author: Day, J.

text:
    (Third Circuit — Logan Co., O., Circuit Court,
    October Term, 1896.)
    Before Day, Price and Rohn, JJ.
    E. J. HOWENSTINE, Adm’r., v. JOHN O. SWEET et al.

      Action to vacate-judgment or order of probate court for fraud— Original jurisdiction of Common Pleas — ■
    The court of common pleas is a court of general jurisdiction, and, independent of the provisions of Sec. 5354 Rev. Stat., has power to vacate and set aside judgments procured by fraud, in an original action for that purpose.
    ' Same—

    The’special proceeding provided by Sec. 5354 et seq., Eev. Stat. is cumulative merely, and does not in any way abridge or limit the right in an original action to impeach and annul a judgment for" fraud.

      Same — Judgment of Probate Court releasing surety—
    A judgment of the probate court, releasing and discharging from liability, sureties on an original executor’s or administrator’s bond, and accepting and approving a new bond which was procured by fraud, may be vacated and set aside in the common pleas court.

      Petition to vacate judgment for fraud —Sufficient allegations—
    Addition, setting out in detail the facts alleged as constituting a fraud by which a judgment was procured, and showing that a fraud was in fact successfully practiced, with a prayer that the judgment so procured be vacated and set aside, is good as against a general demurrer.

      Surety on admr’s bond liable until sufficient new bond given—
    By“ the provisions of Sec. 6204 Rev. St., a surety on an executor’s or administrator’s bond may be released from liability thereon, upon request and good cause appearing, by order of the probate court; but such order is ineffectual until a proper and sufficient new bond is given.
    Appeal from the Court of Common Pleas of Logan county.
   Day, J.

The plaintiff is administrator in place of John O. Sweet, removed. The action here, and below, is to vacate and set aside a judgment or order of the probate court, discharging ■the sureties on an executor’s bond; and is based on the ground that the judgment or order of discharge was procured to be entered by a fraud successfully practiced on that court. The matter was submitted and disposed of on demurrer to the petition.

The facts stated in the petition as a basis for the relief prayed, are, in substance: That plaintiff is administrator in place of John O. Sweet, removed, who was the duly appointed and qualified executor of the last will of George Foulk, deceased; that Adam Foulk, Jacob Foulk and David Watson were sureties on the bond of Sweet as such executor, in the sum-of $100,000; that in March, 1890, Adam Foulk made application to the probate court of Logan county, O., under the provisions of section 6204, Revised Statutes, to be released from liability as surety on said bond, under which application such proceedings were bad that Sweet was ordered and required to give a new bond; that after-wards, on March 31, 1890, pursuant to the order of the-said court, Sweet did make and file in said court, a paper signed by himself,and purporting to have thereto the signatures of David Watson and Peter Detrick, as sureties, and falsely represented and pretended that said signatures were the genuine signatures of said persons, and the said court believing said representation and pretense to be true, and that said signatures of Watson and Detrick were genuine, accepted said new bond as true and genuine, entered judgment to that effect and discharging Adam Foulk from further-liability on the said original bond; that said bond was not a-true and genuine one, but was a forgery; that said representation and pretense were false and fraudulent, that the said signatures of Watson and Detrick were in fact forged and counterfeit, and not genuine, and the probate court was imposed upon, • misled and induced by such fraudulent and criminal conduct to make and enter the said judgment; so that the order approving the alleged new bond and the sureties named, and discharging [the said surety on the original bond,was directly procured by fraud; that Sweet was subsequently removed as executor, and a settlement of his accounts shows him a defaulter to the extent of more than $19,000, for which suit has been instituted on the original bond, and is now pending; that on the trial of said suit the record of the judgment of the probate court releasing said sureties, if allowed to stand, will be evidence greatly detrimental to the rights of plaintiff. The prayer of the petition is that the said judgment or order releasing the sureties on the original bond be. vacated, annulled and held for naught, as a fraudulent thing.

The demurrer suggests: 1. That the court has no jurisdiction to hear and determine the question, or to grant the relief prayed. 2. If the court has jurisdiction of the subject matter, the petition does not state facts sufficient to constitute a cause of action against the defendants, or either of them. 3. The defendants are not' necessary nor proper parties.

Sweet, Adam Foulk, Jacob Foulk and the executor of David "Watson, deceased, are the defendants named. They are also defendants to the action on the original bond. They are directly interested in the result of the suit, and will be benefited, or otherwise, accordingly as the result is favorable or unfavorable; and it would seem, under the express provisions of the code of civil procedure, are both proper and necessary parties, This being so, then but two propositions raised by the demurrer and urged by counsel, remain to be disposed of, viz: 1. Has the court jurisdiction of the case? 2. Do the facts stated constitute a cause of action against the defendants?

1. As to the first proposition, the Supreme Court, in the case of Darst v. Phillips, reported in 41 Ohio St. 514, seem to have decided the precise question, and settled it adversely to the claim of the demurrant, In that case it is held that the court of common pleas, having general equity jurisdiction, and powers independent of the provisions of section 5354, Revised Statutes, has power to cancel or annul á judgment for fraud practiced by the successful party, in an original action for that purpose, and that the special proceeding provided by said section 5453, et seq., Revised Statutes, is cumulative merely; not exclusive,and not limiting the right, by an original action, to impeach a judgment for fraud. To the same effect is the 23 Ohio St. 415. But the case of Darst vv Phillips is directly in point, and, as we think, -clearly decides the question of jurisdiction raised in the case.

2. Do the facts stated in the petition constitute a cause of action, entitling the plaintiff to the relief he asks? The facts stated, for the purposes of the demurrer, are conceded to be true. By this the defendants concede the truth of the statement that the judgment and order of the probate court, discharging the sureties on the original bond from liability, was procured by fraud. That the court was imposed upon by Sweet, who by falsehood and indirection procured the court to approve, as a valid, good-faith bond, a spurious and forged one, and, based on that fraud alone, to make the order discharging from liability the sureties on the genuine original bond. Defendants concede the fraud, as broadly as it is alleged, and also the benefits likely to inure to them if it is continued; and notwithstanding the concession, they did insist on the right to avail themselves of such benefits, They admit the fraud, and are willing to be the beneficiaries of it. It is a well recognized rule, and of universal application, that fraud vitiates all things into which it enters: that no person, a party to a transaction, can be permitted to avail himself of a benefit resulting from a fraud practiced. No enduring thing can be erected having for its base or foundation a fraud. Sooner or later the wrong must give way to the right, and the base being shattered, the superstructure must of necessity topple and fall. We might, with entire safety, we think, base our decision overruling ■the demurrer on these general principles, .and the decision •would be sustained both on reason and authority; but, we think, without invoking general principles, a proper con•struction of the provisions of the section of the statute, •under which the fraud was practiced, necessitates the same ■conclusion. The rights and liabilities of a surety on an executor’s or administrator’s bond are fixed and determined by the provisions of the statute. The contract of such a surety is made with reference to the provisions of the statute bearing on the subject, and its provisions are as much a part of the contract as if written into it. Section 6204, Revised Statutes, among other things, provides: “Any ■surety of an executor or administrator * * * may, at any time, make application to the proper probate •court to be released from the bond of such executor or administrator, by filing his written request there for with the judge of said court, and giving at least five days notice in writing, to such executor or administrator; * * * ' and if such court, upon a hearing, is of opinion there is good reason therefor, the court shall release such surety. * * * but such original surety shall not be released until such executor or administrator so gives bond etc. etc.”

A fair and reasonable rendering of the wording of the provisions of this section would be: A surety on an executor’s or administrator’s bond may be released from liability thereon by order of the probate court, on request and good cause appearing to the court, and the court shall order a new bond given, but the surety shall not be released until ■such new bond is given. It is clearly the intention of the law to hold the original bond and the surety thereon to the ■full measure of liability, until a new bond is properly given to take its place. By a new bond is meant, not a spurious, forged bond, but a good-faith one, "one sufficient in form ■and amount, with sureties actually, in fact, executing it; and all formulated and executed in such a way as to constitute it, in contemplation of law, a valid, lawful executor’s or administrator’s bond. Until such a bond is given, the requirements of the law are not complied with, and such executor or administrator has not “so given bond,” An order of the probate court is of no consequence, and is wholly ineffectual to release a surety from liability, unless-' the order is based on the fact that a new, valid, legal bond has been given. It is the giving of a proper new bond that effects the desired release; and an order of release, made before such bond is given, is voidable and wholly ineffectual to accomplish a release.

William Lawrence, and Howenstine, Huston & Miller,lor Plaintiff,

Low & McLaughlin, for Defendants.

In this case it is conceded that no valid new bond was given in fact; that the order of release was made in the absence of a new bond, and was in fact procured to be made by means of a fraud successfully practiced on the probate court. We regard the facts averred in the petition as amply stating a cause of action entitling the plaintiff to-relief, and the demurrer is therefore overruled. Defendants must answer and put these facts in issue, else plaintiff is entitled to judgment.


source: Caselaw Access Project

author: Marvin, J.

license: Public Domain

text:
    (Eighth Circuit — Cuyahoga Co., O., Circuit Court,
    Jan. Term, 1897.)
    Before Caldwell, Hale and Marvin, JJ.
    THOMAS P. WESTROPP v. PATRICK S. WESTROPP, as Administrator of the Estate of Catherine Westropp, deceased.

      Statute of frauds — Money given for use during life,the balance unexpended to be repaid on death of donee, not within statute.

    Where a son places in the hands of his mother S500.00, with the- ■ agreement with her that she should use it if needed, during her life, the amount unexpended at her death to be paid back to him, such contract is not within the statute of frauds as not to be-performed within one year, although the mother lived eleve» years afterwards.

      Same — Time within which administrator has to pay.

    The fact that at the death of the mother her administrator would by law have eighteen months to repay the money, will not place the contract within the statute of frauds.
   Marvin, J.

The case of Thomas P. Westropp, as administrator of the estate of Catherine Westropp,deceased,is brought here upon a petition in error seeking to reverse the judgment of the court of common pleas. The case was brought by Thomas P. Westropp in that court, by filing a petition which sets forth that something like eleven years before the death of Catherine Westropp, who was his mother, he put into her hands the sum of five hundred ($500.00) dollars, with the agreement with her that she should make use of it, as she might need, during the period of her life, and that upon her death, it, or such part of it as should remain unexpended, should be paid back to him; and the petition further alleges that the entire amount was left unexpended at the death of his mother; that he filed his claim with the administrator of her estate, and that the same was rejected, and so he brought this suit in the court of common pleas for judgment for the amount of said claim.

To his petition a demurrer was interposed, the ground of which was, that the promise which was claimed to have been made by the mother to return the property, was within the statute of frauds; that it was a contract on her part, not to be performed within a year from the time it was made; and the court of oommon 'pleas sustained the demurrer, and, without further pleading, judgment was entered for the defendant.

So the question here is whether or not the court of common pleas erred in sustaining the demurrer.

It was urged that the mother was likely to live, in any event did live, eleven years after this money was put into her hands; and it is urged to us that even if she died the next day, the statute allows the administrator eighteen months within which to pay any claim owed by the deceased; ■and that, therefore, the contract could not be performed within a year; and to this we think it sufficient to say that, if by the terms of the contract the performance was to be at .such a time as to take the case out of the statute, the fact that the law allows eighteen months to the administrator to pay the debts of the estate, would not have the effect to bring it within the statute.

It is further urged that without reference to the provisions of law already mentioned,the caséis still within the statute, •and we are cited to a case in the 5th of Wallace, at page 580,- — -the case of Packett Company v. Sickles, as sustaining the position of the defendant, that this contract was within the statute of frauds. That is a case where the owners ■of a steam packet undertook and agreed to pay a certain amount per year to the owners of a patent, for the use of a patented device for a period of twelve years, provided the boat on which this device was to be used should so long last.And it is urged that there was a contract that might be fully performed within a year because the boat might not last a year, and if the boat should not last a year, the contract would be at an end. This contract was held to be within the -statute. The proposition that this case is like the one at bar, and that reasons which apply to the one, also apply to the other, is not, we think, well taken.

An examination of the cases in which this subject is treated, will show that there is a distinction made all the time between those cases where the contract is to run more than a year, or rather is not to be performed within a year, but fixes the time within which the contract is to be performed, but liable to be terminated by a contingent event happening within a year; — some of the cases of this kind are held to be within the statute of frauds, and that is the doctrine on which this case in the 5th of Wallace, to which I have referred, is held. In that case there wag a contract for twelve'years;- it was within' the contemplation of th'éparties when they'made the contract, that it Was to’continue-for twelve years; it is' liable, it is true,upon a certain conltingéncy to be terminated Within a year. It was hot á contract that could not bé fully performed within a yéar,though it'might be terminated within.that time. Herice this was-held to be within the statute of frauds. ' 1

We are cited to Parsons on Contracts; Vol. 3, Chapter 5',' star page 30, note g. That note is a very full one, and has-a large number of cases, and the distinction I have undertaken to intimate seems .to run through all of them so far as-I .have examined them, and that is, where the contract is. for a given period of-time more than a year, and its ending; within that time depends upon the happening of some contingent event, in most, if not all of those cases the contracts-are held to be within the statute of frauds, because the contract was to continue for more than a year; but in none of: those cases, so far as I have found, is it held to be within* the statute where the contract is to be terminated upon a¡ contingency, where there is no time fixed for the contráct to run, only that it is to end with the happening of some-uncertain event which may happen within a year.

The opinion in the case of Blakeney v. Doods, 30th Ohio St. 350, cites a very large number of cases also cited in'the note in Parsons on 'Contracts, to which attention has-been called, and the fourth clause of the syllabus in thaP case reads: . ■'

“Although the parties may be longer than a year in the-performance of the contract, still if that performance' may be completed within a year, and -such performance is entirely in accordance with the intention and understanding.; of the parties, such contract is not within the;statute, and-need not be in writing in order to maintain an action upon.. it.”

A large number of authorities are cited in this case, and the whole matter is gone over at great length in the case of Harris v. Porter (2nd Harrington, page 227,) which is one of the cases cited in Parsons, and which is cited here. There was a verbal contract in this case to carry mails from 1832 to 1835; the plaintiff endeavored to claim that the contract was not within the statute because it was within the power of the Postmaster General to put an end to it at any time. The court say:

“This was a contract which could not possibly be performed within one year. By its terms it was to continue four years; though it might be annulled by the Postmaster General within the year, still it falls within the class of cases as an agreement which, according to its terms, is not to be performed within a year.”

Now, we think that is like the case in the 5th of Wallace. It might be annulled within a year, but in order to be performed, it would take more than a year. The court in this same case, quoted from the opinion of a case in the 20th Maine, page 119, and quoting from the syllabus of that case says:

“To bring a case within the statute of frauds, it must have been^expressly stipulated by the parties, or appear to have been clearly understood by them upon a reasonable construction of the contract, that the contract was not to be performed within a year.”

Then they cite this case in the 5th of Wallace, which I have already spoken of, following which this language is used by Judge Wright in the opinion from which I am reading:

“Notwithstanding this case and others cited, we think Parsons states the proper rule: ‘If the executory promise be capable of entire performance within one year, it is not within the statute.’ ”

Besides the authorities referred to in the case last mentioned, and those cited in the note in Parsons already spoken of, the matter is discussed to the same effect in Browne on the Statute of Frauds, commencing at sec. 255 and including sec. 279. also Wood on Statute of Frauds, beginning at sec. 271, and following.

The case in the 20th Maine, at page 119, of Herrin v. Butters, was one in which they held the contract to be within the statute of frauds;, but that case was where a contract was made, by which a man by the name of Isaac Shaw had.agreed, in writing, with one Asa G. Butters, to clear off eleven acres of land, and also to seed down one acre in the spring of 1833, — the contract having been made on the 21st of March of that year, — and to seed down another acre in the spring of 1834; and it was agreed that he should have all the crops that should be raised on the eleven acres, except the two acres he was to seed down, for three years; to pay him for thus clearing off the ground,and for seeding the two acres. Subsequently Shaw made a contract with one Herrin, and that was made, — we do not know the exact date, — but it was made before May Í0th, 1833, by which Shaw agreed with Herrin, in that Herrin should do half the work that he (Shaw) had agreed to do, and that he (Herrin) should have one-half of the benefits of this contract which Shaw would otherwise have had. On the 10th of May, 1833, Herrin made a contract with Charles Butters, Jr., — not the man with whom the original contract was made, — but another man by the name of Butters, that he should take the contract off his hands. The clearing was not done, and suit was brought against this last man, Charles Butters, Jr., for failure to perform his contract. The court held that though it would have been possible for this contract of clearing off the land, to have been performed within one year, it was not within the contemplation of the parties that they should do it within the year. And it was in that very case, that the court said: “To bring the case within the statute of frauds, it must have been expressly stipulated by the parties, or it. must upon a reasonable construction of’ their contract appear to have been undérsfcood' by them that the agreement, was not to be performed within the ye:ar.” But they say in that case, it was certainly understood that the contract, was not tó be performed within the year: ' The first agreémen't in that case wás made March 21st, 1833, and the one-that followed and was sought to be enforced was made on. the 10th day of May, 1833; and the court state clearly that-it was not within the contemplation of the parties that it~ should be preformed within a year,and say, that though that, is so, they make no change in the- rules laid down as above-quoted. But in these cases cited, there are several cases» where there is a contingency in the contract, where the-thing that should bring about the right of the party to enforce the promise depends upon the death of one. And in* each of such cases, it is held that the contract is noi within' the statute of frauds.

Burke & Ingersoll, for Plaintiff in Errror

Foran & Daioley, for Defendant in Error.

We think the court below was clearly in error in sustaining this demurrer and holding that the contract set out in the petition is within the statute of frauds. The judgmentof the court below is reversed, and the case remanded to that, court for further proceedings.


author: Smith, J.

text:
    (First Circuit — Hamilton Co., O., Circuit Court,
    Jan. Term, 1897.)
    Before Swing and Smith, JJ.
    JANE THOMPSON, ADM’X., v. THE GEST STREET BUILDING ASSOCIATION.

      Action pending in Superior Court of Cincinnati when act abolishing the General Term thereof toole effect — Right of appeal to Circuit Court.

    The act abolishing to General Term of the Superior court,gave to the-Circuit Court jurisdiction to hear judgments or final orders made* by the Superior Court* on error or appeal. This law went into operation November 1st, 1893, and continued in force to July 1st, 1894, when it was repealed. That act was not made applicable to actions then pending in the Superior Court, special term. An action therefore which was pending in the Superior Court on or before November 1, 1893, and in which a judgment was entered on June 20, 1894, ten days before the repealing act took effect, can not be appealed to the Circuit Court.
    Motion to dismiss appeal.
   Smith, J.

This case was heard on a motion to dismiss the appeal. The facts on which the motion is grounded, briefly stated, are these.

The action was begun in the superior court of Cincinnati October 6th, 1888, and on June 20, 1894, a final judgment was rendered therein. Notice of appeal was duly entered, and on July 29, 1894, the case was attempted to be appealed to this court by the giving of the bond, and the filing of the transcript and papers.

On the 18th day of April, 1893, an act was passed by the general assembly, which in effect abolished the general term of the superior court, and gave, by an amendment to section 6709, to. the circuit court of this county, the right to reverse, vacate and modify, on petition in error filed therein, a judgment rendered or final order made by said superior-court. (90 Ohio Laws, 191.) To correct an error therein-this section, with a slight alteration, not affecting this case, was re-enacted January 30, 1894, (91 Ohio Laws, 8), and by the act of April 18, 1893, section 6709a was passed, and it provided that all laws providing for appeal from the court of common pleas to the circuit court, shall apply in like cases to the superior court of Cincinnati, and all laws regulating the practice, forms of error and proceedings in error or appeal from the court of common pleas to the circuit court, shall be held to extend and-apply to the superior court of Cincinnati, as fully as they extend to the court of common pleas.

This act took effect November 1st, 1893, and continued in force until July 1, 1894. See act of May 16, 1894, 91 Ohio Laws, 277, and post.

It will be seen from the foregoing statement that the question presented is, whether in a case which was pending in the superior court on and before November 1, 1893, and in which a judgment was entered on June 20, 1894, ten days before the day on which the law of May 16, 1894, took effect, might properly be appealed to the circuit court on July 29, 1894, or at any time.

It is apparent, from an examination of the statutes which were in forced up to November 1, 1893, that no right of appeal, as distinguished from a proceeding in error, was given from the decree or judgment of the special term of the superior court, to any court. And it is also clear that by the act of April 18, 1893, in section 6709, as therein re-enacted, or in 6709a, which last section appears for the first time, and which sections provide for proceedings in error and for appeal from the superior court to the circuit court, and in no other place in said- statute is there any express statement that the law in question shall apply to actions then pending in the superior court, with the single exception that section 3 thereof provides that “all cases pending in the general term of the superior court, and all unfinished business therein, at the time of the taking effect of the act, should be transferred to this court; nor so far as we can see, was there any language used therein from which such legislative intent can be implied. How, then, under the express provisions of Section 79, Revised Statutes, that where the repeal or amendment relates to the remedy, it shall not affect pending actions, prosecutions or proceedings, unless so expressed,” can this act affect this action which was pending in that court, prior to, and at the time of the taking effect of the act referred to, November 1, 1893? It must be conceded, also, we think, that this act, and the sections referred to, did relate to the remedy, and it would follow, therefore, that section 6709a did not apply to actions then pending in that court, so as to give a right thereafter, to any one, to appeal from a judgment rendered therein to .the circuit court. And this is the only section or provision of law which ever gave an appeal from that court to this.

Nor was there anything in the act of March 16, 1894, repealing the original statute of April 18, 1893, which can be construed as giving the right to appeal cases which were pending November 1, 1893, to'the circuit court. Section 4 of this last act contains this proviso, to the repeal of sec’s 6709 and 6709a, viz: “Provided however that this section 6709a, and section 1 of said act passed January 30, 1894, (section 6709), shall continue in force in so far as the same affect judgments rendered and final orders made by the superior court of Cincinnati, at special term,prior to the taking effect of this act; but this act shall apply to all actions and proceedings which may be pending and undetermined in the superior court of Cincinnati atspecial term, when this act takes effect.’’ (July 1, 1894.)

The effect of this provision, as we understand, is simply this: that whatever effect sections 6709 and 6709a originally had, still, remains as to actions which had been pending in the special term, but in which judgments had been rendered before the taking effect of the repealing law, viz., July 1, 1894. It did not give any new right of appeal or error. That is, if an action had been commenced in the superior court after November 1, 1893, and a judgment had been rendered thereon before July 1, 1894, there was still a right of appeal in such cases,unless the time therefor had expired. But as there was not originally given by section 6709a a right of appeal in cases brought before November 1, 1893, this proviso did not give it. And as this case had been fully disposed of.by the superior court before July 1, 1894, it certainly does not come within the last provision of section 4, (the repealing section), which makes the act apply to all actions which may be pending and undetermined in that court when the act took effect, July 1, 1894.

The general doctrine that statutes affecting the remedy do not apply to pending actions, unless so expressed, is conclusively settled by the decision in the case of The State of Ohio ex rel. v. Rabbits, 46 Ohio St., 178. And the other cases decided by the same court, cited by counsel for the appellant, which seem in any degree to militate against that view, notably 29 Ohio St. 19, as shown by Judge Minshall in deciding the Rabbits case, were under statutes which contained no provision|as to the amendment or repeal of statutes relating to the remedy, not affecting pending actions unless so expressed, which provision appeared for the first time in the revision of 1880.

The case of McAlpin v. Clark, decided by the general term of the superior court and reported in 1 Nisi Prius Rep. 195,is cited as bearing on this [case. It was there held that in a case pending in that court on and before November 1, 1893, and in which judgment was rendered June 29, 1894, and a bill of exceptions filed June 30, 1894, and a petition in error filed in the general term July 24, 1894, that such court had not jurisdiction thereof, and that it could properly be filed in the circuit court. But we understand that the ground of this holding was that, while the law of April 18, 1893, was in force, and afterwards as to all judgments rendered, before July 1, 1894, by the superior court, that the law of 1893 conferred such jurisdiction in error proceedings, and that the provision of section 79 did not apply to them, for the reason that the error proceeding was a new one, and not a continuation of the old action, and, therefore, was not a pending proceeding when the law came into operation. This, we think, was correct. But an appeal is very different from a proceeding in error, as is shown by the decisions of the Supreme Court, referred toby Judge Smith in announcing the decision of the general term in that case. The former is a continuance of the original action, and it would be affected by any statute relating to the remedy in such cases only when it was stated therein that it should affect pending actions.

B. S. Fulton, Attorney for the Motion.

Paxton, Warrington & Boutet, Contra.

Our conclusion, then, is, that the appeal was not well taken, and that the motion to dismiss it should be sustained, and the case stricken from the docket.


author: Price, J.

text:
    (Fifth Circuit, Licking Co, O., Circuit Court
    March Term, 1896.)
    Before Pomerene, Adams & Price, JJ.
    (Judge Price of the third Circuit taking the place of Judge Kibler.)
    JOHN WATKINS, et al. v. WILLIAM HALL, et al.

      Board of Education — Removal of school house — Abuse of discretion.

    While a township Board of Education has exclusive control within its jurisdiction, in the selecting of a school-house site and of the size and character of the building to be erected thereon, yet, where such board, without any valid reason or necessity therefor, is about to expend the public funds in taking down a suitable and satisfactory school-building on a central and improved lot, and re-erect it at another place in the district, a court of equity may properly enjoin the same, asan abuse of discretion and authority.
    On Appeal from the Court of Common Pleas of Licking county.
   Price, J.

In the year 1894, the defendants, as members of the Board of Education of Newark Township, were taking steps to take down and remove a certain school house, in District No. 2, from its present location, and to rebuild it on another site, further north, on a different highway. The recorded proceedings of the Board, and some of the other evidence given, indicate that a change of site had been contemplated and discussed for some considerable time. At one time it was thought that the school house should go to some point on the Granville road, but the latter board settled on a site once occupied about twenty years ago, north of the present location, and one hundred and sixty rods from the north line of the school district. On this old site there had been a school house which was used for years, but it was destroyed by fire, and when a new building was provided for, the one in controversy was erected and furnished, which was about thirteen or fourteen years ago. The location is near the geographical center of the district, on a good public highway, intersecting the Granville road, and extending west to the hills — or, what has been called the “foot-hills. ’’

The lot so selected, and on which the school house was erected, while not at first all that could be desired as to grade and condition, has, from time to time, been so improved and graded that it became and is a suitable location for the schools. The building itself is all that is desired as to material, size, workmanship and inside equipment. Indeed, so satisfactory is it in all respects, that the same materials are t'o be taken down, and removed to a northern lot, and there a building of the same size, form and equipment is to be reproduced. The present lot has proper and necessary out-buildings, grown shade trees — in short, no complaint is made of the building, its appurtenances or surroundings.

. The plaintiffs who are residents of this district, interpose and object to the taking and removal, and ask that the Board of Education be enjoined fronTdoing these things.,

!We have heard the case on the evidence, and we have stated some of the facts which are disclosed by the testimony. It seems that the only ground which the board has for its action — the only one, at least, brought to our attention, is that the new place selected is more accessible for the school youth of the district, more convenient for the greater number; and_evidence has been heard as to what is the number of school youths injhe north part, and the number in the south part of the district. At one time, it seems, there was a majority who would be better .served by a school house where it now is. At another time, a majority might be conveniently accommodated by a place one hundred and sixty rods from the north line. But, with the very small school attendance in this district, the majority either way has been exceedingly small.

Under all these circumstances, what are the rights of the parents who are interested in having the building remain; and with this question, what power has the court to restrain the conduct complained of?

It is very clear that so far are the control and management of the school interests — the selection of site, and erection and equipment of buildings — committed to the judgment and discretion of the Board of Education, that a court cannot interfere with the exercise of such judgment and discretion, except where it is abused or overreached, or where the conduct or action of the board proceeds from fraudulent motives, or improper purposes, which would be the same thing in law as a gross abuse of discretion.

If there was no building on the present site, and it was simply the exercise of a choice of location, we would have no right to control or restrain the board in the exercise of its choice, no matter how flagrant the wrong to many in the district.

But, that is not this case; without any well-founded reason, the board proposes the expenditure of public money to take down a satisfactory building, with all its equipments, and remove them to another and somewhat distant point,' having no better natural surroundings, and all for what purpose? Why, it is said, the trend of the school youth is toward the north end of the district, and that it will, or may have, a majority that will be best accommodated at the north end.

When they came to count the noses (so to speak), for one year, there may have been two or three more on one side than on the other. The next year, by reason of arrivals at majority, or, for other reasons, this majority is lost to the other side. And so it seems to have alternated for two or three years prior to this trial. The same is likely to continue. The favored parents in the south part of the district may be able to number more of their household gods this year than they can in the north. The very next year, removals, etc, may turn the scale to the north. So it seem to follow from the proposed action of this board, in order to be consistent, that, as these changes may run one way' or the other, the school house should be taken down and brought nearer to the doors of this vacillating majority.

This course, the one proposed by the board, is not called for, nor can a good excuse be found for it. It is, in our judgment, an abuse of their authority and discretion. While we find no evidence of any corrupt or dishonest motive behind this proposed removal, we can find no reason for it; and on these facts we hold that the exercise of the power contemplated by this board would be an abuse of that discretion which is a subject-matter for the control of this court.

The injunction is granted, and made perpetual at the costs of the defendants.


text:
    (First Circuit, Warren Co., O., Circuit Court,
    October Term, 1896.)
    Before Swing, Smith and Cox, JJ.
    ADAM G. COLLINS, v. FRANCIS W. MANSFIELD, ET AL.

      Misjoinder of parties plaintiff — Practice.
    Where there is a misjoinder of parties plaintiff, and defendant fails to take advantage of that fact by special demurrer under sec. 5064, Rev. Stat., such defect is not waived, but defendant may raise the objection in his answer.

      Same — Action by several parties holding notes severally executed for reformation of mortgage securing the same. — •
    Where a petititon by several parties for foreclosure of a mortgage given to secure notes executed severally to several parties, and asking also for a reformation of the mortgage on account of mistake in the description of the property therein, thore may be a misjoinder of parties plaintiff so far as the prayer for a foreclosure is asked, yet as the several parties have the same interest in the reformation of the mortgage, the petition is good as to that.

      Petition in error for admission of incompetent evidence. —To be filed ivithin six months after judgment. — Motion for new trial disposed of more than six months after judgment. —
    Where a motion for a new trial, one of the grounds being the reception of incompetent evidence and that the judgment was against the weight of the evidence, was not disposed of until nearly two years after such judgment was rendered, a petition in error filed within six months after such overruling of the motion for new trial can not be maintained. A petition in error must be filed within six months after the rendition of the judgment complained of. The overruling of a motion for new trial is not a final order to which error can be prosecuted.
    Error to the Court of Common Pleas of Warren county.
   Smith, J.

Owing to the fact that the original pleadings filed in the •case, the judgment which it is in this case sought to review, are not before us, it is difficult.to ascertain the exact facts; but we have enough data to enable us to state them •substantially, aided by the statements of counsel. The original petition was one filed by Francis W. Mansfield and Margaret Mansfield against Mr. Collins, to foreclose a mortgage made by him to them to secure the payment of notes •given by him to them severally, the notes having been given for the purchase money of the real estate conveyed by ■them to Collins. An answer was filed by Collins setting up various defenses, and a trial was had,and judgment was rendered for the plaintiffs. Aferwards the judgment was set aside by the court, and on the 13th day of May, 1893, an amended petition was filed by the plaintiffs. By it the plaintiffs first sought to correct and reform the mortgage which had been-sued upon, on the ground that by the mistake of the parties-the land intended to be mortgaged thereby was not correctly-described therein, and seeking to have it corrected in this-respect,and then prayed for the sale of the land for the purpose of paying the debts due to the plaintiffs severally. No-demurrer to this amended petition,on the ground that there-was a misjoinder of parties plaintiff or other grounds was filed by the defendant. But on August 24th, 1893, he, by leave of court, filed an answer and cross-petition to this amended-petition of plaintiffs, setting up various defenses thereto,, and asserting a misjoinder against them, and plaintiffs filed a reply thereto. Afterwards, on April 30th, 1894, the defendant, by leave,filed an amendment to his answer, asserting-that there was a misjoinder of parties plaintiff, and to this-a reply was filed. On the issues raised the case was again-tried, and on May 12th, 1894, the court of common pleas, by its decree, reformed the mortgage as prayed for, and' found the amount due to the plaintiffs severally,and ordered' the real estate described in the mortgage as reformed to be-sold for the payment of the amount so found to be due to the plaintiffs severally. To this judgment and order the defendant excepted,and undertook to have a bill of exceptions-allowed by the court, but the same was not signed, allowed or filed in time,and therefore cannot be considered as a bill of exceptions in this case. But on the 10th day of November, 1894, the petition in error was filed in this court, alleging that there was error in the judgment of May 12th, 1894, in this: that the court erred in not holding that there was a misjoinder of parties plaintiff, and in rendering a judgment thereon in their favor against the defendant; and-further, that the court erred in not receiving certain evidence offered by the plaintiffs. But inasmuch as these last named errors are only shown, if at all, by the bill of exceptions, which was not allowed in time, these assignments of error cannot be considered by us. It is urged by counsel for defendants in error that we are not at liberty to consider the question whether there was a misjoinder in this case, for the reason that even if there was, as it appeared on the face of the amended petition, that it could only be taken advantage of by a special demurrer, and as such demurrer was not filed, defendant thereby waived the objection under the provisions of sec. 5064 Rev. Stat., and could not afterwards properly raise the question by answer. This,it seems to us,is an altogether too strict construction of the statute, and directly opposed to the doctrine laid down in 17th Ohio St. 323. We think, then, that the point is properly raised in the pleadings themselves, and the question for decision is, whether the plaintiffs could properly join in the amended petition. If it was simply an action to foreclose the mortgage for the separate debts of the two plaintiffs, there seems to be some conflict in the authorities. But we understand that the decision of the Supreme Court of Indiana holds that it may be done. See 84 Ind. 301, 3 Blackford, 403. And the text writers seem to take the same view. See Pomeroy’s Remedies and Remedial Rights, sec. 225, Bliss on Code Pleadings, sec. 100, etc., and Jones on Mortgages, sec. 1367.

But as the amended petition sets up a claim for the reformation of the mortgage,and both plaintiffs were directly interested in having this done, we think they were entitled to join as plaintiffs as to this, and there was no misjoinder of plaintiffs.

After the judgment of May 12th, 1894, a motion for a new trial was duly filed by the defendant, stating as grounds those set out in the original petition in error, and the additional reason that the judgment was against the weight of the evidence. This motion was not disposed of when the original petition in error was filed, nor was it done until April 7th, 1896. This was nearly two years after the rendition of the decree complained of. Defendant excepted to the overruling of the motion,and in due time had a bill of exceptions allowed .containing all of the evidence with the rulings of the court as to the admission of evidence, and on August 20th, 1896, filed what is called a supplemental petition in error, asking a reversal of the judgment of May 12th, 1894, for the reasons assigned therein, for error in overruling the motion for a new trial and for receiving incompetent evidence at the trial.

A. Gr. Collins, for Plaintiff in Error.

Morrill & Jordan, for Defendants in Error.

We think, then, that plaintiffs in error can take nothing under this petition in error. It is clearly and explicitly held in the case of Young v. Sehallenberger, 58 O. S. 291, that the right or cause of the proceeding in error accrues at the time of the rendition of the judgment or making of the final order; and under sec. 6723, Rev. Stat., such proceedings must be commenced within six months from that time. If commenced thereafter, the court acquires no jurisdiction of the cause, and the petition should be dismissed, and that the overruling of a motion for a new trial is not a final order to which error can be prosecuted. The fact that the petition in error was filed two years before and within six months after the rendition of the judgment complained of, one of the grounds which, raised by the record, we have held not to be well taken, and the others of which were not presented (as was necessary) by a bill of exceptions, will not avail to enable the plaintiff in error, when a motion for a new trial has been overruled more than six months after the rendition of the judgment complained of, in effect to file a new petition in error, and raise questions settled by the judgment rendered more than six months before the filing of the supplemental petition in error. This supplemental petition and bill of exceptions will therefore be stricken from the docket, and the judgment of the common pleas affirmed.


author: Haynes, J.

text:
    (Sixth Circuit — Lucas Co., O., Circuit Court,
    Jan. Term, 1897.)
    Before Haynes, Scribner and King, JJ.
    STEAM CANAL BOAT TEMPEST v. BOARD OF COUNTY COMMISSIONERS OF LUCAS COUNTY.

      Watercraft — Canal boat damaging turn-bridge liable for damages.

    Where a canal boat which navigated the state canal negligently ran against and damaged a turn bridge, the property of the county commissioners, an action against the boat itself may be instituted both under sections 5888 and 7790, Revised Statutes, by the county commissioners. The remedies under these sections are-, cumulative.

      Same — Authority of commissioners to sue.

    Under sections 860 and 863, .Revised Statutes, the county commission- - ers have authority to bring such an action for such damages to a canal bridge, the property of the county.
    ‘ ‘Person’’1 as used in sec’s 863™and 5880 JR. S., includes board of county commissioners.

    The word “person,” as used in sections 863 and 5880, Revised Statutes, under the rules of interpretation laid down in sections 4947' and 4948, Revised Statutes, includes the Board of County Commissioners.
    Error to the Court of Common Pleas of Lucas county.
   Haynes, J.

This action is brought for the purpose of reversing the ■ judgment of the court of common pleas in an action wherein the county commissioners were plaintiffs and the boat by name was defendant. The plaintiff in its amended petition sets up the fact of the existence of the board of county commissioners, and the fact that there is a bridge in the - county of Lucas, across the Miami and Lake Erie canal, and that this is a bridge that is under the care and control of the county of Lucas, and belongs to said county; and it avers that the defendant boat, while navigating said canal, and when approaching the bridge, instead of opening the bridge in the usual and ordinary manner, it being a turn bridge, ran against it, and threw it off of is proper bearings, and injured it to quite an extent. And the plaintiff therefore prays damages, etc. The action came up for trial, re-suiting in a verdict in favor of plaintiff, and a judgment. Motion was made for a new trial, which was overruled, and thereupon this petition in error was filed to reverse the judgment which was rendered upon the verdict.

The contention of plaintiff in error is- confined to one or two points, and his first, and the main point which he has argued in this court, is, that the commissioners have no right to sue the canal boat by name. He claims, and with a’good show of authority in the form of decisions of the Supreme Court, that the Board of County Commissioners, while it is at least a quasi corporation, or if a corporation, is one that is limited, and can only maintain actions in that class of cases wherein it is authorized by statute; and he claims that there is no authority under the statutes of this state for the maintenance of this action against this canal boat by name. He discusses secs. 860 and 863 Rev. Stats. Sec. 860 provides that:

“The commissioners shall construct and keep in repair all necessary bridges over streams and public canals on all state and county roads, free turn-pikes, improved roads, and abandon turn-pikes and plank-roads, in common public use, except only in such cities and villages as, by law, have the right to demand and receive part of the bridge fund levied upon property within the same.”

It is conceded by both parties that this bridge is of the class named in this section of the statute; and is one of the bridges therein described.

Sec. 863 provides:

“Where a bridge on any state or county road,or any public building, the property of, or under the control or supervision of, any county, is injured or destroyed, or where any state or county road or public highway, has been injured or impaired by placing or continuing therein, without lawful authority, any obstruction, or by the changing of the line, filling up or digging out of the bed thereof, or in any maxrner rendering the same less convenient or useful than it had been previously, by any person or corporation, such person ■or corporation shall be subject to an action for damages; and the board of commissioners of the proper county is authorized to sue for and recover of such person or corporation so •causing, or having caused, such injury or impairment, such ■damages as have accrued by reason thereof, or such as are necessary to remove the obstruction or repair the injury, •and the money so recovered shall, when collected by the proper officer, be paid into the treasury of the proper county, and shall be appropriated by tbe commissioners thereof to repairing such bridge, building or road, or removing such ■obstruction, as the case'may be, or to reimburse the county for expenditure in that behalf.”

Defendant in error claims that the only right that the County Commissioners have to maintain this action is by virtue of this section of the statute, and that it must be limited to the cases and to the parties therein named; that inasmuch as it names and gives a right of action only against a corporation or a person who may injure a bridge, that that right cannot be enlarged by any constructions so as to include a canal boat by name. In that counsel is supported, we suppose, by a decision of the Supreme Court that is found in 7 Ohio Rep., part 1, page 232. Wo have read that and other eases very carefully, and we are inclined to the opinion that the contention of the plaintiff in error is true as applied to this case. We do not however fully agree with him in the doctrine as stated by him, to its full extent, It is sufficient that we think it applies to the present case; and it is sufficient that this statute gives to the County Commissioners the right to sue for this alleged injury. The only question is, whom may they sue. Two statutes seem to have reference to this, but I think only one was quoted. I will refer to them. The first is the watercraft law:

‘‘Sec. 5880. Any steamboat or other water-craft of twenty tons burden and upward, navigating the waters within or bordering upon this state, shall be liable, and such liability shall be a lien thereon, for all debts contracted on account thereof, by the master, owner, steward, consignee, or other agent, for materials, supplies or labor in the building, repairing, furnishing, or equipping of the same, or for insurance, or due for wharfage, and also for damages arising out of any contract for the transportation of goods or persons, for injuries done to persons or property by such craft, or for any damage or injury done by the captain, mate, or other officer thereof, or by any person under the order or sanction of either of them, to any person who is a passenger or hand on such steam-boat or other water-craft at the-time of the infliction of such damage or injury.”

It was suggested by way of argument that this being a bridge, appurtenant to the land, that an action would not lie against the boat for the injury to the bridge; but under this statute we have no doubt that the boat would be liable for any injuries that would be inflicted upon the bridge, or even upon other articles upon the land. I remember, myself, once bringing an action under this statute against a vessel in this city, in Swan Creek, for running into a lumber pile and breaking and injuring the lumber, and the action was sustained, and, I have no doubt, upon a full examination of the authorities then made, rightfully sustained.

Then there is another section that seems to bear upon this question:

‘‘Section 7790. If any person, in navigating or managing, or assisting in the navigation or management of any boat or other float, on either of the canals of this state, shall, through design or negligence, in the navigation or management thereof, fail or neglect to open or close any swing bridge crossing either of the said canals, or shall injure, in such navigation or management, any lock, lock gate, waste-gate, guard-gate bridge, aqueduct or other work or device appertaining to either of said canals, such person shall, for every such offense, forfeit and pay the sum of twenty-five dollars as a penalty for each offense, and every master,owner or part-owner of such boat or float, and also the boat or float itself, shall severally be liable for the payment of such penalties, and moreover be liable for the payment of all damages occasioned by such failure to open or close the said swing bridges, or by such mismanagement or negligence.”

In delivering his charge to the jury the learned judge below pointed that out as a statute upon which the action might be maintained. We think- it clearly maintainable under the other section, and if it is maintainable under this also, then this is simply cumulative.

The real question in the case is, whether the word “person”, as used in section 863, is broad enough to cover a canal boat, or this boat, under section 5880. Section 5880 is found in what is commonly known as the “code,"’ in part 3, title 1, of division 1. Part three commences with section 494-7, and goes on down to and includes section 6793. Section 5880 is fouud therein in a chapter entitled “Special Remedies.” Section 4947 provides that:

“In the interpretation of part third, unless the context shows that another sense was intended, the word ‘person’ includes a private corporation; ‘writing’ includes printing; ‘oath’ includes affirmation; ‘of unsound mind' includes every species of mental deficiency or derangement; ‘bond’ includes an undertaking; ‘and” may be read ‘or,’ and ‘or’ read ‘and,’ if the sense requires it; words in the present include a future tense, and in the masculine gender the female and neuter genders; and words in the plural include the singular, and in the singular include the plural number; but this enumeration shall not be construed to require a strict construction of other general words in this part.”

Section 4948 provides:

“The provisions of this part, and all proceedings under it, shall be liberally construed, in order’to promote its object, and assist the parties in obtaining justice; and the rule of the common law, that statutes in derogation thereof must be strictly construed, has no application to this part; but this section shall not be so construed as to require a liberal construction of provisions affecting personal liberty, relating to amercement, or of a penal nature. ”

In discussing these provisions of the statute, the Supreme Court, in Springfield v. Walker, 42 Ohio St., 543, held that the word “persons,” as used in section 5601, Revised Statutes, included a municipal corporation. That section reads as follows:

“All persons who have any controversy, except when the possession or title of real estate may come in question, may submit such controversy to the arbitrament or umpirage of any person or persons, to be mutually agreed upon by the parties, and they may make such submission a rule of any court of record in the state.”

The question that arose was whether a municipal corporation, such as the city of Springfleld, might take advantage of that statute and enter into an arbitration agreement with a bond, and it was contended that the word “persons” would not include a municipal corporation; but the court held that it would. They say:

“It is claimed that while the word ‘persons’ may include public corporations, yet the ‘persons’ who may have the benefits of an arbitration, are limited by section 4947 to private corporations, and that a municipal corporation is excluded by the use of the word ‘persons’ and the interpretation given to that word by section 4947, which provides: ‘In the interpretation of part three of this revision, unless the context shows that another sense was intended, the word ‘person’ includes a private corporation; and thus by implication the word ‘person’ exludes all public corporations. But see section 4948.”

Which I have just read; and having read that, the court held, under the provision of that statute, that the term “persons” included municipal corporations as well as private corporations.

The act commonly called the “ Watercraft Act, ” is one that was passed in this state for the purpose of enabling parties who held claims against a watercraft to proceed against it by name, holding the watercraft and the owner both liable; and it was to enable parties who have such a claim to have a speedy remedy, and that they might net be compelled to hunt up the owners, who may be non-residents of the state and not easily found, or it might be difficult to ascertain who the owners were. For that reason, for a certain class of claims and damages, the statute provides that the owner shall be liable, and his property, to-wit: the boat itself.

We think, after a very full discussion of this matter, that we are fairly within the strict line of the sections of the statute which I have read, and within the spirit and meaning of the rule that requires us to make a construction that shall enable the parties to have a remedy for the injuries which they have received, if we hold, as we do hold, that the word “person” in section 863 is sufficiently broad to include the the bringing of a suit by name against a boat that has committed the injury.

There was another question discussed here, as to whether there should be a keeper of the bridge on it at night. There was in fact a person appointed by the county commissioners, who had general charge of the bridge, to look after it and keep it in repair. The contention on the part of the plaintiff in error is that he was in the nature of a bridge tender, and that it was his duty to be'present at all times, and when a boat was about to pass the bridge, to have opened it. We find nothing in the record to show that there was any rule requiring that to be done. It seems that the Board of Public Works, in giving their consent to have the bridge thrown across the canal, made a regulation that there should be a man appointed generally to look after the bridge and keep it in repair; but that seemed to be the extent and limit of his duty. The boat was going through in the night, and the bridge tender was absent from the bridge. There was no principle of law requiring him to be present. The bridge was a self-acting bridge, and could be opened by pushing against it, and it was the intention that it should be opened in that way.

We are of the opinion that there is no error in this record, and the judgment of the court of common pleas will, therefore, be affirmed. Reasonable cause will be certified for filing the petition in error.


author: Adams, J.

text:
    (Fifth Circuit — Wayne Co., O., Circuit Court,
    Jan. Term, 1897.)
    Before Pomerene, Adams and Kibler, JJ.
    WILLIAM KEEHN v. THE CITY OF WOOSTER ET AL.

      Jurisdiction of Common Pleas — Amount of claim below $50.00,

    A party who is necessarily interested in the disposition of a case pending in the common pleas, may be made a party co defendant, although his claim does not amount to $50.00, and the court would therefore otherwise have no jurisdiction in his case.

      Refunding bonds — Insufficient recital as to purpose under section 2703, Revised Statutes.

    All municipal bonds issued under authority of Chapter 2,Div. 9,Title 12 Revised Statutes must, under section 2703 of that chapter, express upon their face the purpose for and the ordinance under which they are issued.

      Original bonds invalid, refunding bonds invalid also.

    Bonds issued by a municipal corporation in Ohio, under section 2701, Revised Statutes, which authorizes municipal councils to issue bonds for the purpose of extending the time of payment of other bonds formerly issued, are subject to the requirements of section 2703, and a recital on the face of such refunding bonds, that they were issued for the purpose of refunding and extending the time of payment of certain indebtedness of the city, and that such indebtedness was a legal and subsisting indebtedness of the city, is not sufficient under section 2703, Revised Statutes, and will not estop the city from asserting the illegal purpose for which the bonds were issued. And where the purpose for which the original bonds are issued was unconstitutional, (Wooster Railroad bonds), the refunding bonds are invalid.
    Appeal from the Court of Common Pleas of Wayne county.
   Adams, J.

The case of William Keebn against the City of Wooster et al. has been submitted to the court on a demurrer to the answer and cross-petition of the defendant, T. C. Cochran.

The original action between the plaintiff Keehn and the City of Wooster was a suit to enjoin the payment by the City of Wooster of interest on certain bonds to the amount of $76,000, issued by the city of Wooster, and at a former term the defendant Cochran was given leave to come in as a defendant, he claiming to be the holder of one of the coupons on this issue of bonds.

It is to his answer and cross-petition that this demurrer has been filed.

The demurrer was filed on two grounds: (1.) Want of jurisdiction, and (2), that the facts stated are insufficient to constitute a defense, or a cause of action in favor of the defendant Cochran.

It is conceded in the argument here that the original bonds, of which the bonds now in controversy are refunding bonds, were issued under an act of the legislature which was unconstitutional, because in contravention of section one (1), of article thirteen (13), and section six (6), of article eight (8), of the constitution. That is admitted on the argument; but it is claimed, and the facts are alleged in this answer and cross-petition, that Cochran was a purchaser in the open market of a single coupon from one of these refunding bonds, and that he stands in the position of an innocent purchaser, and that the city of Wooster is es-topped by the recitals of the ordinance authorizing the issue of these refunding bonds, and by the recitals of the bonds themselves, from asserting the illegality or unconstitutionally of these or of the original bonds.

The first ground of demurrer, that of want of jurisdiction, is based on the fact that Cochran claims to own one coupon only, of the amount of $30.00, and it is claimed that this is below the jurisdiction of the court of common pleas.

As to that, if the answ'er is otherwise good, we think that Cochran being a proper parly, and necessarily interested in the determination of the. legality of these bonds, would have tbe right to defend in this case, to prevent, if he may, the holding that these bonds are illegal and void, without regard to the amount that he claimed or owned. It is true that he might not be entitled to the relief he prays in this answer and cross-petition; that is, the affirmative relief; but so far as the amount is concerned, be would have the right to defend against a holding by this court declaring the bonds in which he is interested to be illegal.

These refunding bonds were issued under section 2701 of the Revised Statutes. It is claimed, in support of the demurrer, among other things, that the city council of Wooster, in the passage of the ordinance under which these refunding bonds were issued, and in the terms of the bonds themselves, did not comply with the terms of section 2703 of the Revised Statutes, which provides that all bonds issued under authority of that chapter (which includes 2701), shall express on their face the purpose for which they were issued, and under what ordinance.

It is claimed on the other hand, on behalf of Cochran, that the ordinance having recited that these bonds were issued for the purpose of refunding and extending the time of payment of certain indebtedness of the city of Wooster, and the bonds reciting that that indebtedness was a legal and subsisting indebtedness, the city of Wooster was es-topped by these recitals form asserting the illegal purpose for which the bonds, were issued.

Counsel for Cochran rely upon ' two cases, one found in 62 Federal Reporter, 778, the case of The National Insurance Co. of Montpelier v. The Board of Education of the City of Huron; but that case is distinguishable from the case at bar in this: there the bonds were issued under a statute which authorized the board of education to issue bonds and apply the money to the purchase of a school site or sites, and the bonds recited that they w'er© issued for that purpose. After they were issued and the money obtained, the money was used for an entirely different and an illegal purpose, and we think-the court very properly held that the holder of the bonds was not required to see that the money, the proceeds of the sale of the bonds, was properly and legally applied.

The other case that counsel relies on, is found in the 58 Federal Reporter, 935, The City of Cadillac v. Woonsocket Institute for Savings. The difference between that case and this is the difference between the statute of Michigan and our statute.

The statute of Michigan simply requires that the bonds shall show-the class of indebtedness to which they belong.

Our statute requires that the bonds shall express on their face the purpose for which they were issued. On page 939, the court distinguishes that case from the case of Barnett v. Dennison, 145 U. S., 135, as follows:

“That act conferring authority to issue the bonds in question in that case required that the bonds should show the purpose for which they were issued. This was held a reasonable requirement of the law. If the purpose stated was an authorized one, it gave him notice; if none was stated, then the purchaser took the risk of their being issued for an unauthorized purpose.
“Here there has been ' a substantial compliance, whether the requirement be regarded as mandatory or directory. The act should not be construed as requiring refunded bonds to show more than that they are refunded bonds.”

In the case at bar these bonds recite that they are issued for the purpose of refunding a legal and subsisting indebtedness of the City of Wooster.

The very natural inquiry, it seems to me, for any prudent man, would be: what indebtedness of the city of Wooster?

Now, it is apparent to this court that if these bonds had recited the purpose for which they were issued, the bonds would be illegal. They would be illegal and void on their face if they recited that they were bonds issued to refund these Wooster railroad bonds, or referred to the ordinance under which the Wooster railroad bonds were issued.

In the case of Barnett v. Dennison, 145 U. S., 135, above referred to, it is said, (Mr. Justice Brown announcing the pinion of the court):

“It is the settled doctrine of this court that municipal corporations are merely agents of the state government for local purposes, and possess only such powers as are expressly given, or implied because essential to carry into effect such as are expressly granted; 1 Dill Mun. Corp., section 89, Ottawa v. Carey, 108 U. S., 110; that the bonds of such corporations are void unless there be express or implied authority to issue them; Wells v. Supervisors, 102 U. S., 625; Clairborn County v. Brooks, 111 U. S., 400; Concord v. Robinson, 121 U. S., 165; Kelley v. Milan, 127 U. S., 139; that the provisions of the statute authorizing them must be strictly pursued; and that the purchaser or holder of such bonds is chargeable with notice of the requirements of the law under which they are issued. Ogden v. County of Davies, 102 U. S., 634; Marsh v. Fulton County, 10 Wall., 676; South Ottawa v. Perkins, 94 U. S., 260; Northern Bank v Porter Township, 110 U. S., 608; Hayes v. Holly Springs, 114 U. S., 120; Merchants’ Bank v. Bergen County, 115 U S., 384; Harshman v. Knox County, 122 U. S., 306; Coler v. Cleburne, 131 U. S., 162; Lake County v. Graham, 130 U. 5., 674.
“It is certainly a reasonable requirement that the bonds issued shall express upon their face the purpose for which they were issued. In any event, it was the requirement of which the purchaser was bound to take notice, and if it appeared upon their face that they were issued for an illegal purpose, they would be void. If they were issued without any purpose appearing at all upon their face, the purchaser took the risk of their being issued for an illegal purpose; and, if that proved to be the case, they are as'yoid in his hands as if he had received them with express notice of their illegality.”

Alfred J. Thomas and William F. Kean, for plaintiff.

M. L. Smyser and Wm. C. Yost, for City of Wooster.

Frederick A. Henry, for defendant, T. C. Cochran.

From the statement of the case, pp. 130-137, it appears that the bonds were issued under an prdinance dated August 9th, 1873, ‘for the purpose of redeeming the outstanding city scrip or any other indebtedness, and the improvement of the streets, as may be directed by the city council, ” as stated in the ordinance, but the bonds contained no other statement of the purpose of their issue than that they were issued by virtue of the ordinance of August 9th, 1873.

We think the reasoning and authority of that case justifies and requires the holding that these bonds do not comply with the provisions of section 2703, and that this answer and cross-petition is insufficient on the facts, and it is so held.

The demurrer is sustained, not as to the matter of want of jurisdiction, but on the other ground.


text:
    (First Circuit — Hamilton Co., O., Circuit Court--,
    Term, 1896.)
    Before Smith, Swing and Cox, JJ.
    WILLIAM BOSODI v. THE STATE OF OHIO.

      Bill of exceptions from J. P. — Duty of J. P. to transmit to clerk within ten days — On his failure, party not prejudiced.

    It is the duty, by law. of the Justice of Peace to transmit a bill of exceptions when by him allowed, within ten days with the papers of the case to the clerk of common pleas, but if he fails to do so,unless he has demanded his fees therefor and they are not paid, the person taking the bill is not prejudiced, by such failure, but may within the six months allowed for filing petition in error, do so, and with it file the bill of exceptions and other papers. Error to the Court of^Common Pleas of Hamilton county.
   Smith, J.

In the first of these two cases it is claimed that the court of common pleas erred in striking the bill of exceptions taken by the (plaintiff in error from the files. The case was this. Bosodi, the plaintiff in error, was charged before a justice of the peace in Cincinnati on an affidavit which set out that onjjthe 2nd day of July, 1894, he had sold one pint of an article of food which was adulterated in the following respects — it was sold under the name of lemonade, and w'as not lemonade. A trial was had in the case, and at the close of the testimony on thejpart of the State, the defendant asked or hisjdischarge on the ground that the State had not made out a case. The motion was overruled, and exception taken The defendant then offered his testimony, and when the evidence had been fully heard, the case was submitted to the jury, who returned a verdict finding him guilty as charged. A motion for a new trial was filed and overruled, and the defendants also made a motion to arrest the judgment, which was also overruled, and the defendant sentenced, to all of which he excepted, and the justice, under the provisions of the act of April 27, 1893 (90 Ohio Laws, 358), fixed the time for the presentation and signing of a bill of exceptionsjteujdays from the date of the overruling of the motion for a new trial, and it was duly and legally signed in proper time, viz., on August 24, 1894.

On the((5th^of October, 1894, the plaintiff in error filed in the court 'of common pleas his petition in error to reverse such judgment,"(andjwith it the transcript from the docket of the justice, the bill of exceptions and the original papers in the case. On the((20th of November, 1894, the defendant in error filed(a motion to strike the bill of exceptions from the files on the ground that the justice of the peace had notjtransmitted it to the clerk of said court within ten days from the date of its allowance by him, which was the fact. The court sustained the motion,and ordered the bill to be stricken from the files, to which action the proper exception was taken. Afterwards the judgment of the justice was affirmed by the court, and this petition in error is filed to reverse such judgment. Was the action of the court in striking from the files this bill of exceptions right? We think that it was not. It is true that the same section to which we have already referred, section 6565, vol. 90 O. L., p. 358, provides that the justice shall file the bill of exceptions when allowed, “with the papers in the case, and note such signing and filing in his docket,and transmit the same with the transcript of his docket and original papers within ten days from the date of signing to the clerk of the court of common pleas and by him filed and entered on his trial docket, as in other cases.' ’ But this is a duty imposed upon the justice by the law, and if he fails .to do this, unless he has aemanded his fees therefor and. they are not paid, the person taking the bill is not to be prejudiced thereby, but may, within the six months allowed for filing the petition in error, do so, and with it file the transcript, bill of exceptions and other papers. It is analogous to the case decided, when the court failed and refused to fix the amount of an appeal bond, on application by a party desiring it done, and where it was held that this did not bar the appeal, but that the party desiring to appeal, might give a bond in a reasonable or proper amount, and have his appeal. 1 Ohio St., 171; 38 Ohio St., 405.

So, too, it has been held that in cases where an appeal is in the interest of the trust, and in which case the statute imposes upon the clerk the duty of filing the papers in the appellate court within a fixed time, that a failure on his part " to do so will not deprive the party of his right, but the papers might be filed thereafter. The result of this holding is that the bill of exceptions is properly before us, and must be considered by us in the determination of the question whether the court of common pleas erred in affirming the judgment of the justice of the peace.

A. E. Moore, for Plaintiff in Error.

Prosecuting Attorney, contra.

In the further consideration of these cases they will be considered together, as practically the same questions, with a single exception, arise in each one. And we may say that many of the points of error relied upon by counsel for plaintiff as to what allegations are necessary in the affidavit to constitute the offense with which the defendant was charged, and the character and necessity of the proof required on the part of the Slate, are conclusively settled against him by the decisiou of the Supreme Court in the case of The State v. Kelly, 85 Law Bull., 115, and we are of the opinion that the trial court did not err in its rulings on the trial of the case. And furthermore, that the verdict in the one case, and the finding of the court in the other, were not so manifestly against the weight of the evidence as to justify us in reversing either on that ground. Both judgments will, therefore, be affirmed.


author: Swing, J.

text:
    (First Circuit — Hamilton Co., O., Circuit Court,
    Jan. Term, 1897.)
    Before Smith, Swing and Cox, JJ.
    ISAAC J. MILLER AND GUSTAV TAFEL, TRUSTEES, v. MICHAEL RYAN AND RICHARD RYAN.

      Appeal bond — Liability of sureties.

    Where the undertaking of the sureties on an appeal bond from the probate court is to abide the judgment of the appellate court, —in this instance the court of common pleas — but the judgment of the common pleas is reversed by the circuit court, and by consent of the parties — not the sureties — another and different judgment was entered by that court, there is no judgment of the common pleas, and the sureties on the appeal bond are not liable.

      Error to the Court of Common Pleas of Hamilton county.
    This was an action for recovery of $7,500 from the defendants on an appeal bond executed by John B..Mannix, assignee of J. B. and Edward Purcell. The appeal was from the judgment of the probate court, which was, June 2, 18S6, rendered against Mannix for $y05,827.70. The obligation of the bond was that “the said John B. Mannix shall abide the order, judgment or decree of the appellate court,” etc. The appeal was to the common pleas where the judgment was reduced to $285,227.58. The case was then taken on error to the circuit court where the judgment of the court of common pleas was reversed, and judgment rendered against Mannix for $189,975.83, which the Supreme Court affirmed. Then came the present suit on the appeal bond. The hearing below was before Judge Kumler, who sustained a demurrer to the answer.
   Swing, J.

We are of the opinion that this case comes within the rule laid down in the case of Meyers et al. v. Parker, 16 Ohio St., 501.

The liability of the sureties on the bund in this case was to abide the judgment of the appellate court, to-wit, the court of common pleas. There is no judgment of the court of common pleas; hence they are not liable.

The judgment of the court of common pleas was reversed by the circuit court, and by consent of the parties to the action — not the sureties — that court rendered another and different judgment. The sureties did not agree to be liable for the separate and distinct judgment of the circuit court, but they did agree to be liable for the satisfaction of the judgment of the court of common pleas.

When the judgment of the court of common pleas was reversed and held for naught, their obligation on that judgment ceased. The judgment of the court of common pleas is therefore affirmed.

S. A. Miller and Gustav Tafel, for Plaintiffs in Error.

Harmon, Colston, Goldsmith & Hoadly and Thos. Mo-Dong all, for Defendants in Error.


text:
    (First Circuit — Hamilton Co., Circuit Court
    January Term, 1897.)
    Before Smith, Swing and Cox. JJ.
    FERD L. MENTEL v. L. H. McCAMMON BROS. AND SAMUEL W. AMISS.
    Payment of money by argarnishee to one claiming- it in lieu of homestead by a defective, affidavit.*
    Error to the Court of Common Pleas of Hamilton county.
    L. H. McCammon Bros, sued Amiss before a magistrate, and garnisheed Fred. L. Men tel. The garnishee paid the money into court,and Amiss claimed homestead exemption. The magistrate turned the money over to him. On appeal to the common pleas, Amiss failed to appear, and judgment for the amount of the claim against him was given against the garnishee.
   Swing, J.

We are of the opinion that the record in this case fairly shows that the co-defendant, Amiss, brought himself within the provisions of section 5441, Revised Statutes. It is true that the affidavit of Amiss is carelessly drawn, and that it does not show definitelyjwhat amount of property he is the owner of. But we think it should be taken for granted that he is not the owner of $500 of personal property by an amount equal to the amount claimed herein, to-wit, $29.

Neither does the record show that Amiss in terms selected this particular property for his exemption under this section; and yet this is what he was undertaking to do, and while not accurately done, we think it should be held that he did so select this property.

Wm. Hartley Pugh, for McOammon Bros.

M. O. Lylcins, for Mentel.

The fact that the garnishee had paid the money into the justice’s court, who had paid the money over to Amiss pending the appeal (as being exempt from execution), does not affect the rights of the parties. It seems to us that the plaintiff below cannot be heard to say that because Amiss had received his money from the garnishee, he could no longer claim it as exempt. McCammon’s only right to have this money paid on the judgment was on the basis of its being the money of Amiss (who is indebted to McOammon). McOammon has no claim upon it; and if it is Amiss’ money, then he (Amiss) has the right to claim the exemption.

The court of common pleas having held a contrary view of the law, we think it was in error, and that its judgment should be reversed, and the cause remanded for further proceedings according to law.