author: Grant, J.

text:
    RECOVERY BY DEPENDENTS OF AN INJURED WORKMAN WHO COMMITTED SUICIDE.
    Court of Appeals for Cuyahoga County.
    The Industrial Commission of Ohio v. Kate P. Boyd.
    Decided, June 17, 1918.

      Workmen’s Compensation■ — Death Not “Self Inflicted” — Where an Inference of Insanity is Supported by Some Evidence — Freedom from Technical Rules in Such ah Inquiry.

    Judgment against the Industrial Commission in favor of the dependents of an injured workman, who died by his own act, will not be set aside where there is some evidence tending to establish the inference that the decedent was bereft of reason at the time of the suicidal act.

      Samuel Doerfler, lor plaintiff in error.

      Payer, Winch, Rogers & Earch, contra.
   Grant, J.

Error to the court of common pleas.

It has been intimated that the function of this court in this case is likely to be propaedeutical to the Supreme Court.

But be that as it may, it is not the less our duty to examine this record with as much painstakingness ,as if here was to be an end of the litigation.

The statute under which the plaintiff below — defendant here —must recover, if at all is Section 1465-68, General Code, in its present amended form, and which reads as follows:

“Every employee mentioned in subdivision' one of section fourteen hereof who is injured, and the dependents of such as are killed in the course of employment, wheresoever such injury has occurred, provided the same was not purposely self-inflicted, on or after January 1, 1914, shall be paid su'ch compensation out of the state insurance fund for loss sustained on account of such injury or death. ” * # *

In this ease a claimed result or sequence of the employee’s injuries was his insanity. While thus bereft of reason he committed suicide.

The question then is, was his death “purposely” self-inflicted ? If it was, there should 'be no recovery.

A judgment for the plaintiff was had in the • court below. We are asked to reverse it, because, it is said, the injury otherwise called death was self-inflicted.

What seems to be the accepted text-book rule on the subject, is laid down in Honnold on Workmen’s Compensation, Vol. 2, page 508, thus:

“Where there follows as the direct result of a physical injury an insanity such as to cause the workman to take his own life through an unaccountable impulse or in a delirium of frenzy without conscious volition to produce death, having knowledge of the physical consequences of the act, there is a direct and unbroken connection between the injury and the death. But where the resulting insanity is such as to cause suicide through a voluntary willful choice determined by a moderately intelligent mental power which knows the purpose and the physical effect of the suicidal act, even though choice is dominated by a disordered mind, then there is a new and independent agency, which breaks the chain of causation arising from the injury.”

The contention of the Industrial Commission at this point, stated in terms of its brief, is as follows:

‘ ‘ There is no evidence which would in any way tend to prove that Mr. Boyd committed suicide by reason of ‘ an unaccountable impulse or in a delirium of frenzy.’ ”

The proof on such a question must of necessity generally be meager in amount and more or less speculative in outcome. Inference must arise, if at all, from a distorted viewpoint on the part of the suicide and the workings of an .insane man’s mind are so curious, so complex, having their springs and sources often in a remote and almost undiscoverable concatenation of happenings, that to trace the outcome satisfactorily, or to any approximate degree of certainty, is difficult at all times ,and at many times impossible. Witness Mr. Lorry in the “Tale of Two Cities. ’ ’ An insane person — so common experience shows— is prone to destroy himself. The impelling force to the act he seems to have no power to resist, and yet he often seems, even when so controlled, to be cunning and calculating in his concealment of his enforced yielding to the impulse of self-destruction, to a degree that a conclusion is often drawn that the ingredient of premeditation, a fixed and thought-out purpose, an intent, is present, which would to appearance exclude the notion of an involuntary taking of his life through an uncontrollable and overpowering force outside of himself and beyond all volition of his.

Still, courts must act upon evidence, and not speculation. They may, however, recognize in .their case in hand experienced truths of conduct and action, known to operate on mankind and to govern human action, within appropriate limits and landmarks fixed by universal observation. One of these truths is, we think, this almost invariable propensity in an insane person to do away with himself, without power to resist it.

Evidence from the witness stand must be in conflict, because it must rest largely in opinion, in deduction, in inference. It appears to have been in conflict in this case. We can not agree that there was “no evidence which would in any way tend to prove that Mr. Boyd committed suicide by reason of an unaecountable impulse or in a delirium of frenzy, ’ ’ as the brief says.

That different minds would reach different conclusions as to the tendency of the evidence in this respect, is true, probably— perhaps certainly. Our own conclusion in this regard might be different — although we do not say so — from that of the court below. But if it were so, the fact would not warrant a reversal here. The fact that minds would differ in conclusion, of itself commands repose for the judgment, if there was anything in the evidence about which they might fairly differ. We think there was something in this case.

We are not at liberty in any event to disregard this rule of non-intervention by a reviewing court, whenever it appears that the conflict in the evidence is a real one, in resolving which men may honestly vary in conclusion, it being the business of the court of first instance to say where the preponderancy resides. We ought to be especially loath to disturb a judgment rendered in promotion of a statute the purpose of which is highly remedial, and where the policy underlying its administration is avowedly liberal in favor of the remedy, whenever the facts warrant its application.

The act which created the former board of awards — the predecessor in function of the plaintiff in error, declared as follows :

‘ ‘ Such board shall not be bound by the usual common law or statutory rules of evidence or by any technical or formal rules of procedure, other than as herein provided; but may make the investigation in such manner as in their judgment is best calculated to ascertain the substantial rights of the parties and to carry out justly the spirit of this act.”

We are not by this relieved of the duty of declaring the law of the case; but we are admonished that the plain legislative wish is not to have the law administered in any grudging or cheese-paring fashion.

In our opinion there is some evidence in the case, the tendency of which is to establish the inference which is embodied in the judgment under review. It is, therefore, affirmed.

Dunlap, J., and Lawrence, J., concur.


source: Caselaw Access Project

author: Metcalfe, J.

license: Public Domain

text:
    INDIVIDUAL CONTRACT RELIEVING RAILWAY COMPANY FROM DAMAGES.
    Court of Appeals for Columbiana County.
    The Newell Bridge & Railway Co. v. The East Liverpool Traction & Light Co.
    Decided, December 20, 1916.

      Negligence — Railway Company Can Not by Contract — Relieve Itself from Liability for Its Own Negligence — Street Car Tracies Used by Two Companies — Liability for Injuries.

    The plaintiff and defendant are both street railroad companies. By contract the plaintiff has the right to use certain portions of the tracks of the defendant. A clause in said contract relieves the defendant from any responsibility for loss or damage occasioned by the operation of plaintiff’s cars over its tracks. By the negligence of the defendant a car of the plaintiff was thrown from the track, injuring several persons. The defendant requested the plaintiff to settle with the injured persons and leave the question of defendant’s liability to be determined later. The plaintiff having settled with the injured persons brought suit against the defendant to recover the. amounts paid in such settlement. Held:

    1. The clause in the contract relieving the defendant from responsibility from loss or damage occasioned by the operating of plaintiff’s cars does not relieve the defendant from responsibility to the plaintiff for damages' occasioned by defendant’s own negligence.
    2. The plaintiff is entitled to recover the amount paid in settlement of damages to the injured persons.
    3. An action to recover the damages thus occasioned is not a suit between joint trespassers, but an original action to recover damages sustained by the plaintiff through the sole negligence of the defendant.

      Walter Sill and Brookes & Thompson, for plaintiff in error.

      Billing sley, Moore & Van Fosseh, contra.
   Metcalfe, J.

The only questions in this case before the court at this time are raised by the demurrer to the answer. The plaintiff operates a line of street railway from Newell, West Virginia, across the Ohio river to the city of East Liverpool, Ohio, .and in the latter city runs its cars over a portion of the tracks of the defendant company. The right to so operate its cars on the defendant’s tracks is secured by contract, and it is the duty of the defendant to keep its tracks in repair.

On one of the streets in East Liverpool, over which the plaintiff ran its cars, was .a switch which was out of repair. The plaintiff had several times notified the defendant of the condition of the switch and requested of defendant that the necessary repairs be made thereon.

At the time of the accident complained of in the petition the plaintiff had occasion to run one of its cars over this switch. The front truck passed over in safety, but when the rear truck struck the switch it opened and threw the rear end of the car off the track it was running on and on to a track leading on to another street, so that the ear was thrown squarely across the street on which it was running.

A number of persons at work on the street at the time were injured. The defendant denied its liability, but it was agreed between the plaintiff and defendant that the plaintiff should settle with the injured persons and that the question of defendant’s liability should be detremined later. Thereupon, the plaintiff settled with the injured persons and brought this suit to recover the amounts paid in such settlement.

The defendant claims exemption from liability to the plaintiff by reason of the following clause in the contract by which plaintiff secured its right to run its cars over defendant’s tracks:

* ‘ To use all due precaution for the safety of the public, and in consideration of the rights herein granted to save and hold the first party (defendant) free and harmless from all loss, cost, damage, and expense whatsoever, which may in any wise accrue through, or be incurred by said first party (defendant) by reason of the operation by the second party (plaintiff) of his cars over the tracks of said first party as herein provided.”

The object of this clause in the contract is to secure indemnity to the defendant from liability for any acts of negligence on the part of the plaintiff in operating its cars while on the defendant’s tracks. The contract saves the defendant harmless from any acts of the plaintiff in the operation of its ears which would create a liability, whether such acts be negligent or not. There is nothing in the contract which in any way relieves the defendant from the consequences of its own negligence.

The car of the plaintiff was in operation at the time of the accident, but the accident was not occasioned through any fault of the plaintiff in operating the car, but by the negligence of the defendant in failing to keep the switch in repair. It happened solely on account of the fault of the defendant. It is not from its own negligence that the defendant is.relieved by the terms of the contract, but from the negligence of the plaintiff. In Eugene C. Lewis Co. v. Metropolitan Realty Co., 112 App. Div., 385, 98 N. Y. Supp., 391, affirmed 189 N. Y., 534, it is held that a provision in a lease relieving the lessor from any liability for >any loss or damage by reason of leakage of gas, steam or water pipes, did not relieve him from liability for an overflow of a water tank as the result of the lessor’s own negligence. And to the same effect, also, are Levin v. Habicht, 90 N. Y. Supp., 349; LeVette v. Hardman Estate, 77 Wash., 320, 137 Pac. Rep., 454; Smith v. Faxson, 156 Mass., 589, 31 N. E. Rep., 687.

It is urged, too, that the plaintiff and defendant were joint trespassers and that this is an action between joint trespassers for contribution.

Doubtless the plaintiff and defendant would be jointly liable to the injured persons, but this is not an action for contribution as we view it. The action is to recovr for injuries to the plaintiff by reason of the sole negligence of the defendant.

The injury having occurred by reason of the defendant’s negligence, the fact that the plaintiff would be jointly liable with the defendant to the injured persons does not make the plaintiff a joint trespasser.

We think the court'erred in overruling the demurrer to the answer, and the judgment is reversed.

Pollock; J., and Spence, J., concur.


text:
    PASSENGERS STRUCK BY A CAR ON PARALLEL TRACK.
    Court of Appeals for Mahoning County.
    The Mahoning Valley Railway Co. v. Kazanecka.
    Decided, March 23, 1917.

      Negligence — Duty of Interurhan Railway Toward Passengers Crossing Its Parallel Trade Vpon Leaving a Car on Its Own Right-Of-Way— Degree of Care Required from Alighting Passenger — Charge of Court.

    1. Where a car is standing at a regular stop on the right-of-way of the company for the purpose of receiving and discharging passengers, it is the duty of a motorman operating a car on the parallel track going in the opposite direction, while passing such standing car, to keep his car under such control that it may be stopped on the instant, and failure so to operate it is negligence.
    2. While a passenger alighting from such standing car is not relieved from the duty of using ordinary care, such ordinary care does not require him to anticipate negligence. Failure on his part to look and listen for a car on the parallel track while passing behind the standing car for the purpose of crossing such parallel track, in order to get off of the premises of the company, is not contributory negligence .on his part.

      Arrel, Wilson, Harrington & DeFord, for plaintiff in error.

      Anderson Lamb, contra.
   Metcalfe, J.

This action was brought by the plaintiff below to recover for damages which she claimed to have sustained through the negligence of the defendant company.

Anna Kazanecka was a passenger on one of the company’s cars going from Youngstown, Ohio, to Newcastle, Pa. The place where she stopped was a regular stopping place of the company’s cars and was on the company’s right-of-way, and was not at a street crossing. Many passengers alighting at this point were accustomed to cross the tracks of the company to reach the public street, while others would pass along the right-of-way parallel with the track to another street.

Miss Kazanecka alighted from the car, and, while it was still standing on the track, passed behind it, intending to cross the parallel track and continue on across the right-of-way to the street. As she was about to step upon the parallel track she was struck by a car going in the opposite direction from the one from which she alighted. She recovered a verdict in the court of common pleas, and it is claimed that the court below committed error prejudicial to defendant, the present plaintiff in error.

The first exception taken is to the giving of plaintiff’s request to charge, No. 1, which is as follows:

' ‘ The employees of the defendant knew that at stop seven there was a double track; that the steam railway tracks were close to and upon!' one side of their tracks, and at least the majority of the passengers leaving said car would go across both tracks of the defendant company. Therefore, it was the duty of the company to keep in mind the rights of its patrons who were under a necessity of crossing the tracks in going from the car to their home or elsewhere.”

This request puts upon the defendant company, while its car discharging passengers is standing, the duty of keeping in mind the rights of its passengers after leaving the car, and of being regardful of their safety while crossing the tracks of the company when a car going in the opposite direction is passing.

Request No. 7 on the part of the defendant was refused. This request is as follows:

“The conductor of the east bound oar was under no duty to warn plaintiff that cars were approaching or likely to approach from the opposite direction on the west bound track, and he was not negligent in failing to advise her of this fact either' while she was alighting from the car or after she had alighted therefrom, and if you find that he called out a warning to her at the earliest moment when he discovered that she was going into a zone of danger upon or near the west bound track, he fulfilled his duty towards her in that situation. ’ ’

This raises the question squarely whether or not any duty rests upon the company or its employees to be regardful of the safety of passengers after they have left a car, but are still upon the premises of the company.

Request No. 8 of the defendant was also refused. It is as follows:

‘‘ The court says to you, .as a matter of law, that this defendant company was not obliged to stop a west bound car before passing the east bound car, but that it had a right to operate its west bound car by and past the standing east bound car while said east bound car was standing at Stop 7.”*

It is urged on the part of the plaintiff in error, the stop in question being outside of the limiits of a municipal corporation, that the duty of the employees of the company ceased when a passenger alighted, unless the company was aware of some danger, and that in such case the company would discharge its duty by giving him warning.

Whether the propositions contained in the last two requests and urged upon us in argument are true or not, when applied to a case of a car being operated on the public highway, we do not say, but we do not think they can apply in the case of a ear being operated on the company’s right-of-way, as in this case. The stop where the plaintiff alighted was on the premises of the company. It was not at a crossing at a public street. Alighting passengers were accustomed to cross the tracks to get off of the premises of the company.

We do not say that an absolute duty rested upon the company to stop the car going in the opposite direction when approaching a car from which passengers were alighting. We do say, however, that it was the duty of the company’s employees in charge of the car, if they did attempt at such a time to run past on the parallel track, to have the car under such control that it could he stopped at a moment’s warning. Of course passengers would not be excused from the duty of using ordinary care, but ordinary care does not require them to anticipate negligence on the part of the company, and it is negligence to so operate a ear in such a situation as to endanger the passengers who are leaving the standing ear. A passenger has a right to cross the tracks of the company at such a time without anticipating any danger at the hands of the company’s servants, and the failure of such passenger to look and listen for the approach of a passing car would not be contributory negligence on his part. If the company undertakes to operate a car past another car, at a place on its own premises where the latter is discharging passengers, it does so at its own peril and not at the peril of the passengers.

In this position we feel that we are fully sustained by the authorities. The proposition is thus well stated in 3 Thompson on Negligence (2d Ed.), Section 2705:

“If a railway carrier discharges its- passengers at a place where they have to cross other railway tracks, in order to make their egress from the grounds of the carrier, the carrier owes them the duty of taking reasonable precautions to the end that, while making their egress, they be not struck by other passing trains; and it has been justly held that the passenger, while not absolved from the duty of exercising care for his own safety, has the right to presume that the tracks intervening between the the places where he is obliged to alight and the station will be kept safe while he is crossing; so that the mere fact that he fails to look and listen for an approaching train before attempting to cross, will not necessarily be ascribed to his contributory negligence, and will not prevent a recovery of damages if he is struck by such a train.”

The above proposition is fully sustained by the authorities in the ease of electric as well as steam railways. Bremer v. St. Paul City Ry. Co., 107 Minn., 326, 120 N. W. Rep., 382, 21 L. R. A., N. S., 887; Birmingham Ry., L. & P. Co. v. Landrum, 153 Ala., 192, 45 So. Rep., 198; VanNatta v. People’s St. Ry., Elec. L. & P. Co., 133 Mo., 13, 34 So. Rep., 505; Evansville St. Ry. Co. v. Gentry, Admr., 147 Ind., 408, 37 L. R. A., 378; Consolidated Traction Co. v. Scott, Admx., 58 N. J. L., 682; Dobert, Admr., v. Troy City Rd. Co., 36 N. Y. Supp., 105; Capital Traction Co. v. Lusby, 12 App. D. C., 295, and Cincinnati St. Ry. Co. v. Snell, 54 Ohio St., 197.

Complaint is made of the following charge given on behalf of the plaintiff:

‘ ‘ If the testimony of plaintiff and her witnesses does not raise a presumption of contributory negligence on her part, then the burden rests upon the defendant company to prove that in the situation not only that she was guilty of contributory negligence, but that such contributory negligence directly and proximately contributed to produce her injury, and if the defendant had thus failed to prove contributory negligence, it is your duty to find that the plaintiff was not guilty of contributory negligence. ’ ’

It is urged that this charge is wrong for the reason that if the testimony of the plaintiff, and the witnesses introduced on her behalf, raised a presumption of negligence, then it was her duty to remove that presumption by a preponderance of the evidence.

It is true that that is the law, but is it the duty of the triaj judge to give it to the jury in that way, under all circumstances; or is it error to give a charge which does not state that it was the duty to remove the presumption by a preponderance of the evidence where the proposition given is sound law and applicable to the ease? The law as stated in this charge is correct and is applicable to the case. It is true it is usually given with the qualifying words, “that if the evidence of the plaintiff created a presumption of contributory negligence, then the duty rests upon the plaintiff to remove that presumption,” but we do not think that the omission of those words from a request to charge is prejudicial error. Besides, the contributory negligence complained of was a failure to look and listen for the approaching car, but the jury found that plaintiff did look and listen, and we have announced it to be the law in this case that a failure on her part to look and listen for an approaching car on the other track would not be contributory negligence on her part, so we think that in either event there was no error in giving the charge.

Pollock, J., and Farr, j. ¶ concur.


author: Carpenter, J.

text:
    JURISDICTION TO COMPEL TRIAL JUDGE TO SIGN BILL OF EXCEPTIONS.
    Court of Appeals for Cuyahoga County.
    State, ex rel John Gill & Sons Co., v. George P. Baer, Judge.
    Decided, December 24, 1917.

      Mandamus — Determination as to Whether a Bill of Exceptions is True, Tested in the Trial Judge — Can Not he Compelled to Sign a Bill He Has Found to he Untrue.

    The judge who sat at the trial is under no obligation to prepare a bill of exceptions, his sole duty 'being to determine whether the bill submitted is a true bill and if he so finds to sign and seal it as provided by law; and this rule is not affected by the fact that there was no stenographic report taken of the evidence and there has been a change of counsel since the trial occurred and it is impossible to procure all of the testimony from the memory of counsel.

      Hoyt, Dustin, Kelley, McKeehan <& Andrews, for plaintiff.

      George Spooner and Samuel Honvitz, contra.
   Carpenter, J.

The relator alleges that he had duly presented to the trial judge a “true” bill of exceptions of all the evidence produced at the trial in the case of the John Gill & Sons Co. v. J. Ahlishy, at which trial the said Hon. George P. Baer presided, and asked him to correct the same, if necessary, and to allow and sign such bill, as provided in Section 11566, G. C.; that said defendant refused arbitrarily and unjustly and for the sole purpose of defeating relator’s right to proceed in error in said cause, to settle, .allow or correct and sign said “true” bill of exceptions, etc. An alternative writ was allowed to issue.

The defendant in his answer says in substance that the trial consumed two full days during which time much testimony was required and that he advised counsel then to secure a stenographer so that a record might be made, but that said counsel did not so do; that the relator, after the' rendition of the verdict, changed counsel; that the said bill of exceptions which said counsel had so prepared and presented to him for signature was not a “true” bill and did not and does not truthfully set forth the testimony nor evidence; that it does not properly or fully report, even in substance, the testimony of the witnesses at said trial; that it charges and accredits testimony to the defendant that was obtained from relator’s superintendent on cross-examination, does not give the charge of the court correctly or fairly, and untruthfully states that said bill contains “all the evidence offered and given at said trial.”

Defendant further alleges that all the matters regarding said bill of exceptions were fully presented to him at a hearing at which both plaintiff’s and defendant’s counsel were present and arguments made, at which hearing the court held that the bill presented to him was not a “true” bill of the testimony nor evidence in said ease; • that then and there he offered to help relator’s counsel to prepare a suitable 'bill to raise any questions of law involved in the trial and now offers to sign any “true” bill that is presented.

In the argument of counsel at the hearing it was substantially admitted that the bill did not contain “all the evidence” and that it was not a “true” bill. Excuse was made that by reason of change of counsél and the circumstances connected therewith that it was impossible to procure from the memory of counsel who was present and conducted the trial all of the evidence and charge of court, the intimation being that the court should furnish from his memory such evidence and charge and prepare for relators an entire and true bill.

That a judge who has presided at a trial is not required by law to prepare a bill of exceptions for counsel, and that he is only obligated to sign a “true” bill, and when the adverse party files an objection or amendment to correct the same, is fully established in the case of State v. Todd, 4 Ohio, 351. As said by the court:

“The bill of exceptions, is in practice, and by law, to be signed and sealed only, not to be prepared by judges; the only obligation upon the judge, is to sign and seal a true bill of exceptions. But the object of the relator is not to compel the judges to sign ,a correct bill of exceptions, but to sign the bill offered by relator. * * * The power of determining whether a bill of exceptions is true, or not, is vested in the judges to whom it is presented for signature. * * * If the court had granted a rule to sign a bill of exceptions, the judge could have returned that he had performed that duty. But the object of the rule is to oblige the judge to sign a particular bill of exceptions, which had been offered to him. The court granted the rule to show cause, and the judge has shown cause, by saying that he has done all that can be required of him, and that the bill is not such a one as he can sign. Nothing is more manifest, than that the court can not order him to sign such a bill of exceptions. ’ ’ See Ex parte Bradstreet, 29 U. S. (4 Pet.), 105, 106.

It will be remembered that in the present ease the court refused to sign the bill of exceptions because it was not a “true” bill; that he had suggested to counsel to have the testimony taken down as given; that thereafter he oxered his assistance in preparing a correct bill and that he offers to sign any “true” bill that is presented to him; but it is insisted upon by counsel that he sign the particular bill presented to him.

In the case of Creager v. Meeker, 22 Ohio St., 207, it is said in the syllabus that:

“An application for a mandamus to compel a judge to sign a bill of exceptions, should be accompanied by the bill that was tendered to him for his .allowance. Where the answer in such case shows that the defendant is willing to sign a true bill, but denies that the bill presented is true, the writ must be refused, as the right to determine as to the truth of a bill .of exceptions is vested in the judge to whom it is presented.”

And in the ease of Shephard v. Payton, 12 Kans., 616, the syllabus is:

‘ ‘ That the decision of the trial judge that a 'bill of exceptions tendered to him for signature is untrue is conclusive and final and the Supreme Court will not, upon mandamus, hear testimony, or compel him to sign it.”

The court has judicially decided that the bill which was presented to him was not a true bill, and under the authorities above cited the court was acting within its proper jurisdiction.^ It being conceded that the bill was not a true bill which counsel had presented to the judge to sign, it is clearly evident that this court would not have the power in this proceeding to command him either to prepare a 'bill of exceptions for counsel nor to sign the bill which was presented to him.

The writ is, therefore, refused and judgment is rendered for the defendant.

Grant, J., and Lieghlby, J., concur.


author: Wilson, J.

text:
    VALIDITY OF AN AGREEMENT BY AN EXECUTOR TO SELL.
    Court of Appeals for Hamilton County.
    Morris U. Bernheim v. Edgar Stark, Executor and Trustee Under the Will of Mary Ann Britt, Deceased, et al.
    Decided, June 10, 1918.

      Power of Executor and Trustee — To Contract for Sale and Lease of Property — Not Affected hy Contest of Will — Where the Result is a Judgment Upholding the Will — Lease With Privilege of Purchase— May he Made hy Trustee Having Authority to Sell and Invest.

    1. Under a will giving to an executor and trustee power to sell and lease real estate belonging to the testatrix, suspension of that power ■for the time being, pending a contest of the will, did not preclude the trustee from entering into an agreement for the sale or lease of property, contingent upon the validity of the said will being established, where the contracting purchaser knew, of the existence of proceedings involving the validity of the will; and the termination of such a suit in a judgment upholding' the will leaves the trustee clothed with all the power and authority conferred by the will as and from the date of his appointment.
    2. An executor and trustee, having authority under the will to sell or lease property, is at liberty to enter into an agreement whereby a purchaser is to pay for the property in part and take a lease for a period of years with a privilege of purchase for the amount remaining due under the agreement, interest on said amount to be paid at a stipulated rate during the term of the lease.
    3. Such a sale and lease is not rendered invalid by reason of the fact that the term of the lease may exceed the term of the trust, inasmuch as failure of the lessee to exercise his privilege of purchase could only result' in reclamation of the property parted with after a very considerable payment had been made thereon, and in case of a division of the property becoming necessary before expiration of the lease the ground rent could be sold and the estate clpsed.
    ' Jonas B. Frenkel and Philip Roettinger, for plaintiff.

      Charles E. Stephens, Jr., and Rufus B. Smith, contra.
   Wilson, J.

This cause came into this court on appeal from the Court of Common Pleas of Hamilton County, and is now submitted to the court on plaintiff’s demurrer to the .answer and cross-petition of the defendant, Edgar Stark, executor of the estate of Mary Ann Britt, deceased.

The demurrer rests upon the ground that the allegations of the answer, and also of the cross-petition, do not constitute either a defense or a cause of action against the plaintiff.

The court’s disposition of this demurrer will in effect determine the rights of the respective parties to this action.

On February 26, 1913, the plaintiff Morris U. Bernlieim made the following proposal for the purchase of certain property of the estate of Mary Ann Britt, deceased:

“Cincinnati, Ohio, February 26th, 1913.
“Edgar Stark, Executor & Trustee Under the Will of Mary Ann Britt deceased.
“I hereby agree to purchase the property belonging to the estate of Mary Ann Britt, deceased, situated in the city of Cincinnati, Hamilton county, Ohio, and known as Nos. 126 and 128 W. Eighth st. and 804 and 806 Elm st., bounded and described as follows:
“Beginning at a point in the north side of Eighth street., thirty-six (36) feet more or less east of Elm st., thence eastwardly along Eighth st., fiifty-nine feet four and one-half (59 ft. 4% in.) more or less; thence northwardly parallel to Elm st. ninety (90) feet more or less to Weaver alley; thence west-war dly .along Weaver alley ninety-five feet four and one-half (95 ft. 4y2 in.) more or less to Elm st., thence southwardly along Elm st. thirty (30) feet more or less; thence eastwardly parallel to Weaver alley thirty-six (36) feet more or less; thence southwardly parallel to Elm st., sixty (60) feet more or less to Eighth st., at the place of 'beginning.
‘ ‘ The consideration for said property is to be one hundred and twenty-five thousand ($125,00)0) dollars to be paid as follows: Upon the acceptance of this offer I will deposit five thousand ($5,000) dollars with the Union Savings Bank & Trust Co., as a special deposit on which the said company is to pay interest at the rate of 3 per cent, per annum. In the event that the courts decide that the will of Mary Ann Britt is valid, said sum of five thousand dollars shall be paid by the Union Savings Bank & Trust Company to the executor and trustee under the will of Mary Ann Britt, and upon the tender to me of a lease containing the provisions hereinafter set forth, duly executed by him, I will further pay to such executor and trustee the sum of forty-five thousand ($45,000) dollars in cash. S'aid lease is to be for twenty years from date and to provide for a ground rent of 5 per cent, net upon the remainder of said purchase price, to-wit: seventy-five thousand ($75,000) payable quarterly. The lessee shall therein obligate himself to pay in addition to said ground rent, all taxes, rates, charges and assessments of every.kind which may become a lien upon the property after the date of said lease, and, further, that he will within ten (10) years from the date thereof erect a building or buildings upon said property so leased, satisfactory to the lessor, and keep the same insured in a sum and in companies satisfactory to the lessor, loss, if any, payable to the said lessor on account of the purchase price of said property or to be applied in re-building, as the lessor may elect. But if the lessor elect to take the insurance on account of the purchase price the lease shall terminate, and the balance of the purchase price, if any, become payable. .
“Said lease shall further contain .a privilege to the lessee to purchase said property at any time after ten years from date, upon giving six months’ notice in writing to. the lessor.
“If the executor and trustee under the will of Mary Ann Britt can not give me a good and legal title to all the property above named, I am to have the right to cancel this obligation to buy said property, and in that event the $5,000| paid by me on the acceptance of this offer is to be refunded to me, together with the interest on said deposit, at 3 per cent per annum.”

"Which proposal or offer was accepted by Edgar Stark, defendant, as the representative of said estate, in the following language:

“Cincinnati, Ohio, February 27,1913.
“I hereby accept the foregoing offer, upon the conditions therein named, and agree to make the lease therein provided for, in case the will of Mjary Ann Britt is sustained.”

This action was instituted by the plaintiff for the purpose of obtaining a cancellation of the contract created by said offer and acceptance, and the return of the sum of five thousánd dollars deposited under the terms of said contract, and in his petition alleges as grounds therefor that the defendant Edgar ■Stark, executor and trustee under the will of Mary Ann Britt, deceased, was, under the laws of Ohio and under the terms of said will, without authority or power to enter into any contract whereby he could execute a lease for the time and upon the terms in said contract set forth, and further, “that he is without power under said will at this time to enter into such a contract or to perform the stipulations therein set forth”; that said Edgar Stark, as executor and trustee under the will of Mary Ann Britt, deceased, can not give a good and legal title to all of the property described in the petition.

To this petition the defendant Stark, executor, filed an answer and cross-petition admitting certain allegations in the petition: the death of Mary Ann Britt leaving a will, a true copy of which is attached to plaintiff’s petition; that said will was contested in case No. 146202 of the Common Pleas Court of Hamliton County; that he entered into the contract set forth in plaintiff’s petition; that the plaintiff deposited the five thousand dollars called for under said contract; and that plaintiff had made a demand of him to return said five thousand dollars with which demand defendant refused to comply. And further .answering, defendant denies that he is without authority or power under the laws of Ohio and under the terms of the will of Mary Ann Britt, deceased, to enter into any contract whereby he could execute a lease upon the premises described for the time and upon the terms set forth in said agreement; and denies that he can not give,® good and legal title to all of the property described in the petition; and further denies the right of plaintiff to cancel said agreement. And further, by way of answer, defendant says that the last will and testament of Mary Ann Britt was sustained by the judgment of the Common Pleas Court of Hamilton County; that subsequent thereto the defendant duly executed a lease of the property described in the contract, in accordance with the terms and conditions expressed in said contract, and on the 7th day of July, 1915, tendered said lease to the plaintiff and demanded of plaintiff the payment of $45,000 in cash .and that the plaintiff execute said lease, all of which plaintiff refused to do. Defendant further alleges that all of the devisees and beneficiaries under the will of Mary Ann Britt, deceased, prior to the making of the contract February 26, 1913, approved of the same and requested the defendant to enter into said contract with plaintiff. And by way of cross-' petition the defendant alleges that he was appointed as executor and trustee under the will of Mary Ann Biitt, deceased, and that he is now acting as such; that on February 26, 1913, he entered into said contract with plaintiff, and that he entered into the contract with the approval and at the request of all the devisees and beneficiaries under said will; that 'the plaintiff deposited the said sum of $5,000 as required by the contract; that the will of Mary Ann Britt was sustained by the Court of Common Pleas of Hamilton County, Ohio; that on July 7, 1915, he duly executed in duplicate and tendered to plaintiff a lease in conformity with the terms and conditions set forth in said contract, and demanded of plaintiff the $45,000 in cash called for by said contract; that the plaintiff refused to pay said sum of $45,0|00 and refused to execute said lease; that he had com-, plied with all the terms and conditions of said contract, but that the plaintiff had refused to comply with said contract and to carry out the terms thereof. The defendant thereupon prays for a judgment against the plaintiff for said sum of $45,000 and interest from July 7, 1915, and for an order requiring plaintiff to perform his part of said agreement by executing the lease provided for in said agreement, and for such further or other relief as the defendant may be entitled to in equity.

To this answer and cross-petition the plaintiff demurred, for the reason hereinbefore set forth.

The demurrer presents for the consideration of the court two legal propositions:

1. Could the executor and trustee — assuming that he had the pqwer and authority under the will to sell or lease the property described in the agreement' — enter into an agreement such as the one described in the petition for a sale or lease of said property- during the pendency of the action contesting the validity of said will ?

2. Has the executor and trustee under the terms and provisions of the wall of Mary Ann Britt the power and authority to make á sale or lease of said property on the terms and conditions expressed in the agreement under consideration ?

The will of Mary Ann Britt, deceased, provides as' follows:

“In the Name of God, Amen.
‘ ‘ I, Mary Ann Britt, being of sound mind, do make and publish this my last will.
“Item First. I direct my Executor and Trustee herinafter named to set apart and keep suitably invested sufficient of my estate to produce a .net yearly income of Forty-eight Hundred ($4,800) Dollars and from said income pay monthly during life .the sum of One Plundred Dollars to each of the following persons, to-wit: my brother Francis I. Partridge, my niece Mrs. McEwen, my niece Mrs. Dixon and my niece Blanche Partridge.
“Item Second. I direct my said Executor and Trustee to set apart and keep suitably invested a sum sufficient to yield a net income of One Hundred Dollars per month and pay the same monthly to my nephew Arthur J. Partridge son of said ■brother, until he arrives at the age of twenty-five years and then to pay to him the principal sum so invested.
‘ ‘ Item Third. I direct my said Executor and Trustee promptly after my death- to pay the sum of One Hundred Dollars to each of five priests in the diocese of Cincinnati to be named by the Most Rev. Archbishop, with the obligation of saying masses for the repose of my soul. Also to pay promptly the following charitable bequests: to the St. Joseph Orphan Aslylum now at Cumminsville the sum of Five Hundred Dollars; to the Sisters of Charity for Seton Hospital the sum of Five Hundred Dollars; to the Sisters of the Good Shepherd for the institution now conducted by them on Price Hill the sum of One Hundred Dollars.
“Item Fourth. I give to my sister Mrs. Margaret Orr the full one-third of my estate.
“Item Fifth. All the rest and residue of my estate I give as follows: one-fourth thereof to my nephew Arthur J. Partridge, one-fourth to my niece Mrs. McEwen, one-fourth to my niece Mrs. Dixon and one-fourth to my niece Blanche Partridge. Said rest and residue shall be divided upon the death of my brother Francis I. Partridge. Thereupon the provision of One Hundred Dollars a month to my nephew and nieces shall cease.
‘ ‘ Item Fifth. Should any of my legatees contest this my will, his or her portion shall become part of the residue of my estate. • ‘ ‘ Item Sixth. I nominate and appoint Edgar Stark or whoever may be the trust officer of.the Union Savings Bank and Trust Company of this City, Executor and Trustee of this my will. I give' him full power to sell, lease, divide or rent any of my real or personal property and execute proper instruments for that purpose, to make repairs or improvements, to make and change investments and generally to do such things as may be necessary and proper in the administration of my estate and the trusts reposed in him without applying to court for leave so to do. I direct that in case any of my bequests or devises should be subject to any inheritance or other tax, the same to be paid by my estate. I hereby vest in my said executor or Trustee such title as may be necessary to carry out the provisions of - this my will.
‘ ‘ Cincinnati, June 27, 1910.
her
“Mart Ann (X) Britt
mark
“Signed and acknowledged as and for her last will by the said Mary Ann Britt in our presence and we have at her request and in her presence and in the presence of each other signed the same as attesting witnesses.
“Roy W. Kinsey, M. D.
“J. Stewart Hagen, M. D.
“John Led yard Lincoln.”

As to the first proposition presented the court is of the opinion that the executor and trustee under said will had the power and authority to sell or lease said property and for that purpose to enter into an .agreement for such sale or lease.

It' is contended, however, that during the pendency of the contest of said will, and under and by virtue of Section 10633, General Code, the execution of the power of disposition either by sale or lease, conferred on the executor and trustee by the will, was suspended until the validity of said will was finally established. By its very terms the agreement entered into between the plaintiff and the defendant Stark, executor, etc., .as set forth in plaintiff’s petition was not to become operative or of any binding force .and effect between the parties until the validity of said will was established and when so established the power and authority conferred by said will on the executor and trustee to sell or lease said property was to be exercised by him, and the trust imposed executed, but only however after the termination of the suspension of that power by .the declaration of the validity of said will.

Contracts for the sale of real estate contingent upon the happening of certain events are matters of every day experience in real estate transactions, and the court is unable to see any reason in law for a distinction in that, respect between an individual and an executor and trustee, both of whom being clothed with power and authority to sell or lease upon the happening Of the event. This court is, therefore, of the opinion that the suspension of the execution of the power conferred by the will on the executor and trustee pending the contest of the will did not preclude him from entering into the agreement for the sale or lease of said property contingent upon the validity of said will being established.

.The institution of proceedings to contest the validity of a will naturally cast a doubt upon the validity of proceedings of an executor in the administration of the trust, for he would b« unable to'perform any act whidjj. would be binding upon the heirs at law or distributees at law contesting the will in the event the will was set aside. The conti’ary would of course be true if the will were sustained, but no one dealing with the executor in the meantime could be sure whether or not he had authority .as such, and the practical consequence would be that no one would deal with an executor under such circumstances and there would be no administration of the estate as long as the contest continued. The Legislature realizing the necessity for some remedial legislation on the subject enacted a law, Section 10633, General Code, enabling the executor to do certain things which are necessary and proper to be done in the administration of the estate whether the will be sustained or defeated, which acts of the executor shall be binding upon all parties. The statute is therefore an enabling one and is not intended as a limitation or restriction of the powers of the executor.

There is no fraud or concealment alleged nor is it alleged that any misrepresentations were made inducing plaintiff to enter .into the agreement. On the contrary it is apparent from a reading of the agreement that the plaintiff knew of the pendency of the proceedings involving the validity of the will and the effect it had upon the power of the executor and trustee to sell and convey the property, for in his offer to purchase the property — the agreement — he expressly stipulated that: and further providing for the carrying out of the agreement.

“In the .event that the courts decide that the will of Mary Ann Britt is valid; said sum of $5,000 shall be paid * * , * to the executor and trustee,”

Conditional contracts for the purchase ,and sale of real estate have been subjects of more or less litigation, and as a result we have a variety of opinions upon the subject each of which depending upon its own peculiar facts. „A case somewhat analgous to the case .at bar is to .be found in In re Parsons Estate, 98 Cal. Rep., 603; on page 612, the court say:

“The purchaser from an executor at a sale under a power in the will, deals with him in making the purchase as he would with any other vendor. He makes the purchase subject to a confirmation by the court, but in all other.respects he may incorporate in his,contract of purchase the same terms and conditions as he would in dealing with any other agent for the sale of property. And he can repudiate his contract for purchase only for the same reasons as he could in ease he had bought for another.”

In the above case the performance of the contract — and thereby the execution of the power conferred by the will — was contingent upon an .act to be performed by the court. In the case at bar the performance of the contract is contingent upon the court’s declaring the will valid.

In the case reported in 76 O. S., 97, Archdeacon, Admr., v. Cincinnati Gas Company, the question involved was as to the right of the administrator to maintain an action brought by him 03i March 28, 1903, as administrator of the estate of John Archdeacon, when as a matter of fact he was not the administrator and was not appointed as such until March 10, 1905, defendant contending that he was wholly without authority to act ao the time of instituting the suit. The court held, in the syllabus:

“The general rule that due qualification of an .administrator relates back to the time of his appointment as regards acts done by him in the interim which are for the benefit of the estate, applies to a case of this character. The commencement of the suit by the administrator, therefore, being for the benefit of the estate, was the valid commencement of an action.”

&?o, in the case at bar, the removal of the impediment to the execution of the powers conferred by the will, by the declaration of its validity, left the executor and trustee clothed with all power and authority conferred by the will as and from the date of his appointment, and he is therefore bound by his act of February 26, 1913, in entering into said agreement, provided, however, his act is not in excess of the power ,and authority conferred on him by said will.

In the case of Wilson v. Wilson, 54 Mo., 213, the court say:

"A will giving power of sale vests the title in the executor at the time of testator’s death, and his deed of the property made before probate of the will is a good conveyance provided the will be subsequently probated. ’ ’

The second proposition is: Had the executor and trustee under the will of Mary Ann Britt, deceased, power and authority to sell or lease said property on the terms and conditions expressed in said agreement?

As we enter upon the consideration of this proposition we are confronted with the question: Does the agreement so entered into, when fully executed, constitute in fact a sale or lease of the property? It is evident from a reading of the agreement that the plaintiff wanted to purchase the property, for he says, in the opening paragraph of his offer:

"I hereby agree to purchase the property belonging to the estate of Mary Ann Britt, deceased. ’ ’

And after describing the property he further says:

"The consideration for said property is to be $125,000 to be paid as follows”: * * *

It further provides that in case of loss by fire:

"Loss, if any, payable to the said lessor on account of the purchase price of said property.”

And again:

"If the lessor elects to take the insurance on account of the purchase price, the lease shall terminate, and the -balance of the purchase price, if any, -become payable,”

The defendant, Start, in accepting the proposition says:

‘ ‘ I hereby accept the foreging offer, upon the conditions therein named.”

True, the agreement provides that after the $50,000 is paid on the purchase price a lease duly executed by the executor and trustee shall be given plaintiff for a term of twenty years at an annual ground rent of five per cent, upon the remainder of the purchase price, to-wit, $75,000, and containing a privilege to said lessee to purchase said property at any time after ten years from the date, upon giving six months notice in, writing to the lessor.

In construing this agreement it is necessary to take into consideration the circumstances surrounding the transaction and the intention of the parties, as well as the language used in expressing that intention. And in considering those matters the court has concluded that the agreement is an agreement for the purchase and sale of said property, and that while it is provided that a lease shall be given with the privilege of purchase for the remainder of the purchase price of $125,00|0 viz.^ $75,000 — it is but another method intended by the parties for the securing to the seller the balance of the purchase price rather than through the usual form of a mortgage. The method so pursued is not an unusual one; on the contrary it is frequently resorted to in the bargain and sale of real estate. This conclusion we feel is strongly supported by the fact that a very large part of the purchase price — forty per cent. — is to be paid in cash at or before the execution and delivery of the lease.

It is contended however, on the other hand, that the executor and trustee had no power under the will to sell said property on any terms other than for cash, and that if the agreement is construed as one for the purchase and sale of the property it is not enforcible, for the reason that the terms of payment expressed in the agreement are contrary to and in excess of the power and authority to sell conferred by the will of Mary Ann Britt, deceased.

The will of Mary Ann Britt provided as follows:

“1 give liim full power to sell, lease, divide or rent any of my real or personal property and execute proper instruments for that purpose * * to make and change investments, and, generally, to do such things as may be necessary or proper in the administration of my estate and the trusts reposed in him, without applying to court for leave so to do. * * * I hereby vest in my said executor or trustee such title as may be necessary to carry out the provisions of this my will. ’ ’

To enable said executor ,and trustee to sell and convey said real estate the testator clearly by her will vested a fee simple title thereto in her executor and trustee and clothed him with full power and authority to do such things as may be necessary or proper in the administration of her estate and the trust reposed in him. She authorized him to sell or lease her real estate, and for that purpose to do such things as may -be necessary or proper in administering the trust so reposed.

- The executor and trustee was clearly authorized to sell the real estate described in the agreement, and the testator having failed to specify the terms and conditions upon which such sale or sales should be made' — on the contrary, she having authorized him to do such things as may be necessary or proper in the' administration of the trust — she thereby vested in him a discretionary power as to what would under the conditions and circumstances be proper and to the interest of her estate in making such sales. The testatrix clearly intended to rely upon the judgment of her executor and trustee in the management and sale or lease of her property and for that purpose she made as complete a grant of power as it was possible for her to do. In addition to her giving him power to sell and lease her property, she also gave him full power to make and change investments. Can it be contended that under such power he would not have the authority to invest in a ground rent which in his judgment was a good investment? Having authority to so invest the funds of the estate could he not have sold the property for cash and have subsequently purchased a ground rent of this same property yielding five per cent, upon $75,000, that being only sixty per cent, of the supposed value of the property? -If so, we can see no reason in law or in equity-'why he may not be permitted to do directly what he could properly and legally do indirectly. Clearly if the executor sold the property for cash he would have to re-invest the fund.

A trustee with unfettered power to sell undoubtedly has the right to make reasonable* terms as to payment, consistent with the best interests of the estate. Whatever is fairly ,and reasonably necessary to carry out the power would be implied and included in it.

Perry on Trusts, Section 786a, states the following as the rule controlling sales by trustees:

“If, however, the sale is made for a change of investment, the trustee may take a mortgage upon the property sold if it is real estate; for investments in mortgages of real estate, in the absence of any provision in the instrument of trust to the contrary, are permitted by law.”

In Lenigan v. Yeiser, 115 Wis., 304, the court say, Syl. 6:

“Under a power to sell lands and invest the proceeds it is proper, in the absence of any provision to the contrary, to take a mortgage on the property for a reasonable p.art of the price.”

In this ease the sale was made to a life tenant and a mortgage was accepted for a large part of the price, running for twenty-five years, ,at two per cent., and the court held:

! 1 That the sale would not be declared void because of the extent of the credit given at such low rate of'interest, no prejudice having resulted to1 the remainderman.”

It was contended in this case that the sale was invalid because of the credit given for the price and that a sale on such credit was beyond the power conferred by the will which, being silent as to terms, it is assumed must be construed to authorize a sale for present money. And on page 313 of the opinion the court say:

“It seems plain that when the duty of a selling trustee is to keep proceeds of a sale invested, he can not do so more surely than by leaving a reasonable amount thereof secured upon the property sold. Nothing can then happen to the estate more prejudicial than the return to it of the very property parted with, which is not injurious, if enough of the price is collected, or otherwise secured, to cover expenses of sale and of reclamation.”

The foregoing case very aptly expresses the views of this court on the subject under consideration.

This will clearly ,and unequivocally gives to the executor and trustee the power to lease the property, without restrictions or limitations as to the terms and conditions of such lease. Counsel for plaintiff contend, however, that the executor and trustee could not lease for a term extending beyond the term of the trust, which might be the case if the agreement were fully executed. By Item Fifth of her will she provided for a final division of her property in the following language:

“All the rest and residue of my estate, 1 give as follows: one-fourth to my nephew Arthur J. Partridge; one-fourth to my niece Mrs. McEwcn, one-fourth to my niece Mrs. Dixon, and one-fourth to my niece Blanche Partridge. Said rest and residue shall be divided upon the death of my brother Francis I. Partridge.”

■Of course we have no assurance that Francis I. Partridge will not survive the period of the lease, and the court can not therefore say that the lease will extend beyond the period of the trust. If it does not, then there is no authority in law which would justify the court in saying that said executor and trustee could not enter into a lease of said property for the period provided for in said agreement.

In the case of Greasen v. Kelteltas, 17 N. Y., 491, there was involved the validity of ,a lease made by a testamentary trustee for a term of twenty-one years, and the court say:

“A trustee holding a legal fee, determinable when the purpose of the trust shall cease, has power at law to lease for a term of years which may extend beyond the period of his trust estate, subject to the jurisdiction of a court of equity to .annul the lease if unreasonable or improvident.”

If Francis I. Partridge should not survive the period of -the lease and it became necessary for' the executor and trustee to divide the estate, he clearly would have authority to sell and dispose of the fee of said property, the ground rent, for the purpose of making said division, ,and would not thereby violate any of the provisions of said will.

The court is therefore of the opinion that the allegations contained in the answer of Edgar Stark, executor, constitute a defense to the cause of action set forth in the petition; that said executor and trustee has power and authority under the will to convey to plaintiff such title to said property as was possessed by the testator; and that the allegations set forth in the cross-petition of said Edgar Stark, executor, constitute a good cause of action for the relief therein sought.

The demurrer will therefore be overruled.

Jones, P. J., and Hamilton, J., concur.


author: Jones (Oliver B.), J.

text:
    ERROR TO MOTION TO DISCHARGE ATTACHMENT.
    Court of Appeals for Clinton County.
    Pennington v. The Republic Motor Truck Co.
    Decided, January 13, 1917.

      Jurisdiction of Court of Appeals — On Error to Motion to Discharge Attachment — Final Judgment.

    The judgment of a court of common pleas in granting a motion to discharge an attachment, where such motion was before the common ■pleas court upon appeal from the action of a justice of the peace, is a final judgment which is subject to review by the court of appeals.

      Smith & Clevenger, for plaintiff in .error.

      G. P. Thorpe and A. B. Hoffman, contra.
   Jones (Oliver B.), J.

This is a proceeding in error brought to review the judgment of the court of common pleas, in granting a motion to discharge an attachment, where such motion was before the common pleas court upon appeal from the action of a justice of the peace thereon, under the provisions of Section 10260, General Codé.

The defendant in error, by a motion to strike the petition- in error from the files, raises a question of the jurisdiction of this court to entertain these proceedings. The right of the circuit court to review such proceedings was recognized by the circuit court in at least two eases: Bernard v. Schwartz et al, 22 C. C., 147, and Benoski v. The C. F. Adams Co., 18 C.C. (N.S.), 478, 479. And the right to review was denied by the circuit court of the first circuit in at least three cases: Lyon v. Phares, 9 C.C.(N.S.), 614; Williams v. McCartney, 10 C.C.(N.S.), 161, and Greenhow v. Harrison, 12 C.C.(N.S.), 128.

As Section 10260, General Code, itself designates as a “judgment” the action of the court upon final hearing of a motion to discharge, and provides that it shall be transmitted with the original papers to the justice of the peace and such judgment entered by him upon his docket as the final determination of the motion, we must consider this action of the court of common pleas as a final judgment which is subject to review by this court under the provisions of Section 6, Article IY of the Constitution as amended, as construed by the Supreme Court of Ohio in Cincinnati Polyclinic v. Balch, 92 Ohio St., 415.

The motion to strike the petition in error from the files is therefore overruled.

Coming to review the action of the common pleas court in discharging the attachment, we find that the question 'as to whether the attachment should be sustained or discharged depends upon the ownership or title to the property attached at the time the attachment was levied. The evidence upon this question is in the form of affidavits embodied in a bill of exceptions. Possibly, if we had been occupying the position of a trial court, our finding as to the title of the property attached might not have coincided with that of the learned judge who passed upon the evidence in that court; still we can not say that his finding is so manifestly against the weight of the evidence as to require .a reversal.

Finding no prejudicial error in the record, the judgment of the court of common pleas is affirmed.

Jones (E. H.), J., and Gorman, J., concur.


author: Dtjnláp, J.

text:
    DETERMINATION OF CONFLICT BETWEEN THE TORRENS AND 6 THE MECHANICS’ LIEN LAWS.
    Court of Appeals for Cuyahoga County.
    Roy W. Mizner v. Hosea Paul, etc., et al.
    Decided, July 15, 1918.

      Torrens and Mechanics’ Lien Laws Not Incompatible — Former Constitutes an Exception to the Latter — Right to File Lien Lost by Mechanic, When — Protection to Bona Fide Purchaser of Registered Land Against Claim Not Shown on His Certificate.

    1. A bona fide purchaser of registered land who relies upon the certificate of title, takes the land free of inchoate mechanics’ liens which do not appear upon the certificate.
    2. Where registered land was involved, a mechanic, having a valid claim under the mechanics’ lien law, had complied with such law in all respects, but had failed to file a caveat or notice of his right to claim a lien or to have a memorial of same inscribed on the certificate of title. Held: He lost his right to file an affidavit for such lien after the property was transferred to a bona fide purchaser.
    3. The mechanics’ lien law and the Torrens law are not incompatible; but the privilege granted by the former of acquiring liens is restricted in its exercise by the latter law. The Torrens law will therefore be given effect as an exception to the mechanics’ lien law.

      White, Brewer & Curtiss, and BuTkley, Hauxhurst, Saeger & Jamison, for plaintiff in error.

      M. P. Mooney, Howard A. Counse, C. W. Bwartzel and J. M. Ulmer, contra.
   Dtjnláp, J.

This ease is here on error to the land court of Cuyahoga county, and involves the question of the validity of mechanics liens taken under the mechanic’s lien law against property registered under the Torrens law.

On April 7. 1915, certain lots were duly registered under what is known as the Torrens law, Section 8572 and sub-sections of the General Code, in the name of James G. Bingham. These lots were legally transferred to other owners and all became the property of the Seivard Land & Building Company sometime in 1917, the actual date not being important. After that company had become the owner of said parcels of land, and after the title thereof in fee had been registered in its name, it commenced the construction of a house on each of said lots, and in and toward the erection and construction of these houses Roy W. Mizner, present plaintiff in error, furnished labor and materials for the tinning work, under contracts with said the Steward Land & Building Company. He performed the last of said labor and furnished the last of said materials on October 18, 1917, on one lot, and October 20, 1917, on the other two lots, and not having been paid in full his contract price for said material and labor he did, within sixty days from said last mentioned dates, on December 17,1917, tender to the recorder of Cuyahoga county his affidavits for mechanics’ liens against said premises prepared, and executed in accordance with the mechanics’ lien law. Before said date of December 18, however, the Seward Land & Building Company had transferred all of said sub-lots to an innocent bona fide purchaser who had no knowledge that the said Mizner had not been paid in full for all labor performed and materials furnished, and had no knowledge that the said Mizner intended to file or tender to the recorder for filing, affidavits for mechanics’ liens against said property.

The recorder of the county, Mr. Paul, upon the tender of these affidavits to him, was in doubt whether, under the circumstances above set forth, he should file the affidavits for mechanics’ liens and, therefore, acted under Section 8572-40, which provides that where the recorder is in doubt upon any question relative to registered land, he may refer the question to the common pleas court for decision. The recorder duly referred the question to the court of common pleas, which we have heretofore spoken of as the land court, and on February 13, 1918, said court found, as a matter of law, that the said Mizner wás not entitled to file said affidavits for mechanic’s liens and to have the same entered and noted on said certificate of title of said respective premises.

The plaintiff in error thereupon filed his petition in error in this court as provided for in Section 8572-80, .and thereby asks reversal of this order of the court of common pleas.

The question involved in this case can now be stated in t'he abstract and is:

Does a bona fide purchaser of registered land who relies upon the certificate of title, take the land burdened with inchoate mechanics’ liens which do not appear upon the certificate?

If this question is .answered in the affirmative, then the judgment undér review must be reversed, and if answered in the negative, the same must be affirmed.

The solution of this question is not without some difficulty, as it raises a question of conflict between two sets of laws, one set the mechanics’ lien laws and the other the Torrens registration law. By the mechanics’ lien laws a person furnishing material and labor for the /construction of an improvement upon land is apparently without reservation, entitled to a lien upon said land, the only apparent condition being that the lien be perfected within sixty days after the furnishing of the last labor or material for said improvement. The Torrens act, upon the other hand, expressly provides “that no statutory or other lien shall affect the title to registered land until after it is noted upon the certificate.” And by Section 8572-25 it is provided:

. “Section 25. Every applicant who without fraud on his part receives a certificate of title in pursuance of a decree of registration, and every subsequent purchaser of registered land, who takes a certificate of title for value and in good faith, shall hold the same free from all estates and encumbrances except those noted on the certificate and any of the following estates and encumbrances which may be existing:
“First. Liens, claims or rights arising or existing under the laws or Constitution of the United States which the statutes of this state can not require to appear on record in the recorder’s office.
Second. Taxes, within six years .after they have -been entered upon the tax duplicates and become due and payable.
“Third. Any highway, public way, or private way laid out or acquired under the provisions of law or otherwise, unless .the certificate of title states that the non-existence of such- way, or the boundaries thereof if the same exists, have been determined by the court.
“Fourth. Any lease for a term not exceeding three years, when there is actual pessession under the lease.
“Fifth. Right of appeal and to prosecute error within thirty days after decree of registration,
‘ ‘ Sixth. If there are easements or other rights appurtenant to a parcel of registered land which for any reason have failed to be registered, such easements or rights shall remain so appurtenant notwithstanding such failure, .and shall be held to pass with the land. This section shall be printed or written on all duplicate certificates of title before delivery by the recorder. ”

It will be noted that by none of the provisions of said section are mechanics’ liens expressly provided for. It will thus be seen that the mechanics’ lien law says that every person furnishing material or labor whom we shall hereafter designate as a mechanic — shall have his lien, and the Torrens law says in effect that every bona fide purchaser shall have his land free from such lien. It is.our duty, if possible, to so construe these laws that both may stand.

It is apparent that the mechanics’ lien law is a general law of general application, furnishing a general plan by which mechanics’ liens can be obtained. The Torrens law is likewise a general law insofar as the manner of registering land is concerned, but it is urged that it has some special provisions in it relating to mechanics’ liens and the steps necessary to obtain such liens against registered land. It is not disputed that such is the ease. It would be useless, of course, to dispute the fact that Section 8572-75' recognizes the right to file mechanics’ liens against registered land. Its provisions are as follows:

‘ ‘ 8572-75. Every voluntary instrument intended to be used in transferring any title or estate in registered land, or in creating any lien or charge thereon, or assigning, Releasing or discharging any lien or charge in whole or in part, and every certificate or other paper filed with the recorder for the purpose of acquiring or creating an involuntary lien, interest or charge upon registered land, shall at least refer by number to the certificate of title covering such, land or containing a memorial of such interest, lien or charge, such reference to be contained in the body of all voluntary instruments and in the case of such certificate or papers so filed to acquire involuntary interests, liens, or charges to be either in the body thereof or indorsed thereon and the indorsement duly signed by the proper officer or a person in interest. And in case only a part of the land covered by such certificate of title is sought to be affected, an accurate description of such part enabling the same to be definitely located and platted shall be given in such voluntary instrument, or in or upon such certificate or paper so filed in addition to such reference to the certificate of title by number. ’1

It is plain that an affidavit t'o obtain a mechanic’s lien is here provided for. It is described by the terms “every certificate or other paper filed with the recorder for the purpose of acquiring or creating an involuntary lien, interest or charge upon registered land, ’ ’ and what said certificate is required to contain is provided for in the next words, which are “shall at least refer by number to the certificate of title, ’ ’ etc. Here we have a plain provision before us for the securing of mechanics’ liens against registered land and requiring something a little different from the affidavit required by Section 8314 of the General Code, which provides the general form of affidavit required for obtaining a mechanic’s lien. It has not been seriously disputed that such provision must be* followed and that in spite of the fact that the Legislature had provided a general law fixing an apparent sweeping right to mechanics’ liens, that that exact method has been somewhat supplemented by this section which is quoted when it comes to securing such lien against registered land, and upon this point at least the Torrens act must be regarded as an exception, to that general plan. Up to this point wé have no serious difficulty nor can the mechanic entitled to the lien have any serious objection to this requirement. The only danger to him is that he may think that all the laws upon the subject of mechanics’ liens are contained under that heading in the code, but such is not his guaranteed right. Instances of similar exceptions are all too frequent in our General Code, and although regrettable are necessarily unavoidable.

There is, however, one deducible and logical conclusion from the exception above noted, and that is the mechanic seeking a lien must acquaint himself with the fact as to whether or not the property upon which the lien is sought is “registered” properly.- This inference is fair and does not, we think, do violence to any of the provisions of the mechanics’ lien law, but granting all this, i. e., -both the fact that he must put into his affidavit the registry number and that he is charged with knowledge that it is registered land, it is insisted that he -can not be deprived of the right so plainly given him by the mechanic’s lien, law to take sixty days from the time of the last furnishing of material, etc., in which to file his affidavit. Such right is not taken away from him by the Torrens act providing the property remains in the contracting owner’s hands, but it is not to be denied that the words of this act do take this right away when said land passes into the hands of a bona fide purchaser. That is to say, this act purports -to give to a bona fide purchaser who has purchased the land during said period of sixty days the right to rely solely upon the certificate of title or certificate of registration, and that if such lien is not noted thereon he is not chargeable with the same. We are inclined to the opinion that insofar as this right is taken away from the mechanic that the Torrens act is to be treated as an exception to the mechanic’s lien law.

fe’ection 89 of the Torrens Act provides:

“Sec. 8572-89. No statutory or other lien of whatever kind or nature except judgments in the United States courts and taxes shall affect the title to registered land, until after the same is noted upon the regisered certificate of title. ’ ’

The term “statutory or other lien” as used in this section must be construed so as to include, and plainly does include, a mechanic’s lien. We have already noted the necessary inference that the mechanic seeking a lien is charged with knowledge that the property is registered. This being granted he need suffer no loss by reason of this Torrens law except by his own volition. If with knowledge that the land is registered he fails to protect himself so that he may have his lien at the proper time, we think it can be demonstrated that he has no one but himself to blame.

Section 8572-68 provides, we think, for almost every contingency that can arise. It is as follows

“8572-68. Any person desiring to assert any interest in or claim or lien against registered land adverse to the title of any registered owner, and not shown upon the register when no pro-: vision is -by this act made for registering the same in the recorder’s office, may make affidavit thereto, setting forth his interest, right, title, claim, lien, charge or demand, and how and under whom derived, and the character and nature thereof. The affiant shall state his full name, place of residence and postoffice address and shall designate a place within the state at which all notices relating thereto may be served upon him; or if he be a nonresident of the state, the name, residence and postoffice address of some person residing within the state upon whom service may be made as his agent and by which service he will be bound the same as if made upon the claimant within the state. Upon the filing of such affidavit in the recorder’s office the recorder shall enter forthwith a memorial thereof, upon the registered certificate of title, stating the exact time when said affidavit was filed and the purport and nature thereof.”

And it is conceded in argument that the mechanic by filing what is known as a caveat under this section can give notice to a prospective purchaser of a right to a lien, and it is conceded that notices can be given by mechanics, by which term we include, laborers or material-men, to the owners of property that they are about to furnish work, labor or material for the improvement of a particular piece of property. Therefore, we arrive at the conclusion that all the mechanic need do to protect himself so that registered land shall not be transferred so as to defeat his proposed lien, is to avail himself of the privilege afforded by the comprehensive section last referred to, to-wit, Section 8572-68.

A matter that must have strong bearing upon the proper solution of this question by the court is that the Torrens law was enacted hy the Legislature with full knowledge of the provisions of the mechanics’ lien law and that the effort was made by the Legislature to make them compatible and consistent is clearly shown hy reference to the sections which we have quoted referring to mechanics’ liens, or at least including by their terms mechanics’ liens. The two laws seem incompatible only in that a privilege granted by one has apparently been taken away by another, and yet an analysis of that other shows a method in which even this privilege may be exercised,- if not quite fully yet with restrictions which do not appear unreasonable. The right to a mechanic’s lien is not lost -but its exercise is restrained and restricted. It exists fully as against the contracting owner as is fuliy provided for by Sub-section 81 but it can only be exercised on registered land as against a bona fide purchaser when the provisions of Sub-section 68 ,are complied with. The mere fact that the Legislature saw fit to make such a provision with regard to registered land and -did not see fit to make the same provision with regard to unregistered land is to our mind no argument against the requiring by a mechanic of an affidavit coming under said Sub-section 68 if he desires a lien upon registered property and desires to so protect his lien that a transfer to an innocent bona fide purchaser may not interfere with his said right. If Section 68 which we have just referred to or any other section for that matter, or an independent section, contained a clause toi the effect that -the provisions of the mechanics’ lien law shall not apply to registered land insofar as bona fide purchasers are concerned, unless the mechanic should file affidavit before such change of ownership setting out the facts constituting his inchoate lien, would any one question the validity of such provision? 'Surely any liberal construction of this Torrens act must necessarily read into the law just such a provision, and Section 101 provides that the Torrens act shall -be construed liberally for the purpose of effecting its general intent. True the mechanics’ lien law is also to be construed liberally, but a liberal construction does not entitle it to take a prohibited construction, that is, a construction absolutely prohibited by another section of the code which yet provides a special means for the operation of that law and for the retention of all the benefits of that law. The case is presented for the application of the rule of construction laid down in Gas Company v. Tiffin, 59 O. S., 420:

“It is a settled rule of construction that special statutory provisions for particular eases operate as exceptions to general provisions which might otherwise include the particular cases, and such cases are governed by the special provisions, ’ ’

and the application of this rule is not rendered inappropriate by the fact that the mechanics’ lien law has been amended since the passage of the Torrens law. This fact, we think, does not affect the rule laid down in Rodgers v. The United States, 185 U. S., 83, the syllabus of which is in part as follows:

“Where there are two statutes, the earlier special and the later general (the terms of the general being broad enough to include the matter provided for in the special) the fact that one is special and the other is general creates a presumption that the special is to be considered as remaining an exception to the general, and the general will not be understood as repealing the special, unless a repeal is expressly named, or unless the provisions of the general are manifestly inconsistent with those of the special.”

And 36 Cyc., 1153, where it is stated:

‘ ‘ General and special statutes. Where 'there is one statute dealing with a subject in general and comprehensive terms and another dealing with a part of the same subject in a more minute and definite way the two should be read together and harmonised, if possible, with a view to giving effect to a consistent legislative policy, but to the extent of any necessary repugnancy between them, the special will prevail over the general statute. Where the special statute is later, it will be regarded as an exception to or qualification of the prior general one, and where the general act is later the special will be construed as remaining an exception to its general terms, unless it is repealed in express words or necessary implication.”

In addition it may be said that even though the Legislature did amend the mechanics’ lien law since the passage of the Torrens law it is not to be presumed that its attention was called to any apparent inconsistency between the two laws, so that the fact of a later amendment can be of little force in determining the question at issue.

We approve of the .language of the Attorney-General of Ohio in this respect as taken from the Reports of the Attorney-General of 1914, page 1195:

“As the land registration act is the later enactment, and is furthermore a special statute, I think that instead of calling for the doctrine of implied repeal, this state of affairs justifies the application of the theory that where the same statute, or different statutes upon the same subject, contain incompatible provisions, one of which is general and the other special, the latter shall be held and treated as an exception to the former. ’ ’

We have carefully considered the very able briefs which have been filed on both sides of this interesting question and our conclusion is that the land court of this county did not err in reaching its conclusion, and its judgment is affirmed.

Grant, J., and Lawrence, J., concur.


author: Per Curiam.

text:
    ABANDONMENT OF A BRANCH INTERURBAN LINE.
    Court of Appeals for Hamilton County.
    City of Cincinnati et al v. Westinghouse Electric & Manufacturing Company et al.

    Decided, November 26, 1917.

      Public Utilities Commission — Alone Empowered to Authorize the Abandonment of an Interurban Road — Necessary Parties to an Application for Leave to Abandon.

    1. Authority to discontinue service on an interurban line, the dismantling of the road and sale of its tangible property can he granted only by the Public Utilities Commission.
    2. Receivers of an interurban road, appointed for the purpose of preserving and operating the property pending a settlement between the company and its creditors, are without authority to apply for an order to abandon and dismantle the line. Such an application must come from the corporation itself, and municipalities, villages and counties through which the road passes and which have granted franchises for its operation are proper parties and should be heard.

      Charles A. Groom,, City Solicitor, for City of Cincinnati.

      Charles A. Brannock, for village of Bethel.

      Charles G. White, Charles C. Kearns and Eli E. Speidel, for village of Amelia and commissioners of Clermont county.

      Smith Hickenlooper, for commissioners of Hamilton county.

      Eulford, Shook & Wilby, for property owners.

      Dinsmore & Shohl, contra.

      Motion for an order directing the Court of Appeals to certify its record in this case dismissed in the Supreme Court by consent of counsel, July 2, 1918.

   Per Curiam.

In the Common Pleas Court of Hamilton County, on October 1, 1914, two receivers were appointed by that court upon the application of the plaintiff below, in an action brought merely for the purpose of taking possession of the property of the Interurban Railway & Terminal Company and managing and controlling it and operating its traction lines, and were authorized and empowered to employ the necessary assistants, purchase the necessary material and make the necessary contracts to continue the operation of the roads.

The appointment of these receivers does not appear to have been ancillary to any other relief prayed for. These receivers were appointed upon the consent of the defendant company.

These receivers continued to operate the three lines of the defendant company for .a period of about two and a half years and are still in the possesion and control of the properties of the defendant Interurban Railway & Terminal Company, and are operating the three lines of road owned by it: one to New Richmond, Clermont county, Ohio; another to Bethel, Clermont county, Ohio; and the third line to Lebanon, Warren county, Ohio.

On April 25, 1917, these receivers filed a-petition, in the common pleas court which had appointed them as receivers, praying for an order authorizing them to dismantle one of the lines of the said company, to-wit, the line running from Cincinnati to Bethel, Ohio, and to discontinue the operation of the road and to sell and dispose of all the tangible property, including the rails and ties, the overhead wiring and poles. They represented to the court that they had an offer from the Clermont Construetion Company to pay for the tangible property $240,000, par value of first mortgage bonds, and $433,000, par value of the common stock of the Cincinnati, Georgetown & Portsmouth Railroad Company, a competing traction line paralleling almost the entire distance between Bethel and Cincinnati the line of the Interurban Railway & Terminal Company.

"The court, upon the application, and after giving notice made an order directing the receivers to dismantle the road known as the Suburban Division of the Interurban Railway & Terminal Company, and -to sell and dispose of the tangible property upon the terms stated in the application.

Before this order was made the villages of Bethel and Amelia, the city of Cincinnati, to which was annexed the village of Mt. Washington, the county commissioners of Hamilton county and the county commissioners of Clermont county were all made parties upon the proper application and were given leave to plead — these political subdivisions having granted the franchise to the Suburban Division of the Interurban & Terminal Company several years ago. These'new defendants objected to the granting of the application and excepted to the order of the court of common pleas authorizing the receivers to dismantle the road and discontinue its operation.

It appears from an examination of the pleadings in this case that there was no authority vested in these receivers to dismantle this interurban road or to sell the tangible property, and the court of common pleas had no power or authority to make such an order. These receivers were appointed to take charge of the property and preserve the same, and to maintain and operate it pending a settlement between the defendant company and its creditors. The effect of dismantling the road and selling the rails, ties, overhead construction and movable property would be to abandon the franchise, and this could be done by the company only and not by these receivers.

It is true that the company through its secretary comes in and consents to the granting of the application made by the receivers, but this can not confer power on the receivers to abandon the road, nor to dismantle it. Nor is it the equivalent of an application made by the corporation itself to abandon its franchise.

Under the law as it now exists, Sections 501; 501-2, 504-2, 504-3, General Code, this company can not abandon its tracks and discontinue its service except upon an application made to the Public Utilities Commission of the state of Ohio. See Section 501, General Code; also, an act passed by the Legislature March 21, 1917 (107 O. L., 525), entitled “An act enlarging the powers and duties of the public utilities commission with reference to the abandonment of service and facilities by railroads.”

We do not pass upon the question of the authority of the court of common pleas originally to appoint these receivers for the purposes for which they were appointed, as that question is not raised in the record in this case, but we hold that under the order appointing these receivers it was their duty to preserve the property, maintain the road and operate it, and not to abandon it and sell the movable property as junk. The right to abandon the road, if any exists at this time, is in the defendant Interurban Railway & Terminal Company. The public, the villages of Bethel and Amelia and the city of Cincinnati, and counties of Hamilton and Clermont, which granted these franchises, have an interest in the maintenance and operation of the traction lines, and they are therefore proper parties in this case and should be heard objecting to the discontinuance of the operation of the road.

For the reasons stated the judgment of the court of commbn pleas is reversed, ,and the cause is remanded for further proceedings.

Jones, P. J.; Gorman, J., and Hamilton, J., all concur.


author: Houck, J.

text:
    TO COMPEL PROVISION FOR CHILDREN OF SCHOOL AGE.
    Court of Appeals for Tuscarawas County.
    Nathaniel Siber et al v. State of Ohio, ex rel Frederick E. Hershey et al.
    Decided, June 26, 1918.

      Schools — tfecessary'Parties to Action: in Mandamus — To Compel Provision of Proper School Advantages — Evidence- Required to Compel ■ Official Action. : ■ . • ■ .......
    1. Section- 7731 makes the county board of education the- real party .. defendant in an action to compel the conveyance of pupils of-school age residing therein to some other, school within the rural school district, and failure to make said county board a party defendant 'leaves' the petition open to 'demurrer. ' '
    2. Furthermore the absence of 'any evidence of notice to'the county board, or of knowledge on its part, of refusal by the' township board to. convey the pupils in question to some school in said district, is fatal to an action in mandamus to compel provision of such service, under the rule that in a proceeding to compel an officer to do.an act'which it is claimed tie íaw enjoins upon him the existence must be shown Of all facts necessary to put him in' default.

      É. E. Lindsay, Prosecuting Attorney, and E. O. Seikel, for plaintiffs in error.

      G. L. Croneiaugh, contra.
   The defendants in error here were the relators in the common pleas court.

The suit was one in mandamus, in which it was sought to compel the defendants below, the plaintiffs in error here, as members of the board of education of Dover township rural school district of Tuscarawas county, Ohio, to re-establish what was formerly known as “Sub-district School No. 12” or to convey the pupils of school age residing therein to some other school within said rural school district.

A demurrer was filed to the petition, stating four grounds:

1. That the facts stated in the petition were insufficient in law.

2. Defect of parties plaintiff.

3. Defect of parties defendant.

4. That plaintiffs had no legal authority to .bring suit.

The trial judge overruled said demurrer and exceptions were-taken to same. Answer was filed, which in substance, was a general denial.

Trial was had and the petition was dismissed as to the question of re-establishing said reputed sub-district School No. 12, but judgment was entered for plaintiffs, allowing a peremptory writ of mandamus against the members of the board of education of the Dover township rural school district, ordering and directing said board of education to convey said pupils of school age to the nearest school in said Dover township rural school district.

We have carefully read the testimony in the case, as contained in the .bill of exceptions, and have made an examination of the record here presented for the purpose of determining as to whether or not there is such error prejudicial to the rights of plaintiffs in error as would .authorize a reversal of the judgment.

In our opinion the judgment of the common pleas court should be reversed for two reasons:

There is a misjoinder of parties defendant. The real party defendant should be the county board of education of Tuscarawas county, Ohio. We reach this conclusion because of the provisions of Section 7731, General Code, as found in Vol. 170, page 625, Ohio Laws, which reads:

it* * * When local boards of education neglect or refuse to provide transportation for pupils, the county board of education shall provide such transportation and the cost thereof shall be charged .against the local school district. When the county .board of education certifies to the county auditor the amount paid for such transportation, the county auditor shall transfer such amount from the funds due the said board of education to the county board of education fund.”

The undisputed evidence is that a demand was made upon the board of education of Dover township rural school district, but none was made upon the county board of education, and there is an entire absence of proof, showing or tending to show, that the county board of education had any knowledge whatever of the failure or refusal of said board of education of Dover township rural school district to convey the pupils in question to some.school in said district. Applying the statutory law just quoted to these facts we feel the conclusion thus reached is sound.

We hold the rule is well established that in a proceeding by mandamus to compel an officer to do an act which it is claimed the law .enjoins upon him, the existence of all the facts necessary to put him'in default must be shown.

Testing the evidence in this case by the rule of law thus laid down, we find that it does not measure up to it, and, therefore, the trial judge was in error in entering the judgment in the present ease. The errors referred to being prejudicial to the rights of the plaintiffs in error, judgment of the common pleas court must be reversed.

Judgment reversed .and case remanded for further proceedings according to law.

Powell, J., and Shields, J., concur.