author: Haynes, J.

text:
    (Sixth Circuit — Lucas Co., O., Circuit Court
    —Jan. Term, 1899.)
    Before King, Haynes and Parker, JJ.
    THE MIEHLE PRINTING PRESS AND MANUFACTURING COMPANY v. THE ANDREWS-JONES PRINTING COMPANY.

      Judgment in former case, when a bar to subsequent suit—

    (1.) Where a judgment or decree is relied on by way of evidence, as conclusive per se, between the parties in a subsequent suit, it must appear by the record of the former suit that the particular controversy sought to be precluded was therein necessarily tried and determined. The judgment of a court of concurrent jurisdiction, directly upon the point, is, as a plea in bar or as evidence conclusive between the same parties, on the same matter, directly in question in another court. But neither the judgment of a court of concurrent or of exclusive jurisdiction is evidence of any matter incidentally cognizable, nor of any matter to be inferred by argument from the judgment.

      Priority of liens — Defective chattel mortgage for purchase money —Prior Equity as against transferee for subsequent debt—
    (2.) Where in selling a printing press, the seller takes a chattel mortgage on the press for the purchase money, which however is not sworn to as the statute requires, and the vendee after-wards surrenders the said press to one of his creditors to secure an antecedent debt, the equity of the vendor of such press to the possession thereof is superior to the rights of such creditor of the vendee.
    Appeal from the Court of Common Pleas of Lucas county.
   Haynes, J.

This action is brought into this court by appeal from the common pleas. The case was at first submitted to us upon a motion for judgment upon the pleadings in favor of the plaintiff; and later, upon suggestion of the court, was submitted to us with the record of the former case. The pleadings disclose that the action was brought by the Miehle Printing Press and Manufacturing Company against the Andrews-Jones Printing Company to enforce a mortgage lien upon a certain printing press which before that time had been sold by the Miehle Company to the Andrews-Jones Company,and a decree was taken in the court of common pleas to enforce their lien upon the property and their right to have the property sold, but the court declined to cause an order of sale to be issued until Dennis Coghlin should be brought in, who, it was said, had some claim upon the property, and thereupon Mr. Coghlin was brought into court under process and filed a pleading in the case, and his answer in this case, in substance,is that in a case before that time pending, (being No. 41017), in the court of common pleas, wherein the First National Bank of Toledo was plaintiff and the Andrews-Jones Company and others were defendants, it was adjudged that this property belonged to him, under and by virtue of certain mortgages and certain proceedings taken thereunder and certain actions of the Andrews-Jones Printing Company in pledging said property to. him, and that said adjudication is a bar to this action. The contest here is, whether the judgment which was rendered in the case of the First National Bank against the Andrews-Jones Printing Company is a bar totheproseeution of this suit as against Mr. Coghlin.

In the case of the First National Bank v. The Andrews-Jones Printing Company, the bank filed a petition in which it set forth that it was a creditor of the Andrews-Jones Printing Company, setting up its claim, and then sets forth that the defendant became unable to pay its obligations, not having sufficient assets to pay the same, and was and is wholly insolvent; that being so, on the 9th of April, 1897, they on that day transferred and conveyed to the defendant, Dennis Coghlin their entire stock of personal property and assets, including machinery, stock in trade and fixtures, etc., and that said Dennis Coghlin thereupon entered into and is now in possession of said property. It stated that Coghlin claims this property upon mortgages which amount to about the sum of $4,200, but it states and charges the fact to be that a large amount of said indebtedness is not in fact the debt of said corporation, but is in fact the individual debt of certain of the stockholders thereof. Plaintiff is unable to state what portion of said $4,200 is of the character last-named, but is informed and charges that not less than $3,500 of said indebtedness is not in fact the indebtedness of said corporation. It further stated that the' possession so taken by said Dennis Coghlin of said stock of goods and property of said corporation was taken under and by virtue of the terms of a certain chattel mortgage executed to said Dennis Coghlin more than one year prior to' said April 9th, 1897, and which was executed by said corporation or by a certain co-partnership which was the predecessor of said corporation in said business. That said chattel mortgage was never recorded,but was withheld from' the records by said Dennis Coghlin at the request of said corporation for the purpose of keeping its credit good. That the indebtedness so as aforesaid due this plaintiff was contracted without any knowledge on the part of the plaintiff herein of the existence of said mortgage. It further says that the unsecured indebtedness of said company will amount to about the sum of nine or ten thousand dollars, and claims'that the value of the property so taken possession of depends largely upon the continuance of the business of said company, and that if the court will appoint a receiver to take charge of the business, the plaintiff believes that a large sum can be realized for the benefit of general creditors and without injury to the rights of Coghlin, and then closes by saying:

“Plaintiff alleges and charges that by reason of the facts herein set forth, the said property and assets of said corporation so held by said defendant Dennis Coghlin, constitute a trust fund for the equal benefit of all the bona fide creditors of said corporation who shall seek to avail themselves hereof in accordance with law. Plaintiff therefore prays that the court will appoint a receiver to take charge of the property and assets of the said the Andrews-Jones Printing Company, to carry on the business of said company under the order of the court, until such time as the same can be sold for the benefit of alL' the creditors of the said company.”

He asks that an accounting may be had of, the amoun-i due Coghlin from said company, and his said mortgage set. aside and held for naught, and that said property and assets- and the good will may be ordered' and decreed to be sold in-such manner as to the court shall seem best for the interests-of all concerned, and the proceeds applied to the payment* of all the debts of the said Andrews-Jones Printing Company, and for such other relief as to the court shall seem, equitable and proper in the premises.

Upon the filing of that petition 'a notice was pub* lished to all the creditors of the existence of the suit and' of the substance of the prayer of the petition,and they were* notified to come in, as provided in section 6344, of the Revised Statutes, and certain creditors did come in and filedi answers and cross-petitions in which they set up the samb facts or availed themselves of the facts set up in the plaintiff’s petition — adopting those facts and praying for the same relief. Among others, the Miehle Printing Press-Company filed an answer and cross-petition in which it affirmed the facts set up in the petition of the plaintiff and asked for the same relief, and at the same time set up that it had a mortgage upon a certain printing press included in-the property for the purchase money, which mortgage had been executed and filed in the records of Lucas county, but it asked for no relief whatever upon that mortgage; it simply set up the fact that it was a creditor, and asked if the-prayer of the petition was granted that its rights in the-printing press should be protected.

Coghlin filed an answer in which he. set up the fact that he had loaned to Samuel Andrews, who originally carried* on the printing business in company with James B. Busse-, the sum of $3,500, to enable him to buy out his -co-parts ner; which he proceeded to do, and that thereafter John Paul Jones entered into a partnership with Andrews; that ‘they carried on the business a little while,and then the firm was incorporated as the Andrews & Jones Printing Com-pany “for the express purpose of owning 'and continuing •said business, at the same place, as a corporation, and not as a co-partnership, and said Andrews & Jones thereupon 'transferred and delivered all of the property and assets of •said partnership to such corporation, on condition that said •corporation was to and did assume and agree to pay all the •debts of said partnership growing out of and in connection with their said business, and including said debt to this defendant. ’ ’

He then set up that at the maturity of the original noto •evidencing the $3,500 loan, there was an extension of the time of payment thereof, and two notes were given, for $1,750.00 each, running two and three years at six per cent. That on June 22, 1896, at the request of said Andrews & Jones, he loaned to said Andrews & Jones Printing •CompanyJ;he further sum of $750 “for which said company executed and delivered to him its note of that date, payable on demand with interest”, and also executed to him a certain chattel mortgage on certain property, describing it; ' then he seta up that this mortgage has not been paid, and “that there was a provision for his taking possession of said property if he desired to do so; and farther sets up that at the time of the delivery of said mortgage the corporation was solvent and that “it continued in good faith to carry •on its business in the usual way and to pursue all the purposes of its organization until April 7th; 1897. He then avers:

“That on said April 7th, 1897, no part of the principal -of either of said notes having been paid, and the interest not having been paid on said notes dated October 5fh, 1895, •■since —-—■—-—or on said note dated June 22, 1896, -■since — and the said defendant deeming it necessary for his more complete and perfect security, that he should take possession of said mortgaged property, demanded of •said the Andrews & Jones Printing Company the possession of said goods and chattels, and the same were by said company delivered to him to be managed and disposed of according to the terms and conditions of the said mortgage, and on demand of said defendant, the said . company also voluntarily delivered to this defendant all the other goods and chattels which said company then owned, consisting of other printing machines and appliances, and of a stuck of merchandize then on hand, and also assigned and transferred to him all amounts due and to become due it from all persons and parties, as the same should appear upon the books of said company, to be held as additional security for the payment of said indebtedness, and to be disposed of in ■the same manner as the property described in and conveyed by said mortgage. And said defendant had said goods and chattels and other property in his possession until the same were, on April, 1897, delivered over to the receiver appointed by this court, in this action, to take possession of such property.

Included with the other printing machines was this Miehle Printing Machine, which was not in at the time the mortgage was taken by Coghlin from the Andrews & Jones Printing Company, but it was-purchased subsequently, and was transferred at this time to Coghlin to secure indebtedness then past due and unpaid. Then, in Coghlin’s answer, follows a denial that said property so taken by him constituted a trust fund for the equal benefit of the creditors of said corporation. He makes no prayer for action, ■so far as he is concerned. The case went to trial upon these pleadings as between the plaintiff and Coghlin. ’ A replication was, however, filed by the First National Bank as against the Miehle Printing Company, wherein it is stated that the mortgage mentioned in their answer and cioss-peti■tion had not been sworn to as provided by the statute.

There was also, at or about the time the'suit was commenced, a receiver appointed, who took possession of this-property and held possession of it at the time trial was had. That case was appealed to the circuit court, and by an arrangement between the parties, a judgment was entered,, which is as follows:

“This cause came on for hearing upon the petition of the-plaintiff, the cross-petition of the Northern National Bank, Toledo, Ohio, and the answer of the defendant, Dennis Ooghlin, and reply thereto, and was submitted to the court,, and the court having heard the evidence and the argument of counsel, and being fully advised in the premises, do find upon the issues joined by said pleadings, for said defendant, Dennis Ooghlin, and that at the time of the commencement of this action said Ooghlin was, as against the creditors of the defendant the Andrews-Jones Printing Company, entitled to the possessiomof all the property referred to in said pleadings as security for the payment of the indebtedness due him from said the Andrews-Jones Printing Company as set out in his said answer, and that said Ooghlin is-now entitled to have said property sold by the receiver heretofore appointed in this action and now having the same in his possession, and the proceeds applied in payment, first, of the costs of this suit, and next, of the said indebtedness to him, It is therefore ordered, adjudged and «decreed that said petition herein be dismissed * * * and-the cause remanded to the court of common pleas,” etc.

It will be observed that this sets up that the case came on for hearing upon the petition of the plaintiff and the cross-petition of the Northern National Bank, Toledo, Ohio,, there being some question made whether the other defendants had appeared or were in this court. The judgment of the court of common pleas was as follows:

“This day came the parties by their attorneys, and thereupon this cause came on to be heard upon the pleadings and evidence, and was argued by counsel, And the court,, being now fully advised in the premises, finds in favor of' said defendant Dennis Ooghlin, on- the issues joined between him and said plaintiff and the other answering defendants herein,
Wherefore it is ordered that said petition of said plaintiff and the cross-petitions of The Northern National Bank of Toledo, The Miehle Printing Press & Manufacturing Company, and The Diem & Wing Paper Company, be and the same are Jjereby dismissed, and that said defendant Dennis •Coghlin, recover of said parties his costs herein, taxed at $--.
And thereupon came said plaintiff, and said answering defendants, The Northern National Bank, The Miehle Printing Press & Manufacturing Company and The Diem & Wing Paper Company, and gave notice severally of their intention to appeal this cause to the circuit court within and for the-county of Lucas aforesaid” etc.

It is claimed now that upon the hearing of that case, and from the record as I have stated it, that the issues which -were made in the subsequent case were substantially disposed of, and that that action was a bar to the subsequent proceedings; and it is claimed also that if they were not disposed of by the issues which were actually made and •submitted to the court, that they were disposed of because the parties might have pleaded or might have given evh dence upon the other issues which have subsequently been made, and that brings us to a discussion of the law that bas been submitted as to what matters and how far the judgment covers the issues here submittted.

Now one of the first cases in the Ohio State Reports which I know of, is that found in 10 Ohio St., at page 4.5, where the court say:

“Where a judgment or decree is relied on by way of evidence, as conclusive per se, between the parties in a subsequent suit, it must appear by the record of the former suit that the particular controversy sought to be precluded was therein necessarily tried and determined.

The opinion was delivered by Judge Peck, and is very full and learned, as his decisions usually were. He says:

“There can be no doubt at the present day but that the rule established in the Dutchess of Kingston’s case, 11 State Trials, 291, cited with approbation by Chief Justice Gibson, in Hibbsham v. Dulleham, 4 Watts, 191, and by Lewis, J., in Lents v. Wallace, 17 Penn. 412, is the true one and well expressed: “The judgment of a court of concurrent jurisdiction, directly upon the point,is, as a plea in bar or as evidence, conclusive between the same-parties, on the same matter, directly in question in another court. But neither tbe judgment of a court of concurrent or of exclusive jurisdiction is evidence of any matter incidentally cognizable, nor of any matter to be inferred by/ argument from the judgment.”

So it is also said in 3 Phillips’ Evidence, 845:

“That where a judgment (or decree) is relied on ty way of evidence as something conclusive per se, between the parties, it must appear by the record of the prior suit, that the particular controversy so sought to be precluded was there necessarily tried and determined. In other words, if, in such case, the former record clearly shows that the judgment to which this effect is ascribed could not have passed without deciding a particular matter, it will be considered as having settled that matter for all future actions; but otherwise not.”

Passing now over Vols. 27 and 28 (Ohio St.) which were cited, I turn to 36 Ohio St., 471, Porter v. Wagner. The second of the syllabi is as follows:

“Where a judgment between the parties is relied upon as-an estoppel, the question is not what the court might have-decided in the former action, but what it did in fact decide, as shown by the judgment.”
“A judgment is conclusive by way of estoppel only as to facts, without the proof or the admission of which it could not have been rendered,”

And the opinion follows that line.

The next I cite is 46 Ohio St., 483. This was a suit under the statute for damages, and the question was whether or not there had been damages allowed for the building of a fence in certain appropriation proceedings. I will read from the opinion:

“The prayer was that the lands ‘may be duly appropriated for the use and purpose aforesaid, and that such proceedings may be had in the premises as may be necessary to perfect the same according to the statute in such case made and provided. ’ No answer or other pleading was required, and none was filed, and the subject of fencing is nowhere mentioned in the record. The verdict was for a gross sum as damages by reason of the appropriation.
“If it may be inferred from the record that the matter of damages by reason of a necessity on the part of the land owner to construct and maintain a fence between his land and that of the company was necessarily determined in the proceeding; or, if the matter of fence, as an element of damage, was necessarily involved in the proceeding, as shown by the record, then the contention of the plaintiff in error is correct. No duty would devolve upon the company by reason of the statute, to maintain a fence, and the court erred in refusing the instruction asked. But, if the question of fencing might or might not have been involved in the case, then, the record being silent on that subject, no such presumption would arise. On the contrary, the duty to fence enjoined by the statute of March 23, 1859, (now sec. 3324, Revised Statutes), which provides that every railroad company having the control of a railroad operated in this state, within two years after the passage of the act or after commencing to run cars, shall construct and maintain fences on both sides of its road, would be impressed upon the company, and the instruction was properly - refused. ‘The question is not what the court might have decided in the former action, but what it did in fact decide, as shown by the judgment. A judgment is conclusive by way of estoppel only as to facts, without the proof or admission of which, it could not have been rendered.’

Now, counsel have cited us to the 27 Ohio St., 238, and 28 Ohio St., 597, in which it is claimed that there was a broader rule stated. In the 27th Ohio St., the court say. (p. 237)

“When the facts which constitute the cause of action or defense have been, between the same parties, submitted to the consideration of the court, and passed upon by the court, they can not again be the proper subjects for an action or defense, unless the finding and judgment of the court is opened up or set aside by proper authority. This principle of law extends still further in quieting litigation. A party cannot re-litigate matters which he might have interposed, but failed to do in a prior action between the same parties or their privies, in reference to the same subject-matter. And if one of the parties failed to introduce matters for the consideration of the court that he might have done, he will be presumed to have waived his right' to do so. ”

In the 28 Ohio St., on page 520, the court say:

“It is a well-settled principle in judicial proceedings that when a party is called upon, from the nature of the proceedings, to make good his cause of action or defense, and he purposely or negligently fails to do so at the proper time, he will be held to have waived his rights, whatever they may have been. 27 Ohio St., 233. So we take it, when a party has full knowledge of all the facts that would make for him a valid defense in a given case, a failure to assert them at the proper time, from any cause over which he has control, will work a waiver, and cause him to lose the benefit thereof.”

There is another case in 27 Ohio St. where it is held: (p. 674)

“A judgment on the merits, in favor of all the defendants in such action, is a bar to a subsequent action, by the same plaintiff for the.same cause of action, against one of the defendants in the former action.
“Such judgment is conclusive, not only as to matters thereby actually determined, but also as to every other matter which might have been litigated and decided upon the issues made in the case, and upon which it was tried.

In the 53 Ohio St., 361 (Hixon v. Ogg), there is a case in which there is quite a discussion upon the question by the supreme court. In that case the action had been brought upon a note, and there had been a plea of payment. When the issue was tried there was a judgment for plaintiff. Motion was made for a new trial by defendant, upon the hearing of which he introduced a paper purporting to be a receipt. The plaintiff contended that this had been forged, the court overruled the motion, and the judgment was allowed to stand. The defendant was subsequently indicted for having forged this paper, and on that trial he was acquitted,and thereupon he sued plaintiff _|or malicious prosecution, and one of the questions which arose there was whether in truth and in fact the amount which had been in controversy before had been paid. The court having stated that it had been settled by that litigation, the attorney for the plaintiff in the last case asked the court to charge: “But that judgment is not a Lar to this action, and the question of the payment of said money can be re-tried here for the purpose of this action.” This the court refused to give, and the plaintiff excepted. The supreme court said there were two questions: First. Whether the judgment in the former action was not a bar to the second action; and second: Whether the question of the repayment of the money could be re-tried for the purpose of the second action; and the court held that it could not, and proceed to cite cases, one being from 5 Conn. 550, where it is beW.-;

“Where the cause or object of two actions is different, though the matter or point in dispute is the same Jn both, a prior judgment is no bar to a subsequent action; but fhe verdict may be matter of evidence to prove such point in dispute * * * for although the object and purpose of two actions being different, the judgment in one, cannot be used by way of bar to the other, it does not follow that in the second action, either party can be permitted to contradict what was expressly adjudicated in the first. A decision upon any material point is conclusive, though the subject-matter of the two suits is different. A judgment is conclusive, not only as to the subject-matter in suit, but as to all other suits which, though concerning' other subject-matters, involve the same questions of controAmrsy. ”

They then cite a part of the syllabus in the case of Covington & Cincinnati Bridge Co. v. Sargent, 27 Ohio St., as follows:

“In a judicial proceeding in a court of record, where a party is called upon to make good his cause of action or establish his defense, he must do so by all the proper means within his control, and if he fails in that respect, purposely or negligently, he will not afterward be permitted to deny the correctness of the determination, nor to litigate the same matter between the same parties.”

He then cites a case of Cromwell v. County of Sac., 94 U. S., 351:

/‘The difference between the effect of a judgment as a bar to a second action on the same demand, and its effect as an estoppel between the same parties upon a different cause of action, is clearly stated in the first clause of the syllabus: ‘In the former case, the judgment, if rendered upon the merits, constitutes an absolute bar to a subsequent action, * * * But where the second action between the same parties is upon a different claim or demand, the judgment in the prior action operates as an estoppel only as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered.”

In 54 Ohio St., at page 562, is another case. In this case there had been a suit brought to enforce a stockholder's lien, and it was found that Drexel, Morgan & Co. were the owners of a certain lot of stock. After the issues were made up and the cause tried in the common pleas, it was taken by appeal to the circuit court, was there upon certain issues heard, and came up in the circuit court again, in a form whereby the former judgment was pleaded as a bar to the subsequent proceedings. The court in passing upon this question, say:

“One contention of counsel for the defendants in error is, that the first four of the grounds of reversal above stated were involved in, and determined adversely to the plaintiff in error by, the former judgment of the circuit corurt,which having been affirmed by this court, became a final adjudication upon them, and as between the parties, precludes further inquiry..

Then it proceeds to state some other facts, after which it comes down to the question of law:

“As said by counsel for defendants in error,- every fact necessary to that determination ‘stands as a fact adjudicated between the parties, and, as between them, cannot be re-litigated in any subsequent proceeding in the same action. ’
“Questions before the court for decision, and- by the court decided, as essential to a final judgment, are conclusively and finally adjudicated. The law as declared cannot be changed upon a second or subsequent appeal.
“It has been declared by this court that: ‘When the facts which constitute the cause of action or defense have been between the same parties, submitted to the consideration of .the court, and passed upon by the court, they can not again be the proper subjects for action or defense, unless the finding and judgment of the courtis opened up and set aside by proper authority. This principle of law extends still further in quieting litigation. A party can not re-litigate matters which he might have interposed, but failed to do in a proper action, between the same parties or their privies, in reference to the same subject-matter, And if one of the parties failed to introduce matters for the consideration of the court, that he might have done,, he will be presumed to have waived his right to do so.”

I read these authorities to show that the language of the supreme court is, in different cases, I think somewhat at variance; and there arises perhaps some little confusion in attempting to apply the principles laid down in these various cases to any particular case. We think the doctrine stated in the 10 Ohio State is a correct doctrine, and it has been affirmed by the supreme court from time to time.

In the first case tried — the First National Bank case— the issues which were joined between the parties were, in substance, these: The plaintiff claimed on the facts of the case that Coghlin bad taken from these defendants property at a time when they were insolvent and that he had taken property of the corporation amounting in value to a very large sum of money to secure an indebtedness due from some of the individual stockholders to the corporation. It is true that it did not say in so many words that that was done with intent to hinder, delay or defraud creditors; it simply states that the firm was insolvent and was owing some $10,00.0 of indebtedness, and prays for the appointment of a receiver to take possession of the property, but it files its notice to all creditors to come in as provided in sec. 6344 of the statutes. The facts of the case as set forth are that the party has been misapplying the funds of the corporation to secure the individual indebtedness of the several members of the corporation, and practically has hindered and delayed creditors in the collection of their debts by so doing. It is true, perhaps, that the pleader had in his mind the decision of Rouse v. Bank, decided in 45 Ohio St., and perhaps he thought he might apply this principle to this particular case. Coghlin set up an issue in which he claimed that he received this mortgage from the company when they were solvent; that this indebtedness occurred prior to the time when the corporation was formed, and that when the corporation was formed it assumed the whole of ihe indebtedness, thereby making it the indebtedness of the corporation; that at that time it was a solvent and going corporation, and practically claimed that under the decision of the supreme court he had a right to take security at that time; and on these questions the case went to trial and was heard upon these issues, and the finding was in favor of Coghlin, and the plaintiff’s petition was dismissed. Now, upon any issues as between the Miehle Printing Company and Coghlin, toere was no issue joined - by Coghlin; the only issue joined, if it was joined, was by the replication made bj tbe plaintiff — 'The First National Bank — that the Miehle Printing Company had not'made a proper affidavit to their mortgage which they had filed. Coghlin paid no attention to that matter whatever, and there was no issue joined between them, apd the matter was not directly in the litigation at all, and was not passed unon, by the court, and we think that under the proper rule of law it should be held that that matter as between Coghlin and the Printing Company was not passed upon, and was not in fact a bar. It is true that as between plaintiff and defendant both their petitions were dismissed, but that issue was not submitted to the court: there was no finding as between the parties who had joined issue upon that point as to their respective rights. What the company had said was that it had this mortgage, and prayed that if the prayer of the plaintiff’s petition was allowed and it was found that the mortgages in the possession of Coghlin were illegal and in violation of the statute, that the rights of the plaintiff should be protected. We are of the opinion upon a very full discussion of the case, that the plea in bar should not be allowed. And that leaves the parties in this position, as I understand it: that plaintiff had a chattel morgage upon the property; that that mortgage was not properly verified; it was a good mortgage as between the Miehle Printing Company and The Andrews-Jones Printing Company. Mr. Coghlin had taken possession of this particular press as a pledge, and it was transferred to him by the Andrews-Jones Printing Company as security for an antecedent debt, without any new consideration whatever moving between the parties. The next question that came up was:

“What were the respective rights as between these parties, under that state of facts?”

We have examined a very large number of authorities, and the conclusion at which we have arrived is that he is not clothed with the rights of a bona fide purchaser under sections 4150 and 4154 of the statute. Other leading cases that we have examined are: 27 Law Bulletin, p. 72; which is a decision of the court of common pleas of Hamilton county, and is authority simply so far as it is a well reasoned case; 7 Ohio St., 199; 6 Ohio St., 148, The 7 Ohio St. is as to the effect of notice upon a prior mortgage. The 6 Ohio St. relates to the rights of a party who takes a promissory note either as security upon an antecedent debt.

Iu 19 Ohio SI. is a case which comes very near this, and is a case that is by implication a decision upon this case; it is found at page 145. In that case there had been a lease of certain premises to a firm with an agreement in the lease that the property which was in the store should be security for the rent. Subsequently a mortgage was made by the tenants to a party upon part of the stock of goods to secure a debt of $1000, and on the same day the mortgage was duly filed as required by the statute; and subsequently possession was taken of the property. After that an agreement was made whereby the lessors took possession of the property and held it for a while, and then I think a petition was filed and the property brought under the jurisdiction of the court, and by agreement, the property was sold, and upon question of priority of liens the case was taken to the supreme court, In this case the question was whether or not these persons taking the mortgage for $1000 had a lien upon this property prior to the equities of the plaintiffs by virtue of their alleged agreement. The court say:

“If the question of priority between the parties stood upon their equitable rights alone, and Mrs. Heiny’s equity was obtained only as a security of a pre-existing debt, without any other obligation, or consideration, between the parties at the time her mortgage was made — upon the principle applicable to the voluntary transfer of negotiable paper before due, as security of a pre-existing debt, as settled in the case of Roxborough v. Messick (6 Ohio St., 448), it might well be doubted whether the want of notice would be of any avail to the subsequent mortgagee.

The question was decided for the mortgagee, upon the ground that a note was given and' the payment extended one day, and the court held that constituted a new consideration. But the general rule is stated in regard to mortgages. Cases may be found in 27 N. Y. 581 and 77 N. Y. 6288, in which the rule of law is stated as stated above, to-wit: that where the mortgage is taken to secure a preexisting debt, the mortgagee acquires no rights to the exclusion of a prior equity. It is stated in 7 Ohio St. that the mortgage law of this state was copied from that of the state of New York, and the supreme court in that case followed the decision of the supreme court of New York in the construction of the statute of this state. There is also another case which is instructive, in 34 Michigan, 360, in which Judge Campbell says:

“The statute which makes a mortgage of chattels, which has not been recorded, void against subsequent purchasers or mortgagees in good faith” (citing from their statute) “uses those terms in the sense which has always, been attached to them by judicial decisions. The only object of the law is to protect those who have acquired rights under circumstances which would render them liable to be defrauded unless protected against instruments of which they knew nothing when they obtained their rights. It has always been held that a purchaser who had paid nothing could not be thus defrauded, and that no one could be protected as a bona fide purchaser except to the extent of his payments made before he received such notice as should have prevented him from making further payments. This doctrine has been too uniformly recognized to require discussion or citation of authorities.”

That question arose upon a chattel mortgage as against a lien acquired by purchase of the property.

I have not time to go through all these authorities. We are of opinion that as between these plaintiffs that the equity of the Miehle Printing Press Company prevails over that of Coghlin.

Blackford & Byal, and Swayne, Hayes & Tyler, for Plaintiff,

Waite & Snyder, and Doyle & Lewis, for Defendants,

It was argued here that inasmuch as a receiver had been appointed, it was in the nature of an execution in equity. There was something about the petition that looked as if the pleader had undertaken to file a petition under the case of Rouse v. The Bank, under the claim that the firm being insolvent, the receiver should have been appointed to sell the property and make payment to all the creditors pro rata. A receiver was appointed, but upon the dismissal of the petition we have no doubt that all the rights of the receiver, so far as that case was concerned, were ended — that his duties closed; there was nothing left for him to do but to turn the property over to Coghlin. He had been appointed at the instance of the parties plaintiff for the purpose of preserving the fund for the benefit of the general creditors, whether under the case that arose against the bank or under section 6344, it made no difference; he was to preserve that fund for the benefit of all creditors, and when the petition was dismissed, his rights ceased. Under these circumstances, a judgment having been already rendered in favor of the plaintiffs, so far as Andrews & Jones are concerned, it simply remains to render judgment in favor of the Miehle Printing Company as against Coghlin, that they have a prior claim against this property.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    (First Circuit — Hamilton Co., Ohio, Circuit Court —
    Jan. Term1899.)
    Before Smith, Swing and Giffen, JJ.
    THE MT. ADAMS & EDEN PARK INCLINED PLANE R. R. CO. v. MORRIS ISAACS.

      Street Car Aeeident— Use of divided dashboard on cable car as ■ negligence—
    (1) . Where the claim of the plaintiff was that while riding as a passenger on a grip car of defendant company he was thrown from the rear platform of the ear and was thereby injured, and that such accident was caused by the negligence of the company in the operation of its railroad, and in furnishing inadequate safe guards for the rear platform of such car, and that by a sudden jerk thereof, he was thrown from the rear platform of said car over a divided dash board, and the evidence offered in chief by the plaintiff showed that a divided dash board for the rear platform of such grip cars was necessary and proper, and that in other large cities such dash boards were used, and that it was a perfectly safe method, and there was no evidence to the contrary of this, it was not proper,against the objection cf the defendant, for the plaintiff to offer evidence tending to prove that on another cable road in the same city, grip cars with divided dash boards had been abandoned, and that the defendant company on their, road was now using some grip cars with solid dash boards. Such evidence, if admitted, standing alone as it did in this case, would not legitimately tend to show that the defendant was negligent in the use of divided dash boards. But as there was no evidence tending to prove that the use of divided dash boards was negligent, or not proper, but all the evidence offered tended to prove that it was not negligence, the ruling of the court admitting it, perhaps was not prejudicial to the defendant.

      Negligence — Too short stops to leave off passengers—
    (2) . It was not error to admit evidence on the part of the plaintiff tending to prove that for several years prior to the injury to the plaintiff, the cars of the defendant company were accustomed to make a short stop at the street crossing where the plaintiff wished to alight from the car on this day, and not long enough to allow passengeis to leave the car safely, as he well knew. Such evidence was admissible as tending to show that the plaintiff in leaving his seat and walking to and perhaps upon the rear platform while the car was in motion, did not act negligently and thus contribute to his own injury.

      Measure of damages — Value of services before and^after accident—

    (3). Evidence given by a person having knowledge of the facts, that the services of the plaintifi in the line of his business were worth to the firm of which he was a member, before he was injured so much,and that after he was injured,and in consequence thereof, they were worth only so much, is competent. But it is nor competent in such a case for the plaintiff to show on the question of the amount of damages, that before he was injured he received from the firm for his services so much, and that after his injury by arrangement with the firm he was to receive a much less sum for his services.

      Evidence■ — Impeaching witness—

    (I). Where a witness, called by the defendant company testified-as to what happened at the time of the accident to the plaintiff and as to the construction of the car and other matters, , and was thereupon cross examined by plaintiff’s counsel as to statements alleged to have been made by the witness to the plaintiff in an interview between them after the accident in conflict with his evidence on the stand, and denied making such statements, and on re-examination testified- that in the interview referred to plaintiff admitted that he himself was to blame for the accident,and that he blamed no one else for it, and on rebuttal by plaintiff, evidence was allowed to be given as to what was said by both parties at said interview — Held, that this was not error to the prejudice of the defendant company. The plaintiff might have contented himself by having his witness say that a particular statement was made by the witness whose evidence was sought to be impeached by the plaintiff, or that the plaintiff did not make the admission as averred. But he might prove all the conversation on the subject, and then prove what be claimed.

      Duty of Str. R. R. to passenger — Fact of accident as prima facie proof of negligence—
    (6). A charge of the court to the jury in a case of th.is' kind to the effect, that it was the duty of the defendant company to carry the plaintiff, a passenger, safely to his destination without injury, and that if it was shown that it failed to do so, and the plaintiff was injured without his fault, that such failure put the defendant, prima facie, in the wrong, and the burden devolves upon the defendant company to show that the injury was the result of a pure accident, and that it could not have been averted by the exercise of the utmost care and skill which prudent men are accustomed to exercise under similar circumstances, states the law too strongly against the defendant in a case of this kind, and is erroneous.

      Error to the Court of Common Pleas of Hamilton county.
   Smith, J.

The plaintiff in error in this case asks for the reversal of the judgment rendered against it, on several grounds, viz: First, that the trial court erred in overruling the motion for a new trial, based on the ground that the verdict was against the weight of the evidence. Second, that it erred in the admission of evidence, over the objection of the defendant below. Third, that it erred in the general charge given to the jury, and in giving certain special charges asked by this plaintiff below, and in refusing to give sundry special charges asked by the defendant below,

The action was brought by Isaacs against the street railroad company to recover damages for a personal injury, claimed to have been received by him while riding as a passenger on one of defendant's cars, by being thrown therefrom while attempting to cross from one side of the car to the other, over the back platform of the grip car, (cable road), while the car was in the neighborhood of Rudolph street, preparatory to his leaving the car at Fair-fax avenue, which was the next street beyond Rudolph street, and that while he was on the rear platform of said car, without any negligence on his part, and by the negligence of the defendant company, in the operation of its railway, and in furnishing inadequate safeguards for the said rear platform, and unsuitable and insufficient machinery for the operation of said railway, the car was suddenly jerked forward, so that plaintiff, without any fault on his part, was violently thrown from the rear platform, falling between the grip car and the trailer attached thereto, and was dragged by said trailer along the street, and that it run partly over him. Whereby it is alleged that he was severely injured in the manner stated in the petition, and has expended $500 in being treated for his injuries, and was otherwise damaged to the amount of $20,000. The answer of the defendant denied all of these allegations.

At the trial, as shown by the bill of exceptions allowed in the case, which contains all of the testimony, it appeared that when the car on which the plaintiff was a passenger, reached Rudolph street going north (Fairfax avenue being the next street), and at which the plaintiff desired to alight, he arose from his seat on the west side of the grip car, which seat was the second or third one from the rear of the car, and stepped upon the running board on that side of the car, intending to walk to the rear platform, and cross over to the east side of the car, so that he might alight at Fair-fax avenue, and from that side of the car where he would not be in danger from cars passing in the opposite direction. He gave no signal to the grip man, or to any one in charge of the train that he desired to alight at Fairfax avenue, and, so far as appears, no one had notice of his intention to leave the car. It is probable, from the evidence, that he stepped from the running board onto the rear platform, carrying a bundle in his hand, and was standing on the platform, or was crossing it to the east side, when, as he says, there was a sudden jerk of the car which threw him from the platform onto the railroad track between the grip car and the trailer which was following, and he was dragged along the track and very severely injured. There is controversy as to whether there was any such jerk of the car, this being denied by others. The railing of the rear platform of the grip car was a divided one. In the centre of the railing was an open space a foot or eighteen inches wide perhaps, and an iron chain reached from one side of the opening to the other, near the top of the railing. There is no direct testimony that we recall, as to the exact manner in which the plaintiff was thrown from the rear flat-form, but it would seem most probable that he went over the railing itself, or over the chain. We refer to this feature of the case for the reason that one of the errors assigned is, that the court erred in allowing evidence to be given, over the exception of the defendant company, which had reference to the construction of the car in this respect.

Mr. Kilgour, the president of the defendant company, and also of the company which operated the Vine street cable line, was called as a witness for the plaintiff, and testified as to the mode of construction of the grip car in question, and others of the same kind in use on the road of the defendant company, and gave the reason why it was necessary that grip cars of that kind should have a divided dash board — and as to this, there was no contradictory evidence. The plaintiff then asked him if the defendant company was not then operating two kinds of cars on its road — those with a solid, and those with a divided dash-board. This was objected to, hut the witness was allowed to answer that it was doing so, and the defendant’s counsel excepted to the ruling. He further testified in answer to questions of plaintiff’s counsel, and against the exception of defendant’s counsel, that at and before the time of the accident to plaintiff, the company was putting onto said road, grip cars with solid dash-boards, and that the grip cars on the Vine street cable line did not have divided dash-boards, as they used a different kind of grip on such cars, and that for this reason it was not necessary to have divided dash-boards, as it was -sith the other kind. He was also allowed to testify that the other company, (Vine street cable), had abandoned the divided dash-board six or seven years before the time of this accident. He also testified in answer to the questions .of defendant’s counsel, that in other cities, as Chicago or Pittsburg, the same kind of grip cars and divided dashboards have been in use, and that it was a perfectly, safe method — -and we recall no evidence tending to show that it was not entirely safe.

It was probably the aim of the counsel for the plaintiff in offering evidence of the kind objected to, to obtain testimony which would give ground for an argument to the jury, or which would raise an inference that the defendant company was negligent in the use of this kind of a dash-board, for the reason that another company in the same city did not use a car with that kind of a dash-board, and that the defendant company itself recognized the danger of it by ceasing to construct new cars of that kind. We incline to the opinion that such an inference could not properly be drawn from the evidence so submitted, standing alone. The mere fact that another company in like business used a different kind of car, or that the defendant company itself used some cars of a different kind in this respect, would not have a tendency tc show that the divided dash-board was dangerous, or that the company in changing from that kind admitted that it was. This should be shown in a different way. While we question the propriety of its admission, we think the evidence received was not prejudicial to the rights of the defendant company.

It is also urged that the court erred in permitting the plaintiff to offer evidence tending to prove that the cars of the defendant company for several years prior to this accident, as was known to the plaintiff, were accustomed to make a very short stop at Fairfax avenue, where he desired to alight, and not a sufficient time to allow passengers to leave the car in safety. This evidence was admissible, W8 think, as tending to throw light upon the question whether the conduct of the plaintiff in leaving his seat, while the car was in motion and in attempting to walk backwards upon the running board, and perhaps across the rear platform was, or was not negligent, and whether he acted as a reasonably prudent man would do under the circumstances.

It is further objected that the court over the exception of defendant’s counsel, allowed evidence of this kind to go to the jury: Firñt, by a partner of the plaintiff, that services like those rendered by the plaintiff to the firm of which he was a member, as a salesman and otherwise, before he was injured, were worth $4,000 to $5,000 per year, and that owing to his disabled condition after.the accident, they were worth one-third less — and that since then such services were not so valuable to the partnership by one-third; and second, that by reason of this diminution in the value of his services to the firm, it had been agreed by the members of he partnership, that he was to receive each year the sum of $600 less than was provided for by the original contract.

As to the first of these questions we may say that there is some question whether such partner who testified as to the value of the services of the plaintiff, before and after the injury, was qualified to speak on those points. To say the least, his evidence was not at all satisfactory on the subject. But as we are of the opinion that such evidence from a person having knowledge on the subject, would be competent and proper, we are not willing to say that the court erred to the prejudice of the defendant in receiving it. As to the second exception, we are of the opinion that the court was not justified in receiving evidence as to an agreement made between the members of the firm after the accident, as to what amount should be deducted from his share of the business on account of his disabled condition. Of course, it may be shown in a case of this kind, that the injury complained of, lessens the earning capacity of the plaintiff, and- the amount it is lessened may be shown by competent evidence, so that the jury may have some data on which to estimate the amount of damages really sustained by him, and thus to compensate him for the injury. It may be a question of doubt and difficulty to know always the proper way to do this. We think it may be done by showing what such services as were rendered by this plaintiff to the firm of which he was a member, or to others were worth — how much they would probably command in the market, before he was injured, and afterwards. But we think it would be going too far to allow evidence that by an agreement of his, he abated a. certain amount from the sum before received, on account of Ms injury. We think this is the effect of the decision in the case of R. R. Co. v. Gardner, 45 Ohio St., 309. Though the cases are very different, we think the principle there stated excludes such evidence,

It is also urged, that the trial court erred in admitting certain evidence of the wife of the plaintiff offered by him.

The question arises in this way: Willetts, the gripman, ■was called as a witness in chief by the defendant company and examined as to the circumstances surrounding the accident, the construction of the rear platform and dash-board. He was then cross-examined by plaintiff’s counsel, and was asked if he had not called upon the plaintiff after the accident, and made certain statements to him as to what occurred at the time of the accident differing from the statements made by him on the stand, and as to the insufficient time he had to make the round-trip, and that passengers were ■not given time enough to get off of the cars, All of these he denied, On re-examination by defendant’s counsel he testified that Mr, Isaacs in that interview told him he blamed no one for the accident, and that it was occasioned by his own fault.

By way of rebuttal of these statements said to have been made by the plaintiff, his wife was called, and was allowed to give the whole conversation, as she claimed it to be, between her husband and the gripman, denying that Isaacs made any such admission that he was to blame for the accident, purporting to give Isaacs’ version to the gripman of ho.w the accident occurred.

The object of calling Mrs. Isaacs was, of course, to impeach the testimony of Willetts as to the admission of Isaacs, that he was in fault himself, and in other respects. To do ■this it was proper, we think, for the witness to state everything that was said in the conversation between the parties on the subject. The plaintiff might have contented himself by having Mrs. Isaac state that no such admission was ever made. But he was not limited to this, but might go further and show exactly what was said. Of course, what Isaacs then said as to the way in which the accident occurred, was not evidence of the fact, and the court might properly have so said to the jury; but it was all competent as bearing on the credit to be given to the testimony of Willetts as to the alleged admission of Isaacs as to his being at fault.

In the general charge given to the jury, the court after stating certain general rules as to the case, and the caution required of a carrier of passengers for hire in the management of its trains and the use of proper cars and machinery in the operation of the same, used this language, which was excepted to by the defendant, and is claimed to be erroneous:

“If the jury believes from all the evidence that the plaintiff received an injury as stated by him, while riding on the car6 of the defendant, by .reason of the negligence of the defendant company, in the operation of its railway; and by reason of furnishing inadequate safeguards for the rear platform, and unsuitable and insufficient machinery for the operation of this railway, as alleged in his petition, and that while riding thereon, he did all that an ordinarily prudent and careful man would do under the same or similar circumstances, and that he did nothing to contribute to his own injury, then those facts will make a prima facie case of negligence against the defendant. And the burden of proof will be on the defendant to show that it, by its agents and servants, did use all reasonably practicable care and precaution to prevent such injury. ”

We do not see what the defendant company has to complain of in this charge. In effect it is simply^this, that if the jury finds from the evidence that the defendant was negligent in the manner stated, and the plaintiff was injured without his fault, it made a prima facie case of negligence. We think the court might properly have gone further, and have instructed the jury that in such case the’plaintiff was «ntitled^to recover.

Questions of greater difficulty arise when we come to the consideration of certain special charges given by the court to the jury at the request of counsel for the plaintiff below; and the refusal of the court to give certain charges asked by the defendant company. The first to be looked at is No. 1, given at the instance of plaintiff’s counsel, which reads as follows:

“It being admitted that the defendant is a carrier of passengers; that on the occasion mentioned in the petition tbe plaintiff was a passenger on defendant’s train, having paid his fare as stated, it was the duty of the defendant to carry him safely to the point of his destination without injury: And when it is shown that the defendant failed to carry the plaintiff safely to the place of his destination, and that plaintiff was without fault on his part, this failure puts the defendant prima facie in the' wrong, and the burden of proof devolves upon it to show that the injury was the result of a pure accident, and that it could not have been prevented by the exercise of the utmost care and skill which prudent men are accustomed to employ under similar circumstances.’ ’

It seems to ua that this charge as given, states the law too strongly against the defendant company. It says that it was the absolute duty of the defendant company to carry the plaintiff safely to the place of his destination, without injury — 'and if it fails to do so, the plaintiff being without fault, prima facie there is negligence on tbe part of the company. Can this be so? Suppose a passenger upon .a car, either accidentally or by design, is shot by someone standing on the sidewalk, or in a sudden affray on the cars, one passenger stabs another, and nothing else appears, does the law presume negligence on the part of the company? We know of no rule which goes so far as this.

As we understand, the supreme court of this state has never made a ruling on this exact question. In the case of R. R. Co. v. Morey, it is held in the syllabus of the case, that

‘‘On the trial of an action against n railroad company by a passenger for an injury received through a collision of the trains of the company, a prima facie presumption of negligence arises against the company”.

And in the decision of the case, Judge Boynton, who an-' bounced it, says:

‘‘ Whether a presumption of negligence arises in all cases against a railroad company from the mere fact that an accident has occurred from which a passenger receives an injury, while being carried over the road of the company, - is a question not arising in the present case, and is, therefore, not determined”,

But proceeds to state the law as set down in the syllabus, as to collision between the trains of the company, which certainly does aud ought to raise such presumption. Nor have subsequent decisions to that court gone to the extent claimed,

It is true that in this same case, one of the errors assigned was, that in the trial of the case in the court of common pleas, a charge of the court almost, or entirely identical with the one in this case, which we have referred to, was given, and exception taken thereto at the time, and the giving the same assigned as error, The judgment of the common pleas, however, was affirmed by the supreme court; but in view of what was said by Boynton, in the decision, and of the holding of the court in the syllabus, we think that it cannot be held that the court intended to or did approve the language of the charge as given, In that case, the injury to the plaintiff was-caused by a collision of two trains of the company on the one track, which, it is expressly held, raises the prima facie presumption of negligence on the part of the company, while the court expressly declines to say whether such presumption of negligence arises in all cases where a passenger is injured, and as before stated, we are of opinion that it does not- — that thia would be going too far. That there should be some proof offered by a plaintiff, of negligence on the part of a carrier of passengers causing the injury, other than the mere fact that a passenger is injured in transit, before a plaintiff cam recover, or the carrier be put on his defense. It would seem clear to us that in the cases heretofore supposed of a passenger on a car being shot from the sidewalk by mischance, or where he is stabbed by a fellow passenger, that mere proof of these facts would not raise a presumption of negligence on the part of the carrier, and yet this is the rule laid down by the charge in question.

We are also of the opinion that for somewhat the same reasons, the trial court erred in giving to the jury so much of the second special charge asked for by the plaintiff, as reads as follows:

“The jury is instructed that if the plaintiff was, without fault on his part, injured by being thrown from the back platform of the grip car under the trailer, such fact raises a presumption in this case for which defendant is liable’.

And we think it very questionable whether the remainder of said second charge was sound. And the same objection applies to the third special charge given by the court, for the reason that the jury thereby was instructed that if the plaintiff, without fault on his part, was thrown from the back platform of the car, by a sudden jerk or lurch of the car in its operation, that the jury had a right to presume that the defendant was guilty of negligence. To justify such presumption of negligence, we think there ought to be evidence tending to show that such sudden jerk or lurch, was caused by some negligence on the part of the company in the construction of its cars or road, or in the operation thereof.

We think, too, that the court erred in refusing to give the special charges asked for by defendant, Nos. 8, 6 and 9.. .

For these reasons the judgment of the court of com -. mon pleas will be reversed and a new trial awarded.

Kittredge & Wilby and Paxton, Warrington & Boutet for Plaintiff in Error.

Thomas McDougall, contra


author: Laubie, J.

text:
    (Seventh Circuit — Belmont Co, O., Circuit Court,
    June Term, 1899.)
    Before Laubie, Frazier and Burrows, JJ.
    FRED B. JONES, DAVID H. SOUDERS, ALEXANDER DAVIDSON and HIRAM FRAZIER v. THE STANDARD HOME AND SAVINGS ASSOCIATION COMPANY and H. G. PRATT.

      Void Assignment for Benefit of Creditors — Jurisdiction of Probatí Gourt—
    A probate court cannot hear and determine an action brought by stockholders of a corporation to set aside an assignment for the benefit of creditors of such corporation, upon the ground that such assignment was uncalled for, unnecessary and made in fraud of the rights and interests of creditors and stockholders by a minority of the directors of the corporation, as such court has no jurisdiction of the subject-matter of such action.
    Error to the Court of Common Pleas of Belmont county?.
   Laubie, J.

This case is a proceeding in error to reverse a judgment of the court of common pleas in refusing to grant an injunction, and in dismissing the petition for want of jurisdiction, on the ground that the probate court had exclusive jurisdiction of the subject-matter of the suit.

The amended petition sets out that the plaintiffs ar® stockholders in the association or company defendant; and that instead of it being a savings association, it is a building and loan association. That on the 29th of October, 1897, a pretended assignment for the benefit of creditors was made by persons who had been directors of the company. That at the time of the making of the assignment there were five of the seven directors present, but that only three of them voted for the assignment; that six of the directors were not the owners of any stock in this association at the time of this assignment, having theretofore cancelled their stock and paid themselves the full amount of the same, and had no authority to make the assignment, because they had ceased under the law to be directors from the fact that they had ceased to be holders and owners of any stock,

It is alleged that the assignee, Pratt, was in collusion with these directors in making this illegal assignment; that he had been attorney for the directors, and that he counseled and advised them to cancel their stock, and pay themselves the amount thereof and then make the assignment to him; and it is averred that he will proceed to sell the real estate of the company unless he is enjoined therefrom.

Plaintiffs further allege that the company was not insolvent; that it has assets to the amount of over twenty-three thousand dollars, and that its total amount of debts due, or to become due to outside creditors was only seven hundred and two dollars; and that except said sum of seven hundred and two dollars there were no claims against said association except such as were based upon the ownership of stock therein. That the said Pratt had in his hands at the date of the making of his inventory and appraisement as such assignee, of the moneys belonging to said association, the sum of twenty-two hundred and one dollars and forty-four cents.

It appears from the record that this cause came on for hearing in the court below on the application of the plaintiffs herein for an injunction, and was submitted to the court upon the pleadings, the affidavit of H. G. Pratt, and the affidavit of E. O. Padelford; and on consideration thereof the court refused to grant an injunction therein with the finding and order following: “And it appearing that the court had no jurisdiction of the subject-matter of this action, the amended petition of plaintiffs herein is hereby dismissed, and the case is stricken from the docket”. To this there was an exception, and a bill of exceptions was taken and made a part of the record. The question, therefore, is presented: Did the common pleas court have jurisdiction of the subject-matter of this petition; that is, to adjudicate as to the legality of the assignment. -

There can be no doubt of the right of the court of common pleas to take jurisdiction of the matter, unless the probate court had exclusive jurisdiction of the subject matter, or, having concurrent jurisdiction, had already taken jurisdiction thereof, so as to prevent the court of common pleas from exercising its jurisdiction.

It was stated in argument, and conceded by counsel, that the probate court had previously passed upon the question, and held that it had no jurisdiction to determine the question made as to the illegality of this assignment, so that the two courts were in conflict in the matter.

What jurisdiction did the probate court have of . such question? Its jurisdiction is limited by'statute, is specific, and not general, and its auxiliary and incidental powers are limited to such as are necessary and proper to carry into effect the powers expressly granted.

This has been the universal-holding of the supreme court when the matter of the jurisdiction of the probate court has been considered. The leading case is Davis et al. v. Davis, 11 Ohio St., 386. That was a case where a widow had elected to take under the will of her husband, and the election was formally made and entered upon the journal, and afterwards, within a year from its probate, the probate court set it aside at her instance, and the. supreme court held that the probate court had no authority, for- want of-jurisdiction, to cancel the election previously made and'entered upon its journal, for an alleged mistake of the party so electing as to the provisions and effect of the will; that such election, when made and recorded, can be vacated only on petition to the court of common pleaé — the only court having original general equity jurisdiction.

That was a case where the subject-matter was apparently more nearly within the jurisdiction of the probate court than in the case before us, for the probate judge is not oi ly required by statute to notify the widow to appear and make the election, but he is required to advise her fully as to the provisions of the will, so she may fully understand her rights and the effect thereon of her election. Under such conditions, one might well suppose, at first blush, that the probate court had sufficiently acquired jurisdiction of the subject-matter to. adjudicate upon the question of an alleged mistake as to the provisions of the will, upon part of the widow, and the effect thereof upon her rights, but the supreme court properly held otherwise.

In the opinion as given it is said:

“The probate court, as created by statute (Swan & Critchfield, 1212) is one of special and limited jurisdiction. Tts jurisdiction in probate and testamentary matters even, is special and not general, ex gra., 1. To take proof of wills, and to admit to record authenticated copies of wills executed, proved and allowed in the courts of any other state, territory or country.
2, To grant and revoke letters testamentary and of administration. 3. To direct and control the conduct, and to settle the accounts of executors and administrators, and to order a distribution of estates. 4. To appoint and remove guardians, to direct and control their conduct, and to settle their accounts, etc. And this is true of all the jurisdiction thereby conferred ; they are all grants of specific and not general jurisdiction, and the auxiliary and incidental powers of the court are expressly limited to such as are necessary and proper to carry into effect the powers thereby expressly granted.
“The authority of the probate judge to receive and record the election of the widow, is not conferred by this section, but by sections 43, 44, 45 & 46 of the act relating to» wills; and by that act the duties of the probate judge am limited to an explanation of the will and the entering of her election, if made, upon the minutes of his court. His duties under the statute, terminate with that entry, and no further action on his part is contemplated. When the entry is once made in conformity with the statute, his authority in regard to it is at end. If her election was procured bj fraud or imposition, or entered under such a mistake as-, would justify its rescission, resort may be had to the chancery powers of the court of common pleas, which are ample to meet the exigency, by inquiring into the fraud, imposition or mistake, and if true, directing a cancellation of the entry of election; and this may be done even after the expiration of one year from the probate of the will if other, and. new interests have not intervened. But the probalecourt has no such powers under the general statute, nor under the act relating to wills.”

In Sayler v. Simpson, 45 Ohio St., 145, where the question was as to the power of the probate court to adjudicate-upon the validity of liens in assignments, it is said:

“But tise claim is, that the probate court was witboutpower to adjudicate upon the validity, and adjust the priority of those liens. It is not disputed that the probate court is one of limited and special jurisdiction, possessing only such as is conferred by statute, with such auxiliary and incidental powers as are necessary and proper to carry into effect those-expressly granted. Davis v. Davis, 11 Ohio St., 386. Nor is it claimed that there is any constitutional impediment to-conferring on that court, by appropriate legislation, the-' jurisdiction in question. The important inquiry is, has it been done? We are of opinion it has. The several provisions of the statutes relating to assignments by insolvent-debtors, and proceedings thereunder, adequately endow. probate courts with jurisdiction to order the sale of the assigned property, and the payment of all incumbrances and' liens thereon, by the assignee out of the proceeds, according to their priority; and they may, in the exercise of.such-jurisdiction, decide upon the validity of such liens, and d®termine to what extent, and in what order, they are entitled to be so paid. ”

In Clapp et al. v. Banking Company et al., 50 Ohio St., 528, it is said:

“A power given to make a particular order implies authority to hear and dispose of all questions which it is necessary to have settled before the making oE such final order, unless the needed authority is distinctly denied.”

Undoubtedly, where a power is given to make a particular order, it implies an authority to hear and dispose of all questions which it is necessary to have settled before the making of the order; as, in the case that the court was considering, an application to compel a railroad company to appropriate land it had already taken into its possession, the statute provides that where land, the property of another, has been thus taken, the owner may come in and compel its appropriation. Therefore, as a necessary antecedent to the making of an order of appropriation, there must be a finding of the fact, if not admitted, that the plaintiff was the owner of the land taken. This would be directly within the auxiliary powers of the court and incidental to the power conferred of ordering the appropriation. The court was simply announcing the rule theretofore established, that probate courts have the power to adjudicate upon all questions which are necessary to be settled before making an order which they are expressly authorized by statute to make.

Applying this rule to the case at bar, we find that in section 524, Revised Statutes, it is provided:

‘‘The probate court shall have exclusive jurisdiction except as hereinafter provided: First, to take the proof of wills.” ******
‘‘Ninth. To qualify assignees and appoint and qualify trustees .and commissioners of insolvent debtors, control their conduct and settle their accounts.”

And section 6335 provides:

“When any person, partnership, association, or corporation, shall make an assignment to a trustee of any property, money, rights or credits in trust for the benefit of creditors, it shall be the duty of said assignee, within ten days after the delivery of the assignment to him, and before disposing of any property so assigned, to appear before the probate judge of the county in which the assignor resided at the time of executing the said assignment, produce the original assignment, or a copy thereof, cause the same to be filed in the probate court, and enter into a bond, payable to the state in such sum and with such sureties as shall be approved by the court, conditioned for the faithful performance by said assignee, of his duties according to law; and the court may require the assignee, or any trustee subsequently appointed, to execute an additional undertaking whenever tne interest of the creditors of the assignor shall demand the same; any such assignment shall take effect only from the time of delivery to the probate judge, and the exact time of such delivery shall be endorsed thereon by the probate judge, who shall immediately note the filing on the journal of the court; and it may be delivered by the assignor to the probate judge either before or after its delivery to the assignee.”

So that, so far as the assignment itself is concerned, the probate judge is authorized to do nothing in regard to it, except to receive it, to endorse upon it the time of its reception, and to note the filing of it on the journal of the court. This he is specially required to do, and in addition, so far as the assignee is concerned, to fix the amount of and approve the bond; and the assignment takes effect immediately from the time of its delivery to the probate judge. The probate judge has nothing whatever to do with the making of an assignment. He cannot direct it to be made, and can make no order in regard thereto. It is a thing an individual or corporation has a perfect right to make, and to select the assignee; and all that the law authorizes the probate judge to do, is to receive it in his office, endorse thereon the time when it was received, and enter the filing of it upon the journal. He is not required to adjudicate upon its legality or its execution, or whether the party had the right to make the assignment or not. No inquiry is to be made by the probate judge in regard to it whatever. What further duties he has to perform is in regard to directing the assignee in the dispositon of the property, and in the management of the trust.

T. W. Shreve and C. A. Mabon, or Plaintiff.

H. G. Pratt aud James C. Tallman, for Defendants.

So, as there is no order as to the execution or the validity of an assignment to be made by the probate judge, there can be no auxiliary or incidental powers as to those questions; and in our opinion a probate court has no jurisdiction to adjudicate such questions,

We say nothing about the .injunction that is prayed for, because if this assignment was illegal, and the assignee illegally appointed, for the reasons alleged, an injunction ought, of course, to issue against him to restrain him from disposing of the property. That must be done, however, by the court of common pleas upon proper application.

The judgment of the court of common pleas is reversed and the cause remanded to it for further proceedings.


text:
    (First Circuit — Hamilton Co. Ohio, Circuit Court
    Jan. Term 1899.)
    Before Smith Swing and Giffen, JJ.
    MATHERS v. BULL.
    Cases No. 2985, 2987 and 2993.

      Notice of appeal — Transcript oj record must show.

    P). Unless the transcript of the record below shows that due notice of intention to appeal was given, a motion to dismiss the appeal must be granted, notwithstanding bond for appeal was executed.

      Same — What not sufficient — Nunc'pro tunc entmj.

    ^2). A petition in error to reverse an order of the common pleaa refusing to grant a motion Sled by leave to enter nunc pro tune upon i+B journal a notice of appeal where an entry is found in the papers granting said motion and endorsed with the initial of the trial judge and marked filed by the clerk, but where the trial court refused to permit such an entry to be made, and there are no bill of exceptions or facts before the reviewing court to show that there was error in refusing to make the entry, must be dismissed and the judgment or order affirmed.

      Same — Correction of Record.

    (3). Whether a record can be eonected so as to show notice of intention to appeal by a núnc pro tunc entry — Quaere.
   Smith, J.

The motion to dismiss the appeal in each of these three cases must be granted.

The decree from which the defendant James E. Bull seeks to appeal, was rendered against him and others December 7, 1898. On that day, as appears by the transcript of the journal entries, A. Y. Reid, one of the defendants, gave notice of his intention to take a separate appeal of that Dart of the case in which he was interested, and the court fixed the amount of bond at $500; but so far as appears from the transcript filed in this case, Reid did not appeal.

Nor does the transcript of the journal entries filed with these papers show any notice given by Bull of his intention to appeal these cases within three days after the decree or at any time, but on the 6th day of January, 1899, bond for appeal in each of the three cases in the sum of $500 was given.

Unless the transcript of the record shows that due notice of the intention to appeal the cases had been given by Bull, our duty is to dismiss the appeals. Opportunity was given the counsel for Mr. Bull to correct the transcripts filed, so that they would show due notice of the intention to appeal, if it ever had been entered, or by a nunc pro tunc entry of the court of common pleas, if such notice ever had been given, to have it appear on the journal of that court and then on the transcript of the journal entries, if such correction can be made by a nunc pro tunc entry after the time. But such correction has not been made, and the three cases stand here without it appearing from any journal entry of the court of common pleas that any notice of an intention by Bull to appeal the case had ever been given.

Wilby & Wald for the motions.

F. W. Browne, contra.

In this connection we may say that within a few days, Mr. Bull, as plaintiff in error, has filed in this court a petition in error in another case, No. —■—, wherein he seeks to reverse an order or judgment of the court of common pleas, on a motion filed by him in such court, asking the court to enter upon its journal as of December 7, 1898, an entry of a notice by Bull to appeal the cases, and the fixing of the appeal bond in each case, which it was claimed was done on that day. It appears from the transcript filed with that case, that the court of common pleas refused to grant the motion, and Bull excepted. No bill of exceptions was taken in the case, and if any evidence was heard in the common pleas on such hearing, it is not before us in any legitimate way; The counsel does on the hearing present to us what purports to be such an entry in the original case, indorsed “S,” the initial letter of the Judge who presided in the common pleas in the case, and marked filed by the Clerk; but whether this is a genuine paper, or whether such an order was ever made by the said court, we have no means of judging. As the court which it is said made the order, refused to have it entered, there may be a presumption against it being genuine; at all events, we have no facts before us to show that the court of common pleas erred in refusing to enter such order nunc pro tunc, and the judgment or order must be affirmed.

The consequence then is, that the motions to dismiss the three appeals must be granted, and they will be stricken from the docket.


text:
    (Circuit Court — Hamilton Co., O., Circuit Court —
    Jan. Term 1899.)
    Before Smith, Swing and Giffen, JJ.
    BELLE M. ERVIN v. GEORGE MATHERS.
    Also Cases 3034 and 3035.

      Error Proceedings — Failure to malee all parties in record parties defendant.

      A motion to strike a petition in error from the dies must be granted where there were defendants in the original ease, other than the defendants in error, .who are substantial parties to the controversy, and whose rights were affected by the decree below.

      Wilby & Wald, for the motions.

      F. W. Browne, contra.
   Smith, J.

The defendants in error in these three cases move the court to strike the petitions in error from the files on th© ground that the plaintiff in error was not prejudiced by the judgments sought to be reversed, and that no substantial right of his has been affected by the judgment. We think that probably this is the case. But there is another ground on which we think if clear that the cases will have to - b© stricken from the docket — there were other parties, defendants in the original cases, other than the present defendants in error, who are substantial parties to the controversy, and whose rights were affected by the judgment and decree rendered therein, and who were necesssary parties to any proceeding to reverse it, and who have not been made parties to this proceeding in error. It is too late to do so now* the judgment having been rendered December 7, 1898.

The cases will be stricken from the docket for want of jurisdiction 4of the court to hear them.