author: HURIN, J.

text:
    ACTIONS —MONOPOLIES —QUO WARRANTO — WRIT AND PROCESS.
    [Logan (3rd) Circuit Court,
    March 23, 1906.]
    Norris, Hurin and Donnelly, J.J.
    State ex rel. Ellis, Atty. Gen. v. King Bridge Co. et. al.
    1. QUO WARRANTO UNDER VALENTINE ACT AGAINST SEVERAL CORPORATIONS MAY BE Prosecuted in the County oe any One oe such Corporations.
    Quo war”anto proceedings, brought by the attorney-general under favor of the provisions of th£ Valentine antitrust act (Lan. 7586 to 7597; B. B. 4427-1 to 4427-12) and of Rev. Stat. 6762 (Lan. 10355), to oust certain domestic corporations from their corporate franchises on the ground that they have entered into an illegal agreement or conspiracy in restraint of trade, may be brought in any county in which any one of such corporations is situated or has a place of business, and process may issue thence to any other county where any other of the defendant corporations may be situated.
    2. Prosecution under Valentine Act Need not be in a County where the Illegal Combination Acted as a Separate Entity.
    For purposes of prosecution, an illegal combination between corporations in restraint of trade exists in each and every county where its constituent members exist and act; hence, the contention is erroneous that quo war-ranto proceedings based upon such illegal combination must be brought in a county where the combination does business as a separate. entity.
    3. Service oe Summons on Corporation by Leaving at Residence oe President is Defective.
    A service of summons on a corporation by leaving a certified copy thereof at the usual place of residence of the president does not answer the statutory requirements, is defective, and will be quashed on motion.
    4. Service on Foreign Corporation must be on Person Designated, under Requirement oe Rev. Stat, 148d (Lan. 184).
    A service of summons, upon a foreign corporation by delivering a copy thereof to a superintendent of such company, “he being in charge of the usual place of doing business of said company,” but it not appearing that he is the “managing agent” of said company, is defective and will be quashed, if it appear that the corporation, as required by Rev. Stat. 148d (Lan. 184), has designated another person upon whom process should be served.
    [Syllabus by the court.]
    Petition .in qno warranto.
    W. H.' Ellis, attorney-general, R. J. Mauck and O. E. Harrison, for plaintiff.
    Booth, Keating & Peters, Squire, Sanders & Dempsey, Kline, Carr, Tolies & Goff, Smith & Clevenger, J. W. Herron and W. C. Herron, J. B., Waight, J. J. Grant, M. W. Phelps and E. David, for defendant.
   HURIN, J.

The state o£ Ohio, upon the relation of its attorney-general, brings this action against the defendant bridge companies to oust from their corporate franchises, such of the defendant companies as are Ohio corporations, and to oust the remaining two defendant companies, which are foreign corporations, from the exercise of their rights, privileges and franchises to do business within this state.

As a ground' for this action it is alleged in the petition that each of the defendant companies has misused the franchises, privileges and rights conferred upon it by law and has exercised the same in contravention of law in this, to wit:

That said companies have entered into a conspiracy in restraint of trade, and have become parties to certain trust agreements set forth in the petition and have observed and do now observe and maintain the same:

That such conspiracy and combination was entered into for the purpose of: (1) Creating and carrying out restriction in trade and commerce. (2) Increasing the price of merchandise and commodities. (3) Preventing competition in the sale of merchandise and commodities. (4) Fixing a figure whereby the price of merchandise and commodities to the public is to be controlled and established.

And, that in pursuance of such conspiracy the defendants agreed and bound themselves to keep the price of articles of merchandise and commodities at a fixed or standard figure and to preclude a free and unrestricted competition among themselves, and to pool, combine and unite their interests that the price might be affected.

Certain' articles of agreement, alleged to be substantial copies of the alleged trust agreement of defendants are set forth in detail in the petition and defendant companies are declared to be parties thereto and to be now observing and maintaining the same, all in violation of law.

As a second cause of action, the petition avers that a conspiracy has been entered into between the American Bridge Company and the other defendant bridge companies, whereby it was agreed that the American Bridge Company was to furnish preliminary estimates of bridges to the other defendant companies, and that the other defendant bridge companies were to purchase the bridge material of the American Bridge Company, and of no other concern; that the defendants, by entering into said combination agreed to increase the price of bridges and bridge .material and to combine to unite their bids for the sale of such material and to divide the excess above the proper cost of work among the parties to that agreement.

Certain interrogatories are attached to the petition, which the-petition asks that defendants be required to answer.

Of the defendant companies, the Penn Bridge Company is alleged to be a corporation organized under the- laws of Pennsylvania and duly admitted to do business in Ohio; the American Bridge Company is alleged to be a corporation duly authorized under the laws of New Jersey and duly admitted to do business in Ohio; and all the other defendants are alleged to be Ohio corporations.

The court is asked to oust from their franchises and rights to do-business in Ohio all of said companies and to appoint trustees for each of the Ohio corporations to settle their affairs as provided by statute.

Summons was issued on this petition and the Canton Bridge Company and the Massillon Bridge Company, by their attorneys,. have waived service and voluntarily entered their appearance and have filed their answers in this case.

The Variety Iron Works Company does not appear to have been served with summons.

Of the remaining defendants, The King Bridge Company, The Bracket Bridge Company, The Champion Bridge Company, The Adams Brothers Company and The American Bridge Company, have each filed a motion to quash the service of summons herein, alleging that this court has not jurisdiction over their persons.

The Penn Bridge Company and the Mt. Vernon Bridge Company have filed demurrers to the petition, and the Penn Bridge Company and the Canton Bridge Company,, and the Massillon Bridge Company have also filed demurrers to the interrogatories.

The Columbus Bridge Company, the Bellefontaine Bridge and Iron Company and the Iron Substructure Company appear not to have filed any pleas or motions and are, therefore, in default.

The several motions to quash service filed by the King Bridge Company, the Bracket Bridge Company,, the Adams Brothers Company and the Champion Bridge Company are all based upon the ground that as these defendants are manufacturing corporations located in the state of Ohio, but elsewhere than in Logan county, and not having their principal offices and places of business, or any officer or agent within the county of Logan, and having no officer or agent within said county upon whom service of summons might be served, no jurisdiction was acquired over their persons by a service in their home counties, nor can they lawfully be required to answer in Logan county to a petition filed herein.

The Adams Brothers Company claims in addition that it has dons no business of any kind in Logan county within five years last past and supports this claim by affidavit.

. The Champion Bridge Company also objects to the form of the service upon it. An examination of the return of the sheriff discloses the fact that the Champion Bridge Company was served “by leaving for Peter ^Clevenger at his usual place of residence a true and certified copy” of the summons, “with all endorsements thereon, he being the president of the said The Champion Bridge Company, etc.” This is an unusual form of service upon a corporation. It complies fully with the requirements of Rev. Stat. 5039 (Lan. 8554) as to service upon an individual, but Rev. Stat. 5041 (Lan. 8556) provides that “summons against a corporation may be served upon the president, mayor, chairman, or president of the board of directors or trustees, or other chief officer, or if its chief officer be not found in the county, upon its cashier, treasurer, secretary, clerk or managing agent; or, if none of the aforesaid officers can be found, by copy left at the office or usual place of business of such corporation with the person having charge thereof,”

, etc. In the return before us, there is no statement that any of the . «chief officers of the 'Champion Bridge Company could not be found nor that the copy of summons was left at the office or at the usual .place ■of business of the corporation with the person having charge thereof, •as required by statute, nor was it served upon the president personally, •but only by a copy left at his residence. The service, therefore, is «clearly defective and the motion to quash service on the Champion Bridge Company must therefore be sustained on this ground.

But no question is made as to the regularity of the form of the return of service upon the remaining defendants and the issue is squarely raised as to whether they, being located and having their principal offices and places of business in other counties and having no officers or agents, or offices in Logan county, can lawfully be sued here in a suit in quo warranto.

Revised Statutes 6760 (Lan. 10353) provides for the bringing of ..an action in quo warranto against individuals in certain cases.

Revised Statutes 6761 (Lan. 10354), provides that a like action may be brought against a corporation:

“1. When it has offended against a provision of an act for its creation or renewal, or any act altering or amending such acts.
“2. When it has forfeited its privileges and franchises by non- ; user.
“3. WTien it has committed or omitted an act which amounts to ,a surrender of ■ its corporate rights, .privileges and franchises.
“4. When it has misused a franchise, privilege, or right conferred upon it by law, or when it claims or holds by contract or otherwise, or has exercised, a franchise, privilege, or right in contravention of law.”

Revised Statutes 6762 (Lan. 10355), provides that “The attorney-general, or a prosecuting attorney, when directed by the governor, Supreme Court, or general assembly, shall commence any such action; and when, upon complaint, or otherwise, he has good reason to believe that any case specified in the preceding section can be established by proof, he shall commence an action.”

Revised Statutes 6763 (Lan. 10356), provides that “Such officer may, upon his own relation, bring any such action, or he may, on leave of the court, or a judge thereof in vacation, bring the action upon the relation of another person,” etc.

Revised Statutes 6768 (Lan. 10361), provides that “An action under this chapter can be brought only in the Supreme Court, or in the circuit court of the county in which the defendant, or one of the defendants, resides or is found, or, when the defendant is a corporation, in the county in which it is situated, or has a place of business; but when the attorney-general files the petition, the action may be brought in the ■circuit court of Franklin county.^’

And Rev. Stat. 204 (Lan. 254), provides in similar terms that the attorney-general “may prosecute any proceeding in quo warranto, in the Supreme Court of the state, the circuit court of Franklin county, •or the circuit court of any county wherein the company proceeded against has a place of business, or the officer or officers, person or persons, made defendants reside or may be found. ’ ’

Revised Statutes 6770 (Lan. 10363), provides that “When the petition is filed without leave and notice, a summons shall issue, and be served as in other cases; and such summons may be sent to and returned by the sheriff of any county by mail,” etc.

There can be no doubt that the petition in this ease is based upon Rev. Stat. 6761 (Lan. 10354), and upon the provisions of the so-called Valentine anti-trust law, embodied in Rev. Stat. 4427-1, 4427-2, 4427-3 (Lan. 7586, 7587, 7588), to which I shall refer later; and if the facts alleged in the petition are true or believed by the attorney-general to be true, it becomes his duty under Rev. Stat. 6762 (Lan. 10355), to commence a proceeding in quo warranto against all corporations believed to be guilty of the acts complained of.

But the objection here made to this proceeding is, that under Rev. :Stat. 6768, 204 (Lan. 10361, 254), this court has no jurisdiction as against these defendants, and that this action, if brought at all, should have been brought in another court; either in the Supreme Court or the circuit court of Franklin county, or the circuit court of that county where each separate defendant corporation is situated or has a plaee-of business.

Had any one of the defendant corporations, which are nonresidents of Logan county, and which files these motions to quash service, been sued alone in Logan county, there would probably be no question as to the correctness of the position thus taken.

But one of the defendants, the Bellefontaine Bridge Company, appears to be located in Logan county; true, there is no allegation in the petition to that effect, but none was necessary, if, as a matter of fact, it appears that such is the case. TJie return of summons shows personal service upon its president by the sheriff of this county, and its location here is not denied, but is admitted in argument. As against that defendánt, the Bellefontaine Bridge Company, there seems to be-no question, therefore, as to the right to bring this action in Logan county. Does this right carry with it the right to here join nonresident corporations ?

The gist of this action as set forth in the petition is not merely the-violation of law by any one of these defendant corporations but the conspiracy and combination alleged to have existed among them all.

If it is proper for the attorney-general under the law to attack such a conspiracy or combination, it is necessary for him to make all the conspirators parties to a single shit, otherwise there would be an almost endless multiplicity of suits. '

This alleged conspiracy comprises corporations widely scattered as to their location. In no one county of the state, other than Franklin county, could all be found.

True, they might all have been sued, under the statute, in Franklin county, either in the Supreme Court or circuit court, but unless an entirely different rule must be applied to corporations from that applying to individuals, there would seem to be no reason why this court should not acquire jurisdiction over all when it acquires jurisdiction over one, for by’Bev. Stat. 5035 (Lan. 8550), “When the action is' rightly brought in any county, according to the provision of the preceding chapter, a summons may be issued to any other county, against one or more of the defendants, at the plaintiff’s request.”

And that previous chapter, thus referred to, includes Bev. Stat. 5023 (Lan. 8538), which provides that an action “against a corporation created under the laws of this state may be brought in the county in which such corporation is situated, or has or had its principal office or place of business, or in which such corporation has an office or agent,, or in any county in which a summons may be served upon the president,, chairman, or president of the board of directors or trustees or other' chief officer,” etc.

If the charges of conspiracy made in the petition against the Belle-fontaine Bridge Company are true, or are believed by the attorney-general to be true, and if the acts charged are in violation of law as there claimed, then it follows that, as to that corporation, the action is rightly brought in Logan county.

If rightly brought here and if the codefendants are properly joined, the right to issue summons to other counties for those defendants follow under Bev. Stat. 5035 (Lan. 8550).

But it is claimed that the statute, Bev. Stat. 6768 (Lan. 10361),, limits the jurisdiction of courts in quo warranto proceedings and that the general laws do not apply and thus, inferentially, it is claimed that Bev. Stat. 5035 (Lan. 8550), cannot apply.

A distinction is sought to be made by counsel from the wording of Bev. Stat. 6768 (Lan. 10361), as to corporations. That statute provides that “An action under this chapter can be brought only in the Supreme Court, or in the circuit court of the county in which the defendant, or one of the defendants, resides or is found.” If this were all of the section there would be no question, probably, as to the right to bring this action in Logan county. But the statute adds the following: “or, when the defendant is a corporation, in the county in which it is situated, or has a place of business.”

It is claimed by counsel for the defendants that the addition of this expression shows that the legislative intention was to differentiate suits against corporations from suits against individuals; that, whereas an action in quo warranto against individuals can be brought in the circuit court of the county in which any one of the defendants can be found, yet as to corporations it can only be brought in that county in which each corporation is situated or has a place of business. No reason for making such a distinction has been suggested to us nor do we think that such is a fair construction of the statute.

The expressions “resides” and “is found” used in the first part of the statute are proper and applicable with reference to individuals and not improper as applied to corporations, but to avoid any cavil as to such applicability, the statute further declares that where the defendant is a corporation, the action may be brought in the county in which it is situated or has a place of business. This cannot reasonably be interpreted as avoiding or contradicting the former part of the statute, or limiting the bringing of actions against corporations to those which may be found in the same county, while in the same kind of action individuals residing in a score of counties 'might be sued in any one of those counties.

Such a distinction involves a partial nullification of the former part of the section, and would compel the state to burden the courts in Franklin county with all the controversies of this nature in which two or more corporations are involved whether any of such corporations are located in Franklin county or not, provided only that no two of them are located in the same county.

If it should be interpreted as we are asked by defendants to interpret it, it would mean that individuals forming an illegal combination can be sued in quo warranto in any county where one of them can be found, but that corporations forming an exactly similar combination can only be sued in quo warranto in the courts of Franklin county, unless all the wrongdoing corporations happen to be located in one county, We know of no sanctity attached to corporations which would justify such an exemption, nor do we believe that we are justified in straining the natural meaning of the words of the statute so as to give them such interpretation.

The expression “situated or has a place of business” has, for a corporation, the same meaning as “resides” has for an individual, and for the purpose only of clearing up this meaning was the' expression added, in our judgment, and not at all for the purpose of indirectly limiting the number of defendant companies that could be sued in one action; nor does the fact that Eev. Stat. 6768 (Lan. 10361), provides in its .last clause that the attorney-general may bring the action in Franklin county aid such a construction as is claimed.

The fact that the office of the attorney-general of the state is located in Franklin county and that his manifold duties require his constant attendance there, would seem to furnish a sufficient reason for this additional privilege thus given him. But that it is merely an additional privilege for the state officer seems manifest from the fact that the right to bring such actions in general is not confined to the attorney-general, but extends to the prosecuting attorneys of each of the counties to whom riiis particular privilege is denied, their powers not extending beyond their own counties; and from the further fact that the right thus given to the attorney-general to sue in Franklin county is not limited to actions in quo warranto against corporations, but is general in its application to individuals as well as corporations.

It is also claimed by counsel in oral argument that this last clause means that the attorney-general can only bring the suit against corporations in Franklin county, while a prosecuting attorney can bring it wherever one of the defendants resides. This is a contention plainly untenable and is an attempt at a literal construction of one clause, ignoring all others. If tenable at all, it would coniine the attorney-general to the circuit court of Franklin county, for that is the literal wording ■of the clause and would exclude him from the Supreme Court, to which, by all the related statutes, he is given access. The argument, if it can be called such, proves too much and must fall to the ground.

But we are not left to any conjecture as to this point for Rev. Stat. 210 (Lan. 260), defining the duties of the attorney-general, provides that “He may prosecute any action, information, or other suit in behalf •of the state, or in which the state is interested, other than prosecutions by indictment, in the court of appropriate jurisdiction in Franklin •county, or in the court of appropriate jurisdiction in any other county in which the defendant, or any one or more of the defendants, reside or are found, as he prefers; ’ ’ and the latter part of that section limits his right to sue in Franklin county in certain cases to actions involving more than $500, and so certified.

The statute is general in its application to all defendants, corporate and individual, and under its provisions this action could plainly be brought in Logan county unless some reason more weighty than any which have been presented to us, exists for applying to it a limitation not found in its terms, and not, as we have seen, expressly or by fair implication found in any of the related statutes.

It thus appears that, both by the rules applicable generally to suits against corporations as laid down in Rev. Stat. 210, 5023, 5035 (Lan. 260, 8538, 8550), and by the express wording of the statutes relating to quo warranto proceedings, the right exists to bring the suit in any county where one of the defendant corporations be found. The only limitation is as to the proper joinder of the defendants. To that I will refer later.

If there remained any doubt as to the existence of this right, it would be destroyed by a reading of Rev. Stat. 4427-1, 4427-2 (Lan. 7586, 7587).

Revised Statutes 4427-1 (Lan. 7586), defines a trust as “a combination of capital, skill or acts by two or more persons, firms, partnerships, corporations or associations of persons, or of any two or more of them for either, any or all of the following purposes:” and then follow five statements of wrongful aims or purposes which the petition in this case has closely followed.

Revised Statutes 4427-2 (Lan. 7587), provides that “For a violation of any of the provisions of this act by any corporation or association mentioned herein, it shall be the duty of the attorney-general, or the prosecuting attorney of the proper eounty, to institute proper suits or quo warranto proceedings in the court of competent jurisdiction in any of the county seats in the state where such corporation or\assoeiation exists or does business, or may have a domicile. And when such suit is instituted by the attorney-general in quo warranto, he may also begin any such suit in the Supreme Court of the state, or the circuit court of Franklin county, for the forfeiture of its charter rights, franchises or privileges and powers exercised by such corporation or association, and for the dissolution of the same under the general statutes of the state. ’"

Here too, we find an additional right or privilege given to the attorney-general, to bring such actions in Franklin county; not as' a. limitation upon his powers otherwise conferred but, as shown by the word ‘ ‘ also, ’ ’ a .new power expressly given as an addition to his right to sue in any other county.

The sole object of the anti-trust law as expressed in these statutes, Rev. Stat. 4427-1 (Lan. 7586) et seq., is the destruction of trusts or unlawful, combinations of persons, firms, partnerships, corporations or associations, or of any two or more of them; that is, of any two or more corporations as well as two or more persons, firms, partnerships or associations. With this as the object of the law, it would be a strange construction that would prevent such corporations from being joined in an action to accomplish the very object for which the statute was enacted.

And to still further facilitate the process of destruction, it is provided in Rev. Stat. 4427-11 (Lan. 7596), that “Whenever it shall appear to the court before which any proceedings under this act may be pending, that the ends of justice require that other parties shall be brought before the court, the court may cause them to be made parties defendant and summoned, whether they reside in the county where such action is pending, or not. ” It is well argued by counsel for plaintiff that if this can be done at a later stage of'the ease, it can and should be done at the beginning.

The general law, Rev. Stat. 5023, 5035 (Lan. 8538, 8550), authorizes the joinder of corporations in a suit in any county where one of them may be found. To take from specific statutes governing such suits, their plain meaning in order to exclude from them a class of combinations which they are expressly designed to include, violates every principle of legal construction and is contrary to sound sense and fairness.

If the object of this proceeding were merely the ouster of the separate defendant corporations for individual wrong-doing, there might be more reason for the claim here made, but, as I said before, the gist of this action is in the unlawful combination 'of all the corporations defendant. Its purpose is the breaking up of the trust alleged to exist. The acts of all the alleged conspirators are necessarily in question! and all are necessary parties to the action, in order that they may explain and ■defend, if possible, the charges of combination made against them all. Nor can the fact that some of them have never, as individual corporations, done business in Logan county, affect their rights. If it is true, as alleged, that they have been caught in bad company, combining for unlawful purposes, it is the evil combination for which they must now give account and not any particular business transactions as individuals.

It was claimed in argument that unless the corporations combined to do business in Logan county or some other specific county, they cannot be reached by quo warranto, but that some other remedy as injunction, must be sought, and further, that only where the combination does business as a corporate entity can quo warranto be brought. We do not so understand the law.

The illegal act complained of here is the wrongful combination of the defendant companies. That combination exists, if at all, in each and every county where its constituent members exist and act.

The consent to the wrong and the acts done by virtue of that consent emanate from each individual wrong-doer and no hair-splitting psychological distinction can be indulged in to define the precise moment or place when and where the thought, the wrongful intent, the clandestine purpose,! the illegal combination,' ripened into acts of purchase and sale, which are themselves no more unlawful than the unlawful intent, which gave them birth.

As to the domestic corporations, who have filed motions to quash service, the motions must for these reasons be overruled.

The American Bridge Company files a similar motion, alleging in •addition that it is a corporation organized under the laws of New Jersey; that it has by compliance, with the laws of Ohio, secured the privilege of exercising its franchises in this state; that in pursuance of the laws of Ohio, it has designated Clarence B. Sanders as the person upon whom process against said corporation may be served in this state; that said .Sanders has an office in the city of Cleveland; that it has no office or agent in Logan county, upon whom service might be made; that in this case, a summons was sent to Lucas county and service made upon M. J. Higgs, at Toledo, in said county; that said Biggs was not the managing agent of said defendant, nor the person designated as the one on whom service ought to be made. It, therefore, claims that the service should be quashed. It is also claimed for it, in argument, that having designated Cleveland as the place where its agent may be served, it can only be sued there.

For the same reasons as those given in relation to the domestic corporations, we are unable to take this view of the matter. And there is this additional reason why the company should be held amenable in this action; that the petition avers that this foreign corporation was doing business with each of the defendant companies and furnishing, materials to them. Its operations, therefore, must have extended, if this petition is true, to every county where any of the defendant corporations has been doing business, and, therefore, among other counties, to Logan county, where this action is brought.

But, it is further objected that the return of summons shows that the American Bridge Company was served by delivering a copy of the-summons to M. J. Riggs, superintendent of said company, “he being in charge of the usual place of doing business of said company.” The summons appears to be directed to the sheriff of Lucas county and the presumption probably is that it was served there.

If the facts alleged in the motion of the American Bridge Company are true, then it is apparent that Rev. Stat. 148d (Lan. 184), which provides that foreign corporations must designate a person upon whom service of summons may be made has been complied with by this company, and that service in this case has not been made upon him.

There is no averment in the sheriff’s return that M. J. Riggs is the “managing agent” of said company. He is described merely as a superintendent. This does not appear to be a proper service and the motion to quash service on the American Bridge Company must be sustained.

It may be proper, however, to state that were it not for this defect in the form of service, the ruling of the court on this motion to quash would, on its merits, be necessarily the same as in the case of the motions of the domestic corporations, whose motions are overruled, and this, suggestion, of course, applies equally to the motion of the Champion Bridge Company, which we have found to have been improperly served..

Coming now to the demurrers to the petition; the demurrer of the Mt. Vernon Bridge Company is upon two grounds:

(1) That this court has no jurisdiction over the defendant herein, or of the subject matter of the action.
(2) That separate causes of action against the several defendants in this ease are improperly joined.

As to the jurisdiction of this court over the defendant, this is but another form of the same objection made in the motions to quash service and needs no further discussion.

As to the jurisdiction over the subject-matter of this action, it is, in our opinion, clearly conferred both by Rev. Stat. 4427-2, 6768 (Lan. 7587, 10361), for reasons already given. The demurrer on this ground, must therefore be overruled.

As to the second ground of the demurrer, improper joinder, it suffices to say that if the action were not based on the ground of a conspiracy among all the defendants, and if it were merely a suit attacking the individual defendants, this ground of demurrer might properly be sustained, but. where the whole action is based, not on the wrongdoing of individual corporations, but upon the illegal combination and conspiracy of all of the members, there are no separate causes of action against the several defendants pleaded. This demurrer must also be overruled.

The Penn Bridge Company demurs to the petition on three grounds:

(1) That the petition does not state facts sufficient to constitute a cause of action.
(2) Because there is a misjoinder of parties defendant.
(3) That separate causes of action against several defendants are improperly joined.

Holding the views already expressed, all three grounds are, in our judgment, improperly taken, for reasons already given, and this demurrer must also be overruled.

The demurrers to the interrogatories are, as we understand, by-consent of all the parties, to be held in abeyance and will therefore not be passed upon at this time.

Norris and Donnelly, JJ„ concur.


source: Caselaw Access Project

author: WINCH, J.

license: Public Domain

text:
    PROCEEDING IN AID OF EXECUTION.
    [Cuyahoga (8th) Circuit Court,
    June 26, 1905.]
    Marvin, Winch and Henry, JJ.
    Sidney S. Wilson Co. v. Cleveland Elec. Ry.
    Justice’s Oedee in Proceedings in Aid op Execution not a Final Adjudication. The order of a justice of the peace in favor of the plaintiff in a proceeding in aid of execution brought under the provisions of Rev. Stat. 6680-1 to 6680-5 (Lan. 10264 to 10268), merely operates as an assignment to him of the judgment debtor’s rights: hence, in a subsequent suit against the debtor of the judgment debtor, based on such order, plaintiff must set forth not only the proceedings by virtue of which he obtained the assignment of the judgment debtor’s claims, but also a statement that the defendant in the latter action, as a matter of fact, was indebted to the judgment debtor at the time of the first service in the prior proceeding.
    [Syllabus approved by the court.]
    ERROR to Cuyahoga common pleas.
    J. H. Smart, for plaintiff! in error.
    Squire, Sanders & Dempsey and Wood, Hitchcock & Morgan, for defendant in error:
    Upon the question whether the order made by the justice in the proceeding in aid of execution is a final order. Duffey v. Bear don, 70 Ohio St. 328 [71 N. E. Rep. 712] ; Hammock v. Bank, 6 Circ. Dec. 105 (9 E. 139); Barbour v. Boyce, 9 Dec. 332 (6 N. P. 425) ; Secor v. Witter, 39 Ohio St. 218.
   WINCH, J.

Plaintiff having procured a judgment against one Phelps, brought proceedings in aid of execution before a justice of the peace, under favor of Rev. Stat. 6680-1 to 6680-5 (Lan. 10264 to 10268) inclusive, and caused defendant to be ordered to appear before said justice on a day specified, and answer whether it was liable to said Phelps in any sum of money.

The defendant disregarded said order and neglected to appear and answer, whereupon the justice proceeded as if defendant had admitted money to be in its hands sufficient to satisfy said judgment and costs, and ordered defendant to pay the same to plaintiff to be applied according to law.

Defendant failed to comply with said order, whereupon plaintiff proceeded against it by civil action, and the case being appealed to the common pleas court, plaintiff filed a petition therein fully reciting said proceedings in aid of execution and the order therein made that defendant pay a certain sum to defendant and concluding with the averment, “by reason of the premises there is due and payable from said defendants to this plaintiff the sum of $284.91 with interest thereon from the third day of January, 1905,” and a prayer for judgment in said amount.

To this petition defendant demurred and the court sustained said demurrer on the ground that the petition was deficient, in that it failed to allege that defendant was in fact liable in any sum of money to said Phelps, at the time it was first ordered to appear and answer with reference, thereto.

Thereupon, plaintiff not desiring to plead further, judgment was rendered against it and the case brought here for review.

Plaintiff contends that the order made by the justice requiring defendant to pay a certain sum of money to plaintiff is a final order, and, standing unreversed, is conclusive between the parties to this suit. Were such the case the petition would doubtless be sufficient.

While we have no decision of the Supreme Court upon the subject, the following appears as obiter in. the opinion by Judge Price in the case of Duffey v. Reardon, 70 Ohio St. 328, 333 [71 N. E. Rep. 712]:

“As to the person, partnership or corporation cited to appear and answer in such proceeding, it appears from this section that the order of the justice of the peace, is not a final order, precluding further inquiry or proceedings. The party may decline to obey the order of the justice, and in such case the judgment creditor may resort to a civil action against him, in which any proper defense may be set up by answer.”

The learned judge then calls attention to the similarity of the provisions of the statutes regulating proceedings in aid of execution and attachment and garnishee proceedings.

Comparing Rev. Stat. 6680-5 (Lan. 10268), which authorizes the action here brought, with Rev. Stat. 5551 (Lan. 9080), which authorizes a similar action in event a garnishee refuses to answer, we see that they are so much alike that they may be said to be identical as to the form of action provided for.

The law regarding garnishees has been construed by the Supreme Court in the case of Secor v. Witter, 39 Ohio St. 218, and, because of the similarity of the two statutes, we are led to the conclusion that language used by Judge Johnson on page 231 of the opinion of that case, is applicable to the ease at bar, makes clear the relation of the parties to each other and thereby settles the question here raised. Says Judge Johnson:

“The order made by the justice is not an adjudication between the plaintiff and the garnishee. It does not determine their ultimate rights. In legal effect it is only an assignment of the claim from the debtor to the creditor in attachment. If the garnishee fails to appear and answer, or if his answer is not satisfactory, or if he does not comply with the order, he is liable to an action, ‘as in other eases.’ In such an action, he is a party entitled to his day in court, and the final' determination of that action is a judgment either charging or discharging him. * * * This statutory order simply authorizes the plaintiff in attachment to take the place of the defendant, and sue in his-own name, if the order is not complied with.”

This conception of the relation of the parties, applied to the situation • here, leads to the conclusion that the plaintiff, by virtue of the order of the justice, has merely stepped into Phelps’ shoes and has the same rights, no greater and no less, to prosecute an action against the defendant to recover from it the money, if any, which it owes Phelps.

This conclusion arises naturally in the case of proceedings in aid of execution, by reason of the provisions in Rev. Stat. 6680-5 (Lan. 10268) to the effect, that,

“Judgment may be rendered in favor of the judgment creditor for what shall appear to be owing the judgment debtor by such person, partnership or corporation not exceeding the amount of such order and costs,” etc.

If the judgment creditor merely takes the place of the judgment debtor when he brings suit against one owing the latter, it follows that his petition must set forth not only the proceedings by virtue of which he has obtained an assignment of the debtor’s claims but also a statement that the defendant was in fact indebted to the judgment debtor at the time it was first served with the order in aid of execution.

The common pleas court having taken this view of the case, its judgment is affirmed.

So far as this ruling is in conflict with the opinion of this court in the case of Carlin v. Hower, 24 O. C. C. 153, that case is overruled.

Marvin and Henry, JJ., concur.


text:
    WILLS.
    [Cuyahoga (8th) Circuit Court,
    November 10, 1905.]
    Marvin, Winch and Henry, JJ.
    Bertha M. Morley, Admx. v. N. S. Calhoun, Exr.
    Pessmamt will Vest in Devisee nr Condition Peecedent Made Impossible--bt Testator before Death.
    It is the rule of the common law that an estate by devise will fail, if a. condition precedent becomes impossible of performance even through, the act of the testator, and without the fault or laches of the devisee; but this harsh rule of law has been modified as to personalty so that this class of property will vest in the devisee upon the death of the testator, unless it appear that the performance of the condition precedent was the controlling motive for the making of the bequest.
    [Syllabus approved by the court.]
    Appeal from Cuyahoga common pleas court.
    Chapman & Howland and C. A. Niman, for plaintiff;
    Courts are adverse to construing conditions to be precedent where they may defeat the vesting of an estate by a will. Stickney, In re, 85 Md. 79 [36 Atl. Rep. 654; 35 L. R. A. 693; 60 Am.. St. Rep. 308]; Martin v. Balloii, 13 Barb. 119; Lewis v. Henry, 69 Va. (28 Gratt.) 192.
    If a bequest is upon a condition subsequent the impossibility of the performance of the condition without fault on the part of the legatee discharges such condition and the bequest becomes absolute. Bryant v. Dungan, 92 Ky. 627 [18 S. W. Rep. 636; 36 Am. St. Rep. 618]; Culin’s Appeal, 20 Pa. St. 243.
    If a condition precedent is annexed to a devise of real estate and its performance is or becomes impossible, the devise fails, but the same rule does not apply to legacy of personal property as to a devise of real estate, and where a legacy is made dependable upon a condition precedent which becomes impossible without fault of the legatee the bequest will vest and become absolute. 2 Redfield, Wills (3 ed.) See. 287, p. 306; 30 Am. & Eng. Enc. Law (2 ed.) 801; 1 Roper, Legacies 753; 2 Williams, Executors 1128; Beynish v. Martin, 3 Atk. 330; Nunnery v. Garter, 58 N. C. (5 Jones Eq.) 370 [78 Am. Dec. 231]; 2 Jarman, Wills (6 ed.) 853; Burdis v. Burdis, 96 Va. 81 [30 S. E. Rep. 462; 70 Am. St. Rep. 825].
    Even if the assignment of the note by the testatrix upon terms satisfactory to herself did not constitute a literal compliance with the condition of the will, the gift nevertheless became absolute by reason of the testatrix herself voluntarily waiving the condition by parting with the ownership of the note, rendering it impossible for the legatee to comply with the condition. Gath v. Burton, 1 Beav. 478; Five Points Souse of Industry v. Amerman, 11 Hun 161; Walker v. Walker, 2 De G-. F. & J. 254; Dugan v. Hollins, 4 Md. Ch. 139.
    Calhoun & Guenther, for defendant-.
   WINCH, J.

On January 21, 1898, Harriet M. Talbot made her will, the fourteenth item of which reads as follows:

“I give and bequeath to my brother, Thomas M. Morley, one black walnut bedroom set with mattress and pillows going with the same, and in case he shall pay to me or my estate the amount of a note which I hold against him, I give and bequeath to him the sum of $2,000, the same as to my other brothers, but in case said note shall not be paid either to me or my estate, then the bequest to him, of said bedroom set, is to be all he or his heirs are to receive from my estate, as the amount he now owes me is more than his reasonable share of my estate. ’ ’

Thereafter, on July 26, 1901, Mrs. Talbot assigned said note of $2,000 which then, with accrued interest, amounted to over $4,000, to T. D. Morley and Mrs. Lillis R. Nutting, her nephew and niece, children of her brother, Thomas. The nephew paid her $200, and she acknowledged herself indebted to the niece in the sum of $200 for nursing, which it was agreed was paid by said assignment of the note.

On September 23, 1901, the nephew and niece, in consideration of two notes executed by their father, each for the sum of $200, and one payable to each of them, acknowledged payment of said note, cancelled it and delivered it to their father. The father dying, the son’s note for $200 was paid by the father’s estate, but the daughter’s note was never paid.

Thereafter Harriet M. Talbot died, her will was probated, and thereupon the heirs of the brother, Thomas, demanded of the executor payment of the legacy of $2,000 provided for in said fourteenth item of her will. The executor refused to pay said legacy, and the matter is here on appeal for direction to said executor in the premises.

The reason assigned by the executor for his refusal to pay the legacy is, that it is upon condition that the brother, Thomas, pay testatrix, or her éstate, said note of $2,000; that the condition is precedent to the vesting of the legacy, was never performed and therefore the heirs of Thomas M. Morley are entitled to nothing thereunder.

It may be conceded that the general- rule is, that a condition precedent must be literally performed before an estate can vest, and that, in the case óf a devise, if a condition becomes impossible to be performed, even through the act of the testator and without the fault or laches of the devisee, the devise fails.

But plaintiff claims that the devise to them as heirs of Thomas M. Morley under the fourteenth item of the will of Harriet M. Talbot, has not failed for three reasons:

First. Because the condition was practically complied with.

It is urged with much force that when testatrix assigned said note, “for value received,” to the children of Thomas and they accepted from him his notes aggregating $400 in payment of the $2,000 note, the said Thomas M. Morley thus paid said note to his sister, Harriet M. Talbot, during her lifetime. Confessedly, as far as the latter was concerned, the note was then paid; she could not thereafter maintain an action thereon, nor is it claimed that her executor now has any claim based upon said note. While the verb “pay” usually means to- satisfy in money, in ordinary usage it has a much wider signification and includes the ideas of satisfaction and discharge in any manner. Marriner v. Roper Co. 112 N. C. 164 [16 S. E. Rep. 906].

Second. It is claimed that, as the condition might be complied with after the death of testatrix and simultaneously with the vesting of the estate, by a mere balancing of the legacy against the note, that the condition is subsequent and not precedent, and, that the law is, that in the case of conditions subsequent the impossibility of the performance of the condition without fault on the part of the legatee, discharges the condition and the bequest becomes absolute.

It is conceded that such is the law, but we find it unnecessary to determine whether, in this case, we have a condition precedent or subsequent, for we base our conclusion upon the third contention of plaintiff’s, which we think decisive.

Third. It is contended that the rule as to conditions precedent, as claimed by defendant, is applicable only to devises of real estate and not to bequests of personal property and that if personal property is bequeathed upon condition which, before the time of performance becomes impossible to be performed, the property vests in the legatee upon the death of the testator, unless it appears that the performance of the condition was the controlling motive for the making of the bequest.

This statement of the law is supported by the weight of authority. 2 Redfield, Wills (1 ed.) Sec. 665; 1 Roper, Legacies 753; 2 Williams, Executors 1128; 2 Jarman, Wills 853; 2 Underhill, Wills Sec. 489; Gath v. Burton, 1 Beav. 478; Nunnery v. Carter, 58 N. C. 370 [78 Am. Dec. 231]; Burdis v. Burdis, 96 Va. 81 [30 S. E. Rep. 462; 70 Am. St. Rep. 825]; 30 Am. & Eng. Enc. Law (1 ed.) 801.

This modification of the harsh common-law rule as to devises of real estate upon condition precedent was first adopted from the civil law by the ecclesiastical courts of England; it has been followed by courts in this country, and we believe it is based upon reason and the dictates of equity.

If Mrs. Talbot, technically, did not receive payment of her note from her brother, Thomas, by assigning it to her nephew and niece by whom it was turned over to him, she at least put it out of his power to comply strictly with the condition annexed to her legacy to him, and waived the performance of said condition. There is nothing in the will indicating that the performance of the condition was the controlling motive for the making of the bequest. She made the bequest to Thomas because he was her brother, not for the purpose of securing the payment of the note. It is true that she says, “.The amount he now owes me is- more than his reasonable share of my estate,” and she elsewhere in her will indicates that she desires her brothers to share equally in what she might leave, but her controlling motive in making any bequest to Thomas was her love for him. Had she said nothing about the note in her will and died seized of it, the law would have applied the legacy to Thomas upon his indebtedness to the estate.

Finally, we are not disposed to give to the word “pay” the technical and strict meaning claimed for it by the executor of the estate of Harriet M. Talbot. It was manifestly the intention of Mrs. Talbot, as expressed in her will, if her brother, Thomas, was indebted to her at the time of her death, to forgive $2,000 of his debt, and if he was not then indebted to her, to bequeath to him the sum of $2,000.

As neither he nor his estate owed testatrix anything at the-time of her death, we think the bequest should be paid, and the player of the petition is granted.

Marvin and Henry, JJ., concur.


text:
    ACCEPTANCE — BAR—JUDGMENT.
    [Cuyahoga (8th) Circuit Court,
    June, 1905.]
    Marvin, Winch and Henry, JJ.
    Thomas L. Reeder v. Harris E. Mason et al.
    •ACCEPTANCE OF MONEY PAID INTO JUSTICE’S COURT DOES NOT BAR RECOVERY OF Larger Sum on Appeal.
    The payment hy defendant, into justice’s court, of a sum of money less than the magistrate’s judgment subsequently rendered against him, and the fact that plaintiff withdrew and appropriated to his own use this sum after defendant’s appeal to the court of common pleas, will not operate to bar the plaintiff’s action for the balance claimed, nor preclude his recovery of a further sum.
    [Syllabus.approved by the court.]
    Error to Cuyahoga common pleas court.
    A. N. Mayers and Berkeley Pearce, for plaintiff in error:
    Upon the question whether a certain sum tendered and paid into the justices court by defendants, and, after judgment and) pending appeal proceedings, received and accepted by plaintiff' concludes him thereby from proceeding to recover the full amount he has always claimed to be due, less what he has received. McKercher v. Curtis, 35 Mich. 478; Murphy v. Cold Stock Tel. Co. 3 N. Y. Supp. 804; Mtirray v. Bethune, '1 Wend. 191; Higbee v. Ninety-six Hundred Cases Tomatoes, 59 Fed. Rep. 783; Beil v. Supreme Council, 42 N. Y. App. Div. 168 [58 N. Y. .Supp. 1049]; McCalley v. Otey, 103 Ala. 469 [15 So. Rep. 945]; Sleght v. Rhinelander, 1 Johns. 192; Huntington v. Ziegler, 2 Ohio St. 10; Redfern v. Ullery, 5 Circ. Dee. 435 (12 R. 87); Thayer v. Brackett, 12 Mass. 450; 28 Am. & Eng. Enc. Law (2 ed.) 16, 32; Higgins v. Halligan, 46 Ill. 173; St. Louis, Ft. S. & W. Ry. v. Davis, 35 Kan. 464; Duluth ■Chamber of Commerce v. Knowlton, 42 Minn. 229 [44 N. W. Rep. 2]; Folsom v. Banking Co. 160 Mass. 561 [36 N. E. Rep. 469]; Beckman v. Birchard, 48 Neb. 784 [67 N. W. Rep. 784]; Ceary v. Page, 22 N. Y. Super. Ct. 290; Willey v. Warden, 27 Vt. 655; Sullivan y. Finn, 4 Greene (la.) 544.
    H. I. Emerson, for defendants in error.
   WINCH, J.

Plaintiff brought his action against the defendants before a justice of the peace, alleging in his bill of particulars that said defendants were indebted to him in the sum of $55.70. Thereupon defendants tendered and paid into court the sum of $33.82, together with $2 for costs accrued to that time. Thereafter the case was heard and judgment rendered in favor of the plaintiff for the sum of $40 and his costs, $8.80.

Defendants appealed the case to the common pleas court, and after plaintiff had filed his petition therein defendants filed an answer setting up the tender made by them in the justice’s court, and alleging that while the case was pending in the common pleas court plaintiff received and accepted the amount of said tender from said justice.

The case was submitted to the common pleas court upon the pleadings and that court found for the defendants, holding that plaintiff’s accepting the amount of the tender from the justice was a bar to his recovery of any further amount.

The case is here on error to review said judgment of the common pleas court.

The tender made by the defendants was under Eev. Stat. 5137 (Lan. 8652), which provides that in case of tender of the amount due into court during pendency of an action:

“The plaintiff shall not have judgment for more than the money so due and tendered, without costs, and shall pay the defendant his costs.”

Speaking of this tender, Judge Swan, on page 860, of his treatise (20 ed.) says:

“The offer of money must be without any qualification or condition’.”

We believe this properly states the law, and it is also the law that the acceptance of an unconditional tender does not amount to an accord and satisfaction, but the creditor may accept the amount tendered and maintain an action for the balance.

The tender was an acknowledgment that at least its amount was due plaintiff in any event. In such case, it has been held by the Supreme Court that the plaintiff is not required to return what he* has received before suing for the balance. Insurance Co. v. Hull, 51 Ohio St. 270, 284 [37 N. E. Rep. 1116; 25 L. R. A. 37; 46 Am. St. Rep. 571].

There is a head noté to a ease decided and reported by Judge Wright on the circuit which reads as follows:

“A tender before suit, and bringing money into court, bars the right to recover the amount tendered, or costs, though the plaintiff may take the money brought into court, and proceed for any amount beyond the tender, and if he recover more, get costs.” Foote v. Palmer Wri. 336.

While the facts in this ease did not warrant such a head note, we believe the learned judge therein expressed the law of this state.

In the case of McKercher v. Curtis, 35 Mich. 478, it was held:

“Where in a suit in a justice court for unliquidated damages the defendant has made a tender of a. sum of money on the trial, and on its being refused has paid in into Court, the acceptance of this money from the justice by the plaintiffs after judgment and appeal, is not a bar to recovery of a larger sum under the pending issue upon the appeal, on the basis of an accepted tender in court.”

The court, however, calls attention to the fact that the case was one for unliquidated damages, as to which the statute regarding tender did not apply. That is also true in Ohio, where the statute, Rev. Stat. 5137 (Lan. 8652) provides for tender “in an action on a contract for the payment of money.”

But in the ease of McCalley v. Otey, 103 Ala. 469 [15 So. Rep. 945], involving the foreclosure of a. mortgage, the amount found due by the chancery court was paid into court, and the plaintiff after he had appealed his case to the supreme court withdrew from the chancery court the amount there paid in. The supreme court found this no bar to his recovery of a further amount which it found clearly due him.

We can see no good reason why the plaintiff should not have what the defendant pays into court and proceed with his action for the balance. If he fails to recover more than the tender, the statute puts upon him the penalty of paying the costs and we apprehend that that is all it was intended' to provide.

Because the judgment is contrary to law, it is reversed.

Marvin and Henry, JJ., concur.


author: WILDMAN, J.

text:
    PROSECUTING ATTORNEYS — SALARIES.
    [Lucas (6th) Circuit Court,
    February 5, 1906.]
    Hayhesj Parker and Wildman, JJ.
    State ex rel. Lyman W. Wachenheimer v. Lucas Co. (Comrs.).
    1. Revised Statutes 1297 (Lan. 2689) Providing Salaries for Prosecuting Attorneys is in Contravention of Sec. 26, Art. 2 of the Constitution.
    Prosecuting attorneys are not local officers, but are a part of the permanent organization of the government of the state; hence Rev. Stat. 1297 (Lan. 2689) providing for their compensation, which specifies the maximum amount thereof in certain counties, and fixes the salary in other counties on a basis of population, is unconstitutional and void, as being a law of a general nature lacking uniform operation throughout the state.
    2. Whether Rev. Stat. 1297 (Lan. 2689) Void for Uncertainty, Quaere.
    Whether Rev. Stat. 1297 (Lan. 2689) providing for the compensation of prosecuting attorneys is not void for uncertainty in its operation, in establishing maximum salaries, but fixing no minimum amounts, and in failing to name the authority to determine the same in the several counties, quaere.

    [Syllabus approved by the court.]
   WILDMAN, J.

This court recently announced its judgment that the demurrer to the plaintiff’s petition, which is one asking for a mandamus, should be sustained. We have been asked to put our reasons for this decision in such form that the case may be reported. The question involved is so important, as affecting the prosecuting attorneys of the entire state, as to justify this request and the assent .of the court.to it.

The petition, I have said, is one for mandamus, brought by Lyman W. Wachenheimer, who is prosecuting attorney of Lucas county, and who seeks to compel the county commissioners to take action under Rev. Stat. 1297 (Lan. 2689), by fixing the times and amount of installments for the payment of his salary as such prosecuting attorney under said section. The section reads as follows:

“The prosecuting attorney shall receive an annual salary not exceeding the sum herein named, to wit; In Hamilton county, thirty-five hundred dollars. In Cuyahoga county, four thousand dollars. In Lucas •county, two thousand dollars. In Franklin county, two thousand dollars. In Montgomery county, two thousand dollars. In each county ■containing less than twenty thousand inhabitants by the last federal ■census, four hundred dollars; and in each, other county two dollars for each one hundred inhabitants such county contained at the next preceding federal census, to be paid at such times and in such installments as the bounty commissioners may direct. ’ ’

Our view, as previously announced, and as still held, is, tbat tbis enactment is clearly an infraction of Sec. 26, Art. 2 of the constitution of the state.

Prior to the decision of the ease of the State v. Yates, 66 Ohio St. 546 [64 N. E. Rep. 570], acts of this character, fixing the compensation of county officers were understood, and had been hpld by the Supreme Court to be, constitutional and valid.

In the case of Pearson v. Stephens, 56 Ohio St. 126 [46 N. E. Rep. 511], such an act had been sustained. But in the State v. Yates, supra, the following holding is made:

“County officers are not local officers, but are a part of the permanent organization of the government of the state, and the subject of compensation to county officers is not local in its nature, and an act of the general assembly upon that subject is a law of a general nature which must operate* uniformly throughout the state. Pearson v. Stephens, 56 Ohio St. 126 [46 N. E. Rep. 511], overruled.”

This case was decided by a majority of the court, Judge Davis announcing the opinion, and Burket, Shauek and Price concurring. Judge Spear announced no dissenting opinion, but his name is not among the judges so concurring.

In the subsequent cases of the State v. Garver and State v. Mackey, 66 Ohio St. 555 [64 N. E. Rep. 573], the court held, as expressed in the first syllabus:

“The act ‘to limit the compensation of county officers in Holmes county, ’ passed April 26, 1898 (93 O. L. 660), is a law of a general nature which does not operate uniformly throughout the state; and it is therefore in violation of the constitution, Art. 2, Sec. 26. State v. Yates, ante, 546, approved and followed.”

In this case fit was very earnestly urged by counsel that since the decision of Pearson v. Stephens, supra, and in reliance upon it, local laws had been passed in eighteen counties in the state providing for the compensation of county officers, and it was argued that to hold such legislation invalid would be to plunge the county affairs of eighteen counties into hopeless and almost inextricable confusion. Notwithstanding this appeal, the court adhered to its decision in State v. Yates, supra, Judges Burket, Shauek and Price again concurring with Judge Davis, who announced the opinion. Judge Spear concurred in the judgment upon another ground but not upon the ground which has been stated.

But in the láter case of State v. Lewis, 69 Ohio St. 202 [69 N. E. Rep. 132], the entire court united in this decision:

“The doctrine stare decisis will not be allowed to interfere with tbe overruling of a former decision upon a constitutional question when such former decision is clearly erroneous and it does not appear that sucb decision bas been acted upon as a rule of property, or that rights have-vested under it so that more injury would follow if it were overruled than if it were allowed to stand.
“State v. Yates, 66 Ohio St. 546 [64 N. E. Rep. 573], is approved and followed, and State v. Judges, 21 Ohio St. 1, is overruled.”

We have then the entire Supreme Court finally concurring in the approval of State v. Yates, supra, and consequently the judgment that legislation of the character now under consideration is invalid as an infraction of the section and article of the constitution which have been mentioned.

This act provides that the salaries of prosecuting attorneys in Hamilton, Cuyahoga, Lucas, Franklin and Montgomery counties shall not exceed the amount stated; and in each county containing less than twenty thousand inhabitants by the last federal census, four hundred dollars; and in all the other counties of the state two dollars for each one hundred inhabitants. A peculiarity of this enactment is, that no provision is made for a minimum compensation in any of the counties of the state, nor is any authority named which may 'determine the amounts of the*salaries in tbe several counties. A query naturally arises, and we desire to suggest it, as to whether this act, without regard to the constitution, may not be invalid because of uncertainty in its operation. It is an evolution from an earlier statute which provided that the county commissioners might fix the salaries in certain counties but should not fix them in an amount exceeding the amount or amounts named, but in the amendment of the statute and in the enactment of the section now before me, the provision giving to the county commissioners such power is eliminated, and no other tribunal or authority is substituted. The only power given to the county commissioners seems to be, that whatever salary is allowed is to be paid at such times and in such installments as the county commissioners may direct. It is not necessary -to our decision that we should hold this act invalid for this reason. It is enough to base our decision upon the adjudications of the Supreme Court to which reference has been made, and upon those adjudications and in recognition of the far reaching consequences of such holding, affecting tbe salaries of all prosecuting attorneys in the state, we are still constrained to sustain the demurrer to the petition upon the ground that it states no facts entitling relator to the mandamus sought.

Haynes and Parker, JJ., concur.


author: HULL, J.

text:
    DAMAGES — STREETS.
    [Wood (6th) Circuit Court,
    December 17, 1904.]
    Parker, Hull and Haynes, JJ.
    Celeste Taber v. Bowling Green (City).
    1. Abutting Land Owneb cannot Recover fob Damages fob Establishment of Reasonable Geade to Stbeet.
    There can be no recovery by an abutting proprietor for damages resulting from the establishment of a reasonable grade for a street, even though such thoroughfare has been open and used for a long period of time and such owner has built with reference to the natural grade.
    2. Undeb Obiginal Sec. 2315 Rev. Stat., Pbesentation of Claim of Damages fob Change of Stbeet Gbade is Condition Pbecedent.
    Under the provisions of Rev. Stat. 2315 as it existed before the new municipal code, the presentation of a claim for damages on account of a change of grade is a condition precedent to the right to recover damages because of such change.
    [Syllabus approved by the court.]
    Error to Wood common pleas.
    B. F. James, for plaintiff.
    P. J. Chase, city solicitor, for defendant.
   HULL, J.

This action was brought by Mrs. Celeste Taber to recover judgment against the city of Bowling Green, Ohio, for damages which she claims she suffered on account of the change of the grade of Church street in said city on which her house was situate. It seems that this street was opened a great many years ago and used by the people residing thereon, who built their houses upon it. A few years ago the city decided to improve and grade the street and pave it, which was done, ánd in front of Mrs. Taber’s house there^being a sort of hollow, it was filled, and the ground raised there to the height of eighteen inches or two feet probably, so that while her house before the improvement sat some eighteen inches or two feet above the level of the surface of the ground, after the improvement, the lot being filled in at the sidewalk even with the surface of the ground, the water ran in some, and this, it is claimed, was a damage to her property in some hundreds of dollars as shown by the evidence in the case.

In the court below, after the evidence of the plaintiff was in, the judge directed the jury to return a verdict in favor of the city, and it is to reverse the judgment entered upon this verdict that the proceedings in error were commenced in this court.

I have practically stated the facts in the case as they appear from the bill of exceptions. Under the law of this state, Mrs. Taber’s right to recover depends upon whether she had the right to rely upon the natural grade of the street as it existed before this improvement was made:, whether the circumstances were such that she had any reasonable right to anticipate or suppose that no material change would ever be made in the grade of the street.

Streets of a city are of course under the care, control and custody of the city, which has a right, to improve “them — grade and pave them, and the general right to change the grade if necessary.

Prior to the improvement of Church street no grade had been established for that street; there was nothing but the natural grade as it was called, and those who built thereon, built in reference to this «natural grade. Mrs. Taber’s house was built with reference to it, having a foundation of eighteen inches or two feet, and now it is practically level with the. ground.

In our judgment the court did not err in taking this case from the jury and directing a verdict. After reading the record in the case it-seems to us that those who built upon that street, including the plaintiff,, did so at their own risk. The city had established no grade;” the character of the territory there was such, — it being higher in some places, than others in this street, that it might be reasonably anticipated that when the city came to improve this street, that the grade of the street would be changed; it would be necessary to do this to make this improvement in the proper way. The low place or depression at or near' Mrs. Taber’s house was about two feet, and that would necessarily make-the fill about the same depth.

This question has been before the Supreme Court, and other courts of this state. The law is laid down in Akron v. Chamberlain Co. 34 Ohio St. 328 [32 Am. Rep. 367], the syllabus reading:

“The owner of a lot abutting on an unimproved street of a city or village, in'erecting buildings thereon, assumes the risk of all damage which may result from the subsequent grading and improvement of the street by the municipal authorities, if made within the reasonable exercise of their power.
“The liability of a municipality for injury to buildings on abutting-lots exists only where such buildings were erected with reference to a, grade actually established, either by ordinance or such improvement of the street as fairly indicated that the grade was permanently fixed, and the damage resulted from a change of such grade, or, where the buildings, if erected before a grade was so established, were injured by the subsequent establishment of an unreasonable grade.”

The case of Cincinnati v. Penny, 21 Ohio St. 499 [8 Am. Rep. 78], is also in point, and a decision by this court, Neubert v. Toledo, 6 Circ. Dec. 66 (9 R. 462), is upon this very question, and reviews the decision of the Supreme Court in the case of Akron v. Chamberlain, supra. The court in this case says:

‘ ‘ The fact that a city has left a street for many years with its natural grade, that the public has used the street at that grade for all that time, and that the city has even had sewers laid and sidewalks constructed in such street in that condition, does not preclude the city from afterwards finally adopting a different grade for such street, and a property owner has no right to assume that the city has adopted such original grade for the street. ’ ’

Those authorities seem to settle this question. There was no evidence in this ease that anything had been done maliciously on the part of the city for the purpose of injuring Mrs. Taber’s property; no evidence in the case that she had no right to Suppose that the grade of this street would not be at some time changed; no grade had been established there; the street had never been improved; there was nothing but the natural grade, and, as I have said, from the topography of the street and the character of the territory it was apparent that when the street was improved, it would be necessary to make some slight changes in the grade.

We are inclined further to the opinion that Mrs. Taber could not recover for the reason that she presented no claim for damages to her property as required under original Rev. Stat. 2315 (see Lan. 3605; B. 1536-214) as it then stood.

It is said that the driveway part of the street was first made, and that she did not comprehend the damage that this improvement would be-to her property until her sidewalk was built; but the whole improvement, was covered by one piece of legislation, and thé grade was fixed for both street and sidewalk, and it seems to us that she might have anticipated what damage it might be to her before the sidewalk was laid,, so that it would not be sufficient to excuse her from presenting her claim for damages, and we think that the presentation of her claim was a part, of her ease rather than a defense to be plead by the city. The statute makes it one of the prerequisites to her right to recover that she should present this claim, the same as one should present a claim to an administrator. For these reasons given, the judgment of the court of common pleas will be affirmed.

Parker and Haynes, JJ., concur.


author: HENRY, J.

text:
    CORPORATIONS — EVIDENCE—FRAUD—TRIAL.
    [Summit (8th) Circuit Court,
    September 30, 1905.]
    Marvin, Winch and Henry, JJ.
    Anson H. Russell v. John A. Weiler.
    1. COURT MUST DEFINE ISSUES AND APPLY. RULES OF LAW.
    It is erroneous for the court, in submitting a case to the jury to merely read the- pleadings, and leave them not only to define the issues but also to apply thereto the rules of law laid down; a fortiori, ’when the action is founded upon fraud which is itself elusive in its nature, and a question therefore particularly requiring the court to define the issues precisely and completely.
    2. CIRCULARS OF PROMOTER ADMISSIBLE TO SHOW' KNOWLEDGE OF FALSITY OF HIS Agent’s Representations.
    Advertising circulars sent out by a promoter engaged in selling certain stock are admissible in evidence as bearing upon the question of whether or not he knew that certain representations with reference thereto, made by his agent, were false.
    3. Letters Competent as Admissions to Show Falsity of Representations Previously Made.
    Letters from a promoter with reference to certain corporate stock for sale by him are admissible in a suit for fraud in the sale thereof, as admissions or declarations tending to show the falsity of representations previously made.
    4. In Action for Fraudulent Sale, Evidence of Defendant’s Representations in Another Transaction, Inadmissible.
    In an action for a fraudulent sale of a certain corporate stock, the admission of evidence of the defendant’s newspaper advertisement of stock for sale.in another company which he promoted was erroneous.
    [Syllabus approved by the court.]
    ERROR to Summit, common pleas.
    Rogers, Rowley & Rockwell, for plaintiff.
    Musser, Kohler & Mottimger, for defendant.
   HENRY, J.

The defendant in error brought action and recovered judgment against the plaintiff in error for $120 paid for worthless stock in an oil company promoted by the latter, alleging that said stock had been bought on the faith of the promoter’s fraudulent representations. The representation specially relied on was that said company had two thousand acres in the Lima district under lease whereon there were five producing oil wells, whereas the contrary was the fact. Russell contends that he personally made no such representation of fact, and it is perhaps true that he did not. The facts appear to have been that the leases referred to were owned by other parties, and Russell held options for the purchase thereof from the lessees, which he afterwards allowed to lapse because surrounding developments proved discouraging. That is his evidence. But he spoke loosely of these leases in such a manner that his agent, Hess, in Cincinnati, understood and represented to his customers, including Weiler, that his company owned the leases and wells in question. Russell, being bound by his agent’s representations, must therefore be held to have actually so represented. The circular which he issued, of itself, hardly goes to that length; but that, together with other writings of like import, addressed by Russell to Weiler’s wife and to other persons, about the time that Weiler purchased stock, were properly admitted in evidence, solely as bearing upon the question whether •Russell knew that the representations made were false. United States Life Ins. Co. v. Wright, 33 Ohio State 533. Other letters afterwards written by Russell to third parties were admissible to the extent that, being admissions or declarations, they tended to show the falsity of the representations previously made to Weiler.

The conclusion of witness Buckner concerning the results of his investigation of the company’s'ownership of oil leases in West Virginia was, we think, erroneously admitted, as also was the plaintiff in error’s newspaper advertisement of stock for sale in another company which he promoted.

The charge of the court is complained of, among other reasons, because it failed concretely to define the issues left in the case for the jury’s consideration. The charges of fraud contained in the petition were numerous and diffuse; much of the evidence was only broadly applicable to the issues; and the right of action, being founded on fraud, which is itself elusive in its nature, made it peculiarly necessary for the court to define the issues precisely and concretely. What he did was merely to read the pleadings to the jury and leave them not only to define the issues, but also to apply thereto the rules of law laid down as best they might. What he should have done was to limit the issue to be determined by the jury'to the Lima leases and wells, and charge the law of fraudulent representation as applied to that precise point. In the case of Balt. & O. Ry. v. Lockwood, 72 Ohio St. 586, the first paragraph of the syllabus is as follows: “In submitting a case to the jury, it is the duty of the court to separate and definitely state to the jury, the issues of fact made in the pleadings, accompanied by such instructions as to each issue as the nature of the case may require; and it is also the duty of the court to distinguish between, and call the attention of the jury to, the material allegations of fact which are admitted and those which are denied. It is error to read the pleadings to the jury and then say to the jury that these constitute the pleadings in the ease, which make up the issue and from which they will try and determine the controversy between the parties, and not otherwise to define the specific issues.”

There is complaint of the conduct of counsel for the prevailing party in this case, and in a number of places in the long record there are instances of conduct that, perhaps, technically is not above criticism, but we reverse the judgment below only for error in the admission of ■evidence and error in the charge of the court, as above pointed out.

Marvin and Winch, JJ., concur.


author: HAYNES, J. PARKER, J. HAYNES, J.

text:
    DIVORCE AND ALIMONY — EVIDENCE.
    [Wood (6th) Circuit Court,
    April 29, 1905.]
    Hull, Haynes and Parker, JJ.
    Hull, J., not sitting.
    Josephine E. Young v. Washington Young.
    1. In Action by Divorced Wipe for Support of Child, a Charge which Conveys the Impression of Joint Liability therefor is Erroneous.
    In an action by a divorced wife against her former husband for the support of their minor child, for whom the decree of alimony made no .provision, a charge to the jury which might create in their minds the impression that the husband and wife were jointly liable for such minor child’s support, is erroneous; it is well established in this state that the primary duty of maintaining a minor child devolves upon the father even after divorce.
    2. Divorced Wife can Recover from Former Husband for Necessary Time Spent in Taking Care of their Child.
    A divorced wife will be entitled to recover from her former husband for time actually and necessarily spent in .taking care of their minor child, but it will be presumed that only a part of her time was necessarily devoted to such duties.
    3. Jury should Consider Wealth, etc , «of Parents in Determining Divorced Husband’s Liability fob Maintenance of Child.
    In determining the amount of recovery in a suit against a divorced husband by his former wife for the'maintenance of their child, the jury should take into consideration the condition, habits, wealth and general mode of living of the parents.
    4. Questions and Answers Showing Party’s War Record is not Reversible Ebro* unless Prejudice Shown.
    The fact that there were a great many old soldiers on a jury and that questions were asked in regard to the prior occupation of one of the parties which elicited the fact that he had been in the army and severely wounded is not reversible error, in the absence of a showing that the adverse party was prejudiced thereby.
    5. Stenographer Should State, in Referring to Exhibit that it was Attached to Bill of Exceptions.
    For the proper identification of an exhibit introduced in evidence with the intention of attaching it j;o the bill of exceptions, the stenographer should in his reference to it, preferably add the words, “and the same is hereto annexed and made a part of the bill of exceptions-,” but there may be a sufficient identification of the same without such statement.
    [Syllabus approved by the court;]
    ErkoR to Wood common pleas court.
    Blackford & Blackford and J. E. Shatzel, for plaintiffs
    Baldwin & Harrington, for defendant-.
   HAYNES, J.

A petition in error has been filed to reverse the judgment of the -court of common pleas in an action in that court in which the defendant in error was plaintiff, and the plaintiff in error was defendant. The action was brought to foreclose a mortgage, and an answer was filed in which it is practically admitted that the mortgage was executed and had not been paid, and that there was due upon it the amount mentioned in the notes. The defendant in that action, plaintiff here, however set up that she had formerly been the wife of Washington "Young and that a divorce had been granted her some years ago, and in that divorce which was granted by reason of the aggressions of the husband, that there was a certain amount of alimony allowed her, and that she was at that time pregnant. The divorce was granted in the spring and in the autumn following a child was bom which is still living, his son, and that she has had the care and custody of that child from its birth to the present time. It is conceded by all that no provision was made in the allowance of alimony, for the support of the child; the alimony being allowed to her, as distinctive alimony to her. She claimed that she had to support this child during all this time, — that it was liable to be sickly, and had been sick at different times, and that the care of the child had required her constant attention, which she had given him, and that the board, clothing and necessaries, and the care and attention she had furnished the child were worth in all about two thousand dollars, and she asks that that be allowed as a set-off against the claim of the plaintiff.

The case proceeded to trial and the finding of th,e jury was in favor of the plaintiff for the full amount of the mortgage, and a finding in favor of the defendant below for five hundred dollars for the care, and custody of the child. That judgment was entered and a motion for a new trial was filed in which one of the points is that the verdict was not supported by sufficient evidence, and various other matters set forth, and a petition in error was filed. It is not alleged distinctly that the overruling of the motion for a new trial was the ground for error but because of the errors on the face of the record; because testimony was given for the defendant on her set-off and for the plaintiff below in rebuttal. It was claimed by the plaintiff below that he had paid her at different times for the support of the child in the form of physician’s bills and clothing, in all as he claims, to about a hundred and seventy dollars. This was largely denied by the defendant below, and evidence taken along that line was submitted to the jury, and they gave the plaintiff credit for the amount they found he had paid, I take it; at any rate they returned a verdict for five hundred dollars for the defendant. Some exceptions were taken to the testimony and one point is that there were quéstions asked in regard to the occupation heretofore of the plaintiff, and that drew forth the fact that he had been in the army and been severely wounded. Objection was made to that because it is said there-were a great many soldiers on the jury. That fact does not of course-appear in the evidence at all.

We are' clear that this testimony ought not to have gone to the jury,, but I don’t know as we should reverse the case upon that point, because-as I have said, from the record it does not appear that there was anyone-on the jury that that would affect, and I pass that as a minor matter-The real and great contention in the ease is that the court in its charge to the jury committed error; that the case was tried at the instance and suggestion of counsel for plaintiff upon the theory that the wife owed the same duty to this child that the father did, and that practically the only amount that could be recovered by the plaintiff below would be for expenses, necessaries that she had bought and things of that kind. There is one matter in the record touching that point that I will read:

“Q. Do you recognize that there is any obligation on your part as-a mother to look after the child? (This was objected to; objection overruled and defendant excepted.) A. Why, yes.
“Q. You did certain things and performed certain offices for this child that probably nobody else on earth could do so well? A. I suppose so.
“Q. I suppose you nursed this child as a baby? A. I did.
“Q. And you ask your former husband to pay for that?”

We doubt whether that is a proper question to be asked. Her obligations are fixed by the law and not by what she supposes. Her obligations are not to be laid down by her, — what she considers she should do, and what she should not do. She might, of course, as a mother, recognize her rights, but that would not and ought not to have any effect as to her husband and herself, or affect her liability for the support of the child.

Testimony was given on behalf of the defendant below as to the amount of eare she had given this child and the value of her services, and evidence was given in opposition, in regard to the value of her services. There was objection to this testimony, and only one witness produced seemed to be very fully qualified on this point, and the court permitted it to stand. I don’t know as there is enough objection to that to make it worth while to call attention to it.

We come now to the charge of the court. Counsel for the defendant requested the court to charge the jury as follows: “The defendant, Josephine Young, is entitled to recover in this action from the plaintiff, the value of clothing, food, doctor bills, and all expenses in-eurred in the care of said child, John R. Young, and is also entitled to recover the value of her time actually taken in caring for said child.”

The court refused to so charge the jury and the defendant excepted. We are inclined to think that the court would not be required to give that charge just in that form. It was rather too narrow in its statement, as to its conclusion in regard to the matter of time.

The court then proceeded to charge the jury, after stating to them the contents of the pleadings. Now we have been referred to the case of Pretzinger v. Pretzinger, 45 Ohio St. 452 [15 N. E. Rep. 471; 4 Am. St. Rep. 542], which seems to state the law of the ease in Ohio, we think, quite fully. In that case, very much like this, Judge Dickman. after discussing the general principles, says, p. 461:

“The Statute, 43 Bliz. Ch. 2, directs that ‘the father and mother, grandfather and grandmother, of poor, impotent persons, shall maintain them, if of sufficient ability, as the quarter-sessions shall direct/ Its provisions.have been re-enacted in several of our states; and in view of the special enactment it has been held that, where the husband and wife are divorced, and upon her application the custody and control of their minor children are awarded to her, she cannot, in an action against the father, recover for the entire support of such children furnished by her after the divorce, but only for contribution. But there is no such statute in this state, and in general, after a divorce as well as during coverture, the primary duty of maintaining any minor child of the marriage still remains with the former husband.”

Now we think the charge all the way through is objectionable, and open to the objection that the court was proceeding upon the theory that there was a joint obligation and that the wife was bound to contribute to the care of the child. It seems from this report that that is not the law in Ohio. The charge of the court is as follows:

“The record in the divorce case referred to in the pleadings has been offered in evidence. That record shows that the parties agreed upon a settlement of alimony and their agreement was approved by the court. For the purposes of this case that agreement is final. That is, it amounts to a provision for the wife or mother of this child, and in this case you can not allow anything to the mother for her support, no matter whether you think the amount allowed was sufficient or not, and your allowance, if any, must be limited to the care and support of the child. The order made in the divorce case is not a provision for the child and that question is left open for your consideration in this case. And in determining the amount which the mother should receive from the father in this case for the care and support of the child, you should consider the dutiejs devolving upon the parents to care for ■and support a minor child under the conditions and circumstances existing in this case.
The record of the divorce case shows that a divorce was granted -on account of the wrongs of the husband, and even though he is not permitted to have the custody of this child, he cannot, under the circumstances, complain on that account, but his duty to care for and .support his child is the same as if the parties were living together, even though on account of his own wrong he is deprived of the pleasure and -comfort which would naturally result from the society of the child.
The mother also owes to her child certain duties, and in a case like this she is not relieved of any of those duties because she has been divorced from the father.
The divorce granted to these parties made them as strangers to each other in regard to all duties toward each other growing out of the marriage relation. But their duty to care for and support their child remained.”

It will be observed that these clauses of the charge really proceed upon the theory that there was still the same obligation upon the mother as there was upon the father to support the child. This, we think under the above decision, is not true in this ease. The obligation to support this child was upon the father. As between the mother and the child, the mother naturally would recognize her motherly feeling towards the -child and take care of it, but as between the husband and her there was no such obligation resting upon her; no more than if the child had been placed with a stranger.

He says further in the charge “The father in this case can, in no event, be held to pay more for the care and support of this child than is reasonably required for his comfort and maintenance. And what is necessary, depends upon the condition and circumstances of the parents. What might properly.be.regarded as necessary for the support of a child of wealthy parents would be greatly in excess of the •amount required for the support of the child of parents in moderate or poor circumstances. In this case in determining what should be paid by the father to the mother for the support of this child, you should consider the condition of the child, its health, the amount of care required during health and sickness, the expense of medical attendance,, the necessary expense for food and clothing, the manner in which the child was eared for by the mother, and the financial condition of the parents during the time that the mother has taken care of the chile!. And considering the evidence upon all these matters and all other evidence offered in the case having any bearing upon this subject, and taking into consideration the duty of each of these parents to the child you will fix the amount which the father should pay to the mother of the child for its care and support from the time of its birth on September 8, 1889, to June 8, 1904.”

Perhaps those words “care” and “support” alone would not be-objectionable but under the statement that has been made it was not sufficiently clear and was very liable to mislead the jury. In the request that was not given, the request was in substance that she should receive pay for all the time actually taken in caring for the child. We think the court has correctly stated the general duty of the parents, in regard to their circumstances in this- world; as to the amount of their means; and we think the charge should run along in that line in regard to that; their means, condition of life, habits, and matters of that kind, and that she should recover for time that was necessarily spent in the care of 'the child. That is to say, she claimed she was giving her whole attention to the child, but we think it would be a very rare case where it would be necessary for a person to devote all their time to the care of a child. She was entitled to her time to earn her living and support and maintain herself, and so far as charging the husband, she should charge him with a reasonable amount of time that she should spend in looking after the child.

( It is very properly said in the charge here, as is said in Pretzinger v. Pretzinger, supra, that these persons stand as strangers; they do not stand as owing the duties of husband and wife to each other. That duty has passed out of existence; the wife 'has simply received the child that the husband is bound to maintain and support and for her-reasonable and necessary expense in that regard, and for her time and labor, she is entitled to compensation from him.

PARKER, J.

“This is a new and interesting question. I think Judge Haynes-has covered our views very fully upon it. Perhaps the same views-expressed in different language might help counsel to understand our position. As pointed out by Judge Haynes this request to charge is ■ faulty in that it asks that the jury shall be instructed to allow the plaintiff to recover the value of her time actually taken in earing for the child, whereas, it should set forth that she is to be allowed the value-of her time actually taken and that was reasonably necessary; not time that she might have devoted to fondling the child or lavishing her affections upon it, and it is not intended to be intimated in this opinion. that for those things she should be entitled to recover. We think in one or two of the paragraphs of the charge and in the general tenor of it, the jury were given to understand that they were to consider and cull out what each parent owed to the child, and the charge contained the intimation, or it might be fairly inferred from it that this matter of caring for the child devolved upon them both, and that the wife could only recover from the husband for the share that he owed for the care of the child, and that she could not'recover anything for the part of said attention devolving upon her, as a legal obligation. That they should consider it as a sort of a partnership obligation. It seems to us that under this decision which Judge Haynes has cited the whole legal obligation, so far as the necessary care, support and maintenance of the child was concerned, devolved .upon the father alone as between him and the mother, and that nothing was to be subtracted on account of any supposed legal obligation resting upon the mother as between her and the child, or between her and the public to aid in caring for the child.

In one paragraph of the charge the trial judge says, “And in determining the amount which the mother should receive from the father in this case for the care and support of their child you should consider the duties devolving upon the parents,” — (not upon *him, but upon both of them) — “to care for and support a minor child under the conditions and circumstances existing in this case.”

And again: “The mother owes to her child certain duties, and in a case like this she is not relieved of any of those duties, because she has been divorced from the father.”

While that might be true as .between the mother and child, yet, as stated in the charge and applied to this ease, it would have a tendency to mislead the jury, and cause them to suppose that to the extent of her obligation to the public or to the child, she would have no recourse on the husband, which we think is not true.

Further along is repeated “But their duty to care for and support their child remained.” And this clause especially, I think, is open to that criticism: “And considering the evidence upon all these matters and all other evidence offered in the case having any bearing upon this subject, and taking into consideration the duty of each of these parents to the child, you will fix the amount which the father should pay the mother for the care and support of the child * * *.”

I think that is a very plain and direct intimation that it was an obligation resting upon both of them and to be shared by both of them and that the mother could only recover from the father because and to the extent that he had failed to do his share.

It is provided in Rev. Stat. 3110 (Lan. 4810) that “The husband must support himself, his wife, and his minor children out of his property or by his labor. If he is unable -to do so, the wife must assist him so far as she is able.”

The obligation rests upon the husband primarily, secondarily upon the wife. The decision in Pretzinger v. Pretzinger, supra, seems to us to involve the proposition that he is to recompense the divorced wife for the care of the child, precisely as though she were a person not related to the child.

There are statutes bearing upon the duties of divorced persons under which the assistance of the court may be invoked and had to fix the status of the parties and fix their obligations in a measure. Counsel will remember that the statute provides for an appeal to the court, and provides that the court shall fix their respective obligations with reference to the support of the children, and that the obligation may rest upon one to support a child where the custody has been given to the other. But where that has not been done, we think Pretzinger v. Pretzinger, supra, applies, and that the yihole obligation rests upon the husband. The judgment will be reversed, the verdict set aside, and the ease remanded for a new trial.

HAYNES, J.

There was another exception taken, or rather a suggestion made that a certain paper attached to the bill of exceptions was not in proper form. It consisted of the final record in the divorce ease in' question. The record was produced in court and read in evidence, but it was not copied at that point of the evidence, .in the record, but subsequently a full copy of the final record was made and attached to the bill of ''-reeptions, marked “Exhibit A” — Final record No. 45, page 481, Case No. 12244. It has the same number and the same parties, and the same references that are made at the time of the introduction of the evidence. It would have been better perhaps if the stenographer had in his reference to it, added the words “and the same is hereto annexed and made a part of the bill of exceptions,” but the real question is whether there was sufficient to identify it and to make it a part of the bill of exceptions, and we think there was. The identification is sufficient, we think. A copy of the final record was made and attached to the bill of exceptions, marked “Exhibit A” and we think on the whole, that is sufficient.