text:
    INTOXICATING LIQUORS.
    Belmont (7th) Court of Appeals,
    June 23, 1915.]
    Spence, Houck and Powell, JJ.
    (Judge Houck of the 5th district sitting in place of Judge Pollock and Judge Powell of the 5th district sitting in place of Judge Metcalfe.)
    Harold Stephens v. State of Ohio.
    Exceptions as to Keeping Intoxicating Liquors in Bona Fide Residence in Dry Territory not Applicable to Rented Room Six by Eight Feet and Without Bed or Bedding or Windows.
    Where intoxicating liquor is found in considerable quantities in a room rented by the defendant in dry territory, and in which some of his other property was found, the exception embodied in Sec. 6102 G. C., as to liquor kept in drug stores and' bona fide private residences, is not applicable, where the room was but six feet wide and eight feet long and was without bed or bedding.

      Error.

      Natha/n H. Barber, for plaintiff in error.

      Smith, Howard and Thornburg, for defendant in error.
   HOUCK, J.

This cause is here on error from the common pleas court of Belmont county, Ohio. On July 10, 1914, the plaintiff in error, Harold Stephens, was charged in an affidavit filed before Mayor G. A. Colpitts, of Bamesville, Ohio, with a violation of the liquor laws of the state of Ohio.

The affidavit charges that the said Harold Stephens, from July 8, 1914, to July 10, 1914, both inclusive, at the village of Bamesville, county of Belmont and state of Ohio, did then and there unlawfully keep a place where intoxicating liquors were then and there kept for furnishing and giving away as a beverage; that the keeping of said place as aforesaid by the said Harold Stephens was then and there prohibited and unlawful, and contrary to Sec. 13225 G. C. of Ohio, and against the peace and dignity of the state of Ohio-.

The said Harold Stephens was arrested on said charge, taken before said mayor, and entered a plea of not guilty thereto. A trial was had, and he was convicted, and a fine and sentence imposed upon him by said mayor. A motion for a new trial was filed, heard and overruled. To the judgment of conviction and overruling of the motion for a new trial, error was prosecuted to the court of common pleas of this county, and the judgment of the mayor was affirmed, and error is now prosecuted to this court to reverse the judgment of the common pleas court in affirming the judgment of the mayor.

Numerous grounds of error are alleged in the petition in error, but two grounds are relied upon in the brief of counsel for plaintiff: in error, to wit:

First, because the testimony is insufficient to sustain the judgment of the court.

Second, because the judgment is against the weight of the evidence and is contrary to law.

The evidence as disclosed by the record shows that the defendant below, th.e plaintiff in error, rented a room in, a dwelling house occupied by Mrs. Fisher, in the village of Bartlesville, Belmont county, Ohio; that said room had no windows in it, and that the next day there was found in said room that was rented by the defendant below, the plaintiff in error, ninety-three bottles of whiskey in three sacks, a whiskey barrel with a small door opening in the side, a coat and a note boob therein with the name of Harold Stephens on the fly leaf, and a picture of the mother of plaintiff in error. The evidence shows that the boob found in the coat belonged to the plaintiff, in error, and that the coat was worn by him at or about the time of his arrest and! conviction.

The plaintiff in error claims favor under See. 6102 G-. C. of Ohio, which reads as follows:

“In a territory in which the sale, furnishing or giving away of intoxicating liquor as a beverage is prohibited, the keeping of intoxicating liquor in a room, building or other place, except in a regular drug store or in a bona fide private residence, shall be prima facie evidence that such liquor'is kept for unlawful sale, furnishing or giving away.”

The evidence, as shown by the record in this case, discloses the fact that the plaintiff in error never occupied this room as a residence, and, as a matter of fact, the evidence discloses that there was no bed or bedding in the room, and that the room was about six feet wide and eight feet long, 'and without windows, and that from the location of the building and its surroundings it would not be a proper room to be used as a habitation.

Counsel for plaintiff in error maintains tlxat the room was a bona fide residence of the plaintiff in error, and that therefore the section of the statute above referred to is applicable to the case at bar, and by reason thereof the plaintiff in error wad* not properly or legally convicted of the offense charged in the affidavit.

From an examination of the record, and relying wholly and entirely upon it, and applying the above section of the General Code thereto, we are of the opinion that the plaintiff in error, the defendant below, was properly and legally convicted under the facts as disclosed by the record; and there being no error in the record prejudicial to the rights of plaintiff in error, the judgment is affirmed, and the cause remanded for execution.

Powell and Spence, JJ., concur.


source: Caselaw Access Project

author: JONES, E. H., J.

license: Public Domain

text:
    ELEVATORS — MASTER AND SERVANT.
    [Hamilton (1st) Court of Appeals,
    July 2, 1913.]
    Swing, Jones and Jones, JJ.
    Pfau Manufacturing Co. v. Frederick B. Beck.
    1. Projecting One’s Foot into an Open Elevator Shaft Proximate Cause of Injury, not Fact of Tying Door Open.
    An employe injured by placing his foot inside of, and on a ledge in the way of the descending balance weight in an open elevator shaft, in which he was looking up to locate the elevator, is guilty of negligence, and tying the elevator door to the ceiling, thereby preventing its descending when the elevator was moved from that floor is not the proximate cause of the injury sustained.
    Error.

      Robertson & Buchwalter and T. C. Jungv for plaintiff in error.

      Milton, Sayler and Horstman & Morstman, for defendant in error.
   JONES, E. H., J.

This action was brought in the court below by Frederick B. Beck, a minor, by his next friend, Bernard F. Beck, to recover damages from the plaintiff in error, the Pfau Manufacturing Company, for injuries received by said minor while in the employ of said company. The amended petition alleged that at the time of the happening of said injury, plaintiff was sixteen years of age, and was employed on the fourth floor of the factory of the Pfau Manufacturing Company. Just prior to receiving the injuries complained of he was sent by the foreman to the first floor of said building for the purpose of bringing from the first floor some boxes or other material by the freight elevator to the fourth floor. After reaching the first floor and after spending some little time collecting the desired material, he looked for the elevator and found that it had disappeared. The petition further states that the gate leading into said elevator shaft on said first floor was tied to the ceiling, thus leaving the entrance to said shaft open; that in order to look up said shaft to' see where the said elevator was, it was necessary for him to step with one foot into the shaft, and as there was no way to support himself in looking up the shaft he placed his right foot on the side of the elevator shaft for support while looking up; that the instant he put his foot on the side of the elevator shaft, the weight that is attached to the elevator when descending caught his said foot, causing the injury complained of. The amended petition charges negligence on the part of the defendant: first, in having no one in charge of the elevator; second, in allowing different employes to run it; third, that there was no bell or other means of signalling from one floor to another; and fourth, that the gate on the first floor was tied to the ceiling.

The answer denies any negligence on the part of the company, and further alleges that if it should be found to have been negligent, the plaintiff was guilty of negligence directly contributing to and which was the proximate cause of the injury, and is therefore not entitled to recover.

A number of questions of law are presented by the brief for plaintiff in error, one of which we think decisive of the case, making it unnecessary to consider any other alleged errors. We have reached the conclusion, after a careful reading of the record and the briefs of counsel, that plaintiff’s negligence was such in this case as to prevent a recovery. It was a violation of a statutory duty to have the gate leading to the elevator shaft tied to he ceiling, but we can not see that such negligence had any direct connection with the injury to plaintiff. Had the plaintiff by reason of the position of the gate fallen into the shaft and thereby sustained injuries, a different question would have been presented, and it might be claimed that the company’s failure to have the gate free to work automatically was the proximate cause of the injury; in case a jury so found, a court would not likely be justified in questioning sucb finding. But here the plaintiff’s injury resulted from plaintiff voluntarily walking into the shaft, at least from his partly entering the shaft. It is a matter of common biowledge that the space occupied by an elevator shaft is set apart in such buildings solely for such use, and we can conceive of no situation where a person would be free from negligence in entering a shaft unless for the purpose of oiling or making repairs and then only with the full knowledge of the operator.

We have been cited to no case by counsel for defendant in error where a person either child or adult, who voluntarily placed any part of his body in an elevator and was injured by being struck by the cab, has been held entitled 'to recover damages, whatever the alleged negligence of the defendant may have been.

On the other hand, the attorney for plaintiff in error has cited in his brief a number of cases holding that such conduct was negligence as a matter of law, such negligence as will preclude a recovery notwithstanding there may have been negligence on the part of the defendant.

We feel that this is unquestionably the law in this state, as well as in other states, and that the evidence in this case shows such a state of facts as that it would be contrary to law and justice to hold the defendant answerable for the injury received by the plaintiff.

We have said that it might have been different had the bo7/ fallen into the shaft by reason of the gate having been permanently tied to the ceiling. It might also have been different, and certainly would have presented a different situation had he been struck by the cab while looking up the shaft; although the cases seem to hold that even in that event he could not recover. But in any event, that is not the case presented in this record. The injuries received were not such as could reasonably have been expected to follow the fastening of the gate to the ceiling, and unless they are in some way connected with the negligence complained of and follow directly therefrom, the defendant could not be held liable. In order to recover from the defendant, his negligence must have been the proximate or direct cause. It seems to us clear that such was not the ease but that, as above stated, the direct or proximate cause was the negligence of the boy in placing himself in a position which he ■must have known was dangerous. Having so found, we are of the opinion that the motion made by the defendant below at the close of all the evidence, for an instructed verdict, should have been granted.

The judgment below will therefore be reversed and judgment given plaintiff in error.

Swing and Jones, O. B., JJ-, concur.


author: POWELL, J.

text:
    ATTACHMENT AND GARNISHMENT.
    [Stark (5th) Circuit Court,
    February Term, 1911.]
    Voorbees, Powell and Shields, JJ.
    American Sheet & Tin Plate Company v. J. C. Lewis.
    Debt Owed in Other State not Subject to Garnishment.
    A valid and binding order of garnishment can not be made against a defendant upon a debt which he owes in another state.
    Error.

      Amerman & Quinn, for plaintiff in error.

      J. A. Bowman, for defendant in error.
   POWELL, J.

The original case was before a justice of the peace, and was brought by J. C. Lewis, the defendant in error, to recover against the plaintiff in error as garnishee in a certain action in which J. C. Lewis was plaintiff, and one John Laughley was defendant.

This order was made and entered by a justice of the peace also. The assignments of error in this case are the general assignments, that the judgment is against the law and the evidenee; that the court erred in overruling the motion of plaintiff in error for new trial, and that the judgment was given in favor of defendant when it should have been given for plaintiff in error.

The question raised and presented for adjudication here, is the question whether or not a valid and binding order can be made in an attachment proceeding against a garnishee when the answer of the garnishee discloses that the property sought to be attached — in this case a debt due — was situated in another state than the state of Ohio, or beyond the territorial jurisdiction of the court making such order.

It appears that the plaintiff in error is a foreign corporation, incorporated under the laws of Pennsylvania with its principal office in the city of Pittsburgh, but with branch offices at Chester, West Virginia, and at Canton, Ohio.

J. C. Lewis became the owner of the claim against John Laughley, at Chester, West Virginia, both men residing at. that place at that time. The petition and the agreed statement of facts disclose the facts as I now state them. Lewis left West Virginia and came to Canton, Ohio, and brought suit against Laughley before a justice of the peace, and by proper proceedings had an order of attachment issued against the American Sheet & Tin Plate Company, which answered that it was indebted to Laughley for wages in the sum of $11.85, and $4 costs of suit, and an order was made against the plaintiff in error, the American Sheet & Tin Plate Company, that it pay this amount of money to the plaintiff in that case, J. C. Lewis.

The garnishee refused to make the payment as ordered; and it is well settled in Ohio that an order against a garnishee is invalid as a judgment because he has not had his day in court; but upon that order suit may be brought, and that is the case here. Suit was brought then by said J. C. Lewis against the American Sheet & Tin Plate Company on the order as above mentioned. The evidence discloses that this debt still exists; this plaintiff in error still has money in its hands due to the said Laughley; his contract was made with the plaintiff in error in West Virginia, and the debt is due in West Virginia.

Can any of the courts of Ohio make a valid order against a garnishee in such cmcumstanées ? Now we think not if it is property that is sought to be reached, and that is so determined by Buckeye Pipe Line Co. v. Fee, 62 Ohio St. 543 [57 N. E. Rep. 446; 78 Am. St. Rep. 743], The court there says:

“Our statutes regulating attachment and garnishment (Section 5522 R. S.), do not give to the court'issuing such process jurisdiction over property of the defendant situate wholly beyond the borders of the state, nor power to require a garnishee having property of the defendant in his possession without the state to surrender the same into the custody of the court, and an order on the garnishee requiring such act is ■without legal effect.”

The court in its opinion on page 560, quoted from 8 Am. & Eng. Enc. Law 1156, as follows:

“To charge a garnishee for property of defendant, it is absolutely essential that at the time of service of process he should have it in his possession and within the state.”

And the court further says, quoting from the same authority at page 1255, “The domicile of the garnishee does not give the courts of the state jurisdiction over the debt he owes to a party in another state, and is not sufficient to sustain an action in rem” (and that is what an action in attachment always is). “This is not determined by his domicile, but by the situs of the property which he holds.”

We find also in Kelley v. Machine Co. 4 Dec. 374 (6 N. P. 350), a case cited, by the superior court of Cincinnati, the following, to be found on page 378:

“A person can not be subjected to garnishment by the courts of a state in which he may be, temporarily, differing from that of his domicile, unless he has property of the debtor in his possession, or owes him a debt payable in such state. ’ ’

Second. The domicile of the creditor is the situs of the debt.

Third. A debt due and payable outside of the state that is due from one non-resident corporation to another non resident corporation, is not subject to process of attachment and garnishment issued by the courts of such state of which they are not residents.

Now we think that applies to this case. Plaintiff in error is not a resident of the state of Ohio; the debt it owed is to a resident of West Virginia, although that is not exactly this case, because he is an individual and not a non-resident corporation, as in the case cited.

We think this plaintiff in error is not subject to garnishment in the court of Ohio for a debt it owes in West Virginia, and while the court below, we think, obtained jurisdiction over defendant Laughley by his entering appearance here, yet it did not .obtain jurisdiction over the subject-matter, so as to make a valid and binding order upon the garnishee.

For this reason, the judgment of the court of common pleas is reversed and the cause remanded for further action in the court below.

Voorhees and Shields, JJ., concur.


author: JONES, O. B., J.

text:
    EVIDENCE — RECORDS.
    [Butler (1st) Court of Appeals,
    May, 1914.]
    Swing, Jones and Jones, JJ.
    Walter S. Harlan, Assignee v. Lucy M. Henry Gunderson et al.
    Unauthenticated Copy of Court Proceedings not Competent as Proof of Question of Fact.
    To admit in evidence a printed record of a cause determined in another court, unauthenticated by the certificate of the judge and .clerk of said court, where the matter sought to be established thereby is one of fact is erroneous; but where plaintiff had failed to prove the facts necessary to make his case and the proof so introduced by defendant became immaterial, its admission was not prejudicial or ground for reversal.
    Error.

      John F. Neilan and Andrews é Andrews, for plaintiff in error.

      Stanley Shaffer and Baker & Bakerf for defendant in error.
   JONES, O. B., J.

The question presented to the court by proceedings in error at this hearing is whether or not the action of the court below in entering judgment for plaintiff upon the cross-petition of Walter S. Harlan, assignee of the McSherry Manufacturing Company, should be sustained.

The chief error relied upon by plaintiff in error is the action of the court in admitting the printed record of the ease of Seiler v. Manufacturing Co. 121 Fed. Rep. 85, 90 [57 C. C. A. 339], inclusive. This report was from the bound volume of the Federal Reports, and was not authenticated by the certificate 'of the judge and clerk of the court, and was introduced for the purpose of establishing certain facts that were set out in said decision, which plaintiff below contended showed that the litigation there before the court did not embrace the Gunderson patents.

In the opinion of the court the admission of this record by the court below, in the form presented, was error. Under Sec. 11499 G. 0., this evidence so offered would have been properly admissible if the question of law there decided was the matter to be proved, but it was not proper evidence to show matters of fact involved in the cause there decided.^.

The question raised by the cross-petition was whether under the Gunderson contract the cross-petitioner was entitled to recover for expenses incurred in litigating with reference to the Gunderson patents. The burden was upon the cross-petitioner to sustain his account for expenses as set out in his cross-petition by proper proof. A careful examination, of the record discloses that by the testimony of Mr. Fetzer, who had been the general manager of the company, it was shown that certain moneys had been expended in matters connected with litigation of patents for the model planter and for the automatic planter, but we find no proof that expenses were incurred with reference to the features of either of the Gunderson patents; and, indeed, Mr. Fetzer states that the planters'then being manufactured were not based upon said patents.

It will appear that the cross-petitioner failed in his proof to show that the expenses sought to be recovered were thus provided for by its contract with Gunderson, and therefore the admission of the record in Seiler v. Manufacturing Co supra, offered by plaintiff can not be deemed as prejudicial.

We fail to find any prejudicial error within the terms of Sec. 31364 G. C., and judgment below is therefore affirmed.

Swing and Jones, E. H., JJ., concur.


author: VOORHEES, J.

text:
    TAXATION — WILLS.
    [Licking (5th) Court of Appeals,
    September Term, 1913.]
    Powell, Voorhees and Shields, JJ.
    Consumers Brewing Co. v. Mary V. Hardway, et al.
    1. Contents of Will and Record Destroyed not Established by Single Witness Speaking from Memory after Lapse of Thirty Years.
    The contents of a will, which has been destroyed together with the record thereof, can not be established by the testimony of a single witness who speaks entirely from memory after an interval of more than thirty years since he saw the will and heard it read;
    2. Tax Title after Fifty Years not Invalidated by Defect in Description of Property Sold.
    In order to attack successfully a tax title, the former owner must show some irregularity in the proceedings connected with the tax sale which invalidates the title so conveyed, and where the only defect shown is that the description of the property sold for taxes was not clear, and the present holder and his predecessors in title have been in possession for more than fifty years, it is too late to seek to invalidate the conveyance, and the present holder will be decreed to be invested with an absolute estate in fee simple.
    Error.

      A. A. Stasel and Carl Norpell, for plaintiff in error.

      Eibler <& Eibler» and J. R. Davies, for defendants in error.
   VOORHEES, J.

Action, below was a civil action for partition of real estate in the city of Newark, Licking county, Ohio, described as lot No. 46 in said city. The petition states in substance that one Steven Gill died in 1843, at which time he was the owner of said lot 46 situated on the north side of the public square in the city of Newark.

He died leaving three daughters and three sons. One of said daughters, Mary Anne Cully, died November 8, 1856, without issue; another daughter, Sarah Anne Wadhame, died in 1885, leaving one child, a daughter, to-wit, Janet Hartley. It is claimed by the plaintiffs below that Janet Hartley had three children, but what has become of Janet Hartley or her three children is not disclosed. Another of said daughters, to-wit Eliza M. Kidwell, died November 9, 1909, without issue. Lorenzo Gill, one of said sons, died in 1891, leaving one child, Eliza J. Henthorne; John Gill, another son, died in 1889, leaving Mary Y. Hardway, his only child. Steven A. Gill, another of said sons, died in 1912, leaving Mary Francis Gill his only child.

It is contended by the plaintiffs below that said Steven Gill, who died as before stated in 1843, made and left a will whereby he devised to each of his said daughters a life estate in said lot 46 with remainder in fee to their heirs. They further contended that Mary Y. Hardway, Eliza J. Henthorne, Steven A. Gill and the unknown heirs of Sarah Anne Wadhame are the heirs of Eliza M. Kidwell who died November 9, 1909, and as such heirs are each entitled to one undivided one-fortieth of her undivided one-third of the south 120 feet of the west half of the said lot 46, and brought this suit for the partition thereof.

The petition further alleges that the Consumers Brewing Company was the owner of the other undivided two-thirds of said lot, and -is in the sole- and exclusive possession of said premises, denying the rights of the plaintiffs and unlawfully keeps the plantiffs out of possession of their part of said premises. The petition further alleges that the brewing company has received the rents from said premises, amounting to $300 or more.

The defendant, the brewing company, filed its answer admitting as the first defense that it is in the sole and exclusive possession of said premises, and it denies the rights of the plaintiffs to said premises pr any part thereof. It admits' receiving of said rents amounting to $300 or more, and denies all the other allegations of the petition.

For a second defense defendant alleges that plaintiffs’ alleged cause of action did not accrue at any time within twenty-one years prior to the commencement of said action.

For a third defense defendant sets up its adverse, exclusive, open, notorious and continuous possession of said premises for more than twenty-one years.

The plaintiffs’ reply in effect is a general denial.

The defendant company filed an amendment to its answer, setting up a claim for improvements under the occupying claimant act.

Upon these issues this case was tried to the court. ‘ Neither side demanding or waiving a jury, the hearing resulted in a decree in favor of the plaintiff and ordering partition of the premises. All questions as to the accounting for improvements was reserved by the common pleas for a further order of the court.

From this decree the defendant, the Consumers’ Brewing Company, appealed to the circuit court, which court on motion of plaintiffs below dismissed the appeal.

From the judgment of the circuit court dismissing said appeal the defendant prosecuted error to the Supreme Court, which court, by a divided court three to three, affirmed the circuit court.

The Consumers’ Brewing Company also prosecuted error from the decree of the common pleas to this court, then the circuit court, and filed its bill of exceptions and petition in error.

The errors assigned in the petition in error are:

1. In admitting testimony offered by plaintiffs below against the objection of defendant below.

2. In rejecting evidence offered by defendant below.

3. Because the decree, judgment and finding was against the manifest weight of the evidence.

4. Because said judgment, finding and decree was against the law.

5. For numerous other errors stated in the petition in error.

Considering the errors in the order assigned, was there error in the admission of testimony by the plaintiffs below? It is contended by the plantiff in error that. the court erred in receiving the testimony of J. F. Lingafelter as to the contents of the alleged will of Steven Gill, deceased, which was made, probated and recorded softie forty years ago. But neither the will nor a copy or any record thereof is produced. It is claimed by the plaintiffs that the original will, as well as the record thereof were destroyed when the Newark courthouse was burned in 1874.

There being no record of the will, or the original will, or a certified- copy thereof, or an uncertified copy of the record produced, the only thing left was to produce a witness or witnesses who would testify that they had read the original record and from memory would and could give ho much of its contents as to make it clear and satisfactory that the will had been probated, that it contained provisions claimed by the parties offering such proof.

The plaintiffs produced one J. F. Lingafelter, who was permitted to testify from memory as to the contents of the alleged will and the record thereof, although he had not seen the will or a copy of it for thirty-six years. Waiving the question as to the competency of the witness Lingafelter, what probative force, if any, is his testimony entitled to? The witness must be supported by other evidence. The unsupported parol evidence of one person who testifies that he saw and read a deed in the grantee’s hands is not sufficient to establish a lost deed. Smith v. Neff, 5 Dec. 449 (5 N. P. 495).

In the case of Cole v. McClure, 88 Ohio St. 1, the Supreme Court of Ohio reversed the common pleas and circuit court establishing and probating a lost will on the testimony of one witness as to its contents.

To establish a lost instrument, deed .or will, the evidence must be clear and satisfactory. 7 Cyc. 778f.

Where parol evidence is relied upon to prove a deed alleged to have been lost, such evidence must clearly and satisfactorily show the existence and execution of the supposed deed, and so much of its contents as to enable the court to determine the character of the instrument, Gilmore v. Fitzgerald, 26 Ohio St. 171. The same strictness as to proof would obtain where it is attempted to establish the contents of a lost or destroyed record.

The testimony of said James F: Lingafelter as to the contents and conditions of the will of Steven Gill, deceased, contained in the record commencing on page 173 and ending with page 203 needs no comment other than the criticism of Judge Cox, of the United States Court, in the ease of Mach v. Manufacturing Co. 52 Fed. Rep. 819, 820, where the judge uses this language, concerning such a narrative of facts from memory after so long a period, ‘ ‘ That a witness recalling minute details of a trivial event which occurred in his daily vocation thirty years before would be amazing if not miraculous.”

2. If the will of Steven Gill was as Lingafelter testified it was, how stands the case in view of the subsequent history and facts disclosed in the record? The will of Steven Gill, as claimed by Lingafelter, gave to his three daughters an estate for life in the property in controversy, remainder to their heirs.

March 17, 1848, Eliza M. Kidwell, one of the daughters, and her husband conveyed her life estate in- the property in controversy to George S. Smith, from whom defendant company claims title. Morch 20, 1848, Mary Anne Gully, another daughter, and her husband conveyed her life estate to George S. Smith. On June 12, 1848, in consideration ,of $500 to them paid by said three daughters said sons conveyed the fee in this property to the three daughters by quitclaim deed. On June 12, 1848, Anne Wadhame, the third daughter, and her husband sold a d conveyed to Merwin Cully, husband of Mary Anne Cully, not only the life estate of Sarah Anne Wadhame, but also the fee simple title in one-third of the premises for $200. July 24, 1848, Merwin Cully and Mary Anne Cully conveyed to George S. Smith, not the life estate of Mary Anne Cully in one-third of this property, but the absolute title in fee simple for $450.

Without going into further detail as.to the various deeds to Smith, after he received these conveyances he erected a large and valuable building on said lot. The defendant company produced its claim of title for all of said premises, showing an unbroken line of conveyances from the president of the United States to the plaintiff in error, the Consumers’ Brewing Company, and they further show an actual, open, notorious, exclusive and continuous possession under color of right in these premises since 1845, a period of sixty-seven years.

On the second Monday of January, 1845, these premises were offered for sale by the county treasurer of Licking county to pay delinquent taxes, interest and penalties and 'were not sold for want of bidders. On the second Monday of January, 1845, these premises were forfeited to the state of Ohio under the statute then in force governing forfeited land sales.

On the second Monday of December, 1845, these same lands were sold by the county auditor under the act of March 1, 1831, providing for the sale of lands forfeited to the state for nonpayment of taxes, being the same statute that is now in force under Sec. 2899 R. S. The land was sold to one F. H. Wood-bridge, August 15, 1846, and a deed was executed by the auditor of the county to Woodbridge under said sale. September 19, 1846, said F. H. Woodbridge and wife conveyed these premises by quitclaim deed to one William A. Boss. August 4, 1848, William A. Boss and wife conveyed said premises to said George S. Smith. November 10, 1849, said George S. Smith and wife conveyed the same premises to Michael Morath, in which deed there is this recital: “Being the same premises heretofore occupied by the said George S. Smith, on which there is a three-story stone building known as the Bazaar in said city.” June 22, 1889, Michael Morath conveyed these premises to Philomena Worley. June 20, 1889, A. J. Grilley, sheriff of said county, conveyed these premises to L- P. Schans and J. H. Hibbert. On July 17, 1897, said premises were set off and assigned in severalty to the said L. P. Schans in partition in and by virtue of an action pending in the common pleas court in said county, in which L. P. Schaus was plaintiff and Anna Chilcote and others were defendants, being case No. 10,119 of the records of court of common pleas of said county.

At the April term of said court for the year 1897 said partition was confirmed by the court and the clerk was ordered to have so much of said decree recorded as would show the transfer of title of said land. On December 11, 1905, L. P. Schaus and wife conveyed said premises to the Consumers’ Brewing Company, a corporation, which is now the owner and holder of said premises and the plaintaiff in error in this action. The foregoing citations show a complete chain of title from the state of Ohio in 1846 to the Consumers’ Brewing Company, plaintiff in error, covering a period of sixty-five years.

The only attack made upon said title by the defendants in error is their contention that the tax deed to Woodbridge for the forfeiture of lands for the nonpayment of taxes was not a legal conveyance and was void and passed no title for the reason of a defective description in the tax deed or upon the duplicate for the sale of forfeited lands to the state. Under the act of March 14. 1831, in force at the time these lands were sold for taxes, as well as in Sec. 2899 R. S., when lands are forfeited to the state for nonpayment of taxes all former titles to said lands are divested and extinguished, and the effect of the tax sale was to work a forfeiture of all the prior estates of the owner, and the auditor’s deed for forfeited land sold under said act of March 14, 1831, is prima facie evidence of title, and may be given in evidence without any preliminary evidence. The statute throws upon a person seeking to avoid this deed the burden of showing that the proceedings prior to its execution were illegal. Such a deed is not only pñma facie evidence, but the Supreme Court of Ohio in ease of Ward v. Barrows, 2 Ohio St. 242, held:

“In favor of the acts of public officers, the law will presume all to have been rightly done, unless the circumstances of the ease overturn this presumption; and consequently, as stated by the Supreme Court of Ohio in Bank of the United States v. Dandridge, 12 U. S. (12 Wheat.) 70, acts done which presuppose the existence of other acts to' make them legally operative, are presumptive proof of the latter. ’ ’ ’

The auditor’s deed was prima facie evidence without any proof of the regularity of the proceedings resulting in the sale of the land. Turney v. Yeoman, 14 Ohio 208; Woodward v. Sloan, 27 Ohio St. 592.

The effect of this rule, as before shown, it to shift the burden of proof by imposing on the party asserting the invalidity of the deed the duty of showing it to be void for want of compliance with the statute in the proceedings leading to the alleged forfeiture. As we have said, the only objection to or defect of the tax deed is that is rendered void because the description is not good; that is, that the words “50 feet off the west half of lot 46” does not describe the property in controversy. This lot 46 is a lot 99 feet east and west and 198 feet north and south in the city of Newark, as shown by the plat offered in evidence. If this deed had described it as the “west half of lot 46 ’ ’ the description would be perfect, but it says ‘ ‘ 50 feet of the west half of lot number 46.”

“Of” is a preposition meaning “belong to.” “A description in an auditor’s deed need not be of a greater certainty than any other conveyance by deed of individuals, and the same is to be literally construed to carry out the intention of the parties.”

It is held in Schlief v. Hart, 29 Ohio St. 150, that “extraneous testimony is admissible to identify land conveyed by the following description, to-wit, ‘a tract or lot of land known as the east half of the southwest division of See. 17, although such testimony shows that the land so conveyed is less in quantity than a mathematical half of the division.”

Without pursuing the discussion further as to the validity of the tax deed, how can the former owners have any interest in these forfeited lands to the state for nonpayment of taxes? The state owns the fee simple title to the property and can make a sale of the same under the law. To attack a title of this kind the fomer owner must show .some irregularity that will invalidate the forfeiture. The only alleged irregularity in this deed is as to the description, and we do not think it such a defect as to invalidate the title conveyed by the auditor in his deed made August 15, 1846. Under these deeds the plaintiff in error and its predecessors in title, from whom it claimed, have been in possession for over fifty years. We think it too late to attack the validity of this conveyance, and if the conveyance is legal it passes all the title, legal and equitable, owned by the prior owners of said premises, and vests in the plaintiff in error by succession an absolute estate in fee simple; and being of this opinion, we must hold there was error in the court below in finding that the title to this property, or any part, or it is in the defendants, and for these reasons the judgment of the court below is reversed and the 'cause is remanded to the common pleas for new trial and further proceedings according to law.

Powell and Shields, JJ., concur.


text:
    MUNICIPAL CORPORATIONS.
    [Hamilton (1st) Court of Appeals,
    July 12, 1913.]
    Swing, Jones and Jones, JJ.
    Pleasant Ridge (Vil.) v. Dayton Limestone Co.
    1. No Cause of Action against Village for Material Used in Street Improvement, without Compliance with Statutory Requirements.
    A cause of action is not stated against a village on an account for material used in improving its streets, where there is no allegation that a certificate issued as to there being sufficient money in the treasury and unappropriated to meet the proposed obligation, or advertisement was made for bids for the work, or that the obligation was to be met by the proceeds from an issue of bonds: nor can the argument prevail that- because the material so furnished was actually used by the village it became morally bound to pay the claim.

      Error.

      Stanley W. Merrell, Assist, city solicitar, for plaintiff in error.
    Paxton, Warrington & Seasongood, for defendant in error.
   JONES, O. B., J.

Plaintiff in error seeks to set aside a judgment by defendant in error in the court of common pleas for $1,500 and interest for stone furnished and delivered for the improvement of its streets.

The record shows that the stone was furnished on four written orders addressed to the Lewis & Talbott Stone Co., three of them for 369 cubic yards of stone at $1.35 per cubic yard, signed by “John Petzer and William B. Thesing. S.S.G. Committee,” and the other for 389 cubic yards signed by “John Petzer, S.S.G. Committee.” No written contract was entered into and signed by the proper village officers, no advertisement for bids was made and no certificate from the village clerk was filed showing that money was in the treasury set apart to meet the proposed expenditure. The stone was delivered and used on the village streets. A partial payment was made on the account, and a question being raised as to payment for the balance claimed, an ordinance was passed by- the village council February 18, 1907, “to allow the claim of the Lewis & Talbott Stone Company for material furnished for use on the streets of Pleasant Ridge,” and the clerk was directed to issue a warrant against the “first available' funds,” and the treasurer was directed to pay over such amount to the Lewis & Talbott Stone Company or their attorneys or agents the sum of $1,500 in full settlement of said claim of the Lewis & Talbott Stone Company. No certificate was attached to such ordinance that there was money in the treasury to meet such expenditure.

The petition below does not state a cause of action. It fails to set out a valid contract, as it does not comply with the municipal code, under Sec. 3806, G. C., there being no certificate that there is money in the treasury set apart to meet the expenditure; or under Sec. 4221 G. C., which requires an advertisement when the expenditure is in excess of $500; nor does the evidence show that these provisions were complied with, and defendant therefore can not be held. Lancaster v. Miller, 58 Ohio St. 558 [51 N. E. Rep. 52]; Buchanan Bridge Co. v. Campbell, 60 Ohio St. 406 [54 N. E. Rep. 372]; Comstock v. Nelsonville, 61 Ohio St. 288 [56 N. E. Rep. 15]; Wellston v. Morgan, 65 Ohio St. 219 [62 N. E. Rep. 127].

Plaintiff below however relied upon the ease of Emmert v. Elyria, 74 Ohio St. 185 [78 N. E. Rep. 269], claiming that bonds were to be issued to raise money to pay for resurfacing the streets and that the stone furnished by plaintiff was used as part of such work. The record fails to support that claim.

Nor can the argument prevail that because the material furnished was actually used by the village it thus became morally bound to pay the claim. Such an argument might be heard in a suit to prevent the village from making such payment if it so desired, but it can not be used in a suit like this at bar where the village is resisting payment in a suit filed to recover the value of the materials. This argument was used unsuccessfully however in the case brought by Castner, a taxpayer, against the village of Pleasant Ridge, to enjoin the payment of the same claim involved in this case. The opinion of the common pleas court in granting a perpetual injunction is reported in Castner v. Pleasant Ridge, 18 Dec. 539 (7 N. S. 174), and it does not appear but that the decree entered therein is still in full force. The village set up this decree as a defense to this action. "While the plaintiff here was not a party to the record in that case, and is therefore not concluded by that decree, yet it seems inconsistent that the same court should enter that decree enjoining the village from paying the claim, and then in this suit brough to enforce the same claim, enter a judgment compelling payment by the village.

The record also fails to show how the plaintiff here became the owner of a claim for materials furnished by the Lewis & Talbott Company.

The judgment below is therefore set aside and judgment will be entered for plaintiff in error.

Swing and Jones, E. H., JJ., concur.


text:
    HOMICIDE.
    [Hamilton (1st) Court of Appeals,
    July 5, 1913.]
    Swing, Jones and Jones, JJ.

      Abraham Smile v. State of Ohio.
    1.' Misnomer from Misspelling Accused's Name in Indictment for Murder not Raised by Motion for Arrest of Judgment.
    The misspelling of the name of the defendant in the indictment under which he was tried does not present a question which can be raised on a motion for arrest of judgment.
    2. Use of Numerals to Designate Degree of Murder in Verdict Re-probated but not Reversible Cause.
    The use in a verdict in a case of homicide of a figure to designate the degree of murder of which the defendant has been convicted, while to be reprobated as bad practice, does not prejudice the defendant nor afford ground for a reversal of the judgment.
    Error.

      Charles 0. Bose, for plaintiff in error.

      Thomas L. Pogue and Walter M. Locke, for defendant in error.

      Leave to file petition in error refused by Supreme Court, Smile v. State, 58 Bull. 391.

   JONES, O. B., J.

Abraham Smile was placed on trial under an indictment charging murder in the first degree in the billing of one Lucy Smile, otherwise known as Lucy McDyer, on June 21, 1912, after defendant had filed a motion to quash and a demurrer to the indictment, both of.which were overruled, and had entered a plea of “not guilty” to the indictment against him as Abraham Smile, and after the jury had been impanneled and sworn and all of the evidence heard, at the request of the defendant the suggestion was made that the real name of the defendant was Abraham “Smiley,” and at his request the clerk was directed to make the change accordingly in the proceedings. Defendant was found not guilty of murder in the first degree but was found guilty of murder in the second degree. No motion was filed for a new trial, but within three days after the return of the verdict the defendant filed his motion in arrest of judgment and for the discharge of the defendant. Proceedings in error are predicated upon the overruling of this motion.

Two errors are relied upon by plaintiff in error:

First. A failure of proof as to the name of the deceased;

Second. The verdict does not find defendant guilty of any offense under the laws of Ohio' but amounts to a verdict of not guilty.

It is claimed that each of these errors entitled the defendant to his discharge.

1. Considerable argument is made by counsel for plaintiff in error based upon the question of the name of the plaintiff in error, claiming that the name “Smile” was essentially different from the name “Smiley.” If, as is the ease with the names of most foreigners the name written “S-m-i-l-e” were pronounced in two syllables, having a syllable for each vowel, it would receive the same sound as if written “ S-m-i-l-e-y. ” The evidence shows without question the identity of the woman who was killed, and there is no question that her first name was Lucy. She was known as the wife of the defendant and had lived with him as such, which would be sufficient proof that her proper name might be Lucy Smile; and the testimony shows •that she was also known as “Lucy McDyer.” The case therefore does not come within the ease relied upon the plaintiff in error of Goodlove v. State, 82 Ohio St. 365 [92 N. E. Rep. 491; 30 L. R. A. (N. S.) 134; 19 Ann. Cas. 893], In that case it should also be noted that a motion for new trial had been interposed. Such a motion is necessary in order to review the question of evidence. Everett v. Sumner, 32 Ohio St. 562.

The only questions that can be raised on motion for arrest of judgment are those set forth under Sec. 13748 G. C.; Myers v. State, 2 Circ. Dec. 712 (4 R. 570); Carper v. State, 27 Ohio St. 572.

2. The form of the verdict which was criticized is as follows :

“We, the jury, in issue joined find defendant Abraham Smile, right name Abraham Smiley, is not guilty of murder in the 1st degree as he stands charged in the indictment; and guilty of murder in the 2nd degree.”

Objection is made by counsel to the use of the numerals in describing the degrees of the crime of murder. If the form of this verdict was drawn by the clerk, as was stated in argument, it certainly is to be reprobated, as the words “first” and “second” should have been written out in full in any form so prepared; and we observe that the transcript of the record shows an indiscriminate use by the clerk, in making up such record, of numerals and words, which is not to be commended. In view, however, of the provisions of Sec. 13581 GL C., that an “indictment shall not be invalid” * * * because “dates and numbers are represented by figures”; * * * we think that the use of figures in the verdict as in this case can not be prejudical to the defendant, as there is no uncertainty as to what these figures mean, the Arabic figures in combination with the letters being as clear in their meaning as the words would be if fully written out in letters alone.

Judgment below will therfore be affirmed.

Swing and Jones, E. H., JJ., concur.


text:
    ELECTION — SPECIFIC PERFORMANCE.
    [Hamilton (1st) Court of Appeals,
    July 1, 1913.]
    Swing, Jones and Jones, JJ.

      Sam Lee, et al., v. Joseph S. Thoma.
    1. Electing to Invoke Specific Performance Bar Action for Damages.
    An action for specific performance is a bar to a subsequent action for damages alleged to bave been sustained through failure of the defendant to carry out the contract which forms the basis of the first suit.

      Error.

      Thorndyke & Capelle, for plaintiffs in error.

      W. A. Kicks, J. B. Jordan and Worthington & Strong, for defendant in error.

      Affirmed, no op., Lee v. Thoma, 91 O. S. 444.

   JONES, O. B., J.

The action below was brought by plaintiff to recover damages for failure to carry out a contract to lease certain premises at 514 Vine street together with an entrance, same to be used ‘for a chop suey restaurant, the term of the lease to be four years. Plaintiffs took possession after making the contract, and occupied said premises for a few months. Defendant made changes in the entrance and stairway to which plaintiffs objected and finally moved out of the premises and filed suit in the court of common pleas on June 15, 1911, in ease No. 148116, to compel the specific performance by the defendant of his contract for the execution of a lease for four years under the conditions prescribed in the contract. On December 4, 1911, this suit was dismissed without prejudice at plaintiffs’ costs.

In the meantime, on August 22, 1911, plaintiffs filed a suit in an action for damages suffered during the period of plaintiffs’ occupancy against defendant for failure to carry out the same contract, which is the suit now under review.

In this case below an answer was filed practically admitting the making of the contract and its performance by the defendant, and as a fourth defense set up the suit brought in action No. 148116 of the court of common pleas for specific performance of this contract and claiming “that in filing said suit plaintiffs thereby elected to pursue their remedy of specific performance for the alleged failure of this defndant to comply with the provisions of said contract, and by such election are barred from prosecuting this action for damages.”

To this defense plaintiff demurred, which demurrer was overruled by the court, and plaintiffs rely upon the error of the court below in overruling such demurrer.

In the opinion of this court the demurrer to the fourth defense was properly overruled. Plaintiffs elected in filing their first suit to compel specific performance, and having made their election they must rely upon that, and can not now abandon that suit or bring an action for damages for breach of the same contract. Zutterling v. Drake, 30 O. C. C. 661 (10 N. S. 167); 7 Enc. Pl. & Pr. 364.

Judgment below is therefore affirmed.

Swing and Jones, E. H., JJ., concur.


text:
    CANALS — PATENTS.
    [Licking (5th) Court of Appeals,
    1913.]
    Powell, Voorhees and Shields, JJ.
    (Voorhees, J., not sitting.)
    Isaac Jones v. Wm. P. Myers. Isaac Jones v. James T. Haynes.
    Title to Borrow Pits Adjacent to State Canal Reservoir is In Patentee and Sucessors and not in Lessees of State.
    Admitting that certain depressions adjacent to the embankment surrounding a canal reservoir are borrow pits from which earth was taken in constructing the embankment, the act of the state in so excavating 'and removing the earth, or in subsequently tiling the depressions in order to drain them of water seeping out of the reservoir, did not amount to an appropriation of the land from which earth was thus removed; and in the absence of any evidence that title to these pits was acquired by the state by selection, under the act of congress of May 24, 1828, a lease of such lands by the state is void as against the title of one holding by a direct line of mesne conveyances to himself from the United States under a patent issued in 1843.

      Kibler Z Kible, for plaintiffs.

      Flory c& Flory, for defendants.
   POWELL, J.

These two eases came into this court by appeal, and are submitted together, being identical in the issues presented, both of fact and of law. The plaintiff seeks to have his title and possession quieted to a tract of land described in his petition; the defendant Myers claims the right of possession to the west half, and the defendant Haynes to the east half of the same land, and both ask that their title to the same be quieted as against the plaintiff or those claiming under him. Plainiff’s right is the same in each ease, and the defendant’s separate rights are acquired from the same saurce and by the same instrument of lease.

Plaintiff claims title to the land described in the petition, lander a patent from the general government issued April 10, 1843, and by a direct line of mesne conveyances from the United States to himself. The land described in the patent is the N. W. 1-4 of the S. W-. 1-4 of S. 13, T. 17, and R. 18, refugee land containing a fraction over forty-three acres. Across this tract and omnning in a northeasterly and southwesterly direction is the northwestern embankment of the Licking reservoir, now called Buckeye lake, so that the southeastern part of the said forty-three acre tract is covered by the bank and the waters of the lake; the part of said tract not covered by the lake is owned and occupied by the plaintiff, Isaac Jones, and has been so owned and occupied by him since 1879. No question is made by any of the parties to this suit as to the title of so much of said tract as is covered by the waters of the lake or the said embankment. This title is conceded to be in the state of Ohio by lapse of time and adverse possession as against parties holding oonder the patent from the government. But adjoining the embankment on the northwest side are what is known as “borrow pits” or places from which the earth has apparently been removed for the purpose of constructing the said embankment, which is an artificial bank built to retain the waters of the lake above the level of the lands on that side, thereby creating low places adjoining the outer edge of said embankment the entire length of so much thereof as lies on plaintiff’s said lands. These low places thus made vary in width from a point at or near the eastern end up to 150 feet and are estimated at an average of 100 to 125 feet in width along the entire embankment on plaintiff’s said land. It is this line of borrow pits along the northwesterly side of Buckeye lake across the lands of plaintiff that is involved in this action, plaintiff claiming title under a patent from the government supplemented by actual possession of the premises by him from 1879 up until the present time, and the defendants claiming the right of possession by lease from the state of Ohio, which claims title to said borrow pits either by virtue of the act of Congress of May 24, 1828, granting 500,000 acres of land to the state of Ohio for the purpose of assisting in the construction of the canal system of the state, or by appropriation under the act of the legislature of Ohio of February 4,. 1825, providing for the construction of said canal system and authorizing the appropriation of land or materials for that purpose. The evidence shows that the canal system was completed some time in 1832; the date of the patent for the lands described is April 10, 1843, so that it is a contest between two titles emanating from the government as to which conveys the better rights to the premises involved in this action, under the respective titles thus claimed. Buckeye lake, formerly Licking reservoir, is a part of the canal system of Ohio, and although it is now dedicated as a. public park for the benefit of the citizens of the state, it was originally constructed as a part of that system.

The common source of title to all lands in Ohio is the general government and the patent issued by the general government is usually conclusive as to the title under it. The court can, however, inquire whether or not such title is in conflict with any other prior legal or equitable title to the same land. The state claims to own these lands either by virtue of a selection of the same under the act of congress, or by an appropriation under the statutes of Ohio providing for the appropriation of lands in the construction of the canal system. No evidence was offered of any selection of this particular tract of land ever having been made. The statute, which authorizes such selection, provides that the same shall be made within two years from the date thereof, under the authority and by the direction of the governor of the state of Ohio, and that when such selection has been made, he shall report the same to the land office of the .district where such land lies, and the lands so selected should be granted by the United States to the state of Ohio. If this had been done so as to show a transfer of title under this statute to the state of Ohio, there ought to have been a record of it, and since no such record has been offered, we conclude that' it was not done and that the state did not acquire title to these lands by selection under this statute. There is no question made as to the line or chain of title from the patentee under the patent of April 10, 1843, to the plaintiff. His title is good provided the state had not acquired a prior title by virtue of an appropriation under the statute of February 4, 1825. It has been repeatedly held in Ohio that an appropriation under this statute conveys absolute title in fee simple to the state, and when such title actually vests in the state, it can not be defeated by a claim of adverse possession or by lapse of time, but remains in the state until conveyed away by virtue of some duly authorized proceeding.

Claim is made on the part of the plaintiff that by reason of the continued use and possession of these borrow pits by the plaintiff, his titki would become complete as against the state by adverse possession. This position is not tenable, as adverse possession does not run against the state. Plaintiff’ s possession of these borrow pits was either as a matter of right under his title from the government, or by sufferance of the state of Ohio.

The claim is also made on behalf of the defendants that because seepage from the lake through the embankment, and the overflow, at times of high water, found its way down into these borrow pits, and that afterwards the state tiled out the borrow pits constituted an appropriation of the same. But the evidence does not show that these borrow pits are made by the state with the intent or purpose that the same should constitute a drain or ditch to carry off such seepage and overflow for the benefit of the lake or the canal system of Ohio. The seepage and the overflow from the lake through its waste wiers found its way to the borrow pits simply by operation of the natural law by which water runs to the low places until it finds its level and did not find its way there by reason of any construction on the part of the state in such a way as to constitute damage for such seepage and overflow. If these borrow pits had been constructed by the state with that end in view and not as a result simply of excavating the soil for other purposes, it would present a different question, as such construction might then have been considered as an appropriation of the land itself for the benefit of the canal system.

The claim is also made by the plaintiff that no such appropriation was ever had, on the part of the state, of the lands in ’ controversy as would carry with it a title to the same; that such appropriation as is shown here, if one was ever made, would convey only the materials taken from the land and used by the state in the construction of the artificial embankment of the resorvoir or lake. And there is no direct evidence in the case that any such appropriation was ever had. It is true that the topography of the land supplies an inference that the soil that was formerly in these borrow pits was taken out and used in the construction of such embankment, but no witness testifies to this as a fact.

To constitute an appropriation within the meaning of the law, the thing appropriated must be taken into actual ownership, possession and use. To appropriate anything for the canal system, it must become a part of that system.

“Where the possession and use of lands or streams in the construction of the Ohio canal system were merely incidental, constructive or indirect, and not of a character to fairly apprise both the officers of the state and the owners of the lands, that such lands or streams were appropriated and used in the construction of the canals, no fee to such lands or streams vested in the state.” Miller v. Wisenberger, 61 Ohio St. 561 [56 N. E. Rep. 454].

Again it will be remembered that if any appropriation of these lands was made by the state in the construction of the canal system, such appropriation was made while the title to said lands was still in the general government, as no patent was ever issued until more than ten years after such canal system had been completed.

The ease of State v. Fenn, 21 Dec. 593 (10 N. S. 325), is authority for the proposition that appropriation by the state did not operate on unpatented lands under this statute.

‘ ‘ Section 8 of the act of February 4, 1825, the substance of which was an appropriation by the state of all lands, waters and streams taken possession of by the canal commissioners, vesting the fee in the state, did not operate on unpatented United States lands, such as the land involved in this case was.”

This case also holds that as against the general government the state could not obtain title either b.y apporpriation under this statute or by lapse of time. It-is conceded, however, that as against a patentee the state could acquire title, for this reason, no claim is made in this action for so much of the land described in the patent as is inundated by the waters of the lake or covered by the embankment built to retain the same. As was said before, there is no direct evidence that these borrow pits, so-called, were made by the state in obtaining materials for the construction of the embankment of the lake; but admitting that such was the case, was the act of the state in excavating and removing the soil adjacent to such embankment an appopriation of the lands from which such soil was removed so as to vest the title to the same in the state ? This court is of the opinion that it was not; that the appropriation contemplated by the statutes is an actual appropriation or taking possession of the land itself as a part of the canal system and that removal of soil from the surface of the lands for the purpose of constructing an embankment, and for no other purpose is no more an appropriation of the fee to the land itself than if such land had been covered with stone or timber and the same had been removed by the state for use in the construction of such embankment. It is an appropriation of the material used and of that only. This was authorized by the terms of the statutes above referred to.

Finding as we do that the state did not acquire title by selection or, at least, that there is no evidence whatever that the title to these lands was so acquired, and that the state was without any title as against the general government, we think that it could not acquire title as against the patentee of the government, who acquired his title subsequently to such appropriation, unless there would be a new act of possession with a claim of ownership on the part of the state after such patent had been issued. There is no evidence whatever of anything of this kind, nor is any claim made to this effect.

To recapitulate:

1. The plaintiff has title from the government for the lands in controversy through the patent issued to Jacob Grove, April 10, 1843, by intermediate conveyances to himself.

2. There is no evidence that the state acquired title to these lands by selection under the act of congress, of May 24, 1828.

3. If the state acquired title by appropriation under the act of the state legislature of February 4, 1825, it must have acquired it before the canal system was completed in 1832, and before the land in controversy was patented in 1843, and while the title thereto was still in the general government. This could not be done.

4. The acts relied on by the state to show an appropriation of the lands described are insufficient for that purpose.

5. There has not been any appropriation of these lands by the state, since the patent for the same was issued.

Hence, we conclude-.

1. That the state has no title to the lands in dispute, and its lease to the defendants for the same is void and of no effect.

2. That the plaintiff has title thereto, and is entitled to the relief prayed for in his petition.

A decree may be entered in conformity with this opinion, quieting the title of plaintiff and making the injunction, heretofore allowed, perpetual. The cross petitions of the defendants will be dismissed at their costs.

Shields, J., concurs.


author: HENRY, J.

text:
    RAILWAYS.
    [Cuyahoga (8th) Circuit Court,
    June 26, 1905.]
    Marvin, Winch and Henry, JJ.
    Lake Shore & M. S. Ry. v. Charles Brooks.
    Duty of Employe to Look and Listen Before Going Upon Tracks.
    Employes whose duties require them to cross the tracks in the yards or at the depots of railways are bound to observe a strict lookout; hence, they are required to look just before going upon the track, or so near thereto as to enable them to get across before a train within the range of their view of the track, going at the usual speed of fast trains, would reach such crossing.
    Error.

      Brewer, Cook & McGowan, for plaintiff in error.
    Wm. T. Clark and W. H. Boyd, for defendant in error.
   HENRY, J.

This proceeding in error is brought to reverse the judgment of the court of common pleas. The parties stand here in the relation opposite to that in which they stood below.

Defendant in error, while employed in the repair shops of the plaintiff in error, was struck by a backing engine and seriously injured, while in the act of crossing a track in the railroad yard right in front of the shop door. He brought an action-for damages and recovered a large judgment. The only question that we need consider is whether Brooks is chargeable with contributory negligence, for we have no difficulty in coming to the conclusion that the company was negligent and that Brooks did not resume the risk of such negligence.

The facts were presented to us very vividly by means of diagrams and photographs. It is doubtful whether any useful purpose will be served by our attempting here to translate those pictures into words. Suffice it to say that Brooks had long been employed in the shop, A.t the time of the accident, however, he was repairing a locomotive on one of the tracks in the yard, sixty or seventy feet diagonally from the shop door. He had expressed the opinion that the job ought to be done in the shop ; but we attach no importance to that utterance. In order to obtain the tools which he needed from time to time for his job, he was obliged to go back and forth between his place of work and the shop many times a day, the tools being let out only two or three at a time by means of a cheek system. One of the yard tracks was close to and parallel with the front of the shop.. Engines and cars passed along this track frequently, and Brooks had to cross the track in going backwards and forwards with tools. On this track, in the same general direction as Brooks’ place of work, but farther on, there was a turntable 110 feet distant from the shop door in front of which the accident occurred. From this turntable many tracks radiated. Brooks noticed a large locomotive tender standing apparently alone on the turntable when he started from his place of work towards the shop for a tool on the occasion of his injury. As a matter of fact a small engine was behind the tender, but obscured from view. He looked around once or twice as he walked in the wide space between the tracks towards the shop door, and saw the tender still standing on the turntable. When opposite the shop door he started to step across the track and was struck by the tender which had come silently up behind him. The engine and tender started and ran 110 feet after he had last looked. It came up behind him at least twice as fast as he was walking. Was Brooks under all these circumstances excused from looking just before he started across the track? In his behalf it is claimed that he was excused because his workshop must be held in effect to have included his place of work and the intervening space, over which, in the course of his work, he was obliged to pass and repass.

It is claimed that he was entitled to a safe place to work, without the necessity of dodging engines and cars while intent upon his work. Defendant in error has at once aided and embarrassed us with a brief so voluminous that we can not discuss it in detail. There are however three recent decisions of the Ohio Supreme Court on which he relies. They are: Railroad Co. v. Margrat, 51 Ohio St. 130 [37 N. E. Rep. 11]; Cleveland, C. C. & St. L. Ry. v. Kernochan, 55 Ohio St. 306 [45 N. E. Rep, 531]; Snyder v. Railway, 60 Ohio St. 487 [54 N. E. Rep. 475].

The Margrat ease, so far as the syllabus goes, decides nothing but a question of fellow-servant. On the facts as disclosed by the opinion it appears that Margrat, a brakeman, was by the nature of his duties and surroundings obliged to walk on the track at the time he was injured. He was overtaken by an engine which he had seen on another track a long distance away and which he had no reason to suppose would come on his track at alL And Margrat was at the time obliged to hurry with his mind intent upon his work. It was a close case and it does not govern this one.

The Kernochan ease is another one wherein a railroad man in the performance of his duties was necessarily on a track. His hearing was obscured by the noise of the train passing on another track. His sight was obscured by darkness. Cars were backed down upon him, with no warning light or warning noise, Without these he had not the means of protecting himself. That ease is not like this.

The Snyder ease is that of a station agent who was obliged to stand on the main track while unloading a car on the adjacent track. He was necessarily relying on the others to keep a lookout for his safety while he was intent upon his work. That case is to be distinguished from the one in hand.

Plaintiff in error relies upon two later decisions of the same court. First of these is Wabash Ry. v. Skiles, 64 Ohio St. 458 [60 N. E. Rep. 576], The first paragraph of the syllabus in that case is as follows:

‘' The rule of law which excuses passengers from the obligation to observe a strict lookout for trains and locomotives when alighting from or getting upon trains over the tracks of a railway company, does not apply to .employes whose duties may require them to cross the tracks in the yards or at the depots of the railway.”

We are totally unable to distinguish this ease from the one at bar. We think it necessarily refutes the theory that Brooks was in contemplation of law in Ms employer’s workshop and under no necessity to observe a strict lookout.

The other case is that of New York C. & St. L. Ry. v. Kistler, 66 Ohio St. 326 [64 N. E. Rep. 130]. True it is not the case of an employe; but, as we have just seen, the rule as to lookout is the same for employes, except under special circumstances, as it is for anyone else not a passenger. The fifth paragraph of the syllabus is:

‘ ‘ The looking required before going upon a crossing, should usually be just before going upon the track, or so near thereto as to enable the person to get across before a train within the range of his view of the track, going at the usual, rate of speed of fast trains, would reach such crossing.”

Manifestly, Brooks did not look “just before going upon the track. ” If he had, he would have been able to have seen the tender approaching. There was absolutely nothing to obscure his view. We can not escape the conclusion that he is as a matter of law chargeable with contributory negligence.

The judgment below must therefore be reversed, and inasmuch as the facts are conceded and admit of but one conclusion, we deem it not only proper but logically necessary that we should proceed as we do now, to render the judgment which the common pleas court should have rendered, and enter judgment for the plaintiff in error here.

Marvin and Winch, JJ., concur.


text:
    TRUSTS — WILLS.
    [Cuyahoga (8th) Circuit Court,
    June 26, 1905.]
    Marvin, Winch and Henry, JJ.
    S. M. Neville, et al., Exrs. v. Eugene Lucien Carlet, et al.
    1. Bequest to Trustees for the Benefit of Three Persons in Certain Proportions Creates Only One Estate.
    Where testator gave the residue of his estate to trustees, to hold one-third part, with all the income therefrom, for the use of his widow for her life, one-third for the use of his son for life, and one-third for the use of his daughter for her life, and after the death of his wife the property given for her use, to be held for the use of his son and daughter in equal shares; Held: Not to create separate trust estates but that the whole trust estate should be kept as one entire fund and the income divided among the legatees.
    2. Annuitant Entitled to have Surplus Applied to Satisfaction of Prior Deficiencies in Annuity.
    Where the income from property upon which an annuity is charged, is for several years insufficient to pay the full amount of the annuity, but in later years leaves a surplus after the payment of the annuity, the annuitant is entitled to have such surplus applied to the satisfaction of deficiencies in the annuity for the years it was not paid in full.
    Appeal.

      Olds & Willett for plaintiff in error.

      M. B. & H. H. Johnson, for defendants in error.
   HENRY, J.

The action below was one to construe a will. Of the questions presented there, only three are again urged here. The last of these questions is premature, and we do not feel justified in undertaking to decide it now. This question is the one relating to the executor’s duty when one or more of Amanda M. Neville’s children shall die. They are all alive now, and may survive for many years. When the exigency arises, the executor may then confidently seek the assistance of the courts in ascertaining his duties in the premises. It is now an academic question which we must decline to entertain.

On both the other questions our view accords with that of tlie court below, as expressed in the learned opinion of Judge Lawrence. We find confirmation of this view on two several decisions not cited by him or by counsel. In Bell v. Towner, 55 Conn. 364 [11 Atl. Rep. 185], the syllabus is.-

“A testator gave the residue of his estate to trustees, to hold one-third part, with all the income therefrom, for the use of his widow for her life, and one-third for the use of his son T for life, and one-third for the use of his daughter M for life; and after death of his wife the property given for her use, to be held for the use of his son and daughter in equal shares for their lives. Held not to be the intent that there should be three separate trust estates during the life'of the wife and two after-wards but that the whole trust estate should be kept as one entire fund and the income divided equally among the legatees'.’’

We think that case is very much in point with the case before us.

On the other question, Chauncey, In re, 119 N. Y. 77 [23 N. E. Rep. 1000; 7 L. R. A. 361], the syllabus is:

“The will of K gave her residuary estate to her executors in trust, to receive rents, profits and income and after paying therefrom certain specific annuities, among them one of $500 to D, her adopted son, for his support during minority, and $1,000 thereafter during the life of her husband during his life. After his death to pay to D $2,000 per annum during his life. D survived the husband, and for a number of years after the death of .the latter the annual income was insufficient to pay the said annuity in full. Subsequently it exceeded that amount. Upon a settlement of the accounts of the trustee, held, that, in the absence of any language in the will showing a different intent, D was entitled to have the surplus applied in the first balance to the satisfaction of defieienees in the annuity for the years it was not paid in full. ’ ’

There are some cases cited in the opinion of the court in this case, the syllabus of which I have just read, which are, perhaps, even more in point than is this one, but I will not stop to read them now.

Counsel will see that the journal entry is drawn in accordanee with the holding of the court below, excepting as to the one question which we find is prematurely presented here.

Marvin and Winch, JJ., concur.


text:
    NEW TRIALS.
    [Cuyahoga (8th) Circuit Court,
    October 27, 1905.]
    Marvin, Winch and Henry, JJ.

      Independent Coal Co. v. C. N. Quirk, et al.
    1. Second Motion for New Trial Based upon Different and Unknown Ground of First Motion Filed within Three Days.
    A second motion for a new trial may be filed within the three days allowed for filing such motions, when it is based upon a different ground and one not known at the time of filing the first motion.
    2. Designating Second Motion for New Trial as Amendment to First Motion is Immaterial.
    It is immaterial that a second motion asking for a new trial, upon a different ground from that set forth in the first, is designated by the pleader as an amendment to the first motion.
    3. Forty Days for Filing Bill of Exceptions Runs from Overruling Second Motion for New Trial.
    Where there has been a second motion for a new trial filed in season, the forty days allowed for filing a bill of exceptions will date from the overruling of the second motion, notwithstanding the overruling of the first motion and entering of judgment on the same day upon which the second motion was filed.
    Error.

      Kerruish Chapman & Kerruish, for plaintiff in error.

      Hamilton & Hamilton, for defendants in error.

      Affirmed, no op., Independent Coal Co. v. Quirk, 80 O. S. 746.

   HENRY, J.

This proceeding was brought to reverse a judgment for $333.67, recovered at the January, 1905, term of the court of common pleas of Cuyahoga county, by C. N. Quirk and P. F. Waltham, partners under the firm name of Northern Ohio Coal ' & Coke Supply Company, an Ohio corporation, in an action upon a contract for the sale and delivery of coal by said partnership to said corporation. The parties here thus stand in the relation opposite to that in which they stood in the court below.

After this proceeding in error was commenced, a motion was interposed by the defendants in error to strike the bill of exceptions from the files, upon the ground that the record shows it to have been filed after the expiration of the time limited by law for such filing. Upon diminution of record being suggested by the plaintiff in error, in this, to-wit, that the certified transcript of docket and journal entries filed herein failed to contain the entry of the order made by the court of common pleas, refusing an amendatory motion for new trial, filed by the defendant below. We entertained this suggestion and permitted the plaintiff in error to procure a correct transcript. Defendant in error’s objection that the transcript could not thus be amended, after the expiration of the four months period allowed by statute for the commencement of a proceeding in error, was subsequently withdrawn, in view of the rule laid down in Falconer v. Martin, 66 Ohio St. 352 [64 N. E. Rep. 430]. The motion to strike the bill of exceptions from the files was, however, still urged upon the ground that the time for filing the same was begun, not from the date of the overruling of the amendment to the motion for a new trial but from the prior date when the original motion for a new trial was refused; and that, on this view, the forty days had expired when the bill was filed.

The transcript discloses this state of facts, namely: verdict rendered March 25, 1905; motion for new trial filed March 27; amendment filed March 28; motion overruled and judgment entered March 28; amendment to the motion for a new trial overruled May 12; bill of exceptions filed May 16. It will be observed that both the motion for a new trial and the amendment thereto were filed within the three days allowed by law; that the motion was overruled before that period had expired; that the overruling of the motion took place on the same day as the filing of the amendment, and that if we consider the order in which they are recorded in the transcript as indicating the order in which the events occurred, the amendment was filed before the motion was overruled. It should be noted, furthermore, that the amendment alleges a ground for new trial not averred in the original motion, and that it was alleged by the mover and found by the court that this new ground was unknown to the former when the original motion was filed. On this state of facts it is claimed that the motion and the amendment must be deemed to have been acted upon together, and that the subsequent action of the court, in overruling the amendment alone, was therefore vain and nugatory. Or, if we take the view that the order of events, as recorded in the transcript, is not conclusive with respect to actions which took place in a single day, and that the amendment may therefore be deemed to have been filed after the overruling of the original action, it is still urged that the court below could not make a valid order overruling it, for several reasons, viz: first, because it is not competent xo file an amendment to a motion which is no longer pending. Secondly, there is no authority for filing within term, a second motion for a new trial, however styled, after a first motion has been disposed of. Thirdly, the ruling, on the first motion, especially when coupled, as it was, with the entry of judgment on the verdict, as required by the present statute, renders the asserted right to a new trial res judicata, and hence a bar to entertaining a subsequent motion in the same behalf. And if the court, in the exercise of its proper control over its own orders and judgments during term, might have vacated its first order overruling the motion for a new trial and also the judgment that was entered thereon, in order that it might entertain a second motion to the same end, it is argued that no such procedure was observed in this case, and the judgment that was first rendered therein still stands, despite the fact that no judgment could lawfully be entered by the clerk until after the motion for new trial, if any, was finally overruled.

The whole question thus presented is, so far as we have discovered, a novel one. Two of the points made, may however, be brushed aside at the outset. There is, we think, no significance in the mere name “amendment to motion for new trial,” which need hinder us from treating this as an independent motion, if the ends of justice shall so require. Compare Klonne v. Bradstreet, 7 Ohio St. 323. Neither is there anything conclusive about the order in which independent events are recorded in the transcript, if they took .place on the same day and the record contains no express recital as to the order of their occurrence.

We have then this question, whether a party may, within three days after the return of a verdict against him, and after the overruling of his first motion file a second motion for a new trial upon a new ground that was not known by him to exist when his first motion was made. The sections of the Revised Statutes, relative to applications for new trial within term, are 5305 to 5308 inclusive, and they contain no express provision forbidding the practice here in question. Nor does the doctrine of res judicata apply strictly to mere motions even where such motions result in orders that are reviewable. We entertain no doubt that the trial court has full power to permit the filing of a second motion under these circumstances, and while it did not expressly give such permission in the present instance, the fact that it entertained the second motion, by hearing and disposing of it, on its merits, conclusively implies such permission (14 Enc. Pl. & Pr. 176, 183, 184 and 191, and cases cited). The fact that judgment was meanwhije entered by the clerk upon the verdict, whether prematurely or otherwise, under the provisions of Sec. 5326 R. S., is not of itself a bar to an application for a new trial. Applications of that nature may be made even after term under Sec. 5309 R. S., if the ground alleged therefor was not previously discovered by the party applying. It is true the application, if made after term, must be made by petition; but in cases where judgment is entered by the clerk, after three days have elapsed without any motion for a new trial having been filed, it can not be doubted that under 5307 the application for a new trial may still be made at the same term by the mere motion of a party who has been “unavoidably prevented from filing the same within such time.” In this ease the motion was filed within three days, and having been heard on its merits by the court below, we hold that the evidence introduced respecting the ground of new trial therein asserted, might be, and in this case was, incorporated into a valid bill of exceptions filed within forty days after the overruling of said motion. Whether the grounds for a new trial, that were asserted only in the original motion, can be thus reviewed, we do not now decide.

The bill, which we have thus determined to consider, avers that it contains all the evidence adduced on the hearing of said motion. It is claimed, however, that this averment is plainly untrue, for the reason that the court found as a fact that the ground alleged in the motion was unknown to defendant below when his original motion was filed, whereas there is no evidence in the bill upon the subject. The record is perhaps silent as to the evidence, if any, heard by the court upon the question whether the motion was filed under circumstances which would permit it to be heard at all; but the court having affirmatively found that question in favor of the plaintiff in error, we can not in the present status of this case, and on the mere suggestion of the defendant in error, review that finding. And with respect to the evidence heard concerning the ground asserted for a new trial, we must treat the averment of the bill as conclusive in the absence of any disclosure to the contrary.

The bill exhibits the affidavit of the bailiff temporarily acting as such in the trial court when this cause was tried and who was also a witness for the defendant. No other evidence was introduced on the hearing of the motion. He says that, during the progress of the trial, members of the jury discussed with him, and he with them, at intermissions, the general merits of the case, and particularly the meaning of the term “local trade,” which was in issue therein. It is true that he was a witness for the defeated party; but his affidavit avers his familiarity with the coal trade, and we can not presume that the interchange of opinions between him and members of the jury was not prejudicial. Such conduct is grossly improper, and its inevitable tendency is in subversion of justice. We think it showed such conduct of the jury as not only to w'arrant but to require a new trial. The' judgment below is accordingly reversed and the cause remanded.

Marvin and Winch, JJ., concur.