and are, therefore, entitled to a trial by jury, which was denied them. The questions were raised before the mayor in various ways, so that they are properly before this court.

On the first branch of this question, we find that by Sec. 1824 Rev. Stat. the mayor of the village has final jurisdiction in misdemeanor cases in which, under the constitution, there is no right to a trial by jury, and that this jurisdiction extends throughout the county. Such was the holding of this court in State, ex rel. Carey v. Metzger, as mayor of the village of Bedford, an unreported case which was before it at the last term of court. The relator in that case sought a writ of prohibition to prohibit Metzger, as mayor of the village of Bedford, from proceeding to try the relator for a violation of the Beal local option law, alleged to have "been committed in the village of Lakewood in this county. In that case this court held that Sec. 1824 Rev. Stat. confers jurisdiction upon a village mayor to try misdemeanor cases in which the defendant is not entitled to a jury trial, arising anywhere in the county. The writ asked for in that case was denied, and the petition dismissed. This court also made the same holding; in Joseph Roth v. Metzger et al., unreported, where Roth brought suit against Metzger for damages for false imprisonment, in that Metzger, as mayor oí Bedford, tried Roth at Bedford for violating Sec. 4364-20 Rev. Stat. at Warrensville. It was claimed the mayor had no jurisdiction outside his village. This court held the jurisdiction under Sec. 1824 Rev. Stat. extends throughout the county, and affirmed the ruling of the coitrt of common pleas in sustaining a demurrer to the petition.. We follow those holdings in this case, and hold that the statute confers-jurisdiction on the mayor throughout the county.

It was further urged in argument that the grant of jurisdiction to a village mayor throughout the county is repugnant to the constitution, and that jurisdiction could be lawfully conferred upon the mayor only for the village in which he had been elected. In the argument in this case, no particular part of the constitution was referred to, which it is claimed this statute violates, but in the case of State, ex rel. Carey v. Metzger, supra, it was claimed that Sec. 1824 Rev. Stat. was in conflict with the provisions of Sec. 10, Art. 4 of the constitution. In that case, this court held, that no such conflict existed, and that that section of the constitution in no way prevents the grant of such power. We are still of that opinion, and no suggestion having been made that Sec. 1824 Rev. Stat. violates any other provision of the constitution, we hold that Sec. 1824 Rev. Stat. is a constitutional and valid enactment.

It is urged as an additional reason why the mayor is without jurisdiction in these cases that on the face of the record the defendant is being prosecuted for a second or subsequent offense by reason of the fact that the affidavit, as in case No. 3135, contains four separate charges of distinct offenses. We are cited to a recent decision of our Supreme Court which seems to us conclusive on this point. We refer to the case of State v. Smith, 69 Ohio St. 196. In that case the second paragraph of the syllabus reads as follows:

“Unless such affidavit charges the particular sale to be the second ox-subsequent offense, imprisonment cannot be imposed as a part of the punishment, and a justice of the peace with whom the affidavit is filed has jurisdiction to try the accused without the intervention of a jury.”

The case under consideration in State v. Smith, supra, was for a violation of the pure food law, and, like the statute under consideration here, authorized the imposition of imprisonment as a penalty for a second or subsequent violation of the statute, but did not authorize the imposition of imprisonment for a first offense.

On the authority of that case and the following cases, Larney v. Cleveland, 34 Ohio St. 599, and Inwood v. State, 42 Ohio St. 186, we hold that as none of the affidavits in these cases contained any allegation that the offense in question was a second or repeated offense, the defendants were properly pi-osecuted on all the counts as for the first offense.

We also hold that the affidavit must allege not only a previous offense,, but also a former conviction of that offense, in order to justify the increased punishment. To prove a second offense the state must prove a first offense, and the proof of one must be as clear and certain as the proof of the other. Any proof of such first offense that falls short of the proof xxecessary for a conviction therefor, would be inadequate. Such being the case, if the accused is charged with and being tried for a second offense only, a first offense should be proved by a conviction therefor; otherwise the accused would be put upon his defense of two charges when being tried upon but one. In none of the cases before us was there any allegation of any previous conviction, nor was there any. allegation that the defendants were being prosecuted otherwise than for the first offense, and we therefore hold that the court had no authority on any count of any one of the affidavits under consideration, to punish the defendants otherwise than as for a first offense. 'Imprisonment, therefore, could not be a part of the punishment in any of these cases, and the mayor properly tried the defendants without the intervention of a jury.

Objection is also made to what ma)' be termed the cumulative penalty in these cases, and attention is called to the case in which the mayor imposed a fine of $150, being a fine of $50 each on three separate counts for a violation of the Sunday law. The highest penalty that can be inflicted for a single offense under this statute, when the defendant is prosecuted for a first offense, is $100, and it is claimed that there is error in this action of the mayor.

Bishop, New Cr. Proced. Sec. 452, contains the following:

“By the practice everywhere, distinct misdemeanors may be joined in separate counts of one indictment, to be followed by one trial for all, and by one conviction for each, the same as though all were charged in separate indictments, subject to practical limitations from judicial discretion. So in liquor selling, when made by statute a misdemeanor with a fine for each sale, several counts for distinct sales may be combined in one indictment and the accumulated penalty imposed.”

This clearly justifies the joinder of several counts for distinct offenses in one affidavit in misdemeanor cases where imprisonment is not part of thé punishment, to be followed by one trial on all of the charges and a fine upon each, with one sentence for the whole amount of the fine assessed upon the several counts in one affidavit, even though the accumulated penalty exceeds the maximum amount authorized to be assessed upon a single violation of the statute. .Such is the general holding of the authorities upon this proposition, and the courts of this state are in accord with such holding. We refer to the following cases: Bailey v. State, 4 Ohio St. 440, 441; Boose v. State, 10 Ohio St. 575, 576; Eldredge v. State, 37 Ohio St. 191.

” It is urged on behalf of the plaintiff in error, that in misdemeanor cases prosecuted on behalf of the state, where an indictment is not required, it is necessary that the filing of the affidavit be followed by the filing of an information setting forth the offense • in the manner usual in informations in criminal cases.

We are not cited to any statute of-this state which requires that an information be filed in the mayor’s court, nor are we cited to any holding in this state that such information is necessary. It is true the courts of. this state have held that in cases where an information is proper, the information must be supported by an affidavit, and will quash the information unless an affidavit has been filed. Gates v. State, 3 Ohio St. 293; Eichenlaub v. State, 36 Ohio St. 140.

But no court has ever held, to our knowledge, that an information is essential to support an affidavit in cases of this character. The long established practice before justices of the peace and mayors in misdemeanor cases in this state has been to proceed upon affidavit and not upon information. i

Sections 7131 and 7133 Rev. Stat. authorize certain magistrates, including mayors of villages, to issue warrants for the arrest of any person charged with an offense, upon the filing of an affidavit with such magistrate. There is no requirement in-this body of the law, nor elsewhere-that we have been able to discover, that with such affidavit an information shall be filed. After the arrest of the defendant, the provisions found in the municipal code confer jurisdiction upon the mayor to try the defendant. In this case that jurisdiction is found in Sec. 1824 Rev.;Stat.

The foregoing disposes of all objections urged by the plaintiffs in error against the validity of the judgments below, and, finding no errors, the judgments of the court of common pleas affirming the judgments of the mayor of the village of Bay in the eight cases before us, are affirmed.


author: laubie; j.

text:
    NEGLIGENCE — TRESPASS—EASEMENTS—TRIAL.
    [Summit (8th) Circuit Court,
    July 28, 1903.]
    Laubie, Burrows and Winch, JJ.
    (Judges Laubie and Burrows of the Seventh Circuit sitting in place of Judges Hale and Marvin of the Eighth Circuit.)
    Buchtel College v. William T. Martin.
    1. Property Owner not Liable for Dangerous Condition of Pathway Used by Public Without Invitation.
    The owner of premises, whose business -requires him to maintain a pathway across the same leading from one street to -another, and who permits the public, without objection, to use the same for their own convenience and purposes in no way connected with him or his business, cannot be said to invite such a use, and no obligation rests upon him to keep the same in a suitable condition therefor. His only duty therein is not to make changes, or create conditions, of a dangerous character in or hear the pathway without exercising ordinary care to give notice thereof to those so accustomed to using the. same by the erection of proper barriers or otherwise.
    2. What is Sufficient Notice of Dangerous Conditions.
    The fact that the principal college building had been destroyed by fire, and in order to facilitate the rebuilding thereof, ^a portion of such walk was torn up, and piles of brick and sand placed thereon, and empty barrels and a large wooden mortar box are in close proximity, gives sufficient notice of danger, and that the owner forbids the use of the walk. Hence, one who thereafter attempts to use it, and climbs over a pile of sand on such walk hnd falls into an excavation on the other side of the sand, and is injured, cannot recover from the owner for the injury.
    3. Charge Improper When Evidence Withdrawn From Jury.
    An instruction that a verdict may be rendered in favor of plaintiff for expenses incurred by reason of his injuries is improper, where the evidence on the point has been withdrawn by consent from the jury.
    Error to court of common pleas.
    Tibbals & Frank, for plaintiff.
    Grant & Seiber, for defendant.
   laubie; j.

The verdict in this case was manifestly against the weight of the evidence, and the plaintiff was not entitled to recover.

The condition of the college grounds on the night in question was sufficient notice to the plaintiff of danger, and to stop his further progress in .the direction he was going. It was known to him that the defendant was rebuilding its college and rearrangingbts college grounds, and directly across the stone walk he was following, the defendant had placed a large pile of sand at the edge of the excavation, which he was obliged to mount and pass before he could fall into such excavation. Immediately to the right of this sand pile was a large wooden mortar box, and piles of bricks were at the left, and empty barrels were around in close proximity.

There was light enough for him to see these objects, and they were sufficient notice to him that such walk was designedly closed, and that he must not proceed further along the walk in the direction he was going. If there was any obscuration of the moon’s light by clouds, he had ample notice to stop when he struck the sand pile.

The stone walk was a narrow one — less than three feet wide, and that this sand pile was directly on it was beyond question. He was the only witness who testified that it was not on the walk, and he had to do 'that to avoid admitting his own negligence. The next morning there were marks on this pile that showed that some person had recently walked over it.

In addition to all this, he had sufficient notice that the defendant forbade the use of its grounds for the purpose he was using them, in that it had destroyed the continuity of the walk from street to street by taking up the flagging for a considerable distance of the way he traveled and placing piles of bricks thereon; and this also he found it necessary to deny, although he was finally compelled to admit that he knew part of the flagging had been removed.

This action of the defendant was set up in its answer as a defense.

The charge of the court was misleading and, in part, erroneous.

The accident happened on a Sunday evening. On Saturday noon when the men stopped working, the defendant caused a barrier to be put across the walk just north of the sand pile by placing a barrel on each side of the walk and laying thereon across the walk some light boards to bar the way; and this barrier was there on Sunday morning; whether it was there on Sunday evening was uncertain, and no one went there on that evening on the part of the defendant to see that it was still there. Whether this was sufficient to exonerate the defendant under the circumstances was not noticed, or called to the attention of the jury, in the submission of the case, but there was no request made by the defendant to instruct the jury upon this point.

The court did, however, we think, mislead the jury in stating the defense set up and relied upon by the defendant.

The defendant denied that there was a path maintained by it, or existing, from street to street, across its grounds at the time in question; but the court, in its statement of the defense, and throughout its whole charge, stated in effect and assumed that the defendant admitted that the path was there and maintained as claimed by the plaintiff; nor was this corrected by what the court said to the jury after the full and’formal charge had been completed. Nowhere in it was this point specially na"med or referred to, or the effect-that might or should be given to the fact that the defendant had destroyed the continuity of the old path, as heretofore referred to. And, in this connection, we think the court erred in refusing the requests to charge of the defendant, numbered two and four, as shown on pages 219 and 220 of the bill of exceptions, as follows:

“(2) If you find from the evidence that the college building of the defendant was destroyed by fire on December 20, 1899, and that in consequence of such fire, the established walks and drives of the north and west sides of said building were rendered impassable, and that thereafter said walks on the north and west sides were taken up and were not replaced, and that from the time of the fire to the time of the plaintiff’s accident there were no defined walks connecting the Buchtel avenue and Carroll street walks, and if you find that, during said time the old walks were more or less obstructed by debris and building material and that the grounds were also so obstructed, and that building operations were in progress, then under such circumstances the plaintiff would have no right to assume that the walks were safe and unobstructed, and in going upon them, did so at .his own peril. . ,
“(4) If you find from the evidence that the plaintiff in crossing the college grounds on the usual stone walks came to a place where the walks had been removed, then it would be the plaintiff’s duty to take notice of such facts, and he would have no right to continue further in the belief that the walks were safe and unobstructed.”

The defendant was entitled to have each of these requests given— they were good law as applied to the facts of the case.

The court also erred in instructing the jury that it might find under the evidence that the defendant had invited the public and the plaintiff to use its grounds as a way from one street to the other, and, as stated in plaintiff’s request No. 1, as given by the court, and generally in the charge, that if the defendant had permitted such use, it was bound to keep its premises in a reasonably safe and suitable condition for the use of those passing over and using them in the manner and for the purpose stated.

An owner of premises whose business requires him to keep a pathway over them, though it be from street to street, and permits, without objection, the public to use such pathway solely for the purpose of passing from street to street, with no connection with him or his business, cannot be said to invite such use; and the only obligation resting upon such owner is, not that he must expend money and labor upon such pathway to keep it in repair for the public, but simply not to make pitfalls or .changes of a dangerous character on or near such walk without exercising ordinary care to notify those so using the pathway of such pitfalls or changes by the ereo tion of proper barriers, or otherwise.

“ ‘No duty is imposed by law on the owner or occupant to keep his premises in a suitable condition for those who come there solely for their own convenience or pleasure, and who are not expressly invited to enter, or induced to come upon them by the purpose for which the premises are appropriated or occupied.’ The inducement here spoken of must be equivalent to an invitation to enter. Mere permission is neither inducement, allurement, nor enticement.” Pittsburgh, Ft. W. & C. Ry. Co. v. Bingham, 29 Ohio St. 364, 372; Cincinnati Gas. L. & C. Co. v. Avondale, 43 Ohio St. 257, 263 [1 N. E. Rep. 527].

The court further erred in instructing the jury that they might render a verdict for the plaintiff for the expenses he was put to by reason of his injuries.

There was no evidence of the amount of such expenses; all evidence on that point had been withdrawn by consent from the jury and, consequently, no verdict could be rendered therefor. Andrews v. Railway Co. 8 Circ. Dec. 584 (19 R. 699, 703).

For the reasons given this cause must be reversed and remanded.


text:
    SIDEWALKS — MUNICIPAL CORPORATIONS.
    [Cuyahoga (8th) Circuit Court,
    July 24, 1903.]
    Marvin, Winch and Laubie, JJ,
    (Judge Laubie, of the Seventh Circuit sitting in place of Judge Hale.)
    Peter F. McGuire v. East Cleveland (Vil.) et al.
    1. Sidewalk Resolution of Council not Adopted in Compliance With Sec. 1694 Rev. Stat. Invalid.
    A resolution of a village council, adopted by a majority of the members thereof, requiring that a certain sidewalk be laid under specified conditions and restrictions is a resolution of a general nature, and not having been read in the council on three different days, nor the rule providing that such reading may be dispensed with by a vote of three-fourths of the members not having been observed, as provided by Sec. 1694 Rev. Stat., it is invalid.
    8. Municipal Authorities may be Enjoined From Removing Sidewalk, When.
    The authorities of a village may be enjoined from removing a sidewalk that has been constructed substantially in compliance with the requirements of an ordinance, where the purpose for so doing is.to relieve a dangerous condition resulting from tacit permission having been given by the village to neighboring residents on the same side of the street to lay walks considerably higher than the established grade.
    8. Injunction Will not be Denied Because of Violation of Ordinance, When.
    Relief by injunction against the removal of a walk by municipal authorities will not be denied upon the ground that plaintiff, for the purpose of laying his walk, excavated within the street line in violation of an ordinance, when no more earth from within the street line was excavated than was reasonably necessary for the' laying of the walk in accordance with the provisions of another ordinance establishing the street grade.
    4. -Village After Establishing Street Grade Cannot Question its Reasonableness.
    Where the grade of a street and the relation which the surface of the sidewalk should sustain to the surface oif the paved portion of the street have been fixed by ordinance the village cannot question whether the grade as fixed by it is reasonable and proper, for it is -bound by its own acts.
    5. Special Grade not Established When Walks Were Built Contrary to Ordinance.
    Where property owners have been allowed to make improvements and lay their w-alks at a grade higher than that permitted by ordinance a special grade was not thereby established of w'hich a person building a walk subsequent thereto was bound to take notice in disregard of such ordinance.
    6. Act Resulting in Permanent Injury to Lot May be Enjoined.
    An act by a municipal corporation which will result in permanent injury to a lot therein by interfering with the ingress from and t)he egress to the street and with the easement which the owner thereof has in that portion of the street may be enjoined.
    Appeal from court of common pleas of Cuyahoga county.
    J. F. Herrick, and Walter Hamilton, for plaintiff:
    A municipal council in exercising its power and discretion to improve, repair, change and order sidewalks, must follow the statute, and the subject matter of its ordinances and resolutions must be reasonable and lawful. Elyria Gas & Water Co. v. Elyria, 57 Ohio St. 374 [49 N. E. Rep. 335] ; Southard v. Stephens, 27 Ohio St. 649; Fergus v. Columbus, 8 Dec. 290 (6 N. P. 82) ; Moore v. Hoffman, 13 Re. 1005 (2 C. S. C. 453) ; dicta in Kerlin Bros. Co. v. Toledo, 10 Dec. 509, 513 (8 N. P. 02) criticised. ( ,
    Sidewalks being legally laid cannot be a nuisance. Lewis v. Railway Co. 7 Re. 566 (3 Bull. 1007) ; Goodall v. Crofton, 33 Ohio St. 271.
    Resolution of council providing for change of grade is one of “a permanent nature,” and is void unless read three times, or rules suspended, under Sec. 1694 Rev. Stat. Campbell v. Cincinnati, 49 Ohio St. 463 [31 N. E. Rep. 606] ; Thatcher v. Toledo, 10 Circ. Dec. 272 (19 R. 311).
    Alfred Clum, for defendant.
   MARVIN, J.

The defendant, the village of East Cleveland, is a municipal corporation of the state of Ohio; .the other defendant (Edward Leslie, street commissioner) is the officer of said village, having especial charge of its streets. The plaintiff is a citizen of said municipality.

One of the public highways of said municipality is Windemere street, extending southwardly from Euclid avenue, an east and west street, to another east and west street known as Terrace road.

The plaintiff owns two lots fronting on the west side of Windemere street. One of these lots has a frontage of one hundred feet, and the other of sixty feet, on said last-named street. The grade of said street was established by ordinance prior to the time when the matter discussed in this opinion occurred, and the street has been graded, paved and curbed in accordance with said established grade.

Ordinance No. 107 of said village was passed on September 7, 1900, and is in these words: .

“Be it ordained by the council of the village of East Cleveland that all sidewalks hereafter constructed on any public street, or highway within the village of East Cleveland, shall be so laid that the top surface shall at all joints coincide with a line described as follows: •
“ 'Beginning at the curb line, within the established curb grade as determined by the council, thence extending to the street line, at right angles to the curb line, with a rise of three-eighths of an inch to the foot.’ ”

Prior to 1903, property owners on the west side of Windemere street for one-half the distance or more from Terrace road to Euclid avenue had laid sidewalks in conformity with this ordinance, and in the fall of 1902, the plaintiff laid a sidewalk in front of his 100-foot lot in accordance with this ordinance, and nothing further need be said about this lot.

The grading of said Windemere street in accordance with the grade established by order of the council, was done in the summer of 1901. This grading northerly from a point about one-half the distance from Terrace road to Euclid avenue, necessitated a cut of from three or four inches to about twelve inches.

Prior to said grading and paving, many lots along this northerly half of the west side of Windemere street had been improved by the erection of good dwelling houses, the grading of lawns, the setting out of fine shade trees, and the laying of sidewalks — some of them ten or twelve inches higher than the elevation therefor provided in said ordinance No. 107, and nothing was done by the village authorities toward having any change made in these sidewalks; but, as averred in the answer filed by the village herein:

“The same was left in its former condition for the purpose of preserving the shade trees growing therein, thereby adding to the beauty of the street, the value of the property, and the enjoyment of the citizens of East Cleveland, particularly of the residents living on Windemere street.”

The sixty-foot lot of this plaintiff is on this part of the street, where the sidewalks are much higher than is provided by .said Ordinance No. 107. Up to the month of April, 1903, this lot of plaintiff had no sidewalk in front of it; nor had the surface along- where the sidewalk should be been cut down for the purpose of laying such sidewalk, but such surface was about on a level with the sidewalks in front of the lots abutting upon this lot both on the north and south sides.

At the time last mentioned the plaintiff graded his said lot and took away the earth along the front where the sidewalk should be, and laid a good sidewalk of flagging at the grade fixed by ordinance No. 107. This is about ten inches lower than the adjoining sidewalk both on the north and to the south, thereby making it inconvenient and, perhaps, dangerous to walk along said west side of Windemere street on the sidewalk. The village has put up some barrier or guard at each end of the plaintiff’s walk, and has directed the defendant, Leslie, as street commissioner, to take up said sidewalk and relay the same at the same grade as the walk immediately on the north and south, and this will bé done unless the defendants shall be enjoined. The plaintiff praj^s for such injunction.

On August 11, 1902, a resolution was introduced in the council of said village, and was voted for by a majority of the members of said council, which reads in part:

“Resolved, That a sidewalk on the westerly side of Windemere street, between Euclid avenue and Terrace road, be laid with stone or cement to the full width of five feet, and in conformity with the grade line of the sidewalk heretofore laid on said westerly side of Windemere street.” * * *

This resolution was not read on three different days in the council, nor was the rule requiring such reading dispensed with by. a vote of three-fourths of the members elected to such council, as is required by Sec. 1694 Rev. Stat. for all by-laws, resolutions and ordinances of a general nature.

That this was a resolution of a general nature can hardly be doubted, and, indeed, is substantially admitted by defendant’s counsel. See Thatcher v. Toledo, 10 Circ. Dec. 272 (19 R. 311) ; Campbell v. Cincinnati, 49 Ohio St. 463 [31 N. E. Rep. 606].

This resolution not having been legally adopted, cannot affect the decision of the case under consideration.

On the part of the defendant it is urged, however, that the defendant village, under Sec. 2640 Rev. Stat., is, through its council, required to keep the sidewalks in repair and free from nuisance, and because of the character of the sidewalk along this part of Windemere street, it is in a dangerous condition since the laying of plaintiff’s walk, such council vmajf take such means as to it shall deem best to abate the nuisance, and the case of Wilhelm v. Defiance, 58 Ohio St. 56 [50 N. E. Rep. 18; 40 L. R. A. 294], is cited in support of this contention. The syllabus in that case reads:

“A municipal corporation, having in the proper mode provided for the construction of a sidewalk and notified the owner of abutting land, may require of him the construction of a sufficient walk in front of his premises, and, upon his default, may itself construct such walk and assess the cost thereof upon his land,” etc.

Nothing in the case tends to establish that the municipal authorities may remove a sidewalk laid in accordance with the provisions of law and the ordinances of the municipality, for the purpose of relieving those whose walks are. not so laid, from the obligation of properly laying their walks.

The situation here is this: The plaintiff constructed his walk substantially as the village ordinance required. His neighbors had been tacitly permitted to construct their walks in violation of the ordinance. The result is, that the walk, as a whole, is in a dangerous, or, in any event, a very bad condition. The village proposes to remedy this condition by interfering with the walk laid in pursuance of law, rather than by interfering with the walks of those maintained in violation of law — a most extraordinary way of righting a wrong! It would seem to the ordinary man that the proper thing for the village to do would be to make or cause to be made such alterations in the sidewalks in front of the premises of the neighbors of the plaintiff as to relieve the situation and make the sidewalk as a whole safe and free from nuisance.

It is urged, however, that the plaintiff is not entitled to relief by way of injunction, because his hands are not clean; that he, for the purpose of laying his sidewalk, excavated within the street line in violation of an ordinance of the village. This ordinance, which is No. 117, prohibits the excavation and removal of earth upon the street without a permit from the municipal authorities. Plaintiff removed so much earth along the line of his proposed sidewalk as was necessary for the laying of such walk in • accordance with the provisions of ordinance No. 107.

It is hardly to be supposed that said ordinance No. 117 was intended to prohibit such removal. Doubtless, if he had removed more than was reasonably necessary for this purpose, he would have violated the spirit of this ordinance, but to do only what was necessary to comply with ordinance No. 107 should not be held to be a violation of No. 117, unless a fair construction of No. 117 necessitates such holding, which does not seem to be the case here.

Much was said on the hearing, and evidence was offered upon the question of what is a reasonable and proper grade for this sidewalk; but, so far as the village is concerned, this is not an open question. It is bound by its own acts upon this subject. It fixed the grade of the street by ordinance, and fixed.the relation which the surface ,of the sidewalk should, sustain to the surface of the paved portion of the street by ordinance, and it cannot question that the grade so fixed by it is reasonable and proper.

A further contention on the part of the plaintiff is, that as the property owners for a considerable distance on either side of plaintiff’s lot had been permitted to make improvements and lay their walks at the higher grade, a special grade was thus established for this portion of Windemere street. In support of this, the case of Akron v. Chamberlain Co. 34 Ohio St. 328, is cited. The language of the court, relied upon here, is found in the opinion of Judge Mcllvaine, on page 336, and is in these words:

“The establishment of a grade whereby lot owners are justified in assuming that no change will be made in the grade of a street, and may, therefore, improve their lots with reference to its present condition, * * * does not necessarily require the passage of an ordinance or other legislative action; but it may be shown, by the nature of the improvement on the surface of the street, under the direction or sanction of the proper authorities, whether in accordance with an ordained grade line or not,” etc.

The question under consideration by Judge Mcllvaine was whether a municipal corporation would be bound by its acts showing that it recognized a certain grade of a street, where no grade had been established by ordinance, and the fair construction of the language quoted is only to the effect that it would be so bound, and not that it would not be bound by a grade established by ordinance, because it had permitted such use of the street as might indicate some other grade. Applied to the case under consideration, if the court should hold that plaintiff was bound, in putting down his sidewalk, to take notice of the grade at which his neighbors had put theirs down, he would have been bound to ignore an existing ordinance of the village, which surely could not be required of him.

It is urged further that if plaintiff is entitled to any remedy he must seek it in damages, and not by way of injunction.

The act which the village and the street commissioner propose to do will result in permanent .injury to the lot of the plaintiff, which has been graded to conform to the sidewalk as it is now laid. It will interfere with the ingress to and egress from said lot; it will interfere with that easement which the plaintiff has in that portion of the street, and that easement our Supreme Court has said “is as much property as the land itself.”

If the sidewalk is raised, as the defendants propose to raise it, it will constitute a permanent obstruction to plaintiff’s accesá to his lot from the street. This is surely a proper subject of injunction.

Upon a full consideration of the case, the result reached is that the plaintiff is entitled to an injunction restraining-the defendants, and each of them, from making any change in the sidewalk in front of plaintiff’s sixty-foot lot, and a decree will be entered accordingly.


text:
    CORPORATIONS — RECEIVERS.
    [Cuyahoga (8th) Circuit Court,
    November 23, 1903.]
    Hale, Marvin and Winch, JJ.
    W. D. Sayle v. Guarantee Savings & Loan Co. et al.
    1. Equity Receiver of Insolvent Company may Recover Assets Fraudulently Transferred.
    A receiver of an insolvent corporation appointed -by a court under its general equity, power, with authority “to bring all suits necessary in any court having jurisdiction thereof for the collection of debts and the prosecution of any suits or the defense of the same as may be necessary in the discharge of his duties,” is the representative of the creditors, and may njaintain an action, the same as the receiver of a dissolved corporation appointed under special statutory authority, to recover assets fraudulently transferred in disregard of the rights of creditors, notwithstanding such an action could not have been maintained by the corporation.
    2. Transfer of Securities for Worthless Obligations by Insolvent Bank Fraud .Upon Creditors, When.
    The transfer of securities as collateral for a note for $17,925 by a banking company to a loan company in the settlement of suits growing out of certain alleged claims is a fraud upon the rights of the -bank’s creditors, and may be set aside and recovered at the suit of a receiver in their behalf, where it was known to the secretary of the bank, at the time he made the transfer, that the bank was insolvent, and it appears that the only consideration - for the note were two checks for $11,000 each and the settlement of an apparent indebtedness of the banking company to the loan company for deposits aggregating $50,834.35, it being known to the secretary of the banking company, at the time he certified the checks to be good, and by the -secretary and general manager of the loan company, at the time he accepted them, that the checks were forgeries, and which, in fact, were given upon no valid, consideration or actual indebtedness., but in furtherance of a scheme between the secretaries of the two companies to make it appear that the loan company possessed assets which, in fact, it did not have, the only consideration for them being stocks and other obligations known 'by both parties to'be valueless ; and the apparent indebtedness for deposits representing no money actually deposited, but only notes, given, without consideration, by the secretary and general manager of the loan company, who was insolvent, in his own name and in the name of his company.
    Appeal by J. B. Livingston and F. L. Taft, trustees.
    Carpenter, Young & Stocker, for plaintiff:
    The plaintiff, as receiver, has authority to maintain this action Monitor Furnace Co. v. Peters, 40 Ohio St. 575; Smith v. Johnson, 57 Ohio St. '486, 488 [49 N. E. Rep. 693] ; Curtis v. Leavitt, 15 N. Y. 9, 44; Alexander v. Relfe, 74 Mo. 495; Zane, Banks & Banking Sec. 329; Casey v. Cavaroc, 96 U. S. 467; Carey v. Giles, 10 Ga. 9; Talmage v. Pell, 7 N. Y. 328.
    The defendant is chargeable with notice of all that its secretary knew about the transactions. Hovey v. Blanchard, 13 N. PI. 145; Zane, Banks & Banking Sec. 112; Zane, Banks & Banking Sec. IIP, p. 175; Holden v. Bank, 72 N. Y. 286; Union Bank v. Mining & Mfg. Co. 17 S. C. 339; Plughs v. Settle, 36 S. W. Rep. 577 (Tenn.); Union Bank v. Campbell, 23 Tenn. (4 Humph.) 394; Winslow v. Iron Co. 42 S. W. Rep. 698 (Tenn.) ; Atlantic Cotton Mills v. Indian Orchard Mills, 147 Mass. 268 [17 N. E. Rep. 496] ; LeDuc v. Moore, 111 N. C. 516 [15 S. E. Rep. 888],
    The transfer in question was void because it was not the act of the banking company. Section 3248 Rev. Stat.; 1 Beach, Priv. Corp. Secs. 224, 230; East Cleveland Ry. Co. v. Everett, 10 Circ. Dec. 493 (19 R. 205); Taylor, Corporations Sec. 234; Farmers Mut. Ins. Co. v. Chase, 56 N. H. 341; York & C. Ry. Co. v. Ritchrie, 40 Me. 425.
    The transfer in question was void because ultra vires of the corporation. Sections 3802, 3806, 3807 Rev. Stat.; Taylor, Corporations Sec., 267; Zane, Banks & Banking Secs. 126, 150, 357; National Bank v. Bank,. 9 Dec. 827 (41 Bull. 251) ; Taylor, Corporations Secs. 264, 273, 314; Talmage v. Pell, 7 N. Y. 328; Bank of Chattanooga v. Bank, 56 Tenn. 408; Burrows v. Niblack, 84 Fed. Rep. Ill [28 C. C. A. 130; 53 U. S. App. 712] ; McCormack v. Bank, 165 U. S. 538 [17 Sup. Ct. Rep. 433] ; California Bank v. Kennedy, 167 U. S. 362, 367 [17 Sup. Ct. Rep. 831].
    The transfer was induced by a species of duress. Vyne v. Glenn, 41 Mich. 112; Hackley v. Headley, 1-5 Mich. 569; Chandler v. Sanger, 114 ’Mass. 361 ; Spaids v. Barrett, 57 Ill. 289 ; Beckwith v. Frisbie, 32 Vt. 559, 566; First Nat. Bank v. Watkins, 21 Mich. 483.
    The 'transfer was invalid because a preference. Sections 6343, 6344 Rev. Stat. as amended in 93 O. L. 290, 291; Gettinger v. Bank, 13-23 O. C. C. 77; Cheney v. Cycle Co. 10 Circ. Dec. 717 (20 R. 19) ; Cragie v. Hadley, 99 N. Y. 131 [1 N. E. Rep. 537] ; Waite, Insolv. Corp. Sec. 161; Robinson v. Bank, 21 N. Y. 406, 407; National Shoe & Leather Bank v. Bank, 89 N. Y. 467, 469; Brouwer v. Plarbeck, 9 N. Y. 593 ; Marine Bank v. Clements, 31 N. Y. 33; Rouse v. Bank, 46 Ohio St. 493 [22 N. E. Rep. 293; 5 L. R. A. 378] ; Damarin v. Iron Co. 47 Ohio St. 581 [26 N. E. Rep. 37],
    Smith & Taft, for defendants.
   MARVIN, J.

The plaintiff in this action was appointed by the court of common pleas of Cuyahoga county and duly qualified as receiver of all of the assets and property of the Superior Street Savings & Banking Company, which is a corporation organized under Sec. 3797 Rev. Stat., in an action brought against said savings and banking company by a creditor of said company.

By the order appointing such receiver he was authorized in express terms “to bring all suits necessary in any court having jurisdiction thereof for the collecting of debts and the prosecution of any suits or the defense of the same as may be necessary in the proper discharge of his duties herein.” This appointment was made on August 23, 1901.

The defendant, The Guarantee Savings & Loan Company, is a corporation organized under Sec. 383G-1 Rev. Stat.

Subsequent to the bringing of the present action, by proceedings properly had in the Supreme Court of Ohio to oust the said savings and loan company from its franchise and wind up its business, the defendants, Frederick A. Taft and J. B. Livingston, were appointed and qualified as trustees of the property of said loan company.

'Prior to the appointment of the plaintiff as receiver as hereinbefore set out, to wit, on August 14, 1901, The Guarantee Savings & Loan Company, hereinafter called the loan company, brought two suits against the Superior Street Savings & Banking Company, hereinafter called the banking company, in the court of common pleas of this county. In each of said actions the said loan company caused a writ of attachment to be issued against the said banking company, commanding the sheriff to levy upon all the assets of said banking company. No bond was given for such attachment in either of said actions, but assurance was given to the clerk that proper bond would be given. The writs were issued, the levy made and a keeper put into the possession of the property of the banking company at its bank.

The first of these two suits was brought upon two certified checks of the banking company, each of which checks was for $11,000, and pur-. ported to be signed by one W. E. Cunningham and made payable to the order of J. A. Blodt, who was the secretary and general manager of said loan company, and which by said Blodt had been endorsed to said loan company. Said checks each bear date of August 7, 1901. The certification of these checks purported to be made by the said banking company and was signed by Frank S. Miller, who was the secretary of the said banking company.

The other suit was for the sum of $50,834.35, claimed to be due to the said loan company on an open account for deposits made by it with the said banking company. Immediately upon the levy of these attachments the said banking compaity, through its said secretary, Miller, and its president, Tait, had d meeting with the said Blodt and others representing the said loan company and effected a settlement, of the two suits, by which the said banking compan)^ gave to the said loan company its note for $11',925, to secure the payment of which the said banking company then delivered to the said loan company as collateral securities a considerable amount of commercial paper and other securities, all set out and named in the petition herein.

The present suit-is brought to set aside this transfer of securities and to recover possession of the same by the plaintiff. In his petition the plaintiff alleges that such securities were obtained by .the said loan company in.fraud of the said banking company, and especially in fraud of the creditors of said banking company, it being alleged that said banking company, at the time of the transfer of said securities to said loan company, was hopelessly insolvent and was indebted to a large number of creditors and in a large amount. The facts constituting such fraud claimed by thé plaintiff are set out fully in the petition. These facts, as established by the evidence, we find to be:

(1) Neither of the two checks hereinbefore mentioned were ever signed by the said W. 'E. Cunningham. That fact was well known to the said Miller at the time he certified they were good as secretary of said banking company, and was also known to the said Blodt when he accepted them. There was no indebtedness of the said banking company to the said loan company or to the said Blodt represented by or justifying the giving of any such checks to the said loan company. The entire transaction of the making of such checks, to which in fact the name of Cunningham was forged, was a scheme got up between Miller and Blodt for the purpose of making it appear that the said loan company had assets which in fact it did not have, and the only thing which the said banking company received for said checks was the notes of the said Blodt, who was hopelessly insolvent and well known by the said Miller to be thus hopelessly insolvent, and the transfer to said banking company of certain stocks and obligations by the said Blodt which were known by the said Miller and the said Blodt to be valueless.

The othér suit brought by the loan company against the banking company was equally without foundation. The apparent indebtedness of the banking company to the loan company on its books, appearing to be for deposits made by the loan company with the banking company, re'presented no money actually deposited, but only notes given either by Blodt in his own name or by him in the name of the loan company. The entire plan of making it appear that the banking company was indebted to the loan company was a fraudulent scheme devised by Blodt and Miller for the purpose of making fictitious assets for the loan company that it might be able to pass the examination made by the state officers whose duty it was to make investigation of the affairs of the loan company, and the suits were brought at the instigation of these state officers, who insisted that these apparent assets of the loan company must be converted into money. When the settlement of these suits was made, Miller, as well as Blodt, as has already been said, had full knowledge of the groundlessness of these claims.

Tait, the president of the banking company, gave practically no attention to the business of the bank, but? left its management almost exclusively to Miller. When the agreement to settle the suits was made Tait was without knowledge of the fraudulent character of these claims, though before the actual transfer of the securities was made he may have had knowledge of the fact that these checks were given and certified without proper consideration. As we view the case, however, it is immaterial whether Tait had such knowledge or not. If he and the officers of the banking’company other than Miller were without knowledge of the fraudulent character of the claim, the question might arise in a proper case whether the banking company could maintain an action to set aside this transfer of securities, but that question need not here be determined.

It is urged on the part of the defendant that this' action cannot be maintained by the plaintiff unless it is such an one as could have been maintained by the banking company itself. We hold this claim not to be well founded. It is true that no statute in Ohio in terms authorizes the bringing of such action by the receiver. Section 6343 Rev. Stat. provides that such an action may be brought by a creditor and by an assignee; and Sec. 6140 Rev. Stat. provides for the bringing of such action by an executor or administrator.

Prior to the enactment of this last section, it had been held in the case of Benjamin v. Le Baron, 15 Ohio 517, 518, that ?uch action could not be maintained by an administrator. The reason for the holding is that the administrator or executor is the personal, representative of the decedent or testator, and, therefore, without special authority, he could bring no action which he whom such executor or administrator represents could not have brought. In this case the suit was for the recovery of personal property, as in the case under consideration. On page 536 this language is used by Judge Read in the opinion:

“We hold that the administrator can only maintain such action as the intestate might, if living. He represents the intestate; he steps into no other right. As between the fraudulent vendor and vendee, the transfer is good. Such conveyances are void only as to creditors. This is. the well-settled doctrine in Ohio. Hence, as between the vendor and vendee in this case, the vendor had no rights, and of course his administrator could have none.”

It is well settled that one who conveys' his property away for the purpose of defrauding his creditors cannot maintain an action to have the property conveyed back to him because, being guilty of a fraud in thus transferring his property, he must abide the consequences of such fraud. The executor or administrator is not a representative of the creditors of the decedent, but of the heirs and legatees, and they are entitled to no greater rights than the decedent himself. A receiver, however, is -the representative of the creditors. The property is placed in his hands that it may be preserved and distributed to the creditors. The statute, as has already been said, provides for the bringing of such an action by the assignee, who is no more the representative of the creditors than is the receiver, yet the claim is not without force that since the one is named in the statute and the other is not, that the statute meant to make a distinction between them as to the right to bring a suit. No good reason seems to exist why the representative of the creditors, by whatever name he is designated, should not have the right to bring such suit as the creditor himself might bring.

In the case of Monitor Furnace Co. v. Peters, 40, Ohio St. 575, it is held that it is the duty of a receiver who was appointed for a dissolved and insolvent corporation to bring suit to set aside conveyances fraudulently made. The language used by Judge Nash in the opinion, on page 583, is:

“It is the right and duty of the receiver of a dissolved and insolvent corporation, to pursue after and recover property which has been fraudulently "conveyed before the dissolution.”

To the same effect is the case of Smead Foundry Co. v. Chesbrough, 6 Circ. Dec. 670 (18 R. 783).

It is urged, however, that these cases differ from the one at bar in that the receiver in each of these cases was for a dissolved corporation appointed under Sec. 5587 Rev. Stat., and that his powers are found in Sec. 5590 Rev. Stat.

Section 5587, Par. 5, Rev. Stat., provides in what cases receivers may be appointed, in the following language :

“In the cases provided in this title, and by special statutes, when a corporation has been dissolved, or is, insolvent, or in imminent danger of insolvency, or has forfeited its corporate rights.”

Section 5590 Rev. Stat. provides:

“The receiver shall have power, under the control of the court, to bring and defend actions in his own name, as receiver, to take and keep possession of’'the property, to receive rents, collect, compound for, and compromise demands, make transfers, and generally to do such acts respecting the property as the court-may authorize.”

Section 5587, Par. (>,’ Rev. Stat., provides for the appointment of receivers: “In all other cases where receivers have heretofore been appointed by the usages of equity.”

'■ The receiver in this case was appointed for an insolvent corporation. By the usages of equity receivers have been so appointed time out of mind, so that it would seem that whatever actions a receiver appointed for a dissolved corporation might bring this receiver might bring.

In Whittlesey v. Delaney, 73 N. Y. 571, the first paragraph of the syllabus reads:

“An action to set aside and vacate a judgment against a corporation,on the ground that it was obtained without consideration, by collusion with the officers of the corporation, and in fraud of creditors, may properly be brought in the name of and by a receiver of the corporation.”

In Smith, Receiverships Sec. 72, this language is used:

“The power of the receiver to sue in his own name has been recognized however where the order of court so directs, or the statute so authorizes. But in the absence of such power he must sue in the name of the person or corporation over whose property he i's appointed. * * *
“Where a court of chancery, in the order of appointment, confers power on the receiver to sue, he may do so on the principle that the receiver is, by operation of law, subrogated to all the rights of the real parties in interest.”

We are aware that many cases are reported which hold that a receiver in a case like this cannot maintain the action in his own name. We hold, however, that this action can be so maintained. We see no reason why a receiver appointed for a dissolved corporation may, under our statutes, bring such action unless the receiver of an insolvent corporation may also maintain the action.

This brings us to a consideration of the question whether under the facts in this case the transfer of the securities made by the banking company to the loan company upon the settlement of the.suits brought by the latter against the former was fraudulent as to creditors of the banking company. That the latter was insolvent at the time of the transfer cannot be doubted; that such insolvency was known to Miller, the manager, is equally certain; that Miller knew that there was no just claim upon the certified checks and upon the greater part of the open account is absolutely certain. The reason why he should be in a hurry to settle these cases is not difficult to find. He had committed a wrong which might very probably subject him to a criminal prosecution, and he was, of course, anxious to get into his hands these checks which he had certified and which, though purporting to be drawn by Cunningham, he knew were never signed by him. The evidence shows that immediately upon getting' these checks into his hands he did what he might very naturally be expected to do — destroy them.

As to the bank account, as has already been said, the greater part of it was made up of an apparent indebtedness to the loan company which in fact only existed because of notes which. Blodt had .given, and being, as Miller doubtless knew, entirely without security other than absolutely worthless collaterals.

Without going further into a discussion of the facts in the case, we hold that the plaintiff is entitled to have the securities which he seeks transferred to him upon his transferring to the trustees of the loan company the collaterals which he by his petition tenders to them. A decree may be drawn accordingly. As to the further judgment in the case, it will be as the judgment was in the court of common pleas.