text:
    In re Estate of Collins: Watcher et al., Appellants, v. Crawford, Exrx., Appellee.
    (No. 161
    Decided July 26, 1945.)

      Messrs. Paxton S Seasongoocl, for appellants.

      Messrs. Nichols, Speiclel <& Nichols and Mr. J. Price ' Osborne, for appellee.
   By the Court.

This controversy arose on exceptions to the account of the executrix of the estate of Arma. Collins, deceased. The Probate Court overruled all the exceptions and the contest is brought to this court as an appeal on questions of law.

It was attempted to Surcharge the account in ten respects by including certain .property withheld by the executrix as gifts inter vivos to her and her sister. There was also an exception to the amount allowed by the court to the executrix beyond the statutory allowance, on the basis of extraordinary services.

It is asserted that the court erred in several respects :

(1) The first claim which would affect all the rulings of the court is that the rulings are manifestly not supported by that degree of proof required and are manifestly against the weight of the evidence.

We have read the evidence and briefs and have given this claim careful consideration.

There is, with one exception, substantial evidence supporting all the rulings of the court, the weight to be given being dependent upon the credit accorded to witnesses. Under such circumstances this court would not be justified in substituting its judgment for that of the trial court.

Counsel rely to a large extent upon Bolles v. Toledo Trust Co., Exr., 132 Ohio St., 21, 4 N. E. (2d), 917, but there is sufficient testimony, if believed, in this case to prove every element of a completed gift as defined in that case. In that case, the court found there was no evidence of delivery or of facts from which delivery could be inferred. There is no such deficiency in this case.

(2) The one exception is the balance of $247.41 in the Hyde Park branch of the Second National Bank. The record shows that $1,000 was taken from the account of Anna Collins in the Southern Ohio Savings Bank & Trust Company and deposited in the Hyde Park branch of the Second National Bank in the joint names of Anna Collins'and Joyce Crawford. At the time, Anna'Collins was sick and in a hospital. Joyce Crawford attended to the transfer and the deposit was made withdrawable by either. As a matter of fact, all withdrawals were made on the signature of Joyce Crawford, but all money withdrawn during the lifetime of Anna Collins was either given to her or expended as directed by her. The original deposit of $1,000 was Anna Collins’ money and no other deposits were made.

Joyce Crawford contributed none of her money to this deposit, but upon the death of Anna Collins accounted for only one-half as executrix, on the theory that as a matter of law she personally owned one-half. Reliance is placed upon Foraker, Exr., v. Kocks, Admx., 41 Ohio App., 210, 180 N. E., 743, to support this position. We do not think the cases are analogous.

If Joyce Crawford owned one-half after Anna Collins’ death, she owned one-half of the deposit from the beginning. There was no survivorship provision and no evidence that Anna Collins intended to transfer any part of her title to Joyce Crawford. In the absence of such intent, the title continued in the original owner.

In the Foraker case, the court dealt with a deposit in the joint names of husband and wife. There was evidence that the wife had inherited as much as the husband and that their accumulations had been the product of their joint efforts. Furthermore, even assuming that the husband owned the entire title in the first place, placing it in the name of his wife thereafter would cause an inference of gift to arise. No such inference arises where the claimant is not a relative.

Our conclusion is that this entire balance belonged to Anna Collins and constituted an asset in the hands of her executrix, and that the account of executrix should be surcharged with the one-half withheld.

(3) Some of the transactions involved occurred while Anna Collins was a patient in the hospitals located in Cincinnati. Hospital records were offered in evidence, to which the court sustained objections. As shown by the record they were offered to show what her condition was and that she was under treatment. The court excluded them on the ground that there was very little in them that was intelligible to it and, therefore, “practically useless.” There was no interpretative testimony offered.

It appeared without dispute that Anna Collins was afflicted with cancer during all the time when these incidents took place. She made her will, when she was so afflicted, about a mouth before her death. The validity of the will was not questioned in any way. It was not claimed that the disease had any close relation to her brain, or that it affected her mind. It is suggested that these hospital records show that opiates were administered at times and that that reflects upon the likelihood of some of the things testified to having taken place. The quantity, the duration, the potency of the drug, and many other facts necessary to a conclusion as to whether any relation between the effect of the drug and the questioned acts are left to pure speculation. It is not claimed that Anna Collins, either because of her disease or the drugs administered to her, was mentally incapable during all the time she was in these hospitals, or that she was so at any particular time.

The ground of exclusion shows that the court considered that they had very little probative value.

We cannot say that prejudicial error was committed in the exclusion of these records.

We find no error, prejudicial to the appellants, except as to the deposit in the Hyde Park branch of the Second National Bank.

For these reasons, the judgment will be modified as indicated, and affirmed as modified.

Judgment accordingly.

Hildebrant, P. J., Matthews and Ross, JJ., concur in the opinion and judgment.


source: Caselaw Access Project

author: Doyle, J.

license: Public Domain

text:
    Strouse et al., Admrs., Appellants, v. The Baltimore & Ohio Rd. Co., Appellee.
    (No. 1086
    Decided October 31, 1944.)

      Miss Marie 8. Schaffler and Messrs. Weimer é Miller, for appellants.

      Messrs. Harrington, Huxley & Smith and Messrs. Starn <& Etling, for appellee.
   Doyle, J.

This is an action of tort to recover for personal injuries and property damage received by appellants’ intestate on December 18, 1940, in Wayne county, Ohio, through the alleged negligence of the Baltimore & Ohio Eailroad Company in the operation of its business. The question of law to be determined relates to the right of the trial court to decide as a matter of law, as it did, upon the pleadings and opening statement of counsel, the nonliability of the railroad company to this appellant.

The petition relates that the decedent was the owner of and a passenger in an automobile operated by her husband when it was struck by appellee’s train at a grade crossing.

Tlie opening statement of appellants’ counsel in part was:

“We expect tlie evidence to show that this woman was a passenger in the automobile that her husband was driving, that he was not her agent; that they were going to their home from visiting; that they were going on a trip they were required to make; that they drove up to the track, stopped and looked, and started on, but the train approached at a speed of about seventy miles or eighty miles per hour, and before they could get their vehicle across the tracks they were struck * *

The trial court in directing a verdict for the defendant at the conclusion of the opening statement of counsel, apparently concluded as a matter of law that the fact of ownership of the automobile in the wife, coupled with her presence in the car operated by her husband, was sufficient to establish the husband’s agency, and that therefore any negligence of the husband was in law her negligence, under the rule of respondeat superior.

In our consideration of this case, examination has been made of the record to determine whether the charge made against the railroad is sufficient, if proved, to require the submission of the issue of negligence to a jury.

We are of the opinion that it is sufficient.

Consideration has likewise been given to the question of the decedent’s contributory negligence as a matter of law, if she is not charged with responsibility for the negligence of her husband under the rule of respondeat superior.

We are of the opinion that the pleadings and opening statement of counsel do not establish such fact.

Concluding as we do the foregoing, attention is next directed to the question of agency. Do the facts, pleaded and stated, make the husband-driver the decedent’s agent as a matter of law? A ruling on this question we determine to be decisive of the appeal to this court by the plaintiff below.

The rule stated in 5 American Jurisprudence, Automobiles, Section 354, has been generally followed, not only in this state but throughout the country. It is:

“* * * A husband driving his wife’s automobile, even with the wife present, may be presumed, in the absence of evidence to the contrary, to be in control of the car and solely responsible for its operation. # -* * >»

And, see, Rodgers v. Saxton, 305 Pa., 479, 158 A., 166, 80 A. L. R., 280.

The negligence of a driver of an automobile cannot be imputed to the passenger even though the passenger is, the owner of the car and the wife of the driver. Such passenger can only bo held liable for the driver’s negligence when the relationship of principal and agent, or master and servant, exists, under the rule of respondeat superior. And in this connection it will be observed that the petition and opening statement specifically allege a relationship of non-agency.

To state the rule conversely, a passenger in an automobile is not precluded from recovering against a negligent third party unless such passenger’s negligence proximately contributes to her own injuries, or unless, under the rule of respondeat superior, she becomes liable for the negligence of the driver which proximately causes or contributes to the causing of the injury.

The liability of a negligent third person under such circumstances must be governed by.the rules applicable to the care required of a passenger for her own safety and to the rules applicable to the relationship of principal and agent or master and servant. Logue v. Rouse, 47 Ohio App., 476, 192 N. E., 136.

Judgment reversed and cause remanded.

Judgment reversed.

Stevens, P. J., and Washbu-rn, J., concur.


author: Nichols, J.

text:
    Coffman, Appellant, v. Coffman, Appellee.
    (No. 114
    Decided January 15, 1945.)

      Mr. Thurston F. Bittle and Mr. Sam D. Kelly, for appellant.

      Messrs. Harshman <& Young, for appellee.
   Nichols, J.

This cause is'in this court on appeal upon questions of law by F. L. Coffman, plaintiff, from the judgment of the Common Pleas Court of Preble county in favor of defendant, Myrtle Coffman.

On September 3, 1943, the cause having been heard upon the pleadings and the evidence, the Common Pleas Court found for defendant and against plaintiff on the issues joined on his petition, dismissed plaintiff’s petition for divorce, and found for defendant and against plaintiff on the issues joined on defendant’s cross-petition, the entry specifically showing the court found that plaintiff and defendant were living separate and apart and that defendant was entitled to separate maintenance and support by plaintiff. The court ordered that “the previous order entered herein requiring and ordering plaintiff to pay to defendant the sum of $110 per month for her maintenance and support pending this litigation should be and hereby is ordered continued,” and assessed the costs against plaintiff.

On September 4, 1943, plaintiff filed a motion for an order vacating the finding and entry of September 3, 1943. This motion was not disposed of by the court until March 22,1944, on which date the court overruled the motion to vacate and further heard the cause upon the question of an allowance for separate maintenance and support, finding an allowance of $150 per month to be ample and equitable and that defendant should be allowed the sum of $100 for the preparation of her defense. The court entered judgment against plaintiff on the issues joined on plaintiff’s petition, dismissed plaintiff’s petition for divorce, ordered that judgment be entered for defendant and against plaintiff on the issues joined on defendant’s cross-petition for the sum of $150 for the month of February, 1944, and a like amount on or before the 3rd of each and every subsequent month, and that plaintiff pay defendant the additional sum of $100 as an allowance for the preparation of her defense.

From the judgment entered by the Common Pleas Court on March 22,1944, plaintiff has duly appealed to this court upon questions of law.

In his assignment of errors, plaintiff complains that the trial court erred in the following:

(1) In dismissing plaintiff’s petition for divorce after finding that plaintiff’s claim of gross neglect of duty had.been substantiated;

(2) In allowing permanent alimony to defendant, when there had been no showing of gross neglect of duty on the part of plaintiff;

(3) In allowing permanent alimony to defendant when there had been no showing of abandonment of the wife by the husand without good cause ;

(4) In finding for defendant upon her cross-petition when the court had found <£po preponderance of the evidence”;

(5) In allowing attorney fees to defendant;

(6) In allowing an exorbitant amount of permanent alimony, having regard for the holdings of the wife and the average earnings of the husband for the past ten years.

In support of the first assignment of error, plaintiff represents that the trial court rendered an opinion, from a consideration of which it is to be gathered that the court had found plaintiff’s claim of gross neglect of duty had been substantiated, that there had been no showing of gross neglect of duty on the part of plaintiff and no showing of abandonment of the wife by the husband without good cause, and that there was no preponderance of the evidence to sustain the allegations of defendant’s cross-petition.

Two opinions of the trial court are attached to plaintiff’s brief. These opinions are apparently some observations made by the court at the time they were written relative to the state of the evidence. Obviously these opinions are not the final judgment of the trial court since the court speaks only through its journal, and by its journal it definitely found that the issue made upon plaintiff’s petition had not been sustained and that the issues made upon defendant’s cross-petition had been sustained. We cannot look to the opinions of the court for refutation of the duly entered findings upon its journal.

This court has, however, carefully considered the evidence contained in the bill of exceptions filed herein by plaintiff and is unable to find therefrom that the judgment of the Common Pleas Court against plaintiff and dismissing his petition for divorce is manifestly against the weight of the evidence.

While it does not appear from the journal entry whether the judgment from which plaintiff appeals was based upon the claimed abandonment of defendant by plaintiff without just cause or was based upon a finding of gross neglect of duty, nevertheless the judgment of the court would be sustained upon finding either of such issues in favor of defendant.

Prom a consideration of the record, there can be no doubt that the evidence discloses an abandonment of defendant by plaintiff, and we cannot say that a finding of lack of just cause for such abandonment is manifestly against the weight of the evidence. Likewise we cannot say from the evidence that a finding by the court that plaintiff was guilty of gross neglect of duty toward defendant would be manifestly against the weight of the evidence.

We have considered further the record with reference to the claim of plaintiff that the Common Pleas Court allowed an exorbitant amount of permanent alimony to defendant. As shown by the latest opinion of the trial court, there was taken into consideration in fixing the amount of permanent alimony the needs of the wife, her customary manner of living, her own income and earning capacity, the amount and value of her separate property, and the ability of the husband to pay.

From that opinion we gather that the court found from the testimony that the wife’s needs are some $213.16 per month; that she has been accustomed to live in a manner above the average, comfortably but not extravagantly; that she has no income and little earning capacity; and that she has, however, a considerable amount of assets belonging to her individually and was residing in a valuable piece of property, though it was somewhat encumbered.

The court apparently found that plaintiff’s income could be estimated conservatively at $500 per month. Upon a consideration of all the facts referred to, the court found that an allowance of $150 a month for permanent alimony would be ample, fair and equitable, and so ordered.

Without reciting the evidence contained in the bill of exceptions, we arrive at the conclusion that the trial court was amply justified therefrom in making the allowance to defendant for her permanent alimony which is shown in the entry of judgment of that court.

We have carefully considered all of the errors assigned and are unable to find that prejudicial error has been shown or that substantial justice has not been done.

The judgment is, therefore, affirmed.

Judgment affirmed.

Hornbeck, P. J., and Geiger, J., concur.

Nichols, J., of the Seventh Appellate District, sitting by designation in the Second Appellate District.


author: Hornbeck, J.

text:
    The State of Ohio, Appellee, v. Fullmer, Appellant.
    (No. 1831
    Decided January 4, 1945.)

      Mr. Nicholas Nolan, prosecuting attorney, for appellee.
    . Mr. John J. Hoover, for appellant.
   Hornbeck, J.

This is an appeal from a. judgment of the Court of Common Pleas of Montgomery county, Ohio, Juvenile Court Division, finding that defendant is a delinquent child and committing her to the Girl’s Industrial School. The appeal is noted on “both the law and the facts” and apparently proceeds by a guardian ad litem appointed by the juvenile judge.

At the outset it should be said that this cause may not proceed as an appeal on questions of Taw and fact for the obvious reason that the action is not one cognizable in chancery at common law and will be considered as an appeal on questions of law. The type of appeal becomes immaterial because the question raised is one of law only.

The principal error assigned is the failure and refusal of the trial judge to sustain defendant’s motion “to ñx and allow her bond so that she may be released during the appeal of the cause.”

' We know of no constitutional provision, federal or state, which assures one committed to any institution the right to have bail bond fixed on an appeal from the sentence. If such a provision is made by statute, it is required only that it operate uniformly. See 16 Corpus Juris Secundum, 1277, Section 626. If no provision whatever is made whereby bail bond may be fixed by the trial court, no provision of the Constitution is violated. The Juvenile Court Code makes no specific provision for an appeal from an adjudication that a minor is a delinquent child. The right of appeal in such cases was unknown to the common law and is purely a creature of statute. 31 American Jurisprudence, 808, Section 44; Wissenburg v. Bradley, Judge, 209 Iowa, 813, 229 N. W., 205, 67 A. L. R., 1075.

If we assume that Section 13453-1, General Code, may be given application, there are at least two cases in Ohio which hold that the right to have execution of sentence suspended and bond accepted is within the sound discretion of the trial judged See In re Thorpe, 132 Ohio St., 119, 5 N. E. (2d), 333, and State v. Cook, 70 Ohio App., 1, 44 N. E. (2d), 474, wherein it was held that there is a presumption that the judgment of the trial court in refusing bond is sound.

As there is no bill of exceptions which tends to show any abuse of discretion in refusing to fix bond, we have no basis upon which to predicate a finding that the appeal bond was improperly refused.

AVe are satisfied that there was no violation of any constitutional provision in the action of the court on the motion to fix bond, because of the fact that the Legislature has, by statutory enactment, if applicable to sentence in juvenile cases, provided the conditions under which, not only the trial court, but the reviewing court, may suspend execution of sentence.

AVc recognize the cogency and force of the argument advanced by counsel for defendant, both in oral presentation and in his brief, in support of his contention that the right to give bond should be accorded to a minor in juvenile cases, but this argument is met in pail by the provisions of our Code, and if it is to be made mandatory that bond be accepted in all instances involving cases of juvenile dependency or delinquency, then the argument of counsel is more properly directed to the Legislature than to the courts.

AVe have discussed the only error which is presented and considered in the brief of defendant, but other errors are assigned in what is designated as “petition in error,” namely, error in overruling defendant’s motion for new trial, error in rendering judgment contrary to law, and other errors apparent on the face of the record.

No error is assigned which, in the absence of a. bill of exceptions, is exemplified upon the record as it comes to us. Orders in this court will be in accord with this opinion.

Judgment accordingly.

Geiger and Nichols, JJ., concur.

Nichols, J., of the Seventh Appellate District, sitting by designation in the Second Appellate District.


author: Carpenter, J.

text:
    Carlton, Appellant, v. Carlton, Appellee.
    (No. 707
    Decided March 19, 1945.)

      Mr. Moses Lane, for appellant.

      Mr. Alva W. Bachman, for appellee.
   Carpenter, J.

This is an action to annul the marriage of the parties on the grounds that plaintiff was under eighteen years of age at the time it was licensed and solemnized. There was also some claim of fraud committed by the defendant wife and her father, but this is unimportant to the decision hereof.

The cause is in this court on appeal on questions of law and fact. The essential facts are undisputed and are as follows:

The marriage took place on July 22, 1944. At that time plaintiff was seventeen years of age, having been born on September 10, 1926, and defendant was nineteen. The father of defendant consented to her marriage, and plaintiff gave his age as twenty-two in the application for the license. His father was living and resided in West Virginia. The parties lived together and cohabited for five days after the marriage, when plaintiff left defendant,- and on August .1, 1944, by his father as next friend, brought this action.

On November 30,1944, a child was born to defendant, which child was a normal baby. Both parties admitted that they had sexual relations. The plaintiff testified that this began after April 17,1944; the defendant that it was about March 19, 1944. She also admitted that she had had such relations previously with another man.

Section 11181, General Code, specifies who may marry. It reads in part as follows:

“Male persons of the age of eighteen years, and female persons of the age of sixteen years, not nearer of kin than second cousins, and not having a husband or wife living, may be joined in marriage.”

The statute, substantially in this form, has been in effect in Ohio since the organization of the state. 1 Ohio Laws, 31. In Shafher v. Ohio, 20 Ohio, 1 (1851), the charge was bigamy, and the defense was that the first marriage was void for the reason that the accused was under the statutory age. After quoting the statute and reviewing .the common-law authorities, Judge Ranney said:

“"We think these authorities very conclusively show that the contract of marriage when entered into by a person under the age fixed by law, is void, as well for the want of capacity in the infant to make it,, as being opposed to sound policy and the positive requirements of the land.”

The Supreme Court has never modified the force of that decision.

That the Legislature has strictly construed the statute is indicated by Section 11181-1, General Code, which it first enacted in 1915, 106 Ohio Laws, 17, and amended in 1931, 114 Ohio Laws, 476, and in 1941, 119 Ohio Laws, 299, by which it is provided that a license can be issped when one of the parties “is under the minimum age otherwise prescribed by law” if the female is approaching maternity. This statute afforded correct procedure by which these parties, with the consent of the judge of the Juvenile Court, might have effected a valid marriage, had they used it, even without the consent of plaintiff’s parents.

As the plaintiff was incapable of entering into a valid marriage, because of his nonage, and it is undisputed that he did not ratify it after he reached the age of eighteen on September 10, 1944, the finding must be that the marriage was void and a decree annulling it will be entered at the cost of the defendant.

Decree for appellant.

Stuart and Conn, JJ., concur.


author: By the Court.

text:
    Draper et al., Appellants, v. Perry et al., Appellees. Draper et al., Appellees, v. Perry at al., Appellants.
    (Nos. 6518 and 6519
    Decided July 2, 1945.)

      Mr. Harry F. R. Dolan, Mr. Walter A. Briggs and Mr. Ray Hicks, for Elsie Draper and Catherine S. Walker.

      Mr. Harry H. Baker and Mr. J. G. Williams, for Dr. Prank Perry and Jessie Brown Perry.
   By the Court.

At the time this action was instituted, the defendants were the bona fide owners of the real estate, the subject of this litigation. It was the claim of the plaintiffs that the grantor of the defendants’ deeds was incompetent. Plaintiffs failed to establish this in the trial court and"'have again failed to establish it in this court. The plaintiffs never had, therefore, any interest of any kind in the subject of this litigation. The appointment of the receiver was, therefore, in the nature of a wrongful attachment of the property of the defendants, and although the sums spent by the receiver in conserving the property may not be charged against the plaintiffs and should be allowed out of the sums collected by the receiver in the administration of such property, certainly, there can be no foundation for allowing the receiver compensation out of such receipts. His possession at all times was a violation of the rights of the defendants, who at all times were entitled to the undisturbed possession of such real estate.

The authorities relied on by the plaintiffs to sustain their contention that the compensation of the receiver should be paid.out of receipts from the property do not do so and are easily distinguished upon the facts involved.

The case of Richey v. Brett, Recr., 112 Ohio St., 582, 148 N. E., 92, cited by the plaintiffs, is an authority for the defendants, for at page 587 of the opinion it is stated:

“Oases are found among the authorities' holding that, where the corpus is not available, and there has been an irregular or unauthorized appointment of a receiver, or where a party has received benefits from the receivership in excess of the amount required to be paid, or where an action has unjustly been maintained without right, in all such instances the plaintiffs in the action may be held personally responsible for deficiencies.”

Certainly, the instant action was maintained without right.

The judgment of the Court of Common Pleas, in so far as it permits the assessment of the receiver’s compensation against the receipts from the administration of the property involved, is erroneous and should be modified to provide that such compensation shall be assessed as other costs against the plaintiffs. As so modified, the judgment is affirmed.

Judgment accordingly.

Hildebrant, P. J., Matthews and Ross, JJ., concur.


author: Hornbeck, P. J.

text:
    Pendleton, Appellant, v. Sharp et al., Appellees.
    (No. 3818
    Decided July 6, 1945.)

      Messrs. Cowan & Adams, for appellant.

      Mr. J. E. Todd, for appellees.
   Hornbeck, P. J.

An entry has been tendered by the appellant dismissing her appeal. There is no cross-appeal.

Counsel for appellees objects to the journal entry because it is a general dismissal. He asserts that he has no objection to dismissing the issue drawn on the petition and answer thereto, but that by the type of appeal his clients have the right to have adjudicated the issues they brought into the case by affirmative pleading.

The appeal is noted as on questions of law and fact, which, it is agreed, brings the cause up in its entirety for trial. However, the act which makes effective and completes the appeal is the notice which in this case has been filed by the appellant. She being responsible for the appeal may choose whether she will insist upon pursuing it to trial and judgment in this court. If that be done, of course all matters raised by the pleadings could and would properly be determined here. However, the assurance to the appellees that they would have their original questions litigated depends altogether on whether the appellant elects to pursue her remedy.

The question is one of first impression in this court. Relative to appeals on questions of law, such question has been decided at least twice in this state, once by this court in the fourth paragraph of the syllabus in Miller v. Star Co., 57 Ohio App., 485, 15 N. E. (2d), 151, and by the Court of Appeals for Knox county in the third, paragraph of the syllabus in State v. Green, 55 Ohio App., 239, 9 N. E. (2d), 625. We recognize the difference in the procedure between the type of appeal there under consideration and an appeal on questions of law and fact which is the type of appeal perfected in the instant cause, but the controlling principle is substantially the same.

There is no suggestion in this court that the appellees will be unreasonably or unfairly prejudiced by the dismissal as appeared in Phillips v. Provident Life & Trust Co., 17 C. C. (N. S.), 298, 32 C. D., 155.

We find no decision in Ohio by our Supreme Court on the identical question here presented. Outside Ohio there is contrariety of opinion. The cases most nearly in point and supporting our position are Hood, Admr., v. Marshall, Admr., 69 N. H., 605, 45 A., 574; Simpson v. Gafney, Exr., 66 N. H., 477, 30 A., 1120; Marvel v. Craft, 116 Neb., 802, 219 N. W., 242.

We are of the opinion that the appellant may properly dismiss the appeal in this cause in its entirety, and that the' appellees may not prevent it.

The. tendered entry will be approved and exceptions saved to appellees.

Appeal dismissed.

G-eiger and Miller, JJ., concur.