text:
    ESTOPPEL AS TO THE COLLECTION OF A STREET ASSESSMENT.
    Circuit Court of Lucas County.
    Graff M. Acklin et al v. Peter Parker, Treasurer, et al.
    Decided, June 8, 1907.

      Streets — Ordinance for Improvement of — Coxmcil not Estopped by Preliminary Resolution — Fr.om Laying a Heavier Burden, When —Requisites of Estoppel in Pais — Evidence as to Mistake — Incidental Items Chargeable in Paving Assessment.

    1. Council is not estopped from fixing a different proportion in an assessing ordinance, and thus laying a heavier burden on property owners, by reason of the fact that in the original resolution and ordinance declaring it necessary to improve the street they fixed the proportion they intended to assess upon the abutting property, where property owners have done nothing in reliance upon the declarations in such ordinance and resolution.
    2. To constitute an estoppel in pais, the party claiming such estoppel should have proceeded upon the admission, or declaration, or statement, or whatever it may be to his prejudice.
    3. To establish a mistake in the proceedings of a city council 'preliminary to the making of an improvement, the proof must be clear and satisfactory.
    4. A charge against an abutting owner in a paving assessment for removing the water boxes on the street, which were put in by the city, and not by a private person or corporation, is a legitimate item of expense.
    Parker, J., Haynes, J., and Wildman, J., concur.
    Appeal from Lucas Common Pleas Court.
   This is a companion case to the case of Lippert v. Toledo, 9 C. C. — N. S., 455, recently decided by this court against the plaintiff, wherein the decision of this court was affirmed by the Supreme Court, without report. For a general statement of the ease as well as for the particulars and the views of this court we refer to that case.

Had the petition of the plaintiff, Acklin, remained unchanged, the eases would be precisely alike; but, after the decision of the Lippert case by this court and its affirmance by the Supreme Court, Mr. Acklin amended his petition by adding three things which he deems material and as affording him a right of relief notwithstanding the views of the court expressed in the Lip-pert case.

The amended petition sets forth, in the first place, that the original resolution declaring the necessity to improve the street and the original ordinance determining to proceed with the repaving were duly published and that Mr. Acklin had notice thereof, and therefore the city is estopped from levying the assessments for the repaving upon any other basis — by any other method — than that described in that preliminary legislation. This amendment seems to have been suggested by a remark of the court in delivering the opinion in Lippert v. Toledo, supra, that there was no element of contract or estoppel in that case; and Mr. Acklin, or his counsel, seems to have concluded that they had better have an element of estoppel in this case, if it was possible to get it in. Now we do not find in the averments or in the proofs submitted the essential elements of estoppel in pais. It is apparent that what counsel for plaintiff is relying upon is an estoppel in pais or equitable estoppel. That there is no estoppel by the record, is determined by Lippert v. Toledo, supra. A general statement of the doctrine of estoppel in pais is found in 11 Am. & Eng. Enc. Law (2d Ed.), 421, as follows-.

“The most usual application of the doctrine of estoppel in pais arises from the misrepresentation or concealment of material facts on the part of the person to be estopped. Thus, it is a well-settled rule of equity which has been adopted by the courts of law that where A has, by his acts or representations, or by his silence when he ought to speak out, intentionally or through culpable negligence induced B to believe certain facts to exist, and B has rightfully acted on this belief, so that he will be prejudiced if A is permitted to deny the existence of such facts, A is conclusively estopped to interpose a denial thereof. ’ ’

The theory apparently under which plaintiff seeks to make application of this doctrine is, that the city had decided to proceed in a certain way, and that, therefore, he having been advised of this declared purpose of the city, it could not change the-method of proceeding so as to lay a heavier bu^(len on his property. But one very important element of this doctrine — ■ one element which is necessary to give rise to an estoppel — is, that the party claiming it should have proceeded upon the admission, or declaration, or statement, or whatever it may be, to his prejudice; that is to say, so that a change upon the part of the person making the declaration or admission would prejudice the party claiming the estoppel. As stated in this same work, at page 436:

“Another essential element of estoppel by misrepresentation or concealment is, that one party should have relied upon the conduct of the other and been induced by it to act or to refrain from acting so that he will be substantially injured if the other party should be allowed to repudiate his action. And this rule applies as well where the conduct of the party to be estopped consists of silence as where it consists of positive acts.”

There is no averment and there is no attempt to show that Mr. Acklin changed his position, or that he could have changed his position to his prejudice, in reliance upon the disclosed purpose of the city; it is not asserted that it would have been possible for him to have done or to have omitted anything in reliance upon that ordinance that should have precluded the city from proceeding as it did to correct the blunder that occurred therein. As was said in the Lippert case, the city proceeded upon its ovar initiative. No petition was required and no petition was submitted to the council, and we held there — and we were affirmed upon that proposition — that a blunder occurring in the preliminary resolution and ordinance might be corrected in the final assessment. No matter what the council may have said or may have omitted to say, we do not see how the city would have been precluded from correcting that blunder. But here, as I say, it is not averred and there is no attempt made to show that Mr. Aclin did'anything or omitted to do anything, in reliance upon the declaration in the preliminary resolution and ordinance. So we find no element of estoppel here.

The second thing added by the way of amendment to the petition is the allegation that there was a mistake on the part of the council in assessing upon the property owners $10,521.47 instead of $306.67; and in support of this our attention is called to a-report of the engineer in which he sets forth that the amount to be assessed upon the property owners is $10,521.47; but as to that item he quotes the language of the original resolution and ordinance, which as we construe them, and as we construed them in the Lippert case, would not authorize so heavy an assessment upon the property owners.

B. A. Hayes, for plaintiff. . ,

O.'W. Nelsont for defendant.

We do not think, however, that this discrepancy was the result'of a mistake upon the part of the engineer, afterwards followed by the council in the making of the computation, or in setting down the real amount that they desired to assess upon the property owner; but we believe that the mistake occurred earlier than that — it was a mistake in the phraseology of the original resolution and ordinance. It was apparent to us that what the authorities had in mind all the time is the assessment of this larger amount upon the propertj'- owners. This mistake in the phraseology of the original resolution and ordinance was after-wards corrected in the final assessing ordinance. That comes very far, we think, from establishing • by evidence clear and satisfactory (such as is required in order that a mistake may be found in the proceedings) that such a mistake was made as he heré avers.

Now the third and last thing which was added to the petition by way of amendment whereby it was made to differ from the Lippert case, was the averment that $2,124.91 of the amount assessed was for removing the gas and water boxes upon the street. The paved part of the street was widened — the cui-b lines were set in nearer to the lots — and that made it necessary to make some changes in the service pipes that conveyed the water to the lots. It turned out that this change for which this charge was made, or this expense was incurred, was in the water boxes only, which are put in by the city, and not by a private person or corporation, . and we think that this was a legitimate item of expense, which might properly be charged as a part of the expense of the improvement.

The finding and judgment will be against the plaintiff. The petition will be dismissed at the cost of the plaintiff.


source: Caselaw Access Project

license: Public Domain

text:
    JURISDICTION IN ATTACHMENT.
    Circuit Court of Cuyahoga County.
    Charles Oakman v. Rose Furniture Co.
    Decided, October 21, 1907.

      Constitutional Law — Jurisdiction of Justices of the Peace in Attachment — Amendment to Section 584 Invalid.

      The amendment of Section 584, Revised Statutes, passed April 18, 1S94 (93 O. L., 146), excepting Cuyahoga and Franklin counties from the general provisions of said section as to the jurisdiction of justices- of the peace in attachment cases, is unconstitutional; and justices of the peace in said counties, as well as in all the counties of the state, háve jurisdiction co-extensive with their counties “to issue attachments and proceed against the goods and effects of debtors in certain cases.”
    Winch, J. ; Marvin, J., concurs; Henry, J., not sitting.
    Error to tbe Court of Common Pleas.
   The only question involved in this case is whether justices of the peace in Cuyahoga county have jurisdiction co-extensive with said county to issue attachments.

Previous to April 19, 1898, such jurisdiction was undoubted, for Section 583, Revised Statutes of Ohio, then read:

‘ ‘ Justices ' of the peace within and co-extensive with their respective counties shall have jurisdiction and authority: * * * 7. To issue attachments and proceed against the goods and effects of debtors in certain eases.”

On the date mentioned, however, the Legislature amended said section by adding the following language to said paragraph seven:

‘1 Except in counties containing a city ' of the second grade of the first class, or of the first grade, second class, the jurisdiction and authority in such cases is co-extensive only with the township for which the justice was elected, but when said justice has jurisdiction of the defendant because he resides in the township for which said justice was elected, or otherwise, as provided in Section 584'of the.Revised Statutes, the jurisdiction in attachment shall be co-extensive with the county..” 93 O.' L., 146.

Carpenter, Young (& 8tocher and J. A. Fenner, for plaintiff in error.

Max P. Goodman, for defendant in or'ror.

It needs no citation of authorities to show that it was beyond the powers .of the Legislature to exempt Cuyahoga and Franklin counties from the operation of the general law on the jurisdiction of justices of the peace in attachment cases.

This amendment was unconstitutional.

But counsel for plaintiff in error contends that if the amendment of 1898 is unconstitutional, it is the whole of paragraph seven of Section 583 and that only, which is unconstitutional.

With this view we do not agree. Our examination of the law of 1898 shows that the only purpose in amending paragraphs five and seven of Section 583, and paragraph four of Section 584, was to exempt Cuyahoga and Franklin counties from the operation of said laws.

That purpose was unlawful, and, upon familiar principles of construction of legislative enactments, the whole law, including the repealing clause, may be held unconstitutional, the former law then standing unrepealed.

But we are not remitted to this rule of construction alone. As the only unconstitutional parts of Sections 583 and 584 are exceptions added by the amendment, we may' strike out said unconstitutional exceptions, leaving the law as it Avas before amendment.

Our conclusions are consistent with the holdings of the Lucas County Circuit Court in the case of Collins v. Bingham Brothers, 22 C. C., 533, and of the Hamilton County Circuit Court in the case of Rogers v. Prushansky, 3 C. C. — N. S., 366. though neither of said courts found it necessary to pass upon the constitutionality of said amendment of 1898, while it is necessary, for a determination of this ease, that Ave do so.

The common pleas court having come to the conclusion here indicated, its judgment is affirmed.


text:
    RIGHTS OF A LESSEE IN POSSESSION UNDER AN UNEXECUTED LEASE.
    Circuit Court of Lucas County.
    Robert Raitz & Company v. Eliza J. Dow.
    Decided, June 22, 1907.

      Landlord and Tenant — Defective Lease — Tenant in Possession Thereunder — Effect of Holding Over — Property Changes Hands — Purchaser with Knowledge of the Facts Brings Proceedings for Dispossession — Magistrate's Judgment of Ouster not a Bar to Action for Injunction — Forming of a Partnership Toy Lessee without Effect, When — Tender—Proper Place for Payment of Rent.

    1. Where a tenant has been in possession for a considerable period under an imperfectly executed lease, the writing will be treated as a contract for a lease, and as against a purchaser of the property having knowledge of the fact, who is seeking to oust the tenant, a decree will be granted directing that a valid lease be executed.
    2. An action in forcible entry and detainer in such a case, in which a judgment of ouster has been taken by the purchaser, is not a bar to injunction proceedings brought by the tenant to prevent interference with his possession.
    3. The fact that the lease in its imperfect form was made to R, who subsequently with the knowledge of the lessor brought in another as a partner with him in the business, would not operate under the statute to invalidate the agreement for occupancy.
    Haynes, J.; Parker, J., and Wildman, J., concur.
   This case comes into this court upon a petition filed for the purpose of reforming a certain contract and for the purpose of enjoining the defendant from taking certain actions in the ease.'

It appears from the pleadings and the evidence in the ease that about this state of facts existed here: George Ketcham had been the owner of certain land in lower town, fronting on St. Clair street and near Cherry. He rented it for a period of five years to Robert Raitz, and Robert Raitz went into possession — Robert Raitz & Company, the company consisting of his son-in-law and another partner. They occupied the premises, or a certain portion of them at least, for several years, and when the first lease was supposed to expire or about to expire a new lease was taken, and it was made out in the names of Keteham and Robert Raitz. It was from the 12th day of October, 1904, to the 12th day of October, 1909, and in its execution it was simply signed by Raitz and Keteham, with the name of one witness attached to the lease. Raitz & Company continued in possession, doing business there and paying rent to Keteham until about the 20th of September, 1906, when a warranty deed of the whole premises, of which this, as I understand, is a part, was made by Keteham to a man by the name of Close — a deed to the whole property in fee simple, being a warranty deed. Two days after that Close made a deed to Eliza J. Dow, who is the party who now owns the title and the defendant in this controversy. That also is a warranty deed of the whole premises, including this lot, which is lot No. 359, Vistula Division.

We think the evidence taken in the case — all the facts in the case — clearly show that at the time this deed was made from Keteham to Close and from Close over to Dow, because the title was taken through Close simply as a matter of form, the real party in interest was Dow, who took the deed in the name of his wife. I think the testimony clearly shows that at the time that deed was made or taken it was understood and known by all of the parties that Raitz was in possession of the property, Raitz & Company occupying it under this lease which had not been acknowledged, and that they had knowledge of the lease and of all of the rights of the plaintiffs under it, and were chargeable with all the rights that they might claim under it. And it appears to us from the testimony that at the time it was taken the lease mentioned was passed over, and there was really an understanding between the parties that, so far as the lease was concerned, Dow took it with chances of breaking it, setting it aside, treating it as a nullity; and very soon after that Mr. Raitz was approached with a claim that he should make an advance in rent, it being claimed that his lease was void. He declined to do that, and a suit was commenced soon after-wards before one of the justice’s courts in this city in forcible detainer for the purpose of ousting Mr. Raitz, or Raitz & Company, and such proceedings were had there that a judgment on that account was rendered. About the same time this suit was commenced'for the purpose of enjoining these parties from proceeding under that judgment in forcible detainer and seeking to enforce the perfection of the lease so that it should continue for the term which was originally agreed upon between Ketcham and Raitz. The case was tried in the court of common pleas and is brought into this court by appeal, and the ease has been very earnestly argued, and some testimony has been taken.

We start with these leading facts: That Ketcham owned the property; that he had made a lease to Raitz, and had renewed that lease at the expiration of the first term, at least Raitz continued in possession and continued to pay rent down until this time, to the making of these deeds; and that these parties who received these deeds had full knowledge of all the facts of the case, the imperfection of the lease, the possession of Raitz and of his rights under the possession.

The case has been argued to us by counsel for the defendant, Mrs. Dow, their contention being that this lease, being imperfect, it conveyed no right and no title, and that the deed to Close cut off any rights that the party had under the lease. They have cited 65 Ohio State, the case of La-ngmede v. Weaver, that arose out of a controversy over a conveyance made in regard to an oil lease-. In that case the oil lease had been made and was imperfectly executed; but no one had ever taken possession under it. The lease had simply been made and recorded. Subsequently another party purchased the property, and the court held in that case that, under the circumstances of that case, the plaintiff could not obtain any rights as against the purchaser. The court enters into quite a long discussion of the various questions that arose, the opinion having been delivered by Judge Williams for the court, who cites the case of White v. Denman, 16 Ohio, 59, in relation to an imperfectly executed mortgage. The court says there:

“As between, the original parties to it, there is no difficulty in making the instrument effect the intended object; for equity would regard as done that which the parties agreed to do. They intended it should operate as a valid incumbrance, and, so far as they are concerned, it must be treated as a sufficient mortgage. ’ ’

It has been claimed here that this imperfect lease might be treated as an agreement to make a lease. This has been denied by counsel for defendant, and in this case that he cites himself, the validity of this instrument as a contract is recognized as a contract for a lease. In other words, as the court say, treat the paper as carrying out the purpose that the parties had at the time they made the instrument.

We think there can be no question — we have always so considered and so consider in this suit — that an agreement of this nature is a contract for a lease and may be treated as such. We think it very clear here that these parties have a right to come in and file this petition and ask that this lease be declared to be a valid lease; or, in other words, that the court direct that it be executed as a valid lease so as to conform with the statute. It must be remembered that these parties were in possession and had been for years; that their rights in regard to the matter were known to the defendant. Certainly they could not, as against that knowledge, do anything as against these parties who were thus in possession and who had the rights of parties under a lease, imperfectly executed, it is true, but who had possession under it.

It is said that they never took possession under this particular lease, and that they have no beneficial rights under it. Counsel for defendant refer to the case of Baltimore & Ohio Railroad Company v. West, and it is suggested that as against this case cited in 65 Ohio State the court perhaps changed its opinion, or that the two cases could not be reconciled. The case of Baltimore & Ohio Railroad Company v. West is found in 57 Ohio State, 161, and was a case that went up from this court to the Supreme Court, being in regard to some property in the city of Sandusky. There was a lease made there and the railway company went into possession of the premises under the lease. It purported to be a five year lease, and was made for a five year lease, but the parties failed to have it acknowledged and recorded. They continued in possession during the five years and then held over. Subsequently and during the middle of the year they vacated the premises, and Mr. West brought suit for the whole of the lease, the rent of that year. Counsel have, as I have said, suggested a doubt about the contention of the court in this regard, or in regard to the fact that they have departed from a decision in another case. But-we see no departure; we see no change in the views of the court in any manner or form. The court say:

“The well settled rule appears to be, however, that where the lessee enters into possession of the demised premises under a lease for a term of years at an annual rent, if the lease for any cause be void he becomes a tenant for a year at the rent reserved in the lease, and subject to all of its provisions, except its duration; and when his possession is continued into the next year, a tenancy from year to year is created, and continues so long as he enters upon a new year, until the end of the term; and this is so, though the rent be payable quarterly, or monthly, or at shorter periods. And when, after the expiration of the term, he holds over into another year without any new agreement or arrangement with the landlord, the latter may treat him as a tenant for that year at the same rent and upon the same terms and conditions of his prior occupancy, or, as a trespasser, at his election; but if the landlord accepts the rent, or acquiesces in such holding over for a considerable time, his election will be regarded as made in favor of the tenancy, and then it can not be terminated before the end of the year by either partjr without the consent of the other.”

Now, at the time these deeds were made, as I have stated, these parties were in possession of these premises, the lessor receiving the rent right along and treating them as tenants under the lease. Nearly two pages here of authorities on this subject are cited, and I don’t care to read them, because it establishes the doctrine that is claimed by the plaintiff here, and it was claimed by the plaintiff in the case there.

Now, in 'regard to holding over, and the point stated that there was no new possession, I will read what the court says in this connection in the West case:

“The tenant, by holding over, is regarded as consenting or proposing to enter upon a new term for another year at the same rent and upon the conditions of the prior occupancy, and the landlord’s acceptance of the proposed tenancy is presumed from his receiving the rent, or other acquiescence. The agreement arises by implication of' law from the conduct of the parties after the expiration of the former tenancy; and, in this respect, is essentially different from those agreements made by parties while in possession under an existing lease, for a new lease to commence in the future; as was the case of Armstrong v. Kattenhorn, 11 Ohio, 265, and Crawford & Murray v. Wick, 18 O. S., 190.
“Here the new agreement grows out of, and is founded upon, the possession evidenced by the holding over, and is therefore referable to it, rather than to the possession under the prior agreement which had expired. The holding over is equivalent to a new entry; or, as said .in Reed on the Statute of Frauds, Section 806, concerning the application of.the statute in such cases, the 'effect of entry under a void lease, and of holding over after the expiration of a valid one, is identical.’ And it is the settled law of this state that a parol lease for a year, accompanied by possession, is not within the statute of frauds.”

If I understand that decision correctly and the points that are being made by the court there, this continuing possession, holding over, is equivalent practically to a new entry.

It is claimed here that this decision of the justice court was a bar; that is to say, the judgment in the forcible detainer action, and any future action was a bar to this action. We are unable to see how it can be a bar to this action in any manner or form. In a case that arose in Fulton county within the last year we had occasion to discuss this matter, and we adhered to the language of the statute, overruling the court of common pleas, this court holding that the first suit was not a bar to a new. suit.

A point was made here by counsel for the defendant that the lease was taken in the name of Raitz. Raitz was the particular party in the firm, the particular man carrying on the business. He took the original lease in his own name and afterwards took in a partner, which was continued without any objection by Ketcham. When this lease was made it was made by Raitz. He signed it, and Raitz and his firm were in possession, and without objection on the part of Ketcham they continued in possession and continued to pay rent. We think there is. no trouble about that. We think that as a matter of fact Raitz was in possession, and taking these persons in partnership with him would not operate under any clause of the lease to defeat the object and purpose of the lease, and while there are not many authorities to be found on that point, still under “landlord and tenant” there are some authorities.

Another point that was made was that after the property was purchased by Mrs. Dow there was an attempted tender of the rent. The rent had been paid, was payable so much a year and payable in advance, whether it was quarterly or any other way, $1,400 a year. As a matter of fact during the five years Mr. Raitz was in possession he was continually doing work for Mr. Ketcham, and from time to time they had settlements; sometimes there would be a balance due from Mr. Raitz to Ketcham on the rent and he would pay it, and it would go on to another period. But when the new party came in, they wanted to make payments from month to month in the way it had been computed between Ketcham and Raitz theretofore. Well, we don’t place much reliance upon that matter. The lease is a modern lease and provides that the party need not demand his rent from the premises.. The common law, of course, required that the lessor should demand his rent on the day when it falls due, at a certain place upon the premises and at a convenient time before sunset. It seems the only change that was made by these provisions is that he is released from the obligation to appear on the premises and demand his rent; but there is nothing to show that the tenant is bound to hunt up the landlord and follow him around and tender his rent. It seems to me that a fair construction of these contracts would be that the landlord should present himself at the place for receiving the rent and that the tenant should be ready to pay at that time, unless there is a stipulation to pay somewhere else. We see nothing in the facts here that should authorize a forfeiture of the premises under that arrangement.

Judge Parker suggests that the parties have never placed themselves in any position to ask for any forfeiture. The ground upon which they have proceeded is that the lease was void; that there was no lease at all. They were there demanding that there should be a payment of $2,000 in rent. There is no demand for forfeiture by reason of failure to pay the $1,400, and as I have stated already we see no ground upon which there should be a defeat of this action by the allegation that has been made in that regard.

Mr. Davis: Doesn’t the lease itself provide that the demand of rent is waived?

Judge Parker: Yes; but the rent is to be paid somewhere. Now where? The lease does not stipulate that the lessee shall leave the premises to hunt up the lessor to pay the rent. The general rule, in the absence of stipulation to the contrary, makes the leased premises the place for the payment of rent. We think a fair interpretation of this lease in that regard is that the rent is payable at the premises. The lessor is not required to demand the rent to put himself in a position to claim forfeiture, but he should go to the premises in due time and give the tenant an opportunity to pay the rent there unless there is a stipulation for the pajunent of the rent elsewhere.

Judge Haynes: The authorities referred to in regard to the partnership are found in Jones on Landlord and Tenant, Sections 468-469. Now the authorities seem to be very few in regard to transfer, assignment or under-letting. They hold here in a case where a lease was made of a house to a single woman which contained a provision that it was let only for herself to occupy as a residence, with covenants against disposition of the whole or any part, that—

* * * “her marriage to a widower with four children and the continued residence of all in tM house was not a breach of the proviso or covenants. The whole instrument taken together clearly contemplated that the lessee should occupy the premises in person, but it did not follow that the narrow construction contended for was the true one. That construction would exclude every one, relative, companion and friend, as well as husband. If the lessor intended that, he should have used language expressing such intent, and should not have left it to be inferred from language of doubtful meaning. The lease as drawn could fairly and reasonably be so interpreted as to allow the lessee to receive a relative, friend or husband as a companion. Where a lease is joint to two and by an arrangement between them each occupies a several portion of the premises, such several uses can not justly be regarded as breaches of a covenant not to under-let.”

In Section 469 they say:

"Where a tenant without license from his lessor takes a third party into partnership with him and lets such party enjoy joint possession with him, it is not a breach of a covenant not to sub-let, even though the partnership is formed for the express purpose of not breaking the covenant against subletting. If one of the new partners taken into the firm by the lessee is put in exclusive possession of a portion of the leased premises, that would be a breach of the covenant not to assign or under-let.”

I think that where a lease is taken as in this case — of course Raitz was the principal party in interest, who had some subordinates who became partners with him — it is not proper to hold that it was a forfeiture of the lease by simply taking them in as partners. Now, he made the lease and the parties went on and continued in possession, and the lessor recognized it by receiving the rents and treating them as tenants, as lessees under the lease, and really we see no ground whatever for forfeiture under that clause of the lease. We are clearly of the opinion from all the evidence in the case that the prayer of the petition should be carried out and enforced. We think the equities of the case are with Robert Raitz and the firm who rented the premises. He was in possession; he was doing a straight-forward business, paying his rent and going on, and these parties purchased with full knowledge of that. We think by every principle of equity and justice between the parties, between these parties who had knowledge of it, that the prayer for the enforcement of the lease should be granted and it should be held to be a lease of the premises up to the period of time stated in the lease, October, 1909.

J. Harrington Boyd and G. A. Beiders, for plaintiff.

E. E. Davis, contra.

Parker, J.: The lease as reformed will stand as it is written. The only reformation will be in the matter of the execution, and if a new lease is not executed, or this lease is not acImowledged, of course the decree of the court will supply it. It will devolve upon the parties to solve this question, as to whether that rental is payable at the rate of $1,400 a year, yearly in advance. We do not pass upon that question. It is not involved in this case at all.

Mr. Boyd: If Your Honors please, counsel for plaintiff has requested to state the time within which the defendants are allowed to execute a lease, whether it- is five days or ten days.

Parker, J.: Oh, well, it is not a matter of much importance.

Mr. Boyd : The order in the court of common pleas was five days.

Judge Parker: Well, they can take their time to it; give them ten days.

Judge Haynes: If they don’t, the decree of the court will stand exactly as the same. It is not very important whether they execute it or not.


text:
    ASSESSMENT FOR COUNTY. DITCH.
    Circuit Court of Wood County.
    William H. Millikin v. George W. Fearnside, Treasurer.
    Decided, April 27, 1907.

      Drains and Ditches — Validity of Assessment for Construction of— Acquiescence in Improvement try Silence — Joint Owner may Bind his Co-tenants for a County Ditch Improvement — Jurisdiction of County Commissioners — Sections 4483, 4484 and 4485.
    1. Where a county ditch is converted into a brick sewer, thereby changing it from an open ditch to a closed sewer to the benefit of the'land through which it runs, one joint land owner, who has stood silently by and allowed his land to be benefited by the improvement without objection, can not resist collection of the assessment on the ground of irregularity in the proceedings.
    2. One of five joint owners of a tract of land within a municipality, who has the actual control of the land, may bind his co-tenants to the proposed improvement of a county ditch running through the premises by signing a petition therefor.
    Parker, J.; Haynes, J., and Wildman, J., concur.
    Appeal from Wood Common Pleas Court.
   The case of Millikin v. Fearnside, Treasurer, is in this court on appeal from the Common Pleas Court of Wood County, in which court the action was brought to restrain the collection of a ditch assessment. It appears that the commissioners of Wood county, upon the petition of one Frank Griffin and others, caused a ditch —originally constructed as a county ditch, known as the ‘ ‘ Gorrill ditch No. 1133” — to be made by constructing therein a brick sewer, whereby it was substantially changed from an open ditch to a sewer. Whether the whole Gorrill ditch as originally constructed is within the limits of the city of Bowling Green or not is not certain, but we regard it as immaterial.

The lands of the plaintiff, consisting of a large number of city lots, located in what is known as the Gorrill addition to the city of Bowling Green, were assessed according to benefits for the making of this improvement. A part of this assessment has gone upon the tax duplicate of the county for collection, and this action is brought to enjoin the treasurer from making the collection; and it is alleged that the mayor of the city was not authorized by the council to sign a petition for this improvement, and that he did not sign the petition; that no notice of the improvement was served upon the mayor or the municipal authorities as such, and that, in short, no steps were taken in pursuance of Revised Statutes, Sections 4483, 4484, 4485, to obtain the co-operation of the city in moving for this improvement or to proceed against the city as such; and it is contended on behalf of the plaintiff that this renders the proceeding so irregular as to make it entirely null and void, and to render the assessment wholly invalid.

It appears that this improvement extends in a direction substantially from a point beginning at about the southern limits of this Gorrill addition and extending through it, passing across a large number of lots and then diagonally across the addition, thereby cutting several of the lots in a diagonal way, then leaving the addition and passing further towards the north. The course of the original ditch was substantially the same. The result of the improvement is that the open ditch crossing these premises no longer remains, but instead, they have a covered sewer.

There is no question made as to the improvement being a valuable improvement for this addition. It is not contended nor pretended that the assessment upon these lots exceeds the benefits to the lots; indeed a witness on behalf of the plaintiff, who is a part owner of the premises, testifies very candidly, that he favored the improvement because he regarded it as a benefit to the property, and it is apparent that it is a benefit to the property; but the whole objection, the whole contention is based upon the ground that the county commissioners were without authority or jurisdiction in the premises, and that therefore the proceedings are null and void.

Now it should be remarked that the county commissioners are not without jurisdiction of the subject-matter; in other words the county commissioners are authorized in eases of this kind to construct improvements of this character within the limits of a municipal corporation, provided they observe the requirements of the sections of the statute to which I have referred. Those sections are a part of Chap. 6, title 1, Rev. Stat., devoted to county ditches, so it appears to be a case if there was a lack of jurisdiction, it was a lack of jurisdiction over the parties, treating the municipality, the city, as a party, as an entirety as this statute does, in proceedings of this character, and treating the owners of the lots as parties over whom jurisdiction is obtained through the action of the municipal authority, under and in pursuance of the proceedings of these sections of the statute; so it presents a question widely different from that where public authorities act without jurisdiction over the subject-matter. In such a case, that is to say, where there is no jurisdiction over the subject-matter, the action is generally not only utterly void but incurably so, whereas if the authorities have jurisdiction over the subject-matter but there is some irregularity in the proceedings even to the extent of having to obtain jurisdiction over persons, it is not necessarily true that the action taken by the authorities is so far invalid that it may be disregarded altogether.

As I have stated, the petition for this improvement was signed by Frank Griffin and others. This Gorrill addition was owned by five persons; for convenience, the legal title had been taken by the plaintiff William TI. Millikin, but he held it as trustee for the five. Charles H. Draper was one of the five owners; he was also the agent and general manager for the five; the five being called, by themselves at least, “the Gorrill Syndicate.” Upon being applied to sign this petition, Mr. Draper signed it as follows: “ Charles H. Draper, agent for the Gorrill Syndicate. ’ ’ Whether he as agent was authorized to sign this petition may be very doubtful- — I think it is — but being a part owner, one of the tenants in common, he seems to have been practically in possession and control and having the management of the affairs of this Gorrill addition syndicate, we think he might sign the petition and bind his co-tenants. It is conceded too that notice of the improvement was duly served in pursuance of the statute upon Mr. Millikin by leaving a copy at his residence in this city, and that all of the five owners had knowledge of the progress of the work of this improvement as it was being performed over and across their premises, the Gorrill addition. Whether Mr. Draper was authorized to sign and bind his co-tenants or those he represented, and whether leagl notice was duly served upon the five or upon Mr. Millikin who had the legal title to this tract, we regard as not very important; the validity of the proceedings in our view of the matter, does not depend upon that; the validity of the assessment does not depend upon that. That they had knowledge of the progress of the work over and across their premises is not disputed. Even if the petition had been duly signed or service duly made, it is doubtful whether that would give the county commissioners sufficient jurisdiction in the premises to proceed within the limits of the municipality, but the important fact is that these owners of those premises knew of the progress of this improvement, and therefore we think that they are bound by this assessment and may not bo heard to question it, notwithstanding there may have been the irregularity and notwithstanding there was the irregularity shown with respect to the failure to properly bring in the city as such. We think they are bound by the principle annunciated by the Supreme Court in the ease of Kellogg v. Ely, 15 Ohio St., 64. This is a leading case upon the question involved and it has been followed by the courts in a great many cases in Ohio, both in the supreme and lower courts and- its authority has never been questioned.

The syllabus is:

“Where county commissioners, acting ostensibly under the provisions of the act of March 24, 1859, ‘to provide for locating, establishing, and constructing ditches, drains, and water courses, ’ have established and constructed a ditch, and, to pay for the same, have levied an assessment on the lands of persons- benefited thereby: Held: That where a party on whose lands such ditch has been wholly or in part, constructed, .has stood by and failed to resort to any remedy, legal or equitable, until after the ditch was made, a court of equity will not interfere by injunction to prevent the collection of such assessments, even if it be assumed that the proceedings of the commissioners have so far failed to conform to the provisions of said statute as to render them wholly illegal and void in law.”

J ames & Kelley, for plaintiffs.

P. J. Chase, contra. .

It will be observed that this is limited to cases where improvements are made upon lands of persons assessed. The same principle does not apply at all if they are assessed for an improvement that is not upon their lands even though it may be beneficial to their lands. But they could not allow their lands to be benefited by a public improvement and sit by without objection, and afterwards resist the assessment, no matter how irregular or void in law the proceedings may be, and upon the authority of this decision our finding and judgment will be in favor of the defendant, dismissing the petition at the costs of the petitioner.


text:
    STATUTE OF LIMITATIONS AND STREET ASSESSMENTS.
    Circuit Court of Franklin County.
    Wm. R. Gault et al v. The City of Columbus et al.

    Decided, 1904.

      Street Assessments — Contest, of, not Barred at the End of Eour Years —Benefits—Laches—Estoppel—Purchasers of Abutting Property Chargeable with Notice — And Liable for Assessment, When.

    1. Section 4982, Revised Statutes, limiting to four years the time for bringing certain actions, does not apply to an action for the reduction of a street assessment in excess of benefits.
    2. Abutting owners, who knew of the defective construction of a street before the work was approved and the reserve fund paid to the contractors, are thereafter estopped from contesting the assessment on the ground of such faulty construction.
    Dustin, J.; Wilson, J;, and Sullivan, J., concur.

         Reversing the third paragraph of the syllabus in Gault v. City of Columbus, 1 N. P. — N. S., 201.

   In this ease we do not concur in the view of the common pleas court that the action is barred by reason of not having been brought within four years from, the making of the assessment.

W. 0. Henderson and DeWitt C. Jones, for plaintiffs.

Butter, Marshall & Healing, contra.

The threatened injury of which plaintiffs complain is the collection of assessments in excess of benefits, and such threatened collection was impending at the commencement of the action.

But we do think that the defendants are estopped to complain of the defective construction of the street, because they knew of such defects long before the work was approved and the reserve fund paid to the contractors, and took no action to prevent such approval or payment. They thus, by their laches, allowed the city to lose the fund it had reserved for such contingencies, and have not an equitable standing before the court.

The plaintiffs who became purchasers after the assessment, and in their deeds assumed and agreed to pay the same as part consideration for the property, are also estopped.

Other purchasers (if any) who became such after the assessment, but did not assume the payment in their deeds, are nevertheless chargeable with notice of the assessment through the records and stand in the shoes of their grantors so far as knowledge of the defects is concerned. .

As to the claim that the assessments are in excess of benefits we are not satisfied that it is clearly made out.

The decree, therefore, will be in favor of the city, and the injunction dissolved, at plaintiffs’ costs.


text:
    APPLICATION TO SET ASIDE DECREE OF DIVORCE FOR LACK OF NOTICE.
    Circuit Court of Lucas County.
    Josie Casto v. John Casto.

    Decided, April 6, 1907.

      Divorce and Alimony — Decree Granted on Service by Publication — Application to Set Aside under Section 5355 — Proceedings in Error Following Overruling of Application — Bill of Exceptions Necessary.

    Where, upon an application to set aside a decree of divorce on the ground that the party filing the application had no actual notice of the pendency of the action against her, service having been had by publication, the court finds against such claim, the appellate court can not determine whether or not the question was correctly decided, unless a bill of exceptions containing the evidence submitted in support of the application is filed with the record.
    Parker, J.; Haynes, J., and Wildman, J., concur.
    Error to common pleas court.

         For a further holding in the same matter see opinion immediately following.

   John Casto brought suit in the court of common pleas against his wife, Josie Casto, to obtain a divorce on the ground of her adultery. Service upon her was obtained by publication; the allegations of the petition were found to be true and the divorce was granted, and in pursuance of the statute providing therefor her right to dower in the property of John Casto was denied and cut off. At a subsequent term of court she filed an application for the setting aside of the judgment, so that she might be let in to defend, and she set forth in her motion and in the affidavit filed therewith, among other things, that she had no actual notice of the pendency of the action until after the decree and after the term at which it was entered, and that she had no opportunity to appear and make a defense. This motion was denied by the court below, and Josie Casto prosecutes error in this court to that order.

It is contended on behalf of the defendant in error that such proceedings after judgment is not authorized in divorce cases; that it is against the policy of the law to set aside a decree for divorce upon such grounds, and that Section 5355, Revised Statutes, under which the plaintiff in error proceeded in the court below, has no application to eases under the chapter on Divorce and Alimony, even though service is by publication, as provided in Section 5693, Revised Statutes, of that chapter. But we do not see that that question is properly brought before us for consideration and decision; there is no bill of exceptions showing what the evidence was that was submitted to the court upon that motion.

Even if the plaintiff in error might proceed under Section 5355, Revised Statutes, to have the case opened up to and be let in to defend because the service was by publication, she must show, upon the hearing of such application, or, to quote the language of the statute, she must make it appear to the satisfaction of the court, that during the pendency of the action she had no actual notice thereof in time to appear in court and make her defense. In her application she recognizes this. In her affidavit — looking at that for the purpose of ascertaining her view of the matter — it is apparent that this necessity was recognized; but whether she had actual knowledge of the pend-ency of the suit concurrently therewith was a controverted question in the court below, and there is no bill of exceptions here bringing up the evidence. Affidavits are attached to the record, but we are not authorized to look at and consider or weigh them, and undertake to determine what they show or prove.

Counsel for plaintiff in error said, in his brief, that no bill of exceptions was necessary, since the action of the court below was based solely on legal propositions, to-wit, that this motion or application for leave to defend could not be entertained by the court, because in an action for divorce Section 5355, Revised Statutes, did not apply. But, from the journal entry, that appears to be an incorrect statement.

A counter-motion was filed on behalf of John Casto to strike the motion or application of plaintiff in error before mentioned from the files, but when the matter came on to be heard, as the journal entry recites, it was heard upon the motions "and the proofs, and the court being fully advised in the premises, is of the opinoin that said motion of said heirs of John Casto, deceased, should be and the same hereby is granted and said motion of said Josie Casto is hereby overruled and stricken from the files of the case.” It would have been sufficient if the journal entry had set forth that the matter was heard upon the proofs and the motion of Josie Casto was overruled, and the addition — that the motion was stricken from the files after it was overruled — was idle. To sustain the motion to strike from the files, was quite unnecessary; but the important - fact appears in the journal entry, i. e., that the motion was heard upon the proofs and was overruled. Therefore the question of fact as to whether Josie Casto was advised of the pendency of this action and had due knowledge of it during its pendency, was before the court and was determined against her; and for this court to determine whether or not the question was correctly resolved in the court below, a bill of exceptions incorporating the evidence is necessary. Counsel says, in his brief:

"However, should the court be of opinion that any alleged testimony should be before this court, the same is before the court in view of the holding of the court in the recent case of Pullman Co. v. Washington. The court, has, in substance, laid down the rule that whenever papers are filed in .the common pleas court, and thereafter in a reviewing court, the reviewing court will treat them as in the ease. By reference to the transcript from the court of common pleas, it appears that all affidavits which were filed in the lower court are attached to and filed with the papers in this court. The necessity, therefore, of a formal bill of exceptions no longer exists, and this court will, of course, take judicial notice of all papers which appear with the files in this case.”

We are at a loss to know how this most extraordinary statement should be regarded — whether as a sarcastic reference to the former decision of this court in the case of Pullman Co. v. Washington, supra, or as an attempt at humor. In the case of Pullman Co. v. Washington, there was a bill of exceptions, properly signed and filed. Certain depositions were referred to as exhibits and attached to the bill of exceptions, bnt they were not manually attached to the bill; they were, however, brought up with the record and were attached to the journal entries and other papers. We fpund that they were so' clearly and distinctly identified as the. exhibits ref erred to in the bill of exceptions, that they should be regarded as constructively attached — following, as we believe, the rule laid down by the Supreme Court in the case of Swart v. Dock Co., 69 Ohio St., 574. It, will be seen at a glance that the question there and that here are as different as daylight from darkness.

Templeton & Templeton and C. A. Thatcher, for plaintiff in error.

E. E. Davis, contra.

It is entirely clear that this contention is not worthy of serious consideration since it is founded on a proposition of law that is quite untenable.

The judgment of the court below will be affirmed.


text:
    OPENING DECREE OF DIVORCE TO SET ASIDE SERVICE BY PUBLICATION.
    Circuit Court of Lucas County.
    Josie Casto v. John Casto.

    Decided, June 27, 1907.

      Judgments and Decrees — Opening of Decree of Divorce — Section 5S55 has no Application to — Service by Publication — Burden of Proof as to Lack of Notice — Evidence Bearing on that Issue — Bill of Exceptions Necessary — Plaintiff in Error may not have Record Corrected, When.

    1. Section 5355, providing for the opening of judgments where service was had by publication and no actual notice was had thereof, has no application to divorce cases.
    2. Upon one who seeks to have a judgment, obtained on service by publication, set aside on the ground that no actual notice of the pendency of the suit was had, is imposed the burden of proving that he had no such notice; and a record showing that no evidence or proof was produced on the hearing of such application would disclose that the court did not err in overruling the same.
    3. Where a party prosecuting error with full knowledge of the state of the record, and of what actually transpired in the court, the judgment whereof is to be reviewed, voluntarily submits the cause to the reviewing court, a motion of such party, after judgment of such reviewing court against him, to set the same aside on the ground that the record which he so submitted to the court is incorrect in some particular, will be overruled, especially where the reviewing court is clearly of the opinion that the record changed as desired by such party would still require the same judgment.
    Parker, J.; Haynes, J., and Wiudman, J., concur.
    Heard on motion to set aside judgment.

       For further holdings in the same matter see opinion immediately preceding.

   This case was submitted to us on March 19 on briefs. It was ' held under consideration until April 6, when the decision of the judge ox the court of common pleas was affirmed. On June 24— being at the same term — the plaintiff in error filed the following motion in the court:

“Now comes the plaintiff in error and represents to the court that on the hearing of this ease in the court of common pleas, the same was submitted to the court upon the motion of the plaintiff in error for leave to defend, and upon a motion of the defendants in error to strike said motion of the plaintiff in error from the files. That said motions were submitted to the court without the introduction of any evidence or proofs of any character, and that the court sustained the motion of the defendants in error and overruled the motion of plaintiff in error, solely on the ground that the court was without jurisdiction to grant the relief which plaintiff in error asked in her said motion.
“Plaintiff in error further represents that by a mistake of the clerk and irregularity in obtaining the judgment in the court of common pleas in this cause, the original entry recited the fact that said motions were heard upon proofs, while in fact said motions were not heard upon any proofs whatever.
“Wherefore, plaintiff in error suggests a diminution of the record herein and moves the court to set aside the judgment, order and decree of the court heretofore entered herein, and that the same may be remanded to the Court of Common Pleas of Lucas County, Ohio, for the purpose of having the entry, order and judgment of said court corrected so that the sanje will correspond to the facts. [Signed] Josie Casto, by Temple-ton & Templeton and C. A. Thatcher, her attorneys.”

In support of this motion the affidavits of C. A. Thatcher and J. B. Templeton are filed. In his affidavit, Mr. Thatcher says:

“C. A. Thatcher, being duly sworn, says that he was one of the attorneys for the plaintiff in error in the Court of Common Pleas of Lucas County, Ohio, in the hearing of the above entitled case on the motion of the defendants in error to strike the motion of the plaintiff in error for leave to answer in said case from the files, and also such attorney upon the hearing of said motion of the plaintiff in error for leave to answer in said cause.
“Affiant further says that no proofs or evidence of any character were introduced or received in evidence by the trial court on the hearing of said motions. That the statement in the journal entry, that said motions were heard upon proofs, is a mistake and is not true. [Signed] C. A. Thatcher.”

The affidavit of Mr. Templeton is in precisely the same form. We have also had submitted to us a statement from the Legal News of a brief opinion of the trial judge in deciding the matter ;■ and the trial judge — Judge Tyler — has been before us and has given his statement of his recollection of what transpired.

It will be noticed that counsel do not pretend that since the cause was heard and decided by us they have gained any new light or information as to what actually transpired in the court below, or as to what that court actually considered or did in the case.

Our opinion upon the case as submitted to us was taken down by a stenographer, has been preserved and may be referred to, so that it will not be necessary to go into the history of the case very fully. I may say, briefly, that the action in the court below was by John Casto against his wife, Josie Casto, to obtain a divorce, on the ground of adultery of the wife. Service was obtained by publication, as provided in the chapter of the Revised Statutes on the subject of divorce, and a divorce was granted on the ground of such adultery of the wife. This, of course would have the result, in law, of depriving the wife of certain interest in the estate of her husband, if she should survive him, which, but for such misconduct and the divorce on account thereof she would have in his estate.

After this divorce was granted, the husband died. He left some estate. Certain of his heirs, in Greece, laid claim to it, and thereupon Josie Casto came forward and became active and filed a motion in the case, in which she set forth that she had not been served with process, that she had no knowledge of the pendency of the action, and that she had a good and valid defense; in other words, that she was not guilty of the misconduct charged, and desired to be let in to defend and have the divorce ease retried in order that it might be determined and adjudged • that she was not guilty — the ultimate purpose, of course, being to give her a status under which she could claim an interest in her husband’s estate.

Her proceeding was under Section 5355, Revised Statutes. The court of common pleas being of the opinion that this section of the statute had no relation to divorce cases;' that service by publication in such eases could not be set aside and a party be let in to defend by virtue of this statute, ruled against Josie Gasto upon her motion. It seems that at the time of this ruling by the trial court Josie Casto had on file in that court, in support of her application under Rev. Stat. 5355, certain affidavits in which her innocence of these offenses was asserted, and the fact that she had not been personally served and had no personal knowledge of the pendency of the action was stated.

As to the affidavits, it may be said that they would make a prima facie case in her favor under Section 5355, Revised Statutes, if it had any application to a suit of that character; but it appears that the trial judge, being of opinion that that section had no application, and (as said by Josie Casto in her motion now under consideration) he overruled the application solely on the ground that the court was without jurisdiction to grant the relief which plaintiff in error asked, and therefore he ignored the affidavits supporting the application. When the journal entry was drawn it set forth that this motion to set aside the service by publication, and as well a motion to strike such motion from the files and dismiss it, were heard “upon the proofs,” and that journal entry closes with a paragraph which seems to be consistent with the theory that the hearing was upon the proofs, or, at least, that it was so considered by the parties —that is to say, that though the proofs may not have been given any weight or consideration by the court, they were properly presented so that if they were entitled to receive consideration, the court was bound to consider them. It is this clause:

“'Wherefore, it is considered, ordered and adjudged that the said George Athan Constianto, Melpomene Papagheorgiou, Phelo Sakellario and Maria Papadopouulo, recover of the said Josie Casto the cost herein, taxed at $-; to which judgments and orders the said Josie Casto, by her counsel, excepts,- and is granted forty days in which to file bill of exceptions.”

Of course, if the court below had proceeded upon the application as it would upon a pleading to give judgment upon the statements thereof, without respect to any evidence which might have been submitted or proffered in its support, upon the theory that the sufficiency of the statements were to be tested first, as in the ease of a demurrer to a pleading, and that the evidence on file was not to be considered as even proffered, the statement that time was given for preparation of a bill of exceptions would be quite unnecessary and inappropriate. This motion, however, according to our view, was not a paper or pleading in the case which could be tested or treated in that way by the trial court.

• These affidavits were on file. The motion, or the “application” as it is called in -Section 5355, Revised Statutes, would be of no consequence — would not entitle the applicant to the first move in her favor at the hands of the court below, unless it were supported by evidence, either in the form of affidavits or otherwise, presented or proffered to the court. The application must be accompanied by a proper showing of certain facts. The statements of the party in the so-called motion or application are really of no special consequence except as a matter of introduction of the subject to the court; but what is essential in order to move the court to action in favor of the applicant, is, that the applicant shall “make it appear to the satisfaction of the court, that during the pendency of the action he had no actual notice thereof in time to appear in court and make his defense. ” Counsel for the plaintiff in error seem to have had that understanding of the matter when error was prosecuted to this court, and therefore brought up with this record — or attempted to do so — the affidavits which had been filed with the application, and insisted that the court had erred, not only in the view it had entertained with respect to the case not coming within the purview of Section 5355, Revised Statutes, but that the court had also erred in denying the application, in view of the proof that was submitted in support thereof. The brief was very full upon this point. But counsel seem to have conceived the motion that in order to get these proofs before this court it was not necessary to have a bill of exceptions, so the affidavits are simply attached as if they were pleadings in the case — as if they were a part of the record without being incorporated into a bill of exceptions; and when we came to consider the matter, as will be seen by the former opinion which was handed down, we held that we could not consider the affidavits because not incorporated in a bill 'of exceptions. Thereupon we affirmed the judgment of the court of common pleas.

The matter has stood in that way for about three months; and now comes this motion to set aside our decree of affirmance, together with the suggestion that the record is not complete, and an application for such action as will enable the plaintiff in error to go back to the court of common pleas and have this entry amended so that it may show that the hearing was not upon the proofs, but that, on the contrary, no proofs were submitted in support of the application filed in that court on behalf of the plaintiff in error. Assuming for a moment that the plaintiff has shown herself entitled to this extraordinary action at the hands of this court in her behalf, let us consider the result of granting what she asks. This motion distinctly states that both of said motions — meaning thereby the application to set aside the service by publication and allow Josie Casto to come in and answer, and the motion to dismiss that application — were submitted to the court, and further, “that said motions tvere' submitted to the court without the introduction of any evidence or proofs of any character. ’ ’

Suppose that were true; suppose the plaintiff in error should succeed in getting back into that court and in having the journal entry in the case so changed? According to our view of the matter, it would then unquestionably devolve upon that court to deny the application, even if the case came within the purview of Section 5355, Revised Statutes, because, as I have said, it is not sufficient for a party to make the application and state therein the reasons or grounds in support thereof, but it is necessary for the party making the application to support it by making it appear to the satisfaction of the court that, during the pendency of the action, he had no actual knowledge thereof in time to appear in court and make his defense; and, therefore, if the plaintiff in error should ever succeed in getting back into the common pleas court and in having this journal entry of the court so changed as to make it appear that there was not an iota of evidence of any description or character submitted or proffered to the court in support of the application, she would succeed in making it appear clearly that the court had not erred in dismissing her application; or (as it is stated in the journal entry), in overruling her motion. Now that is one reason, and an all-sufficient reason in our judgment, why this motion shoujd be overruled.

It is somewhat extraordinary practice for parties to come into this court after a ease has been submitted, and a judgment has been obtained upon a record with the condition of which the parties were well acquainted when the case was submitted, and ask the court to set aside its' judgment and give the parties an opportunity to go back into the court below and try to make up a different record in order that they may present a different question to this court; and yet, we can see that if the parties were misled about the facts, it might not only be possible but proper for the court to grant them this extraordinary relief. But, in the showing upon this motion by the affidavits filed here in its support, it is not stated and it is not pretended that when this case was submitted to this court, the plaintiff in error or her counsel were ignorant of the state of the record, so that we are bound to assume that they were fully acquainted therewith. No reason appears why they should not have been. The record is plainly typewritten, and the journal entry that counsel desires to have modified in the court below is one to which his signature is appended, approving it.

Some consideration is due to the other parties litigant, and where, we are persuaded that the parties or counsel have not been, diligent, but have been remiss, or where we are persuaded that what they are asking for would be of no possible avail to them, we think we should not grant a motion of this character in order to gratify a desire they may have to debate and present some other question; especially not when our minds are fully made up, as they are in this instance, that if the question were presented it would be resolved by this court against them.

As I have said, this evidence was filed in the court below; it was before that court for its consideration in the event that it concluded that the case came within .the purview of Section 5355, Revised Statutes. The court could not refuse to either, consider it or grant a bill of exceptions showing that the evidence had been presented and that the court refused to consider it. The very fact that the plaintiff in error brought this evidence before this court as a part of .this record, and insisted upon this court’s giving it consideration upon the hearing of this case, is evidence to our minds that counsel for plaintiff in error understood that the evidence had been so presented to the court below as that the court was bound to consider it, if the court had jurisdiction of the application; otherwise counsel would not be acting in good faith in asking this court to consider the evidence • — for it would not be proper, it would be a gross impropriety for counsel to come to this court and ask its to consider evidence that had not been either considered by or proffered to the court below. AVe conclude that the evidence was not only before the court for its consideration, but that counsel so understood it, and that the only mistake or oversight in that regard, was that of counsel in failing to incorporate this evidence in a bill of exceptions. It would be idle to send the case back to the court below because it is now too late to have a bill of exceptions perfected in .that court.

Templeton & Templeton and O. A. Thatcher, for plaintiff in error.

F. F. Davis, contra.

We overrule this motion: First, because the cause was submitted to this court by counsel who have not shown to us that they were under any misapprehension at the time as to the state of the record or as to what was actually considered and done by the trial court; secondly, because a bill of exceptions is necessary, and it is now too late to obtain it, and it would be, therefore, idle to remand the case to the court below; thirdly, because in our opinion the court below was clearly right in holding that Section 5355, Revised Statutes, has no application to divorce cases. Under these circumstances, to set aside the former judgment and giving counsel an opportunity to make the application desired to the court below, would be an abuse of discretion upon our part, and an injustice to the other parties litigant.


text:
    EVIDENCE AS TO RELATIONSHIP OF VICE-PRINCIPAL AND SUBORDINATE.
    [Circuit Court of Hamilton County.]
    John Gill v. The P., C., C. & St. L. Railway Co.
    Decided, June 29, 1907.

      Charge of Court — Evidence Establishing the Relation of Superior and Subordinate — Instructions which in Effect took the Case from the Jury.

    Evidence which shows that the defendant’s foreman told the plaintiff to help A whenever A called upon him to do so is sufficient to establish the relation of vice-principal and subordinate between A and the plaintiff.
    Giffen, J.; Swing, P. J., and Smith, J., concur.
   The court gave the following special instructions to the jury at the request of defendant:

“If you find that the plaintiff was instructed by his foreman to help Achten when called on by Achten, and that this was the whole of the foreman’s order on that point, your verdict must be for the defendant. ’ ’

J. T. Harrison, for plaintiff in error.

Maxwell Ramsey, contra.

Also—

“If the jury find that the only evidence on the subject of direction or control of Aehten over Gill was in the words that Gill should help Aehten whenever he called on him, this alone would not be sufficient to make Aehten a superior servant.”

The testimony shows that the foreman ordered the plaintiff to help Aehten whenever he called on him to do so, and is substantially the same testimony presented by the record of the first trial of this cause, wherein this court held it sufficient evidence of the subordinate position of plaintiff, and of authority and control of Aehten over him. The judgment in that trial was reversed because the court arrested the case from the jury. The above instructions, in effect, took the ease from the jury by designating the only evidence of the relationship of vice-principal and subordinate as insufficient.

We are still of the opinion that the order to plaintiff “to help Aehten whenever he called upon him” placed plaintiff under the control of and subordinate to Aehten. Hence the instructions were erroneous and prejudicial.

Judgment reversed and cause remanded for new trial.


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    MAINTENANCE OF WORK HOUSE PRISONERS.
    Circuit Court of Cuyahoga County.
    The City of Cleveland v. The Commissioners of Cuyahoga County.
    Decided, November 6, 1907.

      Municipal Corporations — Action against County for Maintenance of Prisoners Convicted of Violating State Statutes — Construction of Section 1536-869, and Section 2881/1).

    1. The liability of county commissioners for -maintenance of prisoners, sentenced by the common pleas court to a city work house, is not essentially contractual, but is based rather on the mandatory requirements of Section 1536-369, Revised Statutes.

      2. Section 1536-369 is comprehensive, and excludes the interpolation of any supposed but unexpressed policy of the state as reflected by past legislation with reference to the distribution of the expense of maintaining prisoners offending against state statutes and city ordinances respectively.
    Henry, J.; Winch, J., and Marvin, J., concur.
   The sole question involved in this proceeding in error is the sufficiency of the petition. The action below was brought by the city to recover from the county the agreed price for maintenance in the city workhouse of prisoners committed thereto for violation of state statutes. The theory of the city is that the county is ultimately liable for such maintenance in all cases where the offense is statutory, and that the city’s ultimate liability for such maintenance is confined to cases of violations of city ordinances. The petition alleges four causes of action differentiated according to the committing tribunals, viz: the Cuyahoga common pleas court, justices of the peace throughout the county, the mayor of Berea, and the Cleveland police court.

The correctness of the city’s claim as to the first cause of action is substantially conceded, except that the contract price was not lawfully agreed upon between the parties in .compliance with Section 28346, Revised Statutes, in that the county auditor made no proper certificate as to the funds in the treasury.

This contention is, we think, without merit in view of the petition’s. averment that the contract was “duly” made, and also because the liability asserted is not essentially contractual, but is derived rather from the mandatory requirements of Section 1536-369, Revised Statutes.

The agreement as to the forty per cent, per diem price for maintaining each prisoner should, under the allegations of the petition, and in the absence of any averment to the contrary, be treated as an accord, respecting the actual cost of such compul- ■ sory maintenance.

So far, therefore, as the first cause of action is concerned, the judgment of the court of common pleas is affirmed.

Respecting the remaining three causes-of action, Section 2104, Revised Statutes, repealed when the municipal code was enacted in October, 1902, would were it still in force, have settled the whole controversy favorably to the city’s contentions. And the city contends that the policy of the state, as reflected in past legislation and in the manifest equity of the matter, is still such that counties are the appointed agencies, constituted by the state, for maintaining those incarcerated in local penal institutions, for violation of its general laws, but that municipal corporations are made chargeable only with the maintenance of those incarcerated for violation of their own ordinances. Various analogies of other expenses thus apportioned between counties and municipalities are cited in support of this contention.

Section 1536-369, Revised Statutes, is the municipal code provision now applying to this subject, and it seems to be both explicit and comprehensive, so as to exclude the interpolation of any supposed but unexpressed policy of the state regarding the distribution of expense of maintaining these two classes of prisoners. It reads:

“When a person over sixteen years of age is convicted of an offense, under the law of the state or an. or dinance of a municipal corporation, and the tribunal before which the conviction is had is directed by law to commit the offender to the county jail or corporation prison, the court, mayor, or justice of the peace, as the case may be, shall sentence the offender to the workhouse, if there is such house in the county; provided, that when a commitment is made from a city, village or township in the county, other than in the municipality containing such workhouse, the council of such city or village, or the trustees of such township, shalL transmit with the mittimus a sum of money equal to forty cents per day for the time of such commitment, to be placed in the hands of the superintendent of such workhouse for the care and maintenance of such prisoner.”

This section seems, moreover, to be in exact accord with the provisions of law in that behalf made by the municipal code of 1869 (66 O. L., 195), Sub-sections 275 and 280, as modified by 73 O. L., 211.'

It was not iintil the enactment of Section 2104, Revised Statutes, March 11, 1884, that the policy asserted by the city was given legislative expression, and then only as to a part of the state. Without reviewing in detail here the history of legislation upon this subject, it is enough to say that our examination thereof fails to reveal the fixing by the General Assembly of any such definite or continuous policy as the city declares to have been established.

Newton D. Baker, City Solicitor, for plaintiff! in error.

John L. Gannon, Assistant County Solicitor, for defendants in error.

If it be contended that a literal enforcement of Section 1536-369, Revised Statutes, would saddle the city with the expense of maintaining some prisoners convicted by its own police court, or before justices of the peace elected and sitting within its boundaries, of state offenses committed outside its corporate limits, it may be answered that such tribunals are presumed to be clothed with and to exercise their extra-municipal jurisdiction for the benefit of the community within and for which they act, just as similar tribunals in outlying townships of the same county may in certain like cases, and with equal propriety charge their own communities in respect of offenses committed in such city. Concerning the possibility of a trifling over-lapping of benefits or expenses as between the taxpayers of a city and the taxpayers of outlying municipalities and townships in the same county, the maxim de minimis non curat lex is peculiarly applicable.

We have followed the interesting discussion in the city solicitor’s brief of the statutes permitting contracts to be made for the maintenance of prisoners from foreign counties' without perceiving that they involve any irreconcilable conflict with our construction of the laws applicable to the subject more immediately before us.

The judgment of the court below having followed the principles thus defined, is affirmed.


text:
    QUESTIONS OF NEGLIGENCE IN MAKING UP TRAINS.
    Circuit Court of Lucas County.
    Lake Shore & Michigan Southern Railway v. Botefuhr, Administrator.
    Decided, June 22, 1907.

      Negligence — In the Switching of Gars in a Railway Yard — Custom in the Matter of Signals — Evidence Relating Thereto — Braheman may Rely on Signals of Conductor — Charge of Court with Reference to Custom — Non-prejudicial Error in Charge — Evidence of Defects in Apparatus not Charged in the Petition Admissible, When — Error —Master and Servant.

    1. Evidence that it was the custom of a railway conductor to give warning to the trainmen, assisting him in the making up of a train in the yards, is admissible upon the question whether, knowing the custom, the conductor exercised ordinary care, and also upon the question of whether the deceased, being aware of the custom and habit of the conductor, was guilty of contributory negligence.
    2. A yard brakeman of a railroad company, in the pursuance of his duty in the making up of a train in the yards of the company, it being desired to reverse the location of the cars on the track and it being necessary in' so doing to pass between the cars to couple them up, has a right to expect that the cars will not be moved without a warning to him from the conductor, where it has been the habit or custom of the conductor to keep track of the trainmen assisting him.
    3. Where the court in its charge to the jury refers to a habit as a custom, evidently meaning a custom in the general acceptation of the term, and not a custom having the force of law, it devolves upon the plaintiff in error, before he can be heard to complain thereof, to frame a charge that would correct the alleged error; a general exception to the charge is not sufficient for that purpose.
    4. Where rules of a railroad company in evidence go no further than to impose upon employes such duties and obligations as are imposed upon them by law, and such rules of law in so far as they bear upon the issues are correctly set forth in the charge of the court, the failure of the court to mention such rules of the company specificially, or to state that such rules also impose the duties and obligations arising under the law, is not prejudicial error.
    5. Where the only negligence charged is that of the conductor of the train in the operation whereof the plaintiff’s intestate was in-. jured, it may he competent to show defects in the cars of such train in explanation of the movements of the train and the conduct of the parties, though no recovery could he- based upon such defects.
    Parker, J.; Haynes, J., and Taggart, J. (sitting in place of Wildman, J.,) concur.
    Error to the Common Pleas Court of Lucas County.
   The action in the court below was by the administrator of Elmer F. Grover against the railroad company for damages to the next of kin of Grover, resulting from his death, which it was charged in the petition was brought about through the negligence of one Ford, a conductor of the railroad company, superior in authority to the deceased, and while the deceased was in the line of his duty as an employe of the railroad company, to-wit, as a yard brakeman.

The negligence alleged was in the failure of the conductor to keep himself advised of the situation of the deceased while they were both engaged with other trainmen in rhe making up of a train in the yards of the company near the Union passenger station in this city, and in directing a certain movement by the engineer of his locomotive whereby the cars were brought together and the deceased was killed, without waiting for a signal from the deceased, or being otherwise apprised that the deceased was in a place of safety.

The trial in the court below resulted in a verdict in favor .of the plaintiff for $5,500, upon which judgment was entered. Error is prosecuted'by the railroad company to this court to obtain a reversal of that judgment.

Upon the trial of the case the railroad company took exceptions upon the admission of evidence; upon the overruling by the court of a motion on its behalf to withdraw the cause from the jury and direct a verdict in its favor at the close of plaintiff’s evidence; upon the overruling of a like motion when all the evidence was in; on account of alleged errors in charges given at the instance and request of the plaintiff below; and in the general charge of the court with respect to various propositions.

I can not undertake to discuss all the questions that are presented for our consideration, but will give brief attention to those which we consider most important and material, and most worthy of attention.

I shall not go into details as to the transaction or movements which resulted in the death of Grover. I have already mentioned the capacities in which Grover and the conductor were acting. They were engaged with the other trainmen in making up a passenger train; that is to say, in bringing the coaches and cars into position and connecting them together, so that they would be in proper form to make a regular trip. In doing this, the position of the cars upon a certain track as the train was brought into the station were being reversed; the train coming in from the east and stopping at the station, and it being intended that it should go out toward the east, it became necessary to reverse the location of the cars upon the track. So the eastermost car, which was a parlor car, was taken from the train by the locomotive and pulled away from the train, and then shoved in upon another track, and the next car, which was a passenger day coach, was likewise disconnected from the train, pulled away from it, and pushed in on the track with the parlor car, so that it stood eastward of the parlor car; then the smoking car was likewise changed, and then the baggage car was likewise changed. So it will be observed the order of the position of the ears was merely reversed.

In the course of these operations it became necessary for the deceased and for Ford, the conductor, to pass from one track to the other, Ford, as conductor, directing the operations. It seems that when the cars were all in proper position it then became desirable to shove them together and couple them up. They were provided with so-called automatic couplers, but that as the train was being made up upon a track which had considerable curve the couplers would not operate automatically without some adjustment or manipulation by the trainmen to put them into position so they would couple together.

When it seemed to the conductor desirable to couple up the cars, he discovered that the last car bmrght in, to-wit, the baggage car, was not likely to couple onto the smoking car because of some need of adjustment of the coupler; so he passed in between these cars, and he says before doing so he signaled the engineer that he was about to do so, in order that no movement might be made that would be likely to injure him; but he passed .in and made the necessary adjustment and stepped out, and then signaled to the engineer to back up. This was done. He says that at that time his purpose was simply to effect a coupling up of those two cars, supposing that by other movements that had been añade in the making up of this train all the other ears had been coupled together. But in coupling up these cars the cars standing to the westward of hiaai were aaioved, he thinks, aaot more than six inches, and he thinks that the westermost, to-wit, the parlor ear, could aaot have been standing añore than six inches distant from the day car standing immediately to the east of it. Then he says that in order to determine whether all the cars were coupled together he directed the engineer to anove them all forward toward the east, and upon this movement being made it was discovered that the two rear cars were aaot coupled together. So he stepped back to the rear end of the "train, or to the space between these two cars, to see why it was they had not coupled together — to see what the trouble was- — and there they found Grover lying between the tracks, dead, with his head crushed; apparently his head had been crushed betweeai the buffers of.these two cars. The conductor says that until then he was not aware that Grover was in that position. He did not see hian go there. He was unaware that it was aiecessary for anybody to go to that positioai to attend to any duty, to look after the coupling up of the cars or to do anything else. He had not seeai Grover froaai the tiaaae they had hauled the last car froaai the other track, to-wit, the baggage car, aaid he says that he supposed that Grover had gone about some other business or duty in the yard, and wa.s no longer assisting in the making up of this train; and it appears that Grover had various duties to perforan in the yard, sometimes one thing and sometimes another, so that he was likely to be called upon to do a variety of work, in the yard.

It is contended on behalf of plaintiff in error that if Grover did go in between the cars for the purpose of assisting about their coupling up, he was negligent in that he did not give warning to the conductor or to the engineer that he was about to go into that perilous position.

On behalf of the defendant in error, it is contended that the deceased was not necessarily negligent, even if he went into this place without giving any warning, because it was customary in doing the work there to take that position between the cars and adjust the couplers, and it was customary for the conductor to keep track of the trainmen assisting him, and the conductor had every reason to anticipate, Grover not being within view, that he was about the performance of such duty, and that Grover, on the other hand, had every reason to believe and anticipate that the conductor would be regardful of his safety and looking out for him.

Upon this contention the plaintiff below produced witnesses, of whom counsel inquired as to the custom that had prevailed there in the yard for a period of years in the making up of trains, and especially in the making up of this train, and more especially in the manner that Grover performed his work as a brakeman while working under Ford; and various witnesses testified that the custom was as contended for by the plaintiff below; that Grover was in the habit of going between the cars and making these adjustments of the knuckles or couplers, and that Ford was not in the habit of giving any signals for the movement of the train until Grover would step out and- give a signal that a movement might be made.

There was- testimony, on the other hand, tending to sustain the contention of plaintiff in error that the custom was not so. Questions are made as to the admissibility of evidence of this character, and also as to its sufficiency in this case.

As to the admissibility of evidence of this character, we think there can be no question. The views of this court upon that subject have been expressed by Judge Haynes in the ease of Carl v. Pierce, 20 C. C., 68 (affirmed, without report, Hunt v. Pierce, 64 Ohio St., 578) ; and especially page 712 (70), and by myself in the case of Pennsylvania Co. v. Mahoney, 22 C. C., 469.

It is, according to our views, admissible upon the question of whether, knowing the custom, or knowing the habit of trainmen there, and especially of Grover, the conductor exercised ordinary care; and also upon the question of whether the deceased, being aware of the custom and of the habit of the conductor, was guilty of contributory negligence, or exercised ordinary care.

The evidence in the case, we should say, is hardly sufficient to establish a custom having the force of law, and perhaps not one having the force of an established and promulgated rule binding upon all employes of the company,' at all times and places. But we think it is quite sufficient to show this habit in the performance of the work upon the part of this conductor and this trainman when working together in the making up of that train, and our view of the matter upon the weight of the evidence is, that their habits as contended for by the defendant in error were fairly established. The fact that at times, in the questions and in the remarks of the court, and perhaps in the charge of the court, this habit has been designated as a custom, which might mean a custom of the general character I have alluded to, was not, in our judgment, a matter prejudicial to plaintiff in error. Perhaps it would be more correctly described as a habit of these people in the performance of their work, the habit of each being known to the other. But we hold with respect to the charge upon the subject, that if counsel for the plaintiff in error apprehended that the evidence might not be properly understood or applied by the jury — that the jury might have had in mind the subject of customs rather than the habits or-usages of these parties — it devolved upon him to frame a charge embodying his views (Columbus Ry. v. Ritler, 67 Ohio St., 53). We hold that a general exception would not reach to the alleged error upon the part of the court in that respect.

It is contended on behalf of plaintiff in error that the trial judge erred in his charge to the jury in that he failed to charge that they were to be guided by certain rules introduced in evidence, the charge being that they were to be governed by the. customs or usages or habits of the employes in the making up of this train at this station. What I have said with respect to the general exception on the other point we think is as well applicable to this; but, aside from that, we have considered these rules very carefully, and we have failed to discover any specific rule applicable to this situation, though many of the rules provide generally that in all operations the employes are to be heedful of their own safety and the safety of their fellow employes. In so far as the rules provide for this, they provide for no more than the law requires of the employes; or, in other words, they impose no different burdens or duties upon employes than those imposed by the law. And when the judge came to charge, as he did very fully, upon the respective duties and the relative duties of the deceased and the conductor, he, in effect, gave in charge all that was material and pertinent in these rules upon the subject, though the rules were not specifically mentioned. It would have given no additional' force to the law, as laid down by the judge, to say that the company had adopted and promulgated certain rules in which these same duties of care were imposed upon Lhe employes.

In the course of the trial, to explain why it became necessary for the trainmen to go between these ears in order to adjust these knuckles, witnesses were permitted to testify that certain parts of the apparatus were not in order so that they could be worked by standing in any other place than between the ears; they would not work automatically, and they • could not be operated from the platforms. This was objected to upon the ground that the plaintiff was attempting to show defects in the couplers that had not been charged in the petition. We think that objection was not tenable. The only negligence alleged as a ground of recovery was that of conductor. The fact that this apparatus was in the condition that witnesses testified, whether defective or not defective, was only incidental to explain the purpose and necessity of trainmen going between the cars and standing upon the ground while operating the same, and that necessity it was competent to show, even though incidentally it turned out that it was made necessary by defects in the car. It did not follow that recovery could be had upon the ground of such defect, because it might well be shown that the risk of those defects 'had been assumed, or that the deceased was negligent in' so far as he undertook to operate defective machinery; and the court was careful in the charge to advise the jury that the only ground of recovery was the alleged negligence of the conductor. If the conductor was negligent as charged, of course that was a risk entirely distinct from any risk of injury from defective machinery or defective appliances which the deceased might have assumed, and was a risk which was not assumed by the deceased.

0. 8. Brumback, for plaintiff in error.

Doyle & Leivis, contra.

Without spending further time in the discussion of the facts, we simply state our conclusion, that the evidence justified the finding of the jury that the deceased was in the line of his duty when he was killed, and that he was not negligent, and that his death was brought about by the alleged negligence of the conductor. To discuss the evidence upon which we think the jury might well have relied, and to set forth the course of reasoning by which we reach this conclusion, would require considerable time, and we think it would hardly be profitable.

We find no error in this record prejudicial to plaintiff in error, and the judgment of the court of common pleas will be affirmed.