text:
    CLOSING A PLANT TO REMOVE COMPETITION.
    [Circuit Court of Crawford County.]
    Carl D. Fisher et al v. The Flickinger Wheel Co. et al and Carl D. Fisher et al v. Adam Semones et al.
    Decided, March, 1906.

      Monopolies — Valentine Anti-trust Lato — Sale of Plant to Combination— Constructive Possession — Purpose in View — Consideration—Title— Executed Agreements — Limiting Production — Fixing Prices — Allotments of Business — “Leasing Down” Factories — •Vehicle Wheel Club an Illegal Combination. •
    1. An organization of manufacturers of a certain commodity which, by assessment of its members, raises a fund with which it “leases down” certain rival factories; and which allots the trade of such factories- among its own members, controls the output of its members’ factories, and the prices they may charge for the goods they manufacture, binding them not to sell to specified customers except by consent of its officers, is a combination in restraint of trade, and is illegal.

      2. A contract whereby such a combination, for a consideration of $66,000, purchases all the machinery of one of its constituent members, a corporation, and stipulates that such corporation shall not compete in business with any of its members, and provides em•iPloyment for the president of that corporation; it appearing further that such machinery was purchased without any plan for its location and use and has remained unused by the purchaser for eight months after its purchase, is a contract in restriction of trade, and is void.
    3. ’ Although the full consideration named in such contract has been paid, the contract does not thereby become an executed contract in the absence of an actual taking possession of such machinery by the purchaser. .
    4. Under such circumstances a court of equity will not aid the purchaser in obtaining possession as against the receivers of the selling corporation, nor will it aid the purchaser in enforcing the illegal contract as against the proceeds of the sale of the machinery. It will leave the parties where it found them.
    Hurin, J.; Norris, J., and Donnelly, J., concur.
   The original action out of which both of these proceedings in error grew was brought by Adam Semones to secure an accounting from the Flickinger Wheel Co., defendant; the plaintiff alleging in his petition that defendant company was insolvent and indebted to creditors in various sums aggregating $200,000, of which more than $69,000 were due plaintiff. Tie asked an accounting- and the appointment of receivers to take charge of defendant’s property for the benefit of creditors.

This petition was filed April 15, 1904, and on the same day Edward Flickinger, the president of the company,- and Daniel Bachelder were appointed as receivers, and gave bond and qualified. A. M. Snyder was afterwards substituted -for Daniel Bachelder as receiver.

These receivers caused the property of defendant company to be appraised and inventoried, and on June 17, 1904, they filed their report of the appraisement.

Afterwards, on June 21st, an intervening petition was by leave of court' filed by Carl D. Fisher, Charles Minshall, C. F. Ferguson, O. B. Banister and W. C. Durant, as trustees of a large number of wheel companies named in said intervening-petition.

In that petition it is alleged that these trustees were duly appointed by the companies named, about the 17th of August, 1903, for the express purpose of purchasing the personal property therein described and of taking title thereto and holding, controlling and disposing of said title and property for the use and benefit of the companies appointing them, and that they had ever since been acting as such trustees and were the owners of said property and in possession thereof until interferred with by the receivers previously referred to. The property so claimed and described consisted of certain machinery, tools, -and appliances located in the buildings previously occupied by defendant, the Flicking’er Wheel Co., and formerly used by said company in its business of manufacturing wheels.

Said intervening petition alleges that neither the Flickinger Wheel Co. nor the receivers have any right, title, or interest in .said property, but that, notwithstanding these facts, said receivers have wrongfully taken possession of s&id property and caused the same to be appraised as part of the assets of said receivership and have ever since wrongfully detained from said trustees the possession thereof and are threatening to and will, unless restrained by the court, cause said property to be sold and the proceeds applied to the payment of the debts of the Flickinger Wheel Co. Wherefore these trustees pray that the receivers may be restrained from proceeding with the sale of said property and ordered to surrender the same to the trustees.

An answer to this intervening petition, filed by the receivers, alleges that the wheel companies named by the intervening petitioners as those for whom they were acting as trustees, had, together with defendant, the Flickinger Wheel Co., entered into an illegal combination and conspiracy and had formed a trust, which trust was commonly known as the “Vehicle Wheel Club.” That said trust was formed in violation of the act of the General Assembly known as the Valentine Anti-trust Law and was created to carry out a restriction in trade and commerce in all kinds of vehicle wheels, to increase the price of such wheels and to prevent competition in their manufacture and sale.

It is further alleged that the contract of sale referred to in the intervening petition was entered into in order to carry out the purpose of said conspiracy, combination and trust, and especially to remove the Flickinger Wheel Company as a competitor of the organizations composing the Vehicle Wheel Club; that no part of said machinery has ever been delivered to said interveners, or to said trust or to their trustees, but that the same has ever since remained in the possession of the Flickinger Wheel Co. and of its receivers, and the answer avers that the whole of said contract so made is null and void under the provisions of the Valentine Law and is not enforceable in law or equity.

Wherefore, the receivers pray that said contract may be declared by the court to be absolutely null and in violation of said Valentine Law «nd that said machinery be decreed to be the property of the Flickinger Wheel Co. and ordered sold by the receivers for the benefit of the creditors of said company.

By reply the trustees deny these allegations of fraud and illegality of contract and deny that they have entered into any conspiracy or trust, and allege facts tending to explain and justify the transactions relating to the property here in dispute; and they further allege that sum of $66,000 paid by these defendants for said machinery was all applied upon the indebtedness of said Flickinger Wheel Co. for the benefit of the creditors of said company.

Notwithstanding the filing of the interveners’ petition and the subsequent pleadings relating thereto, the common pleas court proceeded to order a sale of the property in question and, over the protest of these interveners, confirmed the sale.

' To this action of the court the intervening trustees prosecuted error to this court; but this court, at a former term, postponed a decision of the case as thus presented and, while said action was pending in this court, the case was heard on its merits in the court of common pleas on the issues raised by the interveners’ petition and that court on a full hearing, finding against the claims of the interveners, and that the companies represented by them had combined for an illegal purpose in contravention of the anti-trust laws of the state, that said combination was unlawful, and that there was no sale and delivery of the machinery of the Flickinger Wheel Co. to the Vehicle Club, and that the possession thereof had remained in the Flickinger Wheel Co. and its receivers, said interveners again prosecute error to this court, and both bills of exceptions and the proceedings connected therewith are now before us for review and will be considered together.

In their oral argument of this case counsel for the interveners contend—

1st. That, on the evidence presented, the title and possession of the disputed machinery was in the trustees at the time the said suit was brought.

2d. That though that title and possession were disputed, the common pleas court had no right to order a s^e of said property until that title and possession were judicially settled.

3d. That to deny them the right to their property and to relegate them to the proceeds of the sale thereof, should the title of said property be finally determined to" be in them; would be a denial of justice.

4th. That there was no illegality about the organization of the so-called Yehicle Wheel Club; that it was not a trust, nor a combination in restraint of trade and hence that its acts and particularly the purchase of the machinery in question were wholly legal and should be upheld.

5th. That, whether such combination and such purchase were in themselves illegal or not, makes no difference in law, for the reason that such purchase is now an executed agreement; that at the time of the filing of the petition a full and adequate consideration had actually been paid for said property by its purchasers, the trustees; that they were in actual possession of said property under said purchase and that, therefore, their possession can not now be legally disturbed.

6th. That as there is no claim made that the Flickinger Wheel Co. was insolvent at the time of the purchase of the machinery; as the price paid was fair and adequate; and as no offer is now made to 'restore the price then paid for that machinery; the defendants ought not to be allowed by a court of equity to hold both the $66,000 paid them and the machinery for which it was paid.

We have read with care the bill of exceptions in this case and from its evidence thus presented we find the following facts relevant to the issues, viz:

That for about two years prior to the month of August, 1903, representatives of certain corporations and firms engaged in the manufacture of wood wheels for vehicles, had been in the habit of meeting together and had organized for “social intercourse,” as was claimed, and for the discussion of matters pertaining to the business in which they were all engaged; that their organization was known as the Yehicle Wheel Club and com-' prised most of the firms or -corporations engaged in that line of business, including all in Ohio but two, and a like proportion in Indiana and Michigan, and perhaps other states. That these meetings were held in various cities at stated times, sometimes in Chicago, sometimes in Indianapolis and again at Niagara Falls, and at' Gallon, Detroit,'Dayton and elsewhere, the meetings being held as often as once a month.

The secretary of the organization testifies that he does not know the objects of the association, that it did not deal in anything nor do any business at all as a club, but that at their meetings they discussed the prices that ought to prevail in their business and endeavored to secure uniformity of prices; that they assessed each member of the club for expenses at rates amounting to ten cents or-fifteen cents per set on all wheels manufactured — a sum which we find would amount to' many thousands of dollars each year, as in St. Louis alone over 100,000 sets of wheels are sold each year by the members of this club.

It further appears from the evidence that this club exerted its influence toward uniformity of prices and, through its officers, induced a large majority of its members to agree not to increase their plants or to enlarge their facilities and this with the expressed purpose of- limiting the production of wheels; that said club was in the habit of allotting to its members the portions of the trade of their districts to which each was supposed to be entitled and did attempt to so allot and divide up the business of the Flickinger Wheel Co. after it agreed to cease doing business; and that in fact the business of all its members were subject to -such allottment; that, by agreement, all the members of said club also bound themselves, at least on one occasion, not to deal with a certain corporation engaged in the buggy business nor to execute any orders received from it except under instructions from the president of the Vehicle Wheel Club, Edward F. Flickinger; that the sale of all the product of the several factories of the members of the club, was placed, under the control of a committee appointed by the club and that ’.the prices to be secured for such product were to be determined and controlled, not by the individual manufacturer, but by the club and its officers, and that no member could make a contract at less than, the association price without first consulting the president and advisory committee.

As shown by the club’s minutes, arrangements were likewise made whereby all members agreed that in dealing with jobbers all members should quote prices from a particular schedule of prices, excepting that particular member to whom a particular jobber had been alloted, and he was to quote prices from another schedule; but that this method of doing business was by agreement to be carefully concealed from the trade generally. Arrangements were likewise made for the “leasing down” by the club of certain competing factories and the allotment of their business among the members of the club— the money needed for the purpose to be raised by an additional assessment of fifteen cents per set of wheels upon all the product of the factories represented in the club.

It further appears from the evidence that, about the 17th day of August, 1903, the plant of the Flickinger Wheel Company, including its machinery, tools and appliances, but not including its real.estate, were purchased by the Vehicle Wheel Club, and the title so acquired placed in the names and under the control of certain trustees, the interveners in this action; that the price paid was $66,000, which was paid in full by the Vehicle Wheel Club to the Flickinger Wheel Company, which in turn executed and delivered a formal and complete bill of sale of the property; that by the terms of the contract of purchase, said Flickinger Wheel 'Co. was to be allowed to operate said plant for about 60 days in order to work up the stock on hand, and the machinery, etc., so sold was to be under the control of Edward Flickinger, who was at the time president both of the Flickinger Wheel Co. and of the Vehicle Wheel Club, but that his possession was agreed to be that,of the Vehicle Wheel Club, the purchasers; that previous to said purchase the machinery had been duly appraised by the American Appraising Company at $64,000, and that by the terms of the agreement $6,000 of the $66,000 paid was to be applied as rental on the buildings in which the property purchased was to be stored for the period of three years at $2,000 per year.

It further appears from the evidence that none of this property was ever moved away by the purchasers nor any manual possession taken of it by them except that it was inspected and handled by the trustees, and perhaps other members of the * 6 Vehicle Wheel Club, and plans discussed for its final disposition; and that after the appointment of receivers in this case the property was, by the consent of Edward Flickinger, at that time one of the receivers, tagged as the property of the Vehicle Wheel Club or its trustees; but was afterwards by order of court sold by the receivers and the proceeds are now subject to distribution by the court. It appears also that before said Flickinger would permit said property to be tagged, he demanded and received from the trustees a sum of money exceeding $700, which he claimed to be due him personally but for which no demand had ever before been made.

It finally appears by the evidence that under the contract of sale of'said plant, the good will of the Flickinger Wheel Co. was'included; and that, as a part of the agreement, said company was to retire from business and not engage in the manufacture of wood vehicle wheels for the period of five years at any point west of New York City and east of Denver, Colorado, in competition with the members of the Vehicle Wheel Club.

Under the facts thus found we have no hesitation in finding that the organization known as the Vehicle Wheel Club was an illegal combination or trust.

Section 4427-1 of Revised Statutes, declares that “a trust is a combination of capital, skill or acts, by two oi; more persons, firms, partnerships, corporations or associations of persons, or of any two or more of them for either, any or all of the following purposes—

1. To create or carry out restrictions in trade or commerce.

2. To limit or reduce the production, or increase, or reduce the price of merchandise’ or any commodity.

3. To prevent competition in manufacturing, making, transportation, sale, or purchase of merchandise, produce or any commodity.

4. To fix at any standard or figures, whereby its price to the public or consumer shall be in any manner controlled or established, any article or commodity of merchandise, produce or commerce intended for sale, barter, use or consumption in this state.

5. To make or enter into or execute or carry out any contracts, obligations or agreements of any kind or description, by which they shall bind or have bound themselves not to sell, dispose of or transport any article or any commodity or any article of trade, use, merchandise, commerce or consumption below a common standard figure or fixed value, or by which they shall agree in any manner to keep the price of such article, commodity or transportation at a fixed or graduated figure or by which they shall in any manner establish or settle the price of any article, commodity or transportation between them or themselves and others, so as to directly or indirectly preclude a free and unrestricted competition among themselves, or any purchasers or consumers in the sale or transportation of any such article or commodity or by which they shall agree to pool, combine or directly or indirectly unite any interests that they may have connected with the sale or transportation of any such article or commodity, that its price might in any manner be affected.’ Every such trust as is defined herein is declared to be unlawful, against public policy and void.

The mere reading of this statute in connection with the facts as previously found suffices to establish the illegality of this association known as the Vehicle Wheel Club. Each one of the five clauses of the act is distinctly violated.

Although its innocent secretary does not know to this day what the objects of the club were, beyond mere social intercourse, it must be apparent to every one else that its main object was to control the trade in wheels — to create or carry out restrictions in the trade or commerce in wheels — the thing forbidden by the first clause of this act.- Why else was it engaged in “leasing down” rival factories and allotting the business of those factories among its members? Why was it fixing the prices at which its members could sell the product of their own factories? Why did they bind themselves not to sell to particular customers without the consent of their president and advisory committee?

In the same way each separate one of the five clauses of the act will be found to apply to some one or more of the acts or practices shown by the minutes of this club to have been clone with the club’s approval.

That the Vehicle Wheel Club as thus organized and conducted was in violation of the statute is clear. But independent of any statute, the illegality of such an organization would be equally evident. It’s whole purpose, its every object, was iu violation of the common law. An organization of such a nature is illegal, because it is contrary to public policy, a menace to public safety, a constant threat against the rights of independent producers and of the public generally.

If any authority were needed in support of this proposition the case of United States v. Addyston Pipe Co., 85 Fed., 271; 46 L. R. A., 122, clearly establishes the illegality of such organization under the common law, whether in violation of statutory law or not.

But whatever may have been the legal status of the Vehicle Wheel Club, the important question in this case is the character of the contract made between the Vehicle Wheel Club and the Flickinger Wheel Co. Was that contract illegal and void? Or is it enforceable?

Section 4427-8, being a part of the same act relating to trusts, provides that “any contract or agreement in violation of the provisions of this act, shall be absolutely void and not enforceable either in law or equity.”

Unless this statute can be restricted in its application to the mere agreement to form a trust, which does not seem to us to be its intended limitation, it must be held to apply to contracts made with intent to carry out the illegal purposes defined by the statute.

Was this such a contract? There is no claim of fraud as to the value paid for the property. It is not denied that the full value and perhaps much more than the full value was actually paid in money.- Indeed the same property was afterwards sold by the receivers for about one-eighth of the price previously paid by the Vehicle Wheel Club and this, too, at a competitive sale at which about forty bidders were present.

■ That the purchaser at that sale shortly afterwards sold the same property to a corporation, of which Edward Flickinger and Ms son are active members and officers, for about the same consideration, does not help the matter.

We find that a full and fair consideration was paid by the Vehicle Wheel Club for the machinery, etc., in question.

But we are given to understand by the secretary that this was the only property ever actually owned by the club and that after its purchase nothing was done with it, except to discuss plans for dividing it up or moving it to St. Louis, none of which plans were ever definitely acted upon.

This is not the usual course which business men pursue in making so large a purchase. In such cases a definite purpose or intention to use the thing purchased is always present and in view of the record of this club as revealed by its minutes, and especially in view of the express and minute stipulations of the contract of sale, whereby the Flickinger Wheel Có. agrees to remain out of business — as far as concerns the manufacturing of wheels in competition with the members of the Vehicle Club, and in view also of the stipulations of that contract as to the employment of Edward Flickinger by the Vehicle Wheel Club, we are irresistably drawn to the conclusion that the main object of the purchase was the restriction of competition — the putting of this plant and its president out of business as a competitor of the other plants represented in the club.

Clearly then the contract comes within the inhibition of the statute and, consequently, is illegal and void and not enforceable (see Nutter v. Aumon, 145 U. S., 421, and McMilhen v. Hoffman, 174 U. S., 639. See again United States v. Addyston Pipe & Steel Co., 85 Fed., 271).

But it is claimed and ably argued that, inasmuch as this contract has been fully executed, its illegality can- not be questioned by the receivers in this case; that the receivers stand in the same position exactly as the Flickinger Wheel Co.; that that company has received its pay in full for this plant — perhaps far more than the real value of the plant to-day; that presumably the $66,000 paid has been applied toward the pay.ment of the creditors of the concern and that this being so, the receivers who represent those creditors can not again demand, or be allowed to receive, a second payment for the same property. That Edward Flielringer having, .as president of the Flickinger Wheel Co., received $66,000 for its plant, and delivered possession of it to the purchaser, can not now, as receiver for that company, ask, in good faith, this court to require the purchaser to give up its property, without at the same time tendering to it a return of the money so paid. That for this court to lend its authority to such a course would be to support a fraud and encourage flagrant violations of good faith.

There is much to be said in favor of this view. We are not deeply impressed with the righteousness of this transaction in any of its stages or with the virtue displayed by any of the participants in it. Nor is there any lack of authority for the position thus taken. We are cited to the case of Thomas v. Cronise, 16 0., 54, an early Ohio ease where the Supreme CouH laid down the rule thus:

“It is a universal principle, both in law and equity, that where an agreement is founded upon a consideration illegal, immoral, or against public policy, a court will leave the parties where it finds them. If executed, the court will not rescind it; if executory, the court will not aid in its execution. ’ ’

To the same effect are Hooker v. Palos, 28 O. S., 251; Kahn v. Walton, 46 O. S., 207; Emery v. The Ohio Candle Co., 47 O. S., 320; Buchannan Bridge Co. v. Campbell, 60 O. S., 406.

The • question thus becomes all important whether this contract was an executed or an executory contract. '

That the full consideration agreed upon was paid is not denied; that the machinery was formally sold and a bill of sale delivered, are equally true; that the machinery was treated as delivered by the parties to the contract as between themselves is a fact unquestioned.

The Vehicle Wheel Club met at Gabon, inspected the machinery, talked of it among themselves as delivered, handled it, discussed its future disposition and finally, but after the receiver had been appointed, tagged it.

For two months it was used by the seller to work up the stock on hand — this by agreement of the parties. For nearly six months more it apparently was allowed to remain idle and the only watchman is said by the younger Flickinger to have been one employed by his father. There was no attempt made' by the purchaser to use it or control it, or dispose of it or remove it. Under the agreement no such attempt was necessary— the purchaser, had paid three years’ rent in advance for the storage of this machinery in the buildings in which it was located.

Some evidence was offered and we think properly rejected by the court to the effect that this property was advertised for sale by the trustees, and notice sent to Edward Flickinger. But this evidence, even if admitted, would not show actual, open possession. As between the parties, and especially if the transaction itself had been a legal one, such constructive possession would unquestionably have been upheld as a delivery. Edward Flickinger in all his intercourse with the trustees treated the property as theirs.

But in this case third parties’ interests are involved, creditors have commenced suit and caused receivers to be appointed; possibly some of these creditors gave credit to the Flickinger Wheel Co. on the strength of the apparent ownership of this machinery by the Flickinger Wheel Co. after it was in reality sold; as to this we are not advised. But at any rate, the machinery was allowed to remain in its place, much of it imbedded in concrete, or bolted to the floors, for eight months after its sale, with no apparent change of ownership. so far as third parties could see; part of that time openly used as before, by its'former owners, apparently still its owners, and no attempt was made- by the purchasers, until after the receivers were appointed, to show to the world their title or possession.

All this, together with the illegal character of the transaction itself, goes far toward overcoming any presumption raised by a, constructive taking possession such as is claimed to have occurred, and in our opinion the proofs of possession taken are not sufficient under the circumstances to justify us in holding this to have been an executed contract. Those purchasers were in a position, as far as third parties were concerned, where they could either gffirm or deny their ownership, as might seem best to them; and, having taken that position, a court of equity in view of the illegal character of the transaction will leave them where it finds them.

If we are right in the view we have taken as to the possession of this property not being complete in the intervening trustees, then the authority cited by them, and relied upon, viz., the case of Kahn, Jr., v. Walton, 46 O. S., 195, is in reality strongly in favor of the action taken by the common pleas court. Indeed all the eases cited by counsel for the interveners are strongly against them unless we are prepared to concede a full and complete possession by them of the machinery in question and this, too, legally and in good faith. This we can not do.

What constitutes a complete delivery of personal property is not easily determined; no uniform rule can apply to all cases. Much depends on the nature of the property, the usages of the trade in relation thereto, its location, its moveability, whether or not it is attached to realty and, if so, how it is attached. The question as to the good faith of its acquisition often becomes material and, as in the case at bar, the legality of its transfer. A transfer of possession, sufficient as between the parties, is often wholly insufficient as against the claims of third parties. And so the authorities cited by counsel for interveners, while applicable to transfers of personal property of a moveable character transferred in good faith and with sufficient publicity to satisfy the conditions of the cases in which they were questioned, are none, of them satisfactory as authority in view of the conditions prevailing in this case. The rule, for instance, expressed in the case of Newall v. Lang don, 39 O. S., 87, as applicable to the sale of flour stored in a railroad ’depot, depended on a usage of the business and can have no applicability to the case at bar.

Much stress is laid Ijy counsel for the interveners upon the fact that, before the receivers took possession of this property, it was tagged by the order of the trustees as their property. It may well be questioned whether such tagging by permission of a receiver after he had assumed the duties of the receivership and apparently without the knowledge of his associate receiver, and especially in view of the relations which had existed between the receiver who so permitted the tagging and the parties whose interests were to be preserved by the tagging, could add much weight to the claim of possession. Nor does the fact that before he would permit such tagging he demanded and received a personal payment to himself of over $700 for claims which apparently had never before been heard of, add weight to the claim of possession thus acquired.

In the opinion of this court then, the proofs have wholly .failed to establish such complete possession of this plant by the trustees as is necessary to support their claim that the contract is an executed contract. All of the rights of the intervening trustees depend upon this claim. To support their alleged right to the property in dispute, they are obliged first to prove a contract of sale — which we have found to be an illegal contract —and secondly, the execution of that contract by a taking of possession, which we have found to have been incomplete and insufficient to pass title as against third parties.

As they themselves admit, it must follow that a court of equity will leave them where it found them. This is the universally accepted rule. Were any authorities needed in addition to the Ohio authorities previously cited in this opinion we need only to refer to the case of McMullen v. Hoffman, 174 U. S., 639, 654, where it was said by Justice Pecbham:

“The authorities from the earliest time to the present unanimously hold that no court will lend its assistance in any way toward carrying out the terms of an illegal contract. In case any action is brought in which it is necessary to prove the illegal contract in order to maintain the action, courts will not enforce it, nor will they enforce any alleged rights directly springing from such contract. In cases of this kind the maxim is ‘Potior est conditio clefendentis.’ ”

How then does this rule leave the interveners?

We have found that the contract of purchase of this machinery, on which contract alone they base their claim for it, was an illegal- contract. We have found that they were not in actual possession of this machinery at the time the receivers were appointed or at the time when the receivers took possession of it. If they were not in possession of it, the machinery must be held to have been in the possession of the Flickinger Wheel Co. In that position the court found the parties. It must leave them just there. It can not aid them in securing possession nor in preventing the receivers from obtaining possession, nor after the receivers have obtained possession, can it aid them in enforcing their illegal contract as against the proceeds of the sale of the machinery. Their organization was illegal; their contract was void; their possession was never an actual possession.

Van Deman, Burkhart c& Shea and Herron, Galch, Herron & Davis, for plaintiffs.

T. E. Powell, T. J. Keating, John F. Wilson, for defendants.

It follows that in this case at bar they have no standing. If this apparently works a hardship upon them, it is only the result of their own violation of the law.' If, on the other hand it is true, as seems possible, that the price paid, ostensibly for the plant, was in fact paid principally or wholly for the purpose of removing a competitor in violation of law1, they have secured what they sought to secure.

If the view we have thus taken is correct, it follows that the court of common pleas did not err in ordering the receivers to appraise and sell this property, or in confirming that sale, nor did it err in finding that said Vehicle Wheel Co. was an illegal combination, and that the terms of the contract of sale of said machinery, etc., are in restraint of trade and in direct contravention of the anti-trust statutes of the state of Ohio, and, as such, are against public policy and void and can not be enforced.

Finding no other error, the judgment of the court of common pleas will be affirmed with costs. Judgment against the interveners for costs, execution awarded and cause remanded for execution.


source: Caselaw Access Project

license: Public Domain

text:
    THE LAW OF NEGLIGENCE.
    [Circuit Court of Summit County.]
    The Northern Ohio Traction Company v. Waite L. Drown.
    Decided, September 30, 1905.

      Negligence — Liability for an Injury — Where Plaintiff was Guilty of Contributory Negligence — But Defendant might have Avoided, the Accident — Evidence as to Speed of Traction Car — Charge of Court.

    1. An opinion as to the speed at which an electric car is being run is competent when expressed by. one who resides where he sees such cars in operation daily and often rides upon them, notwithstanding he has no experience in their operation. Such an opinion should be allowed to go to the jury'for what it is worth.
    2. It is not now the law of Ohio, if it ever was, that a railway company is liable for the injury of one was was guilty of contributory negligence, but whose peril was or might have been seen by the engineer or motorman in time to ¡Have prevented the accident.
    3. Where the evidence, in a suit for damages for injury to a team and carriage which had been struck by a street car, goes to show that the team was being driven parallel with the track and in the same direction the cars run, and to avoid another team which stood in the way was compelled to turn upon the track, when it was struck by a car coming up behind and running very rapidly, it is not error to refuse to direct a verdict for the defendant on the ground of negligence by the driver of the team.
    Marvin, J.; Winch, J., and Henry, J., concur.
    Error to tbe court of common pleas.
   On the 22d of October, 1902, at about 6:30 o’clock p. m., one Henry A. Hardy was driving a span of horses harnessed to a top buggy, all being the property of the defendant in error. The team was being driven to the south on Main street in the city of Akron. A car of the plaintiff in error was being run upon its tracks in the same direction from the north, the team being further south than the car. There was a loaded wagon standing on the west side of Main street with a span of horses attached to it and the team hitched to a post. In order to drive to the south on the west side, which would be the right-hand side in going to the south, and pass this team thus hitched to the post, it would be necessary to turn so far to the east, or to the left, as that a buggy thus turning would be in the path of the car which was coming from the north. Not far from where this team was hitched on the west side of the street the ear struck the turnout which was being driven by Hardy and damaged it. The owner of that turnout, Drown, sued the traction company and recovered a judgment which it is sought here to have reversed.

Many errors are complained of, and the first to which attention is called is an exception taken by plaintiff in error to a ruling on a question of evidence, found on page 26 of the bill of exceptions, when one Fred Zindel was testifying. Zindel said, being asked as to the speed of the car, that it was going about as fast as he ever saw a car go. It was asked to have that answer excluded. The court overruled the motion to exclude, but, if there was any error in that it was entirely cured, as shown by page 103 of the bill of exceptions, when Judge Anderson, who was trying this case for the plaintiff below, stated to the cofirt that he had become somewhat doubtful as to whether he had a right to have that answer given by Zindel on page 26 remain, and he asked to have it taken from the jury. For some reason, counsel for the defendant below objected to its being taken from the jury, but the court left it with the jury because the defendant below insisted that the witness having once said it and the court having once ruled upon it, it could not now be taken from the jury.

Fred Hanselman was a witness introduced on the part of plaintiff below, and he was permitted to testify over the objection of the defendant that he thought the car was going at about twenty-five miles an hour. It is said that he had not qualified as one able to express an opinion on the subject. He had testified that he resided in Akron, that he often rode on street cars, that he saw them daily in their operation in the city, but he had never been engaged in operating street cars. We think there was no error in permitting that evidence to go to the jury. It would be very difficult to get at what kind of knowledge one must have as to the rapidity with which horses are driven, or street ears are moved, or automobiles go, if you have got to have always a man who is so much of an expert that he has timed these various things. We think that opinion thus expressed was properly permitted to stand, the jury to weigh what it was worth. The same question is raised upon the testimony of other witnesses. Zindel saw a cloud of dust which he says was caused by the rapidity with which the street car was moving, and it is urged that it was error to allow that to go to the jury. We suppose that if one saw a span of horses being driven along the road and a great cloud of dust raised around the feet of those horses, that he might testify to that fact, and let the inference be whatever it might as to whether it was caused because the horses were stumblers or because they were going fast. There was no error in the admission of this evidence.

It was urged that at the close of the evidence introduced on the part of the plaintiff below the jury should have been directed, as the court was asked to do by motion, to return a verdict for the defendant, because it is said that the evidence introduced ou behalf of the plaintiff below showed such negligence on the part of the agent of the plaintiff below who had charge of the team as to prevent a recovery. We think there was no error in refusing to take the case from the jury. •

It is said whenoall the evidence was introduced and a verdict had been returned, that the motion for a new trial should have been sustained for the reason that all of the evidence taken together was such as did not sustain the verdict. We do not think that the evidence was such that, as a matter of law, the court could say the judgment is erroneous. We find no error in the overruling of"the motion for a new trial on that ground.

The court was asked to give in charge to the jury certain propositions of law. Two of these requests were as follows:

“ (3). If the jury find from the evidence that the plaintiff, through his agent, Hardy, and the defendant, were both negligent, and that the negligence of both directly contributed .to cause the injury complained of in plaintiff’s petition, then your verdict should be for the defendant, and
“ (4). If the jury find that the negligence of both plaintiff’s agent and the defendant combined so as to directly cause the injury complained'of by plaintiff, then your verdict should be for the defendant.”

Both, of these were refused. They were refused upon the idea in the mind of the court that the plaintiff would not be precluded from a recovery, though he was negligent, if the defendant might, by the exercise of ordinary care, have known of the peril in which the plaintiff below was placed and might have prevented the injury. If that is the law, then the court was right in refusing those requests and was right in giving to the jury what is found in the charge on- the same subject. The court might well suppose from some of the holdings, both of this court and of the Supreme Court, as we think, that he was entirely justified in refusing those requests and giving the charge given. In the case of The Lake Shore & Michigan Southern R. R. v. August E. Schade, Administrator, 15 C. C., 424, it is distinctly stated in an opinion by Judge Caldwell, speaking on behalf of this court, that if the engineer of a railroad train knew, or, by the exercise of ordinary care, might have known of the perilous position in which Schade, decedent, was placed and could have avoided the injury, although the party killed was negligent in getting into the position which he did, still the railroad company would be liable; and that case was affirmed without report by the Supreme Court in 57 O. S., 650. This court, believing that it might safely act upon the affirmance of that, held the same proposition in the case of The Lake Shore & Michigan Southern R. R. v. Ehlert, 19 C. C., 177, but the Supreme Court reversed that case,, 63 O. S., 320. It seemed to us that the propositions were exactly the same, and we were left, as it seems to us, the bar of the state must have been in great doubt as to what the rule'was in Ohio. But later there came the case of The Erie Railroad Company v. McCormick, 69 O. S., 45. In that case it is said by Judge Shauek, in his opinion at page 55—

“By introducing into the instruction given the phrase, ‘if the engineer in charge of the train ought, by the exercise of ordinary care, to have seen the deceased in his perilous position,’ and by other expressions in the charge involving the same question, the court gave to the jury an erroneous view of the law. ’ ’

The McCormick case, as it will be remembered, 'went up from this court (3 C. C. — N. S., 652) and this court was reversed, having sustained that charge. McCormick was not a trespasser, nor was Schade, nor was Ehlert. McCormick was an employe of the railroad company, and yet the court say because that language was used in the charge there was error. That being the last expression of the Supreme Court on the subject it seems to us that the court has distinctly' held that the doctrine announced in the Schade case is no longer, if it ever was, the law in Ohio, and it will not do to say that one operating a railroad train, or a street cau, is to be held liable for an injury resulting from negligence on the part of him who operates the train, or the car, providing the party injured is himself guilty of negligence and that, negligence must not be attributed to the railroad company, or the operators of the electric- car, because of the fact that they failed to see him when by the exercise of ordinary care they might have seen him in a perilous position in which the party injured had placed himself.

Rogers, Rowley & Bradley, for plaintiff in error.

A. J. Wilhelm and Geo. M. Anderson, for defendant in error.

Understanding this to be now the settled law of Ohio, judgment must be reversed for error in refusing to give those two requests, and for giving what is found on page 165 of the record. The language used in the charge might not, as an abstract proposition of law, be objectionable because it is qualified by this language: and if he recklessly, wantonly,- etc., ran down the party injured, but as there was no claim, and nothing could be claimed from the evidence, that there was any recklessness or wantonness, if the motorman didn’t know the man was upon the track, then it had no application, and if it had any application at all it was calculated to mislead by giving the jury the idea that-there was something of wantonness, which does not appear;

For the errors mentioned judgment will be reversed, and for no other.


text:
    POSSESSION UNDER. A TAX DEED.
    [Circuit Court of Hamilton County.]
    The Marmet-Halm Coal & Coke Company v. The Cincinnati, Lawrenceburg & Aurora Electric Street Railroad Company.
    Decided, March 10, 1906.

      Taos Titles — Uncertain Description in — Section 4114 Unconstitutional— Adverse Possession — Conclusive Proof of — The Law of Evidence.

    1. Where the description in a tax deed is so indefinite as to make it impossible to locate the land, the holder of the deed can not bring to his aid a plat in the auditor’s office to which no reference is made in the deed, and such a deed is void for want of certainty.
    2. The evidence in this case establishes that the plaintiffs at the time they acquired title had knowledge of the previous tax sale and payment of the tax, which under Section 4114 is conclusive proof of adverse possession on the part of the defendants.
    3. But the provision of Section 4114, as to what shall constitute conclusive proof of possession, is an unconstitutional confiscation of property, and without the aid of this section the defendants’ claim of title by adverse possession fails.
    Gifeen, J.; Jelke, P. J., and Swing, J., concur.
   The plaintiff seeks to quiet title to three and sixty-four hundredths acres of land in Miami township, Hamilton county, Ohio, being the south part of lot No. 13 as designated on the plat of subdivision made in partition proceedings among the heirs of Anna H. Taylor, deceased, the entire lot containing nine and fourteen hundredths acres. The plaintiff shows title by deed and possession of the land.

The defendant offers in evidence a tax deed dated July 27, 1882, executed in pursuance of a forfeited land sale had in 1877, from which time it claims to have been in adverse posssession. The objection to the deed is that the description was so uncertain and indefinite that the land could not be found. It is as follows:

“Situate in said county of Hamilton, and described as follows, to-wit: Part lot 13, 3 64-100 acres. Taylor’s heirs. Value, $600. North Bend, Miami township.”

The description on the tax duplicate is as follows: “Fred C. Schwartz, Tax — Miami township. Part lot 13, Taylor’s heirs, 3.64 acres. Value, $710.”

It is impossible to tell, from either of these descriptions, where in Miami township Lot 13, Taylor’s heirs, is situated, or in what part of lot 13 the 3.64 acres may be found, but it is claimed that the description is aided by a plat in the auditor’s office of lot 13, marked Taylor’s heirs, showing 3.64 acres in.the southern part of the lot. Counsel rely upon the case of Stewart v. Alen, 5th O. S., 257, where it is said:

‘ ‘ In many, perhaps in all cases, the auditor of a county could make brief references upon the duplicate plats and other records in his office, so that the same might form a part of the description in the duplicate, and thus avoid a common objection to tax titles.’’

In this ease there is no reference upon the duplicate nor in the deed to the plat offered in eyidence; it is true that the number of the lot and amount of land, and the words “Taylor’s heirs” are the same in each, but it does not appear from the plat in what part of the county the lot is located. Under a uniform line of decisions in this state, the deed must be held void for uncertainty.

As to the claim of adverse possession, the defendant does not rely upon actual possession, but such as arises by force of Section 4114,of the Revised Statutes, which provides:

“The knowledge, by a person acquiring title by deed executed after such tax sale, of the payment of tax, and the claim of title and ownership, shall, as to such person, be taken as conclusive proof of possession.”

We think the evidence shows that the plaintiff had knowledge of the facts therein enumerated when it acquired title by deed, which as to it would be conclusive proof of possession under this section of the statutes. We are of opinion, however, that this section must be declared unconstitutional, under the case of Magruder v. Esmay, 35th O. S., 221, the fourth proposition of the syllabus being as follows:

Maxwell & Ramsey, for plaintiff.

Shepherd d¿ Shaffer and Peck, Shaffer & Peck, contra.

“The provision of the act of May 7, 1869 (66 Ohio L., 338), prescribing what shall constitute conclusive proof of possession in favor of a purchaser at a tax sale,, can not constitutionally operate to set the statute of limitations running in favor of such purchaser prior to the passage of the act.”

Under the facts in the case, the court was not required to declare the act unconstitutional, except as to its operation prior to its passage, but on page 239 Boynton, J., says:

“In so far as the act under consideration operates to set the statute of limitations in motion in respect to tax sales occurring before its passage, and makes the knowledge of the existence of the facts therein enumerated conclusive proof of possession in fact, we hold it to be in conflict with the Constitution.”

And at page 238 he quotes with approval from Cooley’s Constitutional Limitations, as follows:

‘ ‘ Except in those cases, which fall within the familiar doctrine of estoppel at the common law, or other eases resting upon the like reasons, it would not, we apprehend, be in the power of the Legislature, to declare that a particular item of evidence should preclude a party from establishing his rights in opposition to it. * * * A statute, therefore, which should make a tax deed conclusive evidence of a complete title, and preclude the owner of the original title from showing its invalidity, would be void, because being not a law regulating evidence, but an unconstitutional confiscation of property. ’ ’

We are therefore constrained to hold that in so far as this section makes the knowledge of the existence of the facts therein enumerated conclusive proof of possession in fact is in conflict with the Constitution. The tax deed of the defendants being void, and having failed to show adverse possession, the plaintiff is entitled to a decree quieting its title to the premises in controversy.


text:
    QUO WARRANTO AGAINST CORPORATIONS FORMING AN ILLEGAL COMBINATION.
    [Circuit Court of Logan County.]
    The State of Ohio, ex rel Wade H. Ellis, Attorney-General, v. The King Bridge Co. et al.
    Decided, March 23, 1906.

      Monopoly — Quo Warranto to Oust Offending Corporations — Jurisdiction of Circuit Court — Service of Summons on Non-Resident Corporations — Joinder—Ouster—Words and Phrases — Statutes Construed.

    1. Quo warranto proceedings brought by the Attorney-General against several corporations to oust them from their corporate franchises on the ground that they have entered "into an illegal agreement or conspiracy in restraint of trade and in violation of the anti-trust laws of the state, may be commenced in the circuit court of any county where one or more of the defendant corporations is situated or has a place of business, and process may issue thence to any other county where any other of the defendant corporations is situated .
    2. For purposes of prosecution an illegal combination among corporations in Restraint of trade exists in each and every county where its constituent members exist.and act; hence the contention is erroneous that quo warranto proceedings based upon such illegal combination must be brought in a county where the combination does business as a separate entity. '
    3. A service of summons on a corporation by leaving a certified copy thereof at the usual place of residence of the president does not answer the statutory requirements, is defective and will be quashed on motion.
    4. A service of summons upon a foreign corporation by delivering a copy thereof to a superintendent of such company, “he being in charge of the usual place of doing business of said company,” but it not appearing that he is the “managing agent” of said company, is defective and will be quashed if it appear that the corporation as required by Revised Statutes 148d, has designated another person as the one on whom process should be served.'
    Hurin, J.; Norris, J., and Donnelly, J., concur.
   The state of Ohio, upon the relation of its attorney-general, brings this action against the defendant bridge companies to oust from their corporate franchises such of the defendant companies as are Ohio corporations, and to oust the remaining two defendant companies, which are foreign corporations, from the exercise of their rights, privileges and franchises to do business within this state.

As a ground for this action it is alleged in the petition that each of the -defendant companies has misused the franchises, privileges and rights conferred upon it by law and has exercised the same in contravention of law in this, to-wit: That said

companies have entered into a conspiracy in restraint of trade, and have become parties to certain trust agreements set forth in the petition and have observed and do now observe and maintain the same; that such conspiracy and combination was entered into for the purpose of—

First. Creating and carrying out restrictions in trade and commerce.

Second. Increasing the price of merchandise and commodities.

Third. Preventing competition in the sale of merchandise and commodities.

Fourth. Fixing a figure whereby the price of merchandise and commodities to the public is to be controlled and established.

And^ that in pursuance of «such conspiracy the defendants agreed and bound themselves to keep the price of articles of merchandise and commodities at a fixed or standard figure and to preclude a free and unrestricted competition among themselves, and to pool, combine and unite their interests that the price might be affected. Certain articles of agreement, alleged to be substantially copies of the alleged trust agreement of defendants, are set forth in detail in the petition and defendant companies are declared to be parties thereto and to be now observing and maintaining the same, all in violation of law.

As a second cause of action, the petition avers that a conspiracy has been entered into between the American Bridge Company and the' other defendant bridge companies, whereby it was agreed that the American Bridge Company was to furnish preliminary estimates of bridges to the other defendant companies, and -that the other defendant bridge companies were to purchase the bridge material of the American Bridge Company, and of no other concern; that the defendants, by entering into said combination agreed to increase the price of bridges and bridge material and to combine to unite their bids for the sale of such material and to divide the excess above the proper cose of work among the parties to that agreement.

Certain interrogatories are attached to the petition, which the petition asks that defendants be required to answer.

Of the defendant companies, the Penn Bridge Company is alleged to be a corporation organized under, the laws of Pennsylvania and duly admitted to do business in Ohio; the American Bridge Company is alleged to be a corporation duly organized under the laws of New Jersey and duly admitted to do business in Ohio; and all the other defendants are alleged to be Ohio corporations.

The court is asked to oust from their franchises and rights to" do business in Ohio all of said companies and to appoint trustees for each of the Ohio corporations to settle their affairs as provided by statute. Summons was issued on this petition and the Canton Bridge Company and the Massillon Bridge Company, by their attorneys, have waived service -and voluntarily entered their appearance and have filed their answers in this case. The Variety Iron Works Company does not appear to have been served with summons.- Of the remaining defendants, the King Bridge Company, the Brackett Bridge Company, the Champion Bridge Company, the Adams Brothers Company and the American Bridge Company, have each filed a motion to quash the service of summons herein, alleging that this court has not jurisdiction over their persons. The Penn Bridge Company and the Mt. Vernon Bridge Company have filed demurrers to the petition, and the Penn Bridge Company and the Canton Bridge Company, and the Massillon Bridge Company have also filed demurrers to the interrogatories. The Columbus Bridge Company, the Bellefontaine Bridge & Iron Company and the Iron Substructure Company appear not to have filed any pleas or motions and are, therefore, in default.

The several motions to quash service filed by the King Bridge Company, the Brackett Bridge Company, the Adams Brothers Company and the Champion Bridge Company are all based upon the ground that as these defendants are manufacturing corporations located in the state of Ohio, but elsewhere than in Logan county, and not having their principal offices and places of business, or any officer or agent within the county of Logan, and having no officer or agent within said county upon whom service of summons might be served, no jurisdiction was acquired over their persons by a service in their home counties, nor can they lawfully be required to answer in Logan county to a petition filed herein. The Adams Brothers Company claims in addition that it has. done no business of any kind in Logan county within five years last past and supports this claim by affidavit.

The Champion Bridge Company also objects to the form of the service upon it. An examination of the return of the sheriff discloses the fact that the Champion Bridge Company was served “by leaving for Peter Clevenger at his usual" place of-residence a true and certified copy” of the summons, “with all endorsements thereon, he being the president of the said the Champion Bridge Company,” etc. This is an unusual form of service upon a corporation. It complies fully with the requirements of Section 5039 as to service upon an individual, but Section 5041 provides that “summons against a corporation may be served upon the president, mayor, chairman, or president of the board of directors or trustees, or other chief officer, or if its chief officer be not found in the county, upon its cashier, treasurer, secretary, clerk or managing agent; of, if none of the aforesaid officers can be found, by copy left at the office or usual place of business of such corporation with the person having charge thereof,” etc. In the return before us, there is no statement that any of the chief officers of the Champion Bridge Company could not be found nor that the copy of summons was left at the office or at the usual place of business of the corporation with the person having charge thereof, as required by statute, nof was it served upon the president personally, but only by a copy left at his residence. The service, therefore, is clearly defective and the motion to quash service on the Champion Bridge Company must,.therefore, be sustained on this ground.

But no question is made as to the regularity of the form of the return of service upon the remaining defendants and the issue is squarely raised as to whether they, being located and having their principal offices and places of business in other counties and having no officers or agents, or offices in Logan county, can lawfully be sued here in a suit in quo warranto.

Section 6760 of the Revised Statutes provides for the bringing of an action in quo warranto against individuals in certain cases. Section 6761, Revised Statutes, provides that a like action may be brought against a corporation—

First. When it has offended against a provision of an act for its creation or renewal, or any act altering or amending such acts.

Second. When it has forfeited its- privileges and franchises by non-user.

Third. When it has committed or omitted an act which amounts to a surrender of its corporate rights, privileges and franchises.

Fourth. When it has misused a franchise, privilege or right conferred upon it by law or when it claims or holds by contract or otherwise or has exercised a franchise, privilege or right in contravention of law.

Section 6762 provides that—

“The attorney-general or a prosecuting attorney, when directed by the governor, Supreme Court, or General Assembly, shall commence any such action; and when, upon complaint, or otherwise, he has good reason to believe that any case specified in the preceding section can be established by proof, he shall commence an action.”

Section 6763 provides that—

“Such officer may, upon his own relation, bring such action, or he may, on leave of thé court or a judge thereof in vacation, bring the action upon the relation of another person,” etc.

Section 6768 provides that—

“An action under this chapter can be brought only in the Supreme Court, or in the circuit court of the county,, in which the defendant, or one of the defendants, resides, or is found, or, when the defendant is a corporation, in the county in which it is situated, or has a place of business; but when the attorney-general files the petition, the action may be brought in the Circuit Court of Franklin County.”

And Section 204 provides in similar terms that the attorney-general may prosecute any proceeding in quo warranto in the Supreme Court of the state, the Circuit Court of Franklin County, or the circuit court of any county wherein the company proceeded against has a place of business, or the officer or officers, person or persons, made defendants reside or may be found.

Section 6770 provides that—

“When the petition is filed without leave and notice, a summons shall issue and be served as in' other cases; and such summons may be sent to and returned by the sheriff of any county, by mail, ’ ’ etc.

There can be no doubt that the petition in this case is based upon Section 6761 and upon the provisions of the so-called Valentine Anti-trust Law, embodied in Section 4427-1-2-3, to which I shall refer later; and if the facts alleged in the petition are true or believed by the attorney-general to be true, it becomes his duty under Section 6762 to commence a proceeding in quowarranto against all corporations believed to be guilty of the acts complained of.

But the objection here made to this proceeding is that under Sections 6768 and 204 this court has no jurisdiction as against these defendants, and that this action, if brought at all, should have been brought in another court; either in the Supreme Court or the Circuit Court of Franklin County, or the circuit court of that county where each separate defendant corporation is situated or has a place of business.

TIad any one of the defendant corporations, which are nonresidents of Logan county, and which file these motions to quash service, been sued alone in Logan county, there would probably be no question as to the correctness of the position thus taken.

But one of the defendants, the Bellefontaine Bridge Company^ appears to be located in Logan county; true there is no allegation in the petition to that effect, but none was necessary, if, as a matter of fact, it appears that such is the case. The return of summons shows personal service upon its president by the sheriff of this county, and its location here is not denied, but is admitted in argument. As against that defendant, the Bellefontaine Bridge Company, there seems to be no question, therefore, as to the right to bring this action in Logan county. Does this right carry with it the right to,here join non-resident corporations ¶

The gist of this action as set forth in the petition is not merely the violation of law by any one of these defendant corporations but the conspiracy and combination alleged to have existed among them all. If it is proper for the attorney-general under the law to attack such a conspiracy or combination, it is necessary for him to make all the conspirators parties to a single suit, otherwise there would be an almost endless multiplicity of suits! This alleged conspiracy comprises corporations widely scattered as to their location. In no one county of the state, other than Franklin county, could all be found.

True, they might all have been sued, under -the statute, in Franklin county, either in the Supreme Court or circuit court, but unless an entirely different rule must be applied to corporations from that applying to individuals, there would seem to be no reason why this court should not acquire jurisdiction over all when it acquires jurisdiction over one, for by Section 5035, “When the action is rightly brought in any county, according to the provisions of the preceding chapter, a summons may be issued to any other county against one or more of the defendants, at the plaintiff’s request.” And that previous chapter, thus referred to, includes Section 5023, which provides that an action against a corporation created under the laws of this state may be brought in the county in which such corporation is situated, or has or had its principal office or place of business, or in which such corporation has an office or.agent, or in any county in which a summons may be served upon the president, chairman, or president of the board of directors or trustees or other chief officer, etc. If the charges of conspiracy made in the petition against the Bellefontaine Bridge Company are true, or are believed by tbe attorney-general to be true, and if the acts charged are in violation of law as there claimed, then it follows that, as to that corporation, the action is rightly brought in Logan county. If rightly brought here and if the co-defendants are properly joined, the right to issue summons to other counties for those defendants follows under Section 5035.

But it is claimed that the statute (Section 6768) limits the jurisdiction of courts in quo warranto proceedings and that the general laws do not apply and thus, inferentially, it is claimed that Section 5035 can not apply.

A distinction is sought to be made by counsel from the wording of Section 6768 as to corporations. That statute provides that “an action under this chapter can be brought only in the Supreme Court, or in the circuit court of the county in which the defendant, or one of the defendants resides or is found. ’ ’ If this were all of the section there would be no question, probably, as to the right to bring this action in Logan county. But the statute adds the following: • “Or, when the defendant is a corporation, in the county in which it is situated or has a place of'business.” It is claimed by counsel for the defendants that the addition of this expression shows that the legislative intention was to differentiate suits against corporations from suits against individuals; that, whereas an action in quo warranto against individuals can be brought in the circuit court of the county in which any one of the defendants can be found, yet as to corporations it can only be brought in that county in which each corporation is situated or has a place of business. No reason for making such a distinction has been suggested to us nor do we think that such is a fair construction of the statute.

The expressions “reside” and “is found” used in the first part of the statute are proper and applicable with reference to individuals and not improper as applied to corporations, but to avoid any cavil as to such applicability, the statute further declares that where the defendant is a corporation, the action may be brought in the county in which it is situated or has a place of business, This can not reasonably be interpreted as avoiding or contradicting the former part of the statute, or limiting the bringing of actions against corporations to those which may be found in the same county, while in the same kind of an action individuals residing in a score of counties might be sued in any one of those counties. Such a distinction involves a partial nullification of the former part of the section, and would compel the state to burden the courts in Franklin county with all the controversies of this nature in which two or more corporations are involved whether any of such corporations are located in Franklin county or not, provided only that no two of them are located in the same county.

If it should be interpreted as we are asked by defendants to interpret it, it would mean that individuals forming an illegal combination can be sued in quo warranto in any county where one of them can be found, but that corporations forming an exactly similar combination can only be sued in quo warranto in the courts of Franklin county, unless all the wrong-doing corporations happened to be located in one county. We know of no sanctity attached to corporations which would justify such an exemption, nor do we' believe that we are justified in straining the natural meaning of the words of the statute so as to give them such interpretation.

The expression “situated or has a place of business” has, for a corporation, the same meaning as “resides” has for an individual, and for the purpose only of clearing up this meaning was the expression added, in our judgment, and not at all for the purpose of indirectly limiting the number of defendant companies that could be sued in one action; nor. does the fact that Section 6768 provides in its last clause that the attorney-general may bring the action in Franklin county aid such a construction as is claimed.

The fact that the office of the attorney-general of the state is located jn Franklin county and that his manifold duties require his constant attendance there, would seem to furnish a sufficient reason for this additional privilege thus given him. But that it is merely an additional privilege for the state officer seems manifest from the fact that the right to bring such actions in general is not confined to the attorney-general, but extends to the prosecuting attorneys of each of the counties to whom this particular privilege' is denied, their powers not extending beyond their own counties; and from the further fact .that the right thus given to the attorney-general to sue in Franklin county is not limited to actions in quo warranto against corporations, but is general in its application to individuals as'well as corporations.

It is also claimed by counsel in oral argument that this last clause means that the attorney-general can only bring the suit against corporations in Franklin county, while a prosecuting attorney can bring it wherever one of the defendants resides. This is a contention plainly untenable and is an attempt at a literal construction of one clause, ignoring all 'others. If tenable at all, it would confine the attorney-general to the Circuit Court of Franklin County, for that is the literal wording of the clause and would exclude him from the Supreme Court, to which, by all the related statutes, he is given access. The argument, if it can be called such, proves too much and must fall to the ground.

But we are not left to any conjecture as to this point for Section 210, defining the duties of the attorney-general, provides that “he may prosecute any action, information or other suit in behalf of the state, or in which the state is interested, other than prosecutions by indictment, in the court of appropriate jurisdiction in Franklin county, or in the court of appropriate jurisdiction in any other county in which the defendant, or any one or more of the defendants, reside, or are found, as he prefers,” and the latter part of that section limits his right to sue in Franklin county in certain cases to actions involving more than five hundred dollars, and so certified. This statute is general in its application to all defendants, corporate and individual, and under its provisions this action could plainly be brought in Logan county unless some reason more weighty than any which have been presented to us exists for applying to it a limitation not found in its terms, and not, as we have seen, expressly. or by fair implication found in any of the related statutes.'

It thus appears that, both by the rules applicable generally fo ■ suits against corporations, as laid down in Sections 5023, 5035 and 210, Revised Statutes, and by the express wording of the statutes relating to quo warranto proceedings, the right exists to bring the suit in any county where one of the defendant corporations may be found. The only limitation is as to the proper joinder of the defendants. To that I will refer later.

If there remained any doubt as to the existence of this right, it would be destroyed by a reading of Sections 4427-1 and 2. This is known as the Valentine Act. Section 4427-1 defines a trust as “ a combination of capital, skill or acts, by two 'or more persons, firms, partnerships, corporations, or associations of persons, or of any two or more of them, for either, any or all of the following purposes;” and then follow five statements of wrongful aims or purposes which the petition in this case has closely followed.

Section 4427-2 provides that—

‘ ‘ For a violation of any of the provisions of this act by any corporation or association mentioned herein, it shall be the duty of the attorney-general, or the prosecuting attorney of the proper county, to institute proper suits or quo warranto proceedings in the court of competent jurisdiction in any of the county seats in the state where such corporation or association exists or does business or may have a domicile. And when such suit is instituted by the attorney-general in quo warranto, he may also begin any such suit in the Supreme Court of the state, or the Circuit Court of Franklin County for the forfeiture of its charter, rights, franchises or privileges and powers exercised by such corporation or association and for the dissolution of the same under the general statutes of the state.”

Here, too, we find an additional right or ¡privilege given to the attorney-general to bring such actions in Franklin county; not as a limitation upon his powers otherwise conferred but, as shown by the word “also,” a new power expressly given as an addition to his right to sue in any other county.

The sole object of the anti-trust law as expressed in these statutes (4427-1 and the following sections) is the destruction of trusts or unlawful combinations of persons, firms, partnerships, corporations or associations, or of any two or more of them; that is, of any two or more corporations as well as two or more persons, firms, partnerships or associations. With this as the object of the law, it would be a strange construction that would prevent such corporations from being joined in an action to accomplish the very object for which the statute was enacted.

And to still further facilitate the process of destruction, it is provided in Section 11 of that act that ‘ ‘ whenever it shall appear to the court before which any proceedings under this act may be pending, that the ends of justice require that other parties shall be brought before the court, the court may cause them to be made parties defendant and summoned, whether they reside in the county where such action is pending or not.” It is well argued by counsel for plaintiff that if this can be done at a later stage of the case, it can and should be done at the beginning.

The general law (Sections 5023 and 5035) authorizes the joinder of corporations in a suit in any county where one of them may be found. To take from specific statutes governing such suits, their plain meaning in order to exclude from them a class of combinations which they are expressly designed to include, violates every principle of legal construction and is contrary to sound sense and fairness.

If-the object of this proceeding were merely the ouster of the separate defendant corporations for individual wrong-doing, there might be more reason for the claim here made, but, as I said before, the gist of this action is in the unlawful combination of all the corporations defendant. Its purpose is the breaking up of the trust alleged to exist. The acts of all the alleged conspirators are necessarily in question and all are necessary parties to the action, in order that they may explain and defend, if possible, the charges of combination made against them all. Nor can the fact that some of them have never, as individual corporations, done business in Logan county, affect their rights. If it is true, as alleged, that they have been caught in bad company, combining for unlawful purposes, it is the' evil combination for which they must now give account and not any particular business transactions as individuals.

It was claimed in argument that unless the corporations combined to do business in Logan county or some other specific county, they can not be reached by quo warranto, but that some other remedy as injunction, must be sought, and further, that only where the combination does business as a corporate entity can quo warranto be brought. We do not so understand the law.

The illegal act complained of here is the wrongful combination of the defendant companies. That combination exists, if at all, in each and every county where its constituent members exist and act. The consent to the wrong and the acts done by virtue of that consent emanate from each individual wrongdoer and no hair-splitting psychological distinction can be indulged in to define the precise moment or place when and where the thought, -the wrongful intent, the clandestine purpose, the illegal combination, ripened into acts of purchase and sale, which are themselves no more unlawful than the unlawful intent, which gave them birth.

As to the domestic corporations, who have filed motions to quash service, the motions must for these reasons be overruled.

The American Bridge Company files a similar motion, alleging in addition that it is a corporation organized under the laws of New Jersey; that it has by compliance with the laws of Ohio, secured the privilege of exercising its franchises in this state; that in pursuance of the laws of Ohio, it has designated Clarence E. Sanders as the person upon whom process against said corporation may be served in this state; that said Sanders has an office in the city of Cleveland; that it has no office or agent in Logan county, upon whom service might be made; that in this case, a summons was sent to Lucas county and service made upon one M. J. Riggs, at Toledo, in said county; that said Riggs was not the managing agent of said defendant, nor the person designated as the one on whom service ought to be made. It, therefore, claims that the service should be quashed.

It is also claimed for it, in argument, that having designated Cleveland as the place- where its agent may be served, it can only be served there.

For the same reasons as those given in relation to the domestic corporations, we are unable to take this view of the matter as to the place of service. And there is this additional reason why the company should be held amenable in this action; that the petition avers that this foreign corporation was doing business with each of the defendant companies and furnishing materials to them. Its operations, therefore, must have extended, if this petition is true, to every county where any of the defendant corporations has been doing business, and, therefore, among other counties, to Logan county, where this action is brought.

But, it is further objected that the return of summons shows that the American Bridge Company was served by delivering a copy of the summons to M. J. Riggs, superintendent of said company, “he being in charge of the usual place of doing business of said company. ’ ’ The summons appears to be directed to the sheriff of Lucas county and the presumption probably is that it was served there..

If the facts alleged in the motion of the American Bridge Company are true, then it is apparent that Section 148d, Revised Statutes, which provides that foreign corporations must designate a person upon whom service of summons may be made has been complied with by this company, and that service in this case has not been made' upon him.

There is no averment in the sheriff’s return that M. J. Riggs is the “managing agent” of said company. He is described merely as a superintendent. This does not appear to be a proper service and the motion to quash service on the American Bridge Company must be sustained.

It may be proper, however, to state that were it not for this defect in the form of service, the ruling of the court on this motion to quash would, on its merits, be necessarily the same as in the case of the motions of the domestic corporations, whose motions are overruled; and this suggestion, of course, applies equally to the motion of the Champion Bridge Company, which we have found to have been improperly served.

Coming now to the demurrers to the petition; the demurrer of the Mt. Vernon Bridge Company is upon two grounds:

First. That this court has no jurisdiction over the defendant herein or of the subject-matter of the action.

Second. That separate causes of action against the several defendants in this case are improperly joined.

Wade II. Ellis, Attorney-General, for plaintiff.

Kline, Tolies & Goff, Squire, Sanders & Dempsey, Booth, Keating Peters, Phelps & David, John Herron, Samuel West, James J. Grant, E. M. Glevinger, for defendants.

As to the jurisdiction of this court over the defendant, this is but another form of the same objection made in the motion-! to quash service and needs no further discussion.

As to the jurisdiction over the subject-matter of this action, it is, in our opinion, clearly conferred both by Sections 6763 and 4427-2, for reasons already given. The demurrer on this ground must, therefore, be overruled.

As to the second ground of the demurrer, improper joinder, it suffieies to say that if the action were not based on the ground of a conspiracy among all the defendants, and if it were merely a suit attacking the individual defendants, this ground of demurrer might properly be sustained, but where the whole action is based, not on the wrong-doing of individual corporations, but upon the illegal combination and conspiracy of all of the members, there are no separate causes of action against the several defendants pleaded. This demurrer must also bo overruled.

The Penn Bridge Company demurs to the petition on three grounds:

First. That the petition does not state facts sufficient to constitute a cause of action.

Second. Because there is a misjoinder of parties defendant.

Third. That separate causes of action against several defendants are improperly joined.

Holding the views already expressed,’ all three grounds are, m our judgment, improperly taken, for reasons already given, and this demurrer must also be overruled.

The demurrers to the interrogatories are, as we understand, by consent of all the parties, to be held in abeyance and will, therefore, not be passed upon at this time.


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    EVIDENCE AS TO TITLE.
    [Circuit Court of Hamilton County.]
    Mary A. Meyer Oehler v. Herbert F. Walsh et al.
    Decided, March 3, 1906.

      Time — Within Which an Act is Required to he Performed — :Title— Tax Sale Deed — Indefinite Description — Evidence—Presumption— As to Date of Delivery of a Deed — Words and Phrases.

    1. When an act is required by statute to be performed within a certain number of months after a certain date, the word “months” will be construed to mean calendar months, whether of twenty-eight, twenty-nine, thirty or thirty-one days.
    2. The judgment rendered in a suit to quiet title to land against a claimant under a void tax-deed is not binding upon the real owner who is. not a party to the suit.
    3. In the absence of evidence to the contrary, it will be presumed that a deed was delivered on the date of its execution.
    Giffen, J.; Jelke, P. J., and Swing, J., concur.
   This action was commenced in the court of common pleas to recover possession of a strip of land seventy-two and forty-three hundredths feet in width, taken evenly off the west side of a tract of land containing one and sixty-five hundredths acres. The defendants in error are owners of a tract of land containing forty acres lying west and adjoining the one and .sixty-five hundredths acres; the real contention between the parties being over the boundry line between the two tracts.

Judgment was rendered for the defendants, and to this judgment the plaintiff in error now prosecutes error, the only ground urged being that the court erred in overruling the motion for a new trial upon the ground that the judgment is not sustained by sufficient evidence.

The first question to be considered is a motion made by the defendants in error to dismiss the proceedings for the reason that they were not commenced within four months after the rendition of the judgment — the judgment having been rendered on the thirtieth day of June, and the petition in error filed on the thirtieth day of October. When an act is required by statute to be performed within a certain number of months after a certain date, the word months will be construed to mean calendar months, whether of twenty-eight, twenty-nine, thirty, or thirty-one days. The judgment in this case having been rendered on the thirtieth day of Juné, and the proceedings in error commenced on the corresponding day of the fourth month thereafter, a compliance with Section 6723 of the Revised Statutes is shown (McMurchey et al v. Robinson and Kain, 10 O. S., 496; Strong v. Birchard, 5th Conn., 357; Guarantee Trust and Safe Deposit Co. v. Green Cove Springs and Melrose R. R. Co., 139 U. S., 137). The motion will be overruled.

Coming now to the merits of the case, the plaintiff failed to show a good title by deed to the premises in controversy. She claims title through Henry Lore, who, by deed dated August 18, 1842, conveyed to Andrew Ammerman the following described land:'

“Beginning at the southeast corner of Joseph Pouder’s land, thence south five (5) chains, forty-eight (48) links, thence east five (5) chains, forty-eight (48) links, thence north five (5) chains, forty-eight (48) links, to the south line of Samuel J. Pouder’s land, thence west with the south line of said Samuel J. Pouder’s land, to the place of beginning, containing three acres of land, strict measure.”

A part of the above described premises lies west of the middle line running north and south in the northeast quarter of.the section, and embraces the strip of ground now in controversy. At the time the deed was executed, the grantor, Henry Lore, had no title to any part of the west half' of the northeast quarter, and the claim of title by deed by the plaintiff through him therefore necessarily failed. But the grantee, Andrew Ammerman, took possession of the land described in his deed, and erected a house upon that part here in controversy, and he and his successive grantees held adverse possession from 1842 to 1888, a period of 'forty-six (46) years. It is claimed, however, that the title to said strip of ground was quieted by the court of common pleas of this county, in an action begun by William Disney, the owner of the forty (40) acre tract, against Joseph A. Meyer, the father of the plaintiff, who was alleged to have a tax title to said forty (40) acres: The record of the case is incomplete, none of the pleadings being in evidence, although it appears from the judgment that the plaintiff is adjudged to be the owner in fee simple of the premises described in the petition and that the defendant has no estate or interest therein. It appears from the abstract of title offered in evidence that William Disney, at the time this suit was commenced, in 1887, was the owner of the forty (40) acre tract, and we may, therefore, assume that this property was described in the petition.

The only evidence of the tax title asserted by the defendant is the auditor’s deed, which describes the property as follows: “Situated in Hamilton county and state of Ohio, to-wit: R. 1, I. 2, Sec. 13 N. E. Colerain Tp., 40 acres, Val. $1480.”

The most that can be said of this description is that it pertains to forty acres somewhere in the northeast corner of Section 13, and is entirely too indefinite to bind the real owner of the property, she not being a party to the suit.

Defendants have been in possession since 1888, a period of seventeen years before the commencement of this suit, which is not sufficient length of time to invest them with the title by adverse possession.

It is further claimed that the plaintiff could not maintain this action because although she had a deed from her father for his life estate, and although dated a few days prior to the commencement of this.suit, yet it does not appear from the evidence that there was any delivery of the deed to her. Counsel claims that in the absence of other proof, the presumption is that the deed was delivered when left for record with the recorder of the county.

In Devlin on Deeds, Section 178, it is said:

“But when the time of actual delivery is doubtful, resort must be had to presumption. And the presumption in cases of this kind, it may be stated as a general rule, is that a deed is delivered at its date.”

We therefore conclude that this deed was delivered before the commencement of this action, which could, therefore, be maintained by plaintiff. The evidence shows that the defendants have made valuable and lasting improvements upon the land in controversy, amounting to $400, which should be paid to the defendants, unless they pay to the plaintiff the value of the land exclusive of such improvements (Section 5786, Revised Statutes).

L. H. Pummill, for plaintiff in error.

W. Austin Goodman, contra.

Judgment will be reversed upon the ground that it is not sustained by sufficient evidence, and cause remanded for a new trial.


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    INJURY FROM SLIPPING ON AN ICY SIDEWALK.
    [Circuit Court of Summit County.]
    Matthew Barry v. The City of Akron.
    Decided, September 30, 1905.

      Municipal Corporations — Liability of, for Injury — Due to Ice on Sidewalk — Charge of Court — Negligence.
    1. In an action against a municipality for damages on account of injuries due to a fall upon a sidewalk in consequence of an accumulation of snow and ice thereon, the question whether the municipality was negligent in not removing the snow and ice is one for the jury. Russell v. Toledo, 19 C. C., 418, followed.
    2. Where the testimony goes to show that a plaintiff was injured by a fall in the night time upon a sidewalk on which ice had accumulated, and that the condition was peculiar to this place in the sidewalk and not general throughout the city, and that the city, through its officers, had knowledge of the condition of the walk while he was ignorant of its 'condition, a case is presented for the jury.
    Marvin, J.; Winch, J., and Henry, J., concur.
    Error to the court of common pleas.
   Barry was walking along on the sidewalk on the south side of Mill street, in the city of Akron, on the evening of December 18th, 1902, about nine o’clock. The sidewalk on which he was passing was somewhat icy. He slipped and fell, receiving an injury. He sued the city. On the trial he gave evidence tending to show that by reason of the icy condition- of the sidewalk it was dangerous to walk upon; that the place of injury was upon a much traveled and frequented street of the city; that this condition was peculiar to this particular part of the sidewalk and was not general throughout the city; that the city, through its officers, had knowledge of such condition and that Barry was without such knowledge or notice, and that such condition of the walk was the proximate cause of the injury, injury.

Evidence was introduced tending, to establish each one of these propositions. As to the condition of the walk at the place of the injury, and as to the want of knowledge on the part of Barry, including the fact of its being too dark for him to see at the time, we have his own testimony; also as to the fact that this was peculiar at this particular part of the walk and not general throughout the city. We have his testimony, strengthened by that of Professor Egbert, as to the weather conditions in the city at the time. As to knowledge on the part of the city through its officers we have the location of the offices of the city on the same street and near to the place of the accident, and the fact that the officers passed along this walk very frequently, probably several times each day. This is shown by the testimony of Mr. Payne, the city engineer.

It would seem from the evidence introduced that Barry was, without question, entitled to have his cause go to the jury unless as a matter of law the city could not be held responsible for the condition of the walk. At the close of the evidence introduced on the part of the plaintiff below, the court directed a verdict for the defendant, and it is that order which is complained of in this proceeding.

It is provided by Section 1536-131 as follows:

“In all municipal corporations council shall have the care, supervision and control of' public highways, streets, avenues, alleys, sidewalks, public grounds, bridges, aqueducts and viaducts within the corporation, and shall cause the same to be kept open and in repair and free from nuisance. ’ ’

Whether under this section the city may under any circumstances be held liable for injuries caused by the accumulation of snow and ice upon the walk has been the subject of much discussion and consideration in Ohio. It is claimed that our Supreme Court has substantially held that it can not. A recent case, The Village of Leipsic v. Gerdeman, 68 O. S., 1, is one in which the court held the village was not liable, but it held so because of the facts in that case. Ice came on' in the night, the party injured was injured at eight o’clock in the morning, in broad daylight, and the court held that under those circumstances the city could not be made liable; but Judge Crew, in his opinion, at page 6 says, in speaking of the charge as to the liability of the village, the charge being that if by reason of the negligence of the authorities of the village this icy condition was such as to make it dangerous to go upon the walk, and that knowledge was brought home to the municipal authorities and not known to the plaintiff:, etc., the village would be negligent and might be held liable —

“While in a proper case such instruction would perhaps be unobjectionable, or at least free from error, in the light of the established facts in this case such instruction was, we think, unauthorized, misleading and erroneous.”

In Russell v. Toledo, 19 C. C., 418, it is held that in an action against a city for damages for injuries- sustained by a fall on the sidewalk in consequence of the accumulation of snow and ice thereon, the question whether the city was negligent in not removing the snow and ice from the sidewalk is one of fact to be determined by the jury. In an elaborate opinion in this case Judge King discusses the decisions in Ohio bearing on the question, and reaches the conclusion already stated.

In Schaefler v. Sandusky, 33 O. S., 246, it is held only that contributory negligence on the part of the injured party bars a recovery, and Judge Day, in the outset of the opinion, on page 248, takes occasion to say that the question of whether the city can be held in any case, etc., is not decided.

In Village of Conneaul v. Naef, 54 O. S., 529, nothing further is decided that that contributory negligence on the part of the party injured bars a recovery, though Judge Shauck closes the opinion by saying—

“Whether the village was guilty of actionable negligence may well be doubted in view of Chase v. Cleveland, 44 O. S., 505.”

This last ease was submitted upon a demurrer to the petition. The petition set out that the sidewalk on Wood street in Cleveland was icy and dangerous to walk upon, and that the city should have had knowledge, and that the plaintiff was injured without any fault on his part. Judge Spear in that case says at the conclusion of his opinion, that whether or not the municipality might be liable because of the icy condition of the sidewalk is not there decided.

In the ease of Hausman, v. City of Madison, a decision of the Supreme Court of Wisconsin, 21 L. R. A., 263, is a note, on page 268, referring to a large number, and quoting from a large number of eases in which there are conflicting decisions, some courts holding that a municipality may be liable under certain condi-, tions for an icy condition of the sidewalk, others holding to the contrary; but we think that the better reason and the weight of the authority is that in a proper case the city may be held liable for injuries resulting solely from the icy condition of the sidewalk, when that icy condition is at a particular place and different from the sidewalks in other parts of the city. We think that the reasoning of Judge King in the ease in the circuit court, to which attention has already been called (19 C. C., 418) is, in the main sound. Judge King states a rule of pleading there to which we could not subscribe, and gives that as one of the reasons why the court held as they did in the case in Cleveland— the Wood street case; but'the reasoning, aside from that, we think, is sound.

Our Supreme Court has not, so far as we have found, in any case, held that a municipality may not be liable, and the last utterance to which our attention has been called is what is stated by Judge Crew, which has already been quoted.

We are of the opinion, therefore, that it was error to direct the jury to return a verdict for the defendant, but that the case should have been' submitted to the jury under proper instructions.

E. E. Voris, for plaintiff in error.

G. E. Beery, for defendant in error.

Judgment is reversed and the ease remanded to the court oP common pleas.