text:
    WILLS
    [Coshocton (5th.) Court of Appeals,
    May Term, 1922.]
    Shields, Patterson and Houcfe, JJ.

      Perry Loos v. Buffalo-Springfield Rubber Co.
    1. Failure to Probate Will where there is Knowledge of its Existence Renders Provisions Inoperative.
    "Where persons interested in the will of a decedent neglect to cause it to be offered for probate within three years following the death of the decedent or of becoming informed of its existence, the will becomes inoperative so far as vesting title to real estate in such persons is concerned, and realty devised to persons thus in default descends to the heirs of the testator.
    2. Validity of Levy on Interest of Heir Prior to Probate of Will.
    Up to the time of probating a will the title held by the widow and heirs is one of inheritance, and the priority and validity of a levy during that interval upon the interest of one of the heirs cannot be questioned.
    Error.

      Pomerene & Pomerene, for plaintiffs in error.

      Judge G. B. Hunt, for defendant in error.

       Motion to certify overruled, Loos v. Buffalo-S. Rubber Co., 20 O. L. R. 89.

   SHIELDS, J.

This action was commenced in the court below to enforce a judgment lien upon the undivided interest of Perry Loos, one of the plaintiffs in error, in his deceased father’s real estate.

The facts appearing of record are as follows: August 18, 1910, one John Loos, died intestate, owning certain real estate in Coshocton county, Ohio, leaving his widow, Elizabeth Loos, and the said Perry Loos, Martha E. Rehard and Mary E. Loos, his children, surviving him.

By the terms of his will, the said John Loos, deceased, devised his real estate to his said widow for and during her natural life, and at her death, certain tracts thereof and therein described, to his said children: Martha E. Rehard, and Mary E. Loos, and one Jessie C. Loos, the latter being the wife of the said Perry Loos. No property was devised to the said Perry Loos.

On October 16, 1919, Elizabeth Loos, widow of the said John Loos, died.

On March 19, 1921, Henry Rehard, husband of the said Martha E. Rehard, produced and offered for probate a paper writing purporting to be the last will and testament of the said John Loos, deceased, which was admitted to probate on May 16, 1921.

On September 30, 1910, judgment was obtained against the said Perry Loos and others in the common pleas court of said Coshocton county, by the defendant in error for the sum of $1,-001.80 on which there is due and unpaid the sum of $584.90, on a debt created before the death of the said John Loos, and subsequent thereto executions were issued on said judgment from time to time and levied on the interest and estate of the said Perry Loos in said real estate, and that said lien thereby became and is a good and valid and subsisting lien thereon. That the said Perry Loos has no other property subject to execution out of which said judgment can be satisfied.

After reciting the foregoing facts in its petition, the plaintiff avers that the “said Martha E. Rehard, Mary E. Loos and Jessie C. Loos each had knowledge of the existence of said will and each had it within her control and each failed and neglected to cause the same to be offered for or admitted to probate within the term of three years from the time she had knowledge of its existence and had it in her control. By reason of the premises, the plaintiff avers that no title to any part of said real estate passed to or vested in any of said parties under said will and the title to said real estate at the death of John Loos passed to and vested in his three children, subject to the interest of his said widow. ’ ’

The prayer in said petition is that the one undivided third of said real estate be declared to be the property of the said Perry Loos, that his title thereto be quieted as against the claims of the other defendants under said will and that the interest of the said Perry Loos in said real estate be sold to satisfy said judgment.

In their amended answer, and for a first defense, the defendants admit the recovery of said judgment by the plaintiff, that there is an unpaid balance due thereon of $584.90 and that executions were issued thereon as averred in the plaintiff’s petition ;; that the said John Loos died testate, seized of the real estate in said petition described and left • surviving him his widow, Elizabeth Loos, and the defendants, Perry Loos, Martha E. Rehard and Jessie C. Loos, his only children and heirs at law; that on or about March 19, 1921, Henry Rehard, husband of the said Martha E. Rehard duly offered for probate the last will and testament of the said John Loos, deceased, and on May 16, 1921, the same was duly admitted to probate and record by the probate court of said Coshocton county; that by the terms of said will, said real estate was devised as in said petition set forth; that the defendants, Martha E. Rehard, Mary E. Loos and Jessie C. Loos, each had knowledge of the existence of such will, and the defendants deny all the other allegations in plaintiff’s petition, not admitted in said answer to be true.

For a second defense defendants set up two grounds of defense :

(1) The cause of action did not accrue within six years next prior to the time of the commencement of this action.

(2) The cause of action did not accrue within one year next prior to the time of the commencement of this action.

A demurrer was filed to said petition raising substantially the defenses pleaded in the second ground of defense in defendant’s answer which was overruled by the trial court.

In the court below the defendant in error recovered a judgment and decree as prayed for in its said petition and by a petition in error it is here sought to reverse said judgment.

An inspection of the pleadings shows that there is little or no controversy between the parties hereto as to the material facts alleged in said petition, but the contention arises as to the construction of Sec. 10542 G-. C., the provisions of which section it is claimed govern a case of this character under the admitted facts.

Said Sec. 10542 provides that

“No lands, tenements or heriditaments, shall pass to any devisee in a will, who for three years knows of its existence, and has it in his power to control it, unless, within that time, he causes it to be offered for, or admitted to, probate. By such neglect, the estate devised to such devisee shall descend to the heirs of the testator. ’ ’

That the rights of beneficiaries under a will may be saved and not lost, the legislature of this state has wisely provided in Secs. 10511 and 10514 G. C., a method by which a will known to exist may be produced, after the death of the testator, for the purpose of probate, and in default of producing the same, the person having the custody or control of such will, in the absence of reasonable cause, may be cited and punished therefor. Section 10541 G. C., likewise provides that

“Unless it has been duly admitted to probate or record as provided in this chapter, no will shall be effectual to pass real or personal estate.”

It will thus be seen that under the foregoing statutes “if real or personal estate be devised or bequeathed by one’s last will, the executor, or any person interested therein may cause it to be brought before the probate court.” And until it shall be admitted to probate, such will shall be ineffectual to pass either real or personal property. Said Sec. 10542 then prescribes a limitation of time of three years when it shall be offered for probate and any neglect to do so, etc. Here it appears of record that the said John Loos, deceased, executed his will July 18,1910, and before his death delivered his said will to Henry Rehard, his son-in-law and the executor named therein, who, with the knowledge of the devisees named therein, retained the same in his custody until March 19, 1921, before the same was offered for probate. With this information and under the circumstances appearing of record, the defendant in error contends that the case clearly falls within the provisions of said Sec. 10542 and that the estate of the said John Loos, deceased, descends to his heirs, including Perry Loos, one of the plaintiffs in error. This contention is opposed by the plaintiffs in error on the ground that the provisions of said Sec. 10542 do not apply under the facts in this case, and on the further ground that the claim of the defendant in error is barred by the statute of limitations.

(1) That the statutes already referred to place it in the power of a person interested in a will, known to exist, to compel the person having the custody or control of the same to produce it by process, if necessary, that it may be admitted to probate seems clear, and construing the language used in said Sec. 10542 to mean what it says, it is equally clear that where a person interested in a will neglects to take such action within three years after the known existence of the will, such will becomes inoperative as to vesting title to real estate, and the real estate devised to such person descends to the heirs of the testator. Here it appears that each and all of the plaintiffs in error knew of the existence of said decedent’s will, if not of its contents, from the time it was first placed in the custody of Henry Re-hard in the year 1910.

(2) It is contended on the part of the plaintiff in error that the cause of action is barred by the statute of limitations. The record shows that said judgment was recovered September 30, 1910, and that executions were issued thereon September 30, 1910, December 3, 1914, and October 21, 1919, the last two being levied on the interest and estate of the said Perry Loos in the real estate of which his father died seized. Up to this time said will had not been filed for probate, hence the title held by the widow and heirs of said decedent was one of inheritance, and the priority and validity of the lien of the defendant in error on said Perry Loos’ interest therein would not then be open to question. Afterwards, on March. 19, 1921, the will was offered for probate and admitted to probate on May 16, 1921. It will scarcely be claimed that the statute of limitations began to run before that time, namely, March 19, 1921, hence the six years statute of limitations interposed could not apply, nor would the one year statute of limitations apply for the reason that the action was brought within three months after the will was offered for probate and even before the will was in fact probated.

Upon a review of the entire record, we find no error in the proceedings of the court below and the judgment of that court will therefore be affirmed.

Patterson and Houck, JJ., concurring.


source: Caselaw Access Project

author: HOUCK, J.

license: Public Domain

text:
    APPEAL
    [Holmes (5th) Court of Appeals,
    March 14, 1922.]
    Shields, Patterson and Houck, JJ.
    R. L. Marquis v. Millersburg, W. & O. Telephone Co.
    Dismissal on Appeal for Departure from Original' Cause of Action.
    Where an action is brought before a justice of the peace against a telephone company for $145 as rental of land upon which the company was maintaining poles, and upon appeal to the common pleas court the claim was stated to be $300 as damages for land alleged to have been appropriated, the action of that court in dismissing the petition and giving judgment for the defendant was not only justified, but it would have been the duty of the trial court to have taken said action on its own motion had counsel for the defendant not challenged the jurisdiction.
    Error.

      G. W. Sharp and Mel Marquis for plaintiff in error.

      Charles B. Cary, for defendant in error.
   HOUCK, J.

The parties here stand in the same position as to each other as they stood in the court below. The plaintiff commenced an action in the court of a justice of the peace of Prairie township, Holmes county, Ohio, and the bill of particulars alleged and set forth that the defendant was indebted to plaintiff for land rental for the use of certain lands upon which defendant had erected telephone' poles, and prayed judgment against the defendant in the sum of $145 with interest.

The cause was tried in said justice court and judgment rendered for the defendant, whereupon plaintiff appealed said cause to the common pleas court of Holmes county. A petition was filed in said common pleas court and summons issued thereon. The parties prayed for judgment in the sum of $300, claimed to be due plaintiff by reason of the appropriation of certain lands described in said petition, by defendant, and used by the said defendant for its telephone poles.

The prayer in said petition in the common pleas court reads as follows:

‘ ‘ Said defendant is a corporation organized under the laws of West Virginia, operating a telephone company, and says that said company forcibly took possession of said lands hereinbefore described, without any authority in law, and have refused compensation in damages, and have refused to condemn said lands for the erection of said poles and wires thereon, and now refuse to condemn the same, to the damage of the plaintiff in the sum of $300, for which she asks judgment, interest, and costs. ’ ’

Counsel for defendant challenged said petition in writing filed in said common pleas court, upon the ground that there was a departure from the cause of action stated in the bill of particulars, and that stated in the petition. We have examined the paper writing filed by counsel for defendant and in our judgment it savors not only of a demurrer but of a motion, and we therefore treat it as such.

The trial judge in the common pleas court sustained the contention of counsel for the defendant and dismissed said petition of plaintiff and entered a judgment in favor of defendant. Question: Did the trial judge commit prejudicial error in dismissing said petition of plaintiff?

An inspection of the bill of particulars in the court of the justice of the peace and the petition filed in the common pleas court discloses the fact that they were of a different character and nature, setting forth different causes of action and grounds for recovery.

Before the justice of the peace, the action was for rental, but that set out in the petition filed in the common pleas court was for damages for property alleged to have been appropriated. Hence it will be seen that there was a clear departure from the cause of action in the justice court and the cause of action in the common pleas court.

A departure in pleading is the statement of matter in a subsequent pleading as a cause of action or defense which is not pursuant to or does not savor of the previous pleading of the same party.

Therefore an inspection of the allegations contained in the bill of particulars and the ones set out in the petition filed in the common pleas court clearly show a departure, or, in other words, a new and different cause of action is set out in the petition filed in the common pleas court from that contained in the bill of particulars filed in the court of the justice of the peace.

We are of the opinion that the Supreme Court of Ohio has fully determined the question here raised and we need but cite counsel to the case of Van Dyke v. Rule, 49 Ohio St. 530 [31 N. E. 882], where the following rule of law is laid down in the second syllabus:

“Where an action, begun before a justice of the peace, is appealed to the court of common pleas, the latter court has no power to substitute, by amendment, another cause of action not within the jurisdiction of the justice of the peace, though it is within the original jurisdiction of the court of common pleas, unless the defendant consents to the substitution, or waives his right to object to the action of the court.”

Further discussion of the question here raised seems to us unnecessary; and it follows from what we have already said that we find no prejudicial error in the record now before us for review.

We are further of the opinion that even though counsel for defendant had not challenged the jurisdiction of the court in the premises, yet upon an inspection of the record presented in the common pleas court, it would have been the duty of the trial judge upon his own motion to have stricken the petition of plaintiff from the files upon the grounds that there was a departure in the cause of action set out in the petition of plaintiff in the common pleas court from that contained in the bill of particulars in the justice court, and for the further reason that the justice of the peace had no jurisdiction over the subject matter set out in the petition of plaintiff filed in the common pleas court.

Finding no prejudicial error in the record the judgment of the common pleas court must be affirmed.

Shields and Patterson, JJ., concur.


author: ALLREAD, J.

text:
    AUTOMOBILES — DEATH PROCESS
    [Franklin (2nd) Court of Appeals,
    October, 1922.]
    Ferneding, Kunkle and Allread, JJ.
    Harvey Rinehart v. Wellston Iron Furnace Co.
    1. Judgment on Motion to Quash Subject to Review.
    The granting of a motion to quash finally disposes of a case and is subject to review.
    2. Statutory Right to Bring Action for Negligence of Automobile Owner in County of Person Injured Available to Administrator.
    The statutory provision that an action for injury to person or property, caused by the negligence of an owner of a motor vehicle, may be brought by the person injured against the owner in the county where the injured person resides, is in case of the death of such injured person available to his administrator, and where the owner is resident in another county of the state a motion does not lie to set aside service had upon him in his home county.
    Error.

      F. S. Monnett and C. R. Doll, for plaintiff in error.

      Arnold, Game & Wright and Joseph McGhee, for defendant in error.
   ALLREAD, J.

The court of common pleas sustained a motion to quash service of summons upon the ground of improper venue.

This judgment finally disposed of the action below and is therefore subject to review. Gorey v. Black, 100 Ohio St. 73.

The action below was to recover damages for injuries and wrongful death of the decedent occasioned by the alleged negligence of the defendant in driving an automobile. The decedent survived the accident nearly one month. The decedent was a resident of Franklin county and the accident occurred in Franklin county; upon her death an administrator was appointed in Franklin county.

The defendant was a resident of Jackson County, Ohio.

The action below was brought in Franklin county and the summons was issued and served upon the defendant in Jackson county.

Plaintiff below claims jurisdiction in Franklin county by virtue of Sec. 6308 G. C., which provides:

“An action for injury to a person or property, caused by the negligence of an owner of a motor vehicle, may be brought by the person injured, against the owner in the county wherein such injured person resides. ’ ’

Counsel for defendant in error contends that this statute should be strictly construed and applied only to an action brought in person by the party injured or killed.

Our Supreme Court in the case of Gorey v. Black, supra, construing this identical statute says: “The reasons for its enactment are manifest, and-being a remedial statute it should be liberally construed to accomplish its laudable purpose.” We feel, therefore, bound to give the statute a liberal interpretation to accomplish the manifest purpose of its enactment. To so construe this statute, as to apply only to actions by the party actually injured by the motor vehicle, would have the effect of limiting its application to the lesser injuries, leaving the more serious to fall entirely outside of the statute.

We think the legislature did not contemplate so narrow a construction of the law nor do we think the court would be justified in so construing it. By the general statutes, causes of action for personal injuries do not abate but may be prosecuted by the personal representative. The personal representative therefore, stands in the place of the decedent and is entitled to prosecute the action. The “injured person” would in our judgment include the personal representative of a deceased party, and the venue would be the residence of the deceased and the forum of the administratorship.

Judgment of the court below reversed and cause remanded with instructions to overrule the motion to quash the summons and for further proceedings.

Ferneding and Kunkle, JJ., concur.


text:
    CRIMINAL LAW — INTOXICATING LIQUORS
    [Coshocton (5th) Court of Appeals,
    February 10, 1922.]
    Shields, Patterson and Houck, JJ.

      State of Ohio v. Tunis Elson.

      1. Possession for Beverage Purposes not Affirmatively Alleged in Affidavit for Unlawful Possession of Intoxicating Liquors.
    An affidavit charging possession of intoxicating liquor is not rendered defective by reason of failure to affirmatively charge that the liquor so possessed was for beverage purposes.
    2. Neither Purpose to do Unlawful Act nor Kind of Liquor Necessary Averments under Crabbe Act.
    An averment of purpose to do an unlawful act is not required in a prosecution under the Crabbe act, which makes the possession of intoxicating liquor an offense; nor need the kind of liquor had in possession be alleged.
    3. Mayor’s Failure to Attach His Seal to the Affidavit not a Fatal Omission.
    Under the latter day rule, which lessens the importance of technical requirements in a criminal prosecution and only requires that substantial justice be done between the accused and the state, the failure of the mayor or magistrate to attach his official seal to the affidavit or warrant of arrest will be treated as an irregularity only and not as ground for reversal of a judgment of conviction.
    Error.

      J. A. White, Charles M. Earhart and Lloyd 8. Leach, Pros. Atty., for plaintiff in error.

      C. Homer Durcmd, for defendant in error.

       Motion to certify overruled, State v. Elson, 20 O. L. R. 319.

   HOUCK, J.

This case is here on error to a judgment of the common pleas court of Coshocton county, Ohio, reversing the judgment of conviction by Mayor Tish of the defendant in error here.

In the mayor’s court Elson was convicted of possessing intoxicating liquors in violation of Sec. 6212-15 G. C. Ohio, being Sec. 3 of what is known as the “Crabbe Act.”

The common pleas court reversed the judgment of conviction by the mayor for the following reasons:

1. That the affidavit did not charge the defendant with the commission of an offense.

2. That the affidavit did not allege intent.

3. That the charge in the affidavit was not laid with sufficient certainty.

4. That the mayor’s official seal was not upon the affidavit and warrant.

5. That the judgment of conviction by the mayor was not sustained by the evidence.

The question for this court to pass upon is: Did the common pleas court commit prejudicial error in reversing the judgment of conviction in this case by the mayor ?

The affidavit, omitting the dates, is as follows :

“State of Ohio, Coshocton County, ss:
“In the Mayor’s Court of the city of Coshocton, County of Coshocton, Ohio.
“Before me, W. S. Tish, mayor of the city of Coshocton, county of Coshocton, Ohio, personally came J. R. Maple, who being first duly sworn according to law deposes and says:
“That on or about the .... day of ............, A. D., 192.., in the county of Coshocton, state of Ohio, one Tunis Elson did then and there possess intoxicating liquors: that the possessing of intoxicating liquors as aforesaid by the said Tunis Elson was then and there prohibited and unlawful and contrary to Section 3 (Section 6212-15, General Code) of an Act entitled ‘An Act to prohibit the liquor traffic and to provide for the administration and enforcement of such prohibition and repeal certain sections of the General Code’ (108 Part 2, O. L., 1182), approved at the general election held November 2, 1920, and that the possessing of intoxicating liquors as aforesaid was not in accordance with the provisions of Title II of the Act of Congress known as the ‘National Prohibition Act,’ passed October 28, 1919, said possessing not having been in a lona-fide private dwelling, and against the peace and dignity of the state of Ohio.
“Further deponent saith not.”

Was said affidavit defective because it did not affirmatively state that said intoxicating liquors, so possessed, were for beverage purposes?

It will be observed that tbe offense defined in said Sec. 6212-15 consists in possessing intoxicating liquors, and when the proof establishes that fact it is all that is required under said statutory provision. It follows that it is not necessary to allege in the affidavit that said intoxicating liquor was for beverage purposes. If the intoxicating liquor is possessed lawfully, that may be shown as a matter of defense.

We do not think it necessary to aver in the affidavit that said intoxicating liquor was for beverage purposes for the further reason that the “Crabbe act” simply outlaws intoxicating liquor for beverage purposes, and the force and effect of said act is that one who possesses it is guilty of an offense, unless such possession comes within the exceptions thereto, and which exceptions must be affirmatively established as a defense. Nowhere, in said act do we find that intoxicating liquor is permitted to be used for beverage purposes, save and except as found in paragraph 2 of Sec. 6212-14 G-. C., which provides: “the “term possess shall not apply to intoxicating liquor in a bona fide private dwelling.”

The following authorities are decisive of the question here raised:

“Negative averment to the matter of an exception or proviso in a statute is not requisite in an indictment, unless the matter of such exception or proviso enter into and become a part of the description of the offense, or a qualification of the language defining or creating it.” Hirn v. State, 1 Ohio St. 16.
“A negative averment to the matter of a proviso in a statute is not requisite in an information, unless the matter of such proviso enters into and becomes a part of the description of the offense, or is a qualification of the language defining or creating it.” Billigheimer v. State, 32 Ohio St. 435.
“If the acts complained of in this case were within the exception, the defendant’s rights were fully protected by permitting him to set them up in defense. These were matters as to which he had particular and special knowledge, and no harm can come to him nor to the state by imposing upon him the duty of bringing himself within such exceptions. Had the Legislature intended the exceptions mentioned to be made a part of the description of the offense, the presumption certainly is that it would have included them in the statute that created the offense.” Brinkman v. Drolesbaugh, 97 Ohio St. 171, 178 [119 N. E. 451].

Was it necessary for the affidavit to allege intent? We answer this in the negative.

An examination of Sec. 6212-15 G. C., under favor of which-said affidavit was drawn, clearly shows that an averment or allegation of knowledge, or unlawful purpose, or an intention to do an unlawful act, is not necessary. Nothing in this provision of the statute requires any such averment, and, therefore, not being made a part of the offense by said statute, it is not required to be set forth in the affidavit.

As to whether or not the affidavit fully advised the accused with the alleged offense, will say: That it is urged on the part of the accused that the affidavit is faulty because it does not charge that the intoxicating liquor possessed was of a certain kind, viz, whiskey, gin, rum, beer or other liquor named in Sec. 6212-14 G. C. This claim is not well taken, and we are supported in this conclusion by a recent decision of our Súpreme Court. State v. Marcinski, 103 Ohio St. 613. Judge Wanamaker speaking for the court says:

“In an indictment for keeping a place where intoxicating liquor is sold in violation of law, the name of the person to whom it was sold need not be alleged.
“From the foregoing it clearly appears that where the offense charged is ‘keeping a place where intoxicating liquor is sold in violation of law,’ etc., it is unnecessary to the sufficiency of an indictment to allege the kind of liquor sold. If this were true when intoxicating liquors were licensed to be sold for beverage purposes, surely greater particularity would hardly be required, when the sale of intoxicating liquors, or the possession of intoxicating liquors as a beverage, are totally outlawed or prohibited. ’ ’

Does it invalidate the affidavit and warrant in the present case by reason of the fact that the official seal of the mayor was not attached to them ?

We are aware of the provisions of Sec. 4549 G. C., and yet we can not and will not bring ourselves to hold this statute is so far-reaching that it renders the process issued by the mayor of no force and effect in law. The omission of the seal was a clerical error — one of form and not of substance. It in no wise changed, or in any way added to or took from the accused any of his legal rights, or prevented him from having his 1 ‘ day in court.” If it was such an omission as would in any way work an injustice to him, or in effect prejudice him, or prevent him from having a fair trial, or from obtaining substantial justice, we might hold otherwise.

While we find the failure to attach the seal to be an irregularity, yet as it does not in any way, in fact or law, change the charge made against him in said affidavit, and does not jeopardize his legal rights, we must and do hold that the absence of said seal does not invalidate said proceedings in the mayor’s court.

We are fully satisfied that the validity of the proceedings is not affected by the fact that the mayor failed to attach the seal of his office to the affidavit and warrant. On its face it is simply in the nature of an irregularity, and does not invalidate the proceedings. The state having done all it could do in the premises, by causing an affidavit to be filed, in due and legal form, which was properly verified, it follows that all the law required was done, and the mere fact of the omission of the mayor’s seal is not material to the validity of the affidavit or the warrant.

We believe that in principle as well as in law, that in error proceedings where it is apparent from the record (as in the instant case) that the judgment of conviction by the mayor was right, a technical error intervening in the proceedings or trial in the lower court should not avail to disturb the judgment entered below, and that a reviewing court would not be warranted in doing so.

The time was, in criminal trials, that the least technicality in the indictment or affidavit, as well as the proof, worked an acquittal of the accused. But we are now living in a new day and age, when the rule to be applied must be that substantial justice should be done as between the state and the accused. Courts should follow the rule to disregard that which is simply formal and of a technical nature. This can be done, and at the same time protect and preserve, from the commencement to the end of the case, all those matters of substance necessary and essential to afford the accused a full, fair and impartial hearing and trial, so that justice may be meted out, not only to the accused, but that the rights of the state may be fully protected, that in the end justice and that only will be the result.

A careful reading of the testimony offered at the trial in the mayor’s court, as found in the bill of exceptions, fully convinces us that the evidence was sufficient to warrant the judgment of conviction as entered in said mayor’s court.

We have made a careful examination of the record now before us for review; also read with much interest and benefit the .able briefs submitted by learned counsel in the case; and it is the unanimous judgment of the members of this court that the judgment of conviction in the mayor’s court was right. It follows that the judgment of the common pleas court in reversing the mayor’s court was erroneous, and prejudicial to the state— the plaintiff in error here — and that said judgment should be reversed, which is now done.

Judgment of the common pleas court reversed, and that of the mayor’s court affirmed.

Shields and Patterson, JJ., copcur.


author: MAUCK, J.

text:
    ACTIONS — PARTIES—SUBROGATION
    [Hamilton (1st) Court of Appeals,
    July 11, 1923.]
    Mauck, Sayre and Middleton, JJ., Sitting by Designation

      Caroline Cox v. Cincinnati Trac. Co. et al.
    1. Provisions Mandatory for Bringing Actions in Name of Real Party in Interest.
    The provisions of Sec. 11241 G. C., requiring an action to be brought in the name of the real party in interest are mandatory, except as expressly limited by the three succeeding sections.
    2. Subrogated Insurer, not Indemnified' Insured, Real Party in Interest.
    Where one who has suffered an injury has been fully indemnified by a liability insurance company and the insurer has become subrogated to all tbe rights of the insured, the party so fully indemnified cannot prosecute an action against those whose negligence caused the injury. Such action must be brought in the name of the subrogated insurer.

      Buchwulter, Headley & Smith and Frank L. Leonard, for plaintiff in error.

      Semyer <& Faxon, for defendants in error.

       Motion to certify overruled, Cox v. Cincinnati Trac. Co., 20 O. L. R. 412.

   MAUCK, J.

The plaintiff brought her action in the municipal court of Cincinnati alleging that an automobile owned by her was damaged by being struck by an automobile owned by the defendant Edwards, which in turn was struck by a street car of the traction company, and that the injury was due to the negligence of both of the defendants.

One of the defenses interposed in the trial court was as follows:

“For his second defense this defendant adopts all of the allegations contained in the first paragraph hereof as fully as if set forth herein and says that at the time of said collision the automobile of the plaintiff herein was insured by the Fidelity Casualty Co. of New York against loss and damage resulting from collision between said automobile and any other object; that by the terms of said policy of insurance it was agreed that said the Fidelity & Casualty Co. of New York was entitled to be subrogated to any claim that the plaintiff as holder of said policy might have against any person or corporation for damages sustained by reason of any such collision in the event that said the Fidelity & Casualty Co. of New York should pay to the plaintiff the loss sustained by said collision. This defendant further says that said the Fidelity & Casualty Co. had fully paid and indemnified the plaintiff for the loss she has sustained this defendant by reason of said collision, and that by reason by the collision alleged in the bill of particulars, and is subrogated to any and all claims which the plaintiff may have against thereof the plaintiff has no further interest in said claim and is not the real party in interest in this action.”

A demurrer was interposed to this defense, and the demurrer being overruled judgment was entered thereon and error was prosecuted to the court of common pleas. In that court the judgment of the municipal court was affirmed, and the case now comes into this court, where the sole question is the sufficiency of the defense pleaded.

Under the old procedure an action to enforce the subrogated rights of an insurer could only be brought in the name of the insured. Under the code, however, “an action must be prosecuted in the name of the real party in interest.” G-. C., 11241.

Widely divergent constructions have been given to similar provisions, in those states where the code has been adopted requiring an action to be brought in the name of the party really interested, some of such states holding that the action may be brought in the name of either the insured or insurer; some that it must be brought in the name of the insured, and others that inasmuch as the insured has been wholly compensated and can have no actual interest in the litigation the action must be brought in the name of the indemnifying insurer, who alone stands to be benefited by the successful result of the action.

This case is one wherein the loss suffered by the insured was wholly satisfied by the insuring company and is not to be confused with those cases where the insurance paid is less than the loss, for in such case the authorities uniformly require the action to be brought in the name of the insured as otherwise a splitting of the cause of action would result with a duplication of litigation that is never tolerated. (Notes to L. R. A., 1918, F. 145; 23 L. R. A. (N. S.), 870; Ann. Cases, 1918-A, 834). Of such a statute as that under consideration it has been said:

‘ ‘ The real party in interest, within the meaning of this provision of the code, is the person who will be entitled to the benefits of the action if successful; one who is actually and substantially interested in the subject-matter, as distinguished from one who has only a nominal, formal or technical interest in or connection with it.” 15 Eney. PI. & Pr., 710. And,
“It follows that if it appears that the plaintiff is not the real party in interest, and is not within any of the exceptions, such fact will constitute a defense to the action. ’ ’ Ibid, 712.
“Under the code practice, however, where an action is required to be brought in the name of the real party interested, if the loss does no"t exceed the insurance, the insurer must sue in its own name and the insured is not a proper party to the action, bnt where the loss exceeds the insurance the insurer cannot maintain an action in its own name; however, the assured may bring an action in his own name against the wrong-doer, and recover the full amount of the loss, holding the proceeds so far as the insurer is subrogated, as trustee, and it would seem that the insured is the only proper party to recover damages from the wrong-doer.” 14 R. C. L., 1410.

The Supreme Court of North Carolina thus states the rule:

“An insurer who has paid a loss caused by another’s negligence must bring the action against the wrong-doer to compel him to make good the loss, under a statute requiring suits to be brought by the real party in interest, since, being subrogated to the rights of the insured, he is such a party. ’ ’ Cunningham v. Seaboard, Air Line Ry., 139 N. C., 427 [51 S. E. 1029; 2 L. R. A. (N. S.), 920],

In Illinois Central Ry. v. Hicklin, (Kentucky) 23 L. R. A. (N. S.), 870, it as held that the tortfeasor could not raise the question of insurance where the action was brought by the insured rather than by the insurer. To like effect are other authorities, but the editor of that series adheres to the doctrine that where the insured has been satisfied, the insurer is the real party in interest and alone can maintain an action on the claim to which he has been subrogated.

“But under the statutes requiring suits to be brought by the real party in interest, it has been held that the insurer must bring the action against the wrong-doer if the whole value of the property has been paid by it, or must be joined with the insurer if only a part has been paid. ’ ’

Supporting the same principle are: British-Amer. Assur. Co. v. Colorado Ry., 52 Col. 589 [41 L. R. A. (N. S.), 1202]; Southern Ry. v. Blunt, 165 Fed. 258; Allen v. Chicago & N. W. Ry., 94 Wis., 93 [68 N. W. 873].

The Ohio statute fixing the right to bring an action is as follows:

‘ ‘ Sec. 11241. An action must be prosecuted in the name of the real party in interest, except as provided in the next three succeeding sections. ’ ’

It would be difficult to imagine a more imperative, affirmative statement than this. It says what it means and means what it says. It is not directory, but mandatory. Its purpose was to bring the actual claimant for relief before the court, and was a proper and necessary part of the reformed procedure which sought to abolish the fictions obtaining under the old practice. The statute quoted made certain exceptions contained in three subsequent sections. One of these succeeding sections is 11244, which provides among other things that a person in whose name a contract is made for the benefit of another may bring an' action on such contract. If the principal section (11241) were to be given a directory interpretation there would be no occasion for the exception just noted. It was because Section 11241 requires the real party interested, that is, the party for whose benefit the contract was made, to bring an action that it became necessary to create the permissive power under 11244 for the nominal party to such contract to sue thereon. If either party could have sued under 11241 there could have been no reason for authorizing the nominal party to sue under 11244.

Can there be any question as to who the real party in interest is? Mrs. Cox has no grievance. She is suffering no wrong. For her injuries, she has been fully compensated. The contract with the insurer provided that when she was compensated the insuring company was to be subrogated to any claim she might have against others for the damages sustained by her. When the insurer fully indemnified her she no longer had a claim. She parted with her claim, and the insuring company was subrogated thereto. Having no claim she had no cause to be heard, and another who has such claim can not borrow her name and gain a possible advantage by leading a fiction.

We fully recognize that eminent courts in other jurisdictions adhere to the old practice, but we feel at liberty to follow that equally eminent line of authority that stands for a literal interpretation of the plain, unambiguous language of the code that insists on truth and simplicity in pleading.

Judgment affirmed.

Sayre and Middleton, JJ., concur.


author: PER CURIAM.

text:
    OFFICE AND OFFICERS
    [Stark (5th) Court of Appeals,
    May 31, 1921.]
    Shields, Patterson and Houck, JJ.
    Elek Hartman v. Milton J. Braucher (Dir. Pub. Saf.) et al.
    Leave of Absence to Policeman Extending more than Two Years Terminate All Connection with Police Department.
    Where a police officer of a city in the classified service, under a leave of absence from duty in which no limit of time was set by the director of public safety granting the same, remained off duty for a period of two years or more, such absence worked a separation from the service as contemplated by Sec. 486-16 G. C.
    Error.

      Bice <& Souers, for plaintiff in error.

      Clarence A. Fisher and Milton J. Braucher, for defendants in error.
   PER CURIAM.

The judgment of the court below is sought to be reversed in this case on the ground that said court erred in sustaining a General demurrer to the petition of the plaintiff in error.

In his petition after alleging the official relation of the defendants to said city and his appointment as patrolman in the police division of said city and his service therein long prior to February 3, 1919, and having then served as such patrolman, for more than sis months, the plaintiff alleges that on said February 3,1919.

“By reason of ill health unfitting him physically for duty at the time, he was on said day granted by E. W. Hamaker, then director of public safety of said city a leave of absence from duty as a patrolman until such times as the plaintiff should become physically fit to resume his duties in the public service, such leave of absence being made effective February 1, 1919; that thereupon the plaintiff, under such leave of absence, temporarily discontinued active service in said police department of the department of public safety of said city and went and continued upon the leave of absence granted as aforesaid until April 7, 1921, at which time it was certified by the examining physician of the civil service commission of said city that the plaintiff had become again physically fit for police duty; that thereupon the defendant on April 7, 1921, reported to the defendants Milton J. Braucher as director of public safety and William F. Gauchat as chief of police, for active duty, and requested that he be forthwith assigned to duty as a patrolman in the police division of said city, but that notwithstanding the plaintiff on said April 7, 1921, and on each and every date since that time has duly reported for duty and has tendered his services as a patrolman and requested assignment to duty the said defendants have failed and refused to accept the services of the plaintiff or to assign him to duty, but on the contrary have prevented him from performing his duties and have excluded and declared their intention of continuing to exclude the plaintiff from his office and employment as patrolman in said police division.”

He further alleges that he has never resigned or been removed from his office or employment as such patrolman, nor has he ever been in any manner separated or retired from such office and employment, except upon said leave of absence and that he is entitled to be restored thereto, and to receive the emoluments thereof, and that the action of the said defendants in excluding the plaintiff therefrom is wholly without warrant or authority of law and contrary to the laws regulating the employment and removal of officers and employees in the classified civil service of said city. He further says that he was appointed to and employed in the classified civil service without definite tenure of office, but to serve during good behavior, and was and is removable only for cause. Reference is also made to the adoption by the civil service commission of said city under the civil service act of the rule that whenever any employee in the classified civil service is discharged, laid off, reduced or suspended, he shall be furnished with a copy of the order of discharge, lay off, reduction or suspension with the reasons therefor, and be given a reasonable time in which to make and file an explanation, all of which was denied the plaintiff, and that the defendants have gone forward and wrongfully appointed another to take the plaintiff’s place and position in said police division.

The prayer of the plaintiff is that the defendants, the civil service commissioners, herein named, be enjoined during the pendency of this cause from certifying or approving the pay roll of said police division until the name of the plaintiff has been placed thereon and the name of the person wrongfully appointed another to take the plaintiff’s place and position in said police division.

The prayer of the plaintiff is that the defendants, the civil service commissioners, herein named, be enjoined during the pendency of this cause from certifying or approving the pay roll of said police division until the name of the plaintiff has been placed thereon and the name of the person wrongfully appointed to the plaintiff’s position has been excluded therefrom; that the said director of public safety and the said chief of police be enjoined from further interfering with or preventing the plaintiff from discharging the duties as said patrolman, or excluding him therefrom, and be commanded and enjoined forthwith to restore and assign the plaintiff to duty in said police division and to the pay roll thereof.

A demurrer was filed to said petition by the defendants on the ground that the same does not state a cause of action in law or equity, which demurrer was by the court sustained, and the plaintiff not desiring to further plead, judgment was rendered against him for costs, to all of which the plaintiff excepted, and now files his petition in error in this court to reverse said judgment.

Without stopping to comment on the object or public benefits of the civil service act and the classification of the positions or employments embraced in what is termed the classified and unclassified service in said act, it is conceded that the plaintiff in error was in the classified list. Going directly to the question raised by the demurrer, Was or was not the plaintiff in error in the service of the city of Canton on April 7, 1921, when he recovered from his ill health and when he reported for duty and tendered his services and requested to be restored to the position as patrolman in the police division of said city? If he was, he is entitled to the relief prayed for, otherwise such relief should be denied him.

(G. C. Section 486-16) provides in part that

“Any person holding an office or position under the classified service who has been separated from the service without delinquency or misconduct on his part may, with the consent of the commission, be re-instated within one year from the date of such separation to a vacancy in the same or similar office or position in the same department, etc. ’ ’

It is upon the construction of this portion of said section that the question made depends. On behalf of the plaintiff in error it is contended that the provisions of said section do not apply to the case at bar, but “relate to complete and permanent separation from the service such as results from resignation or the abolition of a position.” We do not so construe the statute. If the view urged was in contemplation by the legislature when the act was passed, the inquiry might well be made why it is that one “may be re-instated within one year” who has not been guilty of delinquency or misconduct. True, a voluntary resignation from the service might not place one beyond the pale of restoration to the same or similar position, with the consent of the commission, under an application, properly made, within the period of limitation named in said section but such a case is not before us. Here the case made is as if by mandatory injunction to require the director of public safety and the chief of police of said city to restore the plaintiff in error to the position of patrolman in the police division of said city, and to the emoluments of said position, after an absence of two years or more under an alleged indefinite leave of absence granted by the then director of public safety. No application for an extension of leave of absence appears to have been made to or granted by the commission or other proper authority during this time. As held by the Supreme Court in Green v. State Civil Service Commission, 90 Ohio St. 252 (107 N. E. 531), the civil service commission has power to make, amend and enforce rules and regulations for carrying into effect the provisions of the civil service act, but we apprehend it will not be contended but that such delegation of administrative power is subject to the provisions of the legislative will as contained in the provisions of said act, and that the exercise of such power can not exceed the authority expressly conferred by said act. Hence, we naturally turn back to examine the contents of the leave of absence granted the plaintiff in error npon which his counsel contend that he is justified in law and equity in relying, and by reason of which the plaintiff in error is entitled to the relief here sought. No reference was made in argument of counsel to the rules of the municipal commission, but See. 47 of the provisions of the city ordinance relating to the payment of three months regular salary to disabled policemen was referred to, which was perhaps passed pursuant to the authority conferred by Sec. 468-14. That a temporary leave of absence for sickness or other cause may be granted under Sec. 486-16 we entertain no doubt, and that such leave of absence would within the limitation of time named therein not be a separation from the service as contemplated by said section is equally apparent, but we find no warrant in said section or elsewhere authorizing the granting of an indefinite leave of absence to any officer or employee in the classified service.

To say the least, such exercise of power would render nugatory and defeat the action of the commission in filling vacancies as provided by See. 486-14, independent of the express provision contained in Sec. 486-16. But counsel for plaintiff in error add “since Officer Hartman neither resigned nor was removed but still continues on the roster, under leave of absence, as shown by the civil service commission, which is admitted by the demurrer, therefore he is still in the service and entitled to be restored to duty and to the pay roll.” That is to say, that under the leave granted, said officer, although off of duty for more than two years and who might by the same logic have remained off of duty two years or even ten years more, may still claim the right to be restored to duty and to the pay roll at the end of such period. Sickness naturally awakens sympathy and it appears that the case here presented is one which appeals to humane consideration, and however much we might naturally be inclined to listen to such appeal, we can not disregard our obligations of duty to the law by giving a construction to the statute in question which in our judgment is unwarranted by its terms. As already stated, the plaintiff in error was off of duty in said service for two years and more, and made no application for a renewal of a leave of absence during that time. Did such- absence work a separation from the service as contemplated by Sec. 486-16? We think that the limitation of one year specified therein clearly defines the period for which a leave of absence may be granted, and any leave of absence granted in excess of such pei'iod constitutes an actual separation from the service, and is unauthorized by the terms of said section.

In its charity the civil service law, impliedly at least, indulges a reasonable allowance in point of time as fixed by the Legislature for disability occasioned by sickness or other cause, but the observance of public interest forbid an indefinite and unlimited leave of absence from official duty and compensation therefor. “Public office is a public trust,” and while conditions are liable to overtake the incumbent of an office which he can not control, and for which due allowance should be made, still after the lapse of a reasonable time, personal disability must yield to public convenience, and quoting from counsel’s brief, “a city government must function; a police department must exist, vacant offices must be filled and no man has the right to claim a lien on an office unto infinity.”

For the reasons given, we are of the opinion that the action of the court of common pleas in sustaining said demurrer to said petition was proper, and the judgment of said court is affirmed.

Shields, Patterson and Houck, JJ., concur.


author: VICKERY, J.

text:
    LANDLORD AND TENANT
    [Hamilton (1st) Court of Appeals,
    May 9, 1919.]
    Dunlap, Washburn and Vickery, JJ., Eighth District Sitting by Designation
    John Haggerty v. Charles T. Maley.

      1. Oral- Lease from Year to Year After Expiration of Lease for Term Competent.
    “A” was in possession of real estate as lessee under a lease for five years containing a privilege of renewal upon the lessee’s giving ninety days’ notice prior to the expiration of the term, the additional term to be at an advanced rental. No notice of an intention to exercise the privilege was given. “A” held over, paying the advanced rental for two and a half years and then vacated the property. Held: “A” may show an agreement for a year to year tenancy made after the expiration of the first year.
    2. Tenant after Term at Option of Landlord Becomes Tenant from Year to Year.
    When the lease is for a term of years and the tenant stays beyond the term of the lease, he becomes, at the election of the landlord, a tenant from year to year where there has been no renewal provided for in the lease itself.
    3. Bill of Particular's in Action Dismissed by Landlord Competent in Second Action.
    Where, upon abandonment, the landlord sues lessee, alleging that on the date of the new term, by virtue of an agreement between parties, the lease was extended a year, and that a like agreement was entered into for a second year, and then dismisses the suit, and “A” in a second suit offers the bill of particulars filed in the prior suit which was objected to and was excluded. Held: error.
    4. Payment of Taxes by Tenant through Mistake Gives Landlord no Right to Recover Taxes not Paid.
    The lease, making no provision for the payment of taxes, the fact that while ignorant of his rights, the tenant reimbursed the landlord upon his demand for taxes paid on the leasehold premises, confers no legal right on landlord to recover taxes which tenant did not pay.
    Error.

      Wm. F. Fax, for plaintiff in error.

      Williams é Ragland, for defendant in error.
   VICKERY, J.

In the court below Charles T. Maley was plaintiff and John Haggerty was the defendant. It seems that on October 31, 1908, plaintiff below made a lease of certain premises, situated in the city of Cincinnati, to Herbert L. Freeman for a term of five years, beginning November 1, 1908 and ending November 1, 1913, together with a privilege, of renewal for a further period of five years under certain conditions set forth in the lease, and that on September 17, 1909 said Herbert L. Freeman, with the consent of the plaintiff below, assigned said lease to the defendant, J ohn Haggerty, which assignment and consent were in writing, and that said assignment went on record September 18, 1909, and is recorded in the records of leases of Hamilton county. Thereafter, said Haggerty entered into possession of the premises paying as a rental per year the sum of $420 in installments of $35 per month, on the first day of each and every month, and continued in possession and paid the rent as provided in the lease up until November 1, 1913.

The provision in the lease as to the renewal was in effect that when the lessee or his assignee should desire renewal, he was to make known his election ninety days prior to the end of the lease, and that under the renewal the rental should be at the rate of $50 per month, or $600 per year.

The lease contained a provision whereby the defendant could erect a building upon said premises, and certain provisions as to how to arrive at the value of the building, and for the fixing of the compensation or the payment for the building upon the termination of the lease.

The defendant, Haggerty, did not notify the plaintiff of his desire for an extension or renewal of the lease ninety days prior to the ending of the lease, nor at any other time, but the record shows by the proffer of certain evidence that there was some conversation or communication between them which indicated a desire of Haggerty to vacate the premises, and asked for an adjudgment of the rights between the plaintiff and defendant as to proper compensation for the building that Haggerty had erected on the property, but nothing was done by the owner of the property in this respect. On November 1, 1913, Haggerty was in possession of the property, and, the agent of the plaintiff appeared with a bill made out for the month’s rent at the rate of $50 per month, which, it is claimed, Haggerty refused to pay, saying that he did not want to stay for five years. But, upon a statement made by tbe collector/ tbat he should see tbe plaintiff and arrange about tbat be paid tbe $50. From tbat time on, be paid at tbe rate of $50 per month for two years and a half and then vacated tbe property.

This action was brought to recover tbe rent at the rate of $50 per month for two and a half years of the remainder of tbe full term of five years, if there bad been a renewal of tbe lease for tbat period of time.

Tbe second cause of action is a claim for tbe taxes tbat tbe owner of tbe property bad paid and which be sought to recover from tbe defendant, Haggerty.

Issues were joined on these causes of action, and a trial to a jury was bad, but before tbe case was submitted to a jury it was agreed by both parties tbat a jury should be waived and tbe case tried to tbe court. Whereupon, tbe case was submitted to tbe court, which rendered a judgment for the plaintiff against tbe defendant on both causes of action, amounting to something over $1,800. This proceeding was brought by tbe said Haggerty to reverse tbat judgment.

Tbe petition in error is predicted upon several alleged errors. Perhaps it will not be necessary to consider all of these.

One of tbe first errors claimed is tbat certain testimony was sought to be introduced by tbe defendant below, which tended to show tbat when tbe collector called on November 1, 1913, for tbe rent and be first declined to pay tbe rent saying tbat be did not want the property for a period of five years, but, upon being told by tbe agent tbat be would have to see tbe landlord, tbe plaintiff, about tbat, be thereupon paid tbe rent and then went to see tbe landlord. Tbe admission of this evidence was refused by tbe court upon objection, to which an exception was taken.

We think this was clearly erroneous. Tbe court apparently based bis ruling upon tbe fact tbat inasmuch as tbe tenant was bolding over beyond bis term and accordingly paid the rental provided for in tbe lease, if it bad been renewed, amounted to an irrebuttable presumption that the lease had been renewed.

We recognize from tbe authorities tbat where a lease provides for a renewal under a different rental than tbat of the original term, and the tenant stays in and voluntarily pays the increased or different rental, without any explanation, or anything being said, it operates as a renewal for the new term. But, here, the profferred evidence tended to show that this was not the situation; that the rent was paid under a different and distinct understanding, and surely under such circumstances it would be error not to permit testimony, which would explain the payment.

We think the law is well settled in Ohio that ordinarily when a lease is for a term of years and the tenant stays beyond the term of the lease, he becomes a tenant from year to year, that is, where there has been no renewal provided for in the lease itself. In Baltimore & O. Ry. v. West, 57 Ohio St. 161 [49 N. E. 344], many of the authorities are collected and cited as a basis for the judgment in that case. We know that this is a different rule from that recognized in many other states, where the rule is that the staying beyond the term extends the lease for a further term equal to that provided for in the lease. But we do not understand that to be the rule in Ohio. In fact the rule is the other way, and we, therefore, think the court erred in keeping this evidence out of the record. Of course, we do not know what governed the court in the final decision when it was submitted to him, but we do know that this evidence legally was not before him, and the party had the right to have that evidence properly before the court. Inasmuch as this evidence was proper, and the court ruled it out, we think error was committed.

We think it was error likewise for the court to refuse the admission of the evidence contained in the bill of particulars, that was filed by the plaintiff below against the defendant below, in the municipal court of Cincinnati, wherein it was set up that on November 1, 1913, by virtue of an agreement between the parties, the lease was extended for a year, and thence on the first day of November of the second year a like agreement was entered into between the parties. This tended to corroborate the theory of the plaintiff in error that the lease had not been renewed, but a new contract from year to year had been made, and it served as admission against interest, wbicb, we understand, always to be admissible. Therefore,, the court erred in ruling this out.

Coming now to the second cause of action on the question of taxes. "We find nothing in the lease which dompelled the tenant to pay the taxes, and there being no agreement for the tenant to pay the taxes, we do not understand upon what basis the right to recover from him could be predicted. The mere fact that the tenant may have paid some of the' taxes without being aware of his fights, would not confer a legal right upon the plaintiff to recover the taxes which the tenant did not pay. We, therefore, think the court erred in rendering judgment upon the second cause of action, and the judgment was erroneous in this respect.

For these errors, the case is reversed and remanded to the court of common pleas for a further proceeding according to law.

Dunlap and Washburn, JJ., concur.


author: WINCH, J.

text:
    MECHANICS ’ LIENS — MORTGAGES—PAYMENTS
    [Cuyahoga (8th) Court of Appeals,
    May 18, 1914.]
    Winch, Meals and Grant, JJ.
    M. A. Gill v. B. Konvisser et al.
    1. “Owner” to Whom Notice of Filing Mechanics’ Lien Given, Defined.
    The “owner of the property,” designated in See. 8315 G. C., as the one who must be notified of the filing with the county recorder of an affidavit for a mechanics’ lien, is the owner to whom the materials were furnished or for whom labor was done, and not some subsequent purchaser who acquired title after the date of the furnishing of the first item of material or labor.
    2. Personal Knowledge not Required in Making Affidavit for Mechanics’ Lien.
    The rule that the affidavit which is the foundation of a mechanics’ lien must be sworn to absolutely and not upon information and belief, has reference to the form of the jurat and does not require that the person making the affidavit shall have personal knowledge of all the facts therein contained if he is satisfied of their truth.
    3. Credits for Money Paid Without Designation of Application.
    Where part payment is made by the debtor without designation as to the application to be made of the payment, the creditor may apply the payment to that part of the debt for which he has no lien.
    4. Failure of Present Owner to Plead Covenant against Incumbrances Precludes Sitting Off Mechanics’ Lien Against Mortgage.
    Failure of the present owner to plead that his deed contains covenants against incumbrances, is fatal to the claim that he is entitled to have the amount of a mechanics’ lien set off against the amount due on a mortgage.

      Thompson, Sine & Flory for plaintiff.

      A. Kolinsky, 8. J. Deutsoh, Tllmer <& Bernsteen and L. N. Lcuwrence, for defendant.
   WINCH, J.

In this ease we hold that “the owner of the property” who must be notified of the filing with the county recorder of an affidavit in order to obtain a mechanic’s lien, as required by Sec. 8315 G-. C., is the person who was the owner to whom the materials were furnished or for whom the labor was done, and not a subsequent purchaser of the property who acquires title after the date of the first item of labor done or material furnished. Bockel, Mechanic’s Liens, Section 74; 20 Am. & Eng. Enc., 375; 27 Cyc., 113.

This is so because credit is extended on ownership of the lot by the person contracting for labor or material. Account is kept with him and it is his debt, no matter to whom the property may afterwards be conveyed. The contractor should not be required to keep track of changes in ownership after he has furnished material or labor that has increased the value of the property. It is for a purchaser of such property, from the appearance of things having notice that perhaps some work has been done on the premises within four months, to make inquiries and find out whether any lien may accrue against the property.

The affidavit, specified in Sec. 8314 G-. C., as the foundation for a mechanic’s lien, must be sworn to absolutely and not upon information and belief. This has reference to the form of jurat attached to the affidavit, and does not require that the person making it should have personal knowledge of all the facts contained in it, if he is satisfied of their truth and is willing to make oath thereto. In other words, an affidavit in which the affiant states that the facts stated by him are true, “as lie verily believes,” is not sufficient, but if the affidavit is sworn to absolutely and the facts stated in it are true, it is immaterial whether the affiant had personal or hearsay knowledge of their truth. The suggestion that if is turn out on the hearing of a suit on the lien that the affiant was the proprietor of a business and got his facts which he swore to from his bookkeeper, the affidavit would not be sufficient, can not be entertained, for few could be able to make such affidavits and the statute would lose its efficacy. Such a theory would render invalid affidavits forming the basis of prosecutions for misdemeanors upon information, where the affidavit is made by a public officer upon information received from others upon which he has a right to rely, notwithstanding all the facts stated in such affidavits might be true. Neither business nor public affairs can be carried on upon any such theory of the law. The pains and penalties of the law are sufficient protection against false affidavits if their form is correct.

The credit of $200 was properly applied by plaintiff. There was no direction from the debtor as to what account it should be applied to. It seems that several accounts of the debtor upon the creditor’s books were balanced and a note given for the aggregate amount. There was no agreement that the note should be received in payment of these accounts. It was received as evidence of the several debts and as collateral security for their payment. Merrick v. Boury & Son, 4 Ohio St. 60. See opinion by Judge Thurman.

Being received as collateral security only, there was no agreement for extension of time on the account when the note was given, though it ran for 60 days and the payment was made before the sixty days was up. Credit was made on both the note and the account. The credit on the account still stood after the maturity of the note and the affidavit for lien was not made until long afterwards. It was not until after the maturity of the note that the debtor objected to the application of this . payment to the older debt.

There being no designation by the debtor at the time of payment of the application desired by him, and the creditor being entitled to a lien for part, of his account and for part not, and attempting some time after the payment to apply the payment to those items for which he was not entitled to a lien and to secure a lien for the balance, he should be sustained by the court in application of the payments made. Union Nat. Bank v. Cleveland, 6 Circ. Dec. 536; (10 R. 222).

Such is the case here with reference to the $200 payment and the same rule is applied to the $400 payment, part of which was applied to the payment of accounts for which no lien was claimed, for we find as a fact, from the evidence that when said $400 payment was made the debtor did not ask that it be applied to the account for which the lien was afterward claimed, though he did later complain that it was not applied.

The foregoing observations decide all contentions regarding the mechanic’s lien set up in plaintiff’s petition in favor of said lien.

It remains to consider the claim of defendant Feinstein, purchaser of the property from the owner who subjected it to the mechanic’s lien, that the amount of this lien should be set off against the second mortgage which she gave said owner in part payment for the land which he conveyed to her with covenants of warranty and against incumbrances, though said mortgage was assigned to another of the defendants.

Her deed is not in evidence and so we do not know from the record that it contained such covenants, notwithstanding a previous contract for the sale of land is in evidence which contemplated the giving of such a deed.

Whether it is the settled law in Ohio that a mortgage in the hands of a bona fide assignee thereof, is subject to the same defenses by the mortgagor that he might have made against the mortgagee, as intimated in the cases of Bailey v. Smith, 14 Ohio St. 396, and Timmerman v. Howell, 1 Circ. Dec. 342 (2 R. 27), may well be doubted. See First Nat. Bank v. Brotherton, 78 Ohio St. 162 (84 N. E. 794).

But in any event, Mrs. Feinstein did not set up any such claim for damages in her pleadings nor did she have the same ■adjudicated by a jury, as such claims under the law must be adjudicated, unless a jury is waived, and this court has no jurisdiction on appeal to try such issues of facts, for such issues, triable to a jury, are not appealable.

Mrs. Feinstein filed what she denominates an answer to the amended petition of plaintiff and to the various answers and cross petitions, in which all she says about Ulmer’s mortgage is that she admits that he is “the owner of a mortgage on the premises but denies the amount thereof and demands proof. ’ ’

This tenders no issue as to Konvisser’s breach of a covenant in his deed to her. It says nothing about there being any such covenant. For aught the pleadings show her deed from him may have been a quitclaim deed, entitling her to no relief by reason of the mechanic’s lien which he suffered to attach to the property. Her answer asked no affirmative relief and so required no answer from either Konvisser or Ulmer.

Only one condition that she pleaded a deed with covenants against incumbrances was she’entitled to have the amount of the lien set off against the amount due from her on the mortgage. Not having pleaded it, no relief on account of it could be granted her in the common pleas court, and much less can it be granted in this court which is without jurisdiction to entertain such a claim for damages either as a set-off or as a counterclaim.

For these reasons Ulmer’s mortgage will be marshalled in its order for its full amount.

There is no dispute as to the priority of the liens which are involved herein and decree may be taken marshalling them in their order and as indicated herein.

Meals and Grant, JJ., concur.


author: Per cnriam.

text:
    PHYSICIANS AND SURGEONS
    [Summit (9th) Court of Appeals,
    January 19, 1923.]
    Washburn, Pardee and Punk, JJ.
    Denis Pantazatos v. Emmet C. Jelm.
    Degree of Skill Required of Specialist Greater Than That of Ordinary Practitioner.
    Where a physician is employed because of his peculiar learning and skill in a specialty practiced by him, his duty to his patient is not measured by the average skill of a general practitioner, and he should be held to that degree of skill and knowledge which is ordinarily possessed by those who devote special time and study to the disease as to which he has held himself out as a specialist.
    Error.

      Carl M. Myers and Donald Qottwald, for plaintiff in error.

      Waters, Andress, SouthwortJi, Wise & Maxon and Bernier, Darter, Walker <& Watters, for defendant in error.
   Per cnriam.

This is an action in which plaintiff sued the defendant to recover damages for an alleged malpractice. The verdict of the jury and judgment of the court was for the defendant.

The principal error complained of and set out in the brief and noticed in oral argument is in reference to the charge of the court.

At the request of plaintiff, the court charged before argument as follows:

1. "You are instructed that a physician who offers his services to the public impliedly agrees with those who employ him that he possesses that reasonable degree of learning, skill and experience which is ordinarily possessed by persons engaged in that profession and sufficient to qualify him to engage in that profession. A physician assumes to exercise the ordinary care and skill of his profession, and is liable for injuries resulting from his failure to do so, if his failure to exei’cise the ordinary care and skill of his. profession is the proximate cause of the injuries. ’ ’

The plaintiff also asked the court to charge as follows:

2. “You are instructed that a physician holding himself out as having special knowledge and skill in the treatment of a particular disease is bound to bring to the discharge of his duty to a patient employing him as such specialist to treat such disease, not merely the ordinary degree of care and skill possessed by general practitioners, but that special degree of care, skill and knowledge possessed by physicians who are specialists in the treatment of stich disease in similar localities, having regard to the present state of medical and scientific knowledge at the time, of treatment. ’ ’

This request the court refused to give before argument, to which ruling plaintiff excepted. The general charge of the court was along the lines indicated in the first request quoted, which was given, and at the conclusion of the charge, plaintiff again requested that request No. 2, which had been refused, or some similar statement of the law, be charged, which the court refused, and to which plaintiff excepted.

The petition alleged and the proof established by the admission of the defendant, that he held himself out as a specialist in the treatment of the disease concerning which it was claimed he was guilty of malpractice.

The courts of Ohio have not spoken on the subject as to whether or not a physician who holds himself .out as a specialist is held to a greater degree of care and skill than the ordinary care and skill of general practitioners, but numerous authorities outside of the state of Ohio sustain the proposition that where a physician is employed because of his peculiar learning and skill in the specialty practiced by him, his duty to his patient can not be measured by the average skill of a general practitioner, but that he should bring to the discharge of his duty to patients employed by him as such specialist, that degree of skill and knowledge which is ordinarily possessed by physicians who devote special attention and study to the disease of which he has held himself out as a specialist. McClarin v. Genzfelder, 126 S. W., 817; Coleman v. Wilson, 85 N. J. L., 203 [88 Atl., 1059]; Rann v. Twitchell, 82 Vt., 79 [71 Atl., 1045]; Physicians and Surgeons 30 Cyc., 1571; Physicians and Surgeons, 21 R. C. L., 387; Stewart’s Legal Medicine, p. 254, sec. 93; Gillette v. Tucker, (67 Ohio St. 106; 65 N. E. 865), 93 Am. St. 639, 664n; Palmer v. Humiston (87 Ohio St. 106; 101 N. E. 283), 45 L. R. A. (N. S.) 640.

No decisions holding to the contrary have been cited and we have found none, and we are satisfied that the trial court in the instant case should have adopted the view of, the law expressed in these eases and that it was error not to charge that a specialist, employed as such, is charged with the duty of exercising that degree of skill and care which is ordinarily exercised by specialists in his line under the same or similar circumstances.

The court’s attention to this phase of the law was challenged both before and after the general charge, and it was error to refuse to charge on the subject.

We further find upon a review of the record that such error was prejudicial in this case. Judgment will therefore be reversed for such error, and the cause remanded.

Washburn, Pardee and Funk, JJ., concur in judgment.


author: Per Curiam.

text:
    DEATH — PARTITION
    [Clermont (1st) Circuit Court,
    1906.]
    Gif fen, Jelke and Swing, JJ.

      John Nichols and Frank A. Davis, Admrs. v. John Clare et al.
    Bond for Repayment of Heir Missing for Seven Year's, Prerequisite to Partition.
    Inasmuch as the presumption of death after an absence of seven years without being heard from is rebuttable, a court will order, in a partition of property in which the missing party has an interest, that on distribution bond be given for repayment to him of the amount of his interest in the event of his reappearance, or to his heirs upon satisfactory proof being offered of his death.
    Error.

       Affirmed, no opinion, Clare v. Nichols, 75 O. S. 600.

   Per Curiam.

In the finding of facts made by the court of common pleas, it appears that Joseph Clare died intestate in Clermont county, Ohio, leaving three children and the child of a deceased daughter, surviving him; that he had one other child, George Clare, born to him, but who had been absent from the state, unheard of for twelve years prior to the death of said Joseph Clare, his father; that the administrators filed their final account in the probate court, which was afterwards confirmed by the court and the said administrators ordered to distribute the sum remaining in their hands according to law; that four-fifths of the sum so in their hands for distribution were paid by the administrators to the plaintiff and the other living heirs, and the remaining one-fifth was reserved as the share of George Clare, if living; that George Clare, some twelve years prior to the death of his father, left the county of Clermont and has been absent and unheard of ever since; that diligent search has been made for him both prior to his father’s death and since; that George Clare is dead and left no widow, child or children, or issue of children, legatees, or devisees surviving him; and that he died prior to the death of his father.

The court found as a conclusion of law that said sum of $1,187.32 should be distributed by said administrators in equal proportions among said John W. Clare, Mary Ann Israel, Joseph Clare and Anna Belle Moberly.

The only foundation for the claim of the plaintiff and the other living heirs is the death of George Clare, and this is based upon facts which raise only a presumption of death which may be rebutted by other evidence.

The presumption of death from a person’s absence for seven years is not a conclusive presumption of law, but is merely a rebuttable presumption of fact or of mixed fact and law.

It is sought in this case to strengthen the presumption by attempting to give notice of the pendency of the suit to George Clare by publication, but if he is dead as claimed by the plaintiff, any attempt at service of summons or by publication would be of no avail; and on the other hand, if he is alive, the plaintiff has no claim whatever upon the fund in the hands of the administrators.

The judgment of the court therefore, disposes of the interest of George Clare in his father’s estate without any notice to him and without any support of the plaintiffs’ claim other than the presumption of death arising from his absence from the state, and being unheard of for twelve years.

The judgment is conclusive between the parties and their privies until reserved or vacated, but it can not estop George Clare, who was wholly a stranger to the cause and whose rights are sought to be concluded thereby. In the case of Young v. Heffner, 36 Ohio St. 232, the second proposition of the syllabus is as follows:

“The legal presumption of death which arises from the absence of one from his home for the period of seven years, and who in the meantime is not heard of, is but prima facie evidence of the fact, and may be rebutted by counterproof.
“Third: The plaintiff, the owner in fee simple of two undivided sevenths of a farm, had been absent and unheard of for nearly thirty years, when proceedings for the partition of said farm were instituted by persons who would have been his heirs had he been then deceased. Under these proceedings the premises not being divisible without manifest injury to the value thereof, were sold by order of the court and bid off by defendant II, owner of the remaining five-sevenths thereof, and who after said purchase made valuable improvements thereon.
“Held. 1. That H, by such purchase acquired no title to the interest of the plaintiff in said land.
“2. That in the partition of said premises, the defendant H, is entitled to the benefit of such improvements, and, in making partition, respect should be had thereto.”

We think this case is conclusive of the one before us, and that if the administrators should pay the fund now in their hands to the plaintiff and the other heirs defendants, in the case they would still be liable to George Clare if he should hereafter return.

The administrators, by answer have asked the advice and direction of the court in the distribution of the fund, and we see no objection to affirming the judgment upon condition that the parties receiving the money give security for its repayment in the event that George Clare or his legal representatives should appear and make claim to the fund or to modifying the judgment to that extent. Schouler on Executors, Section 484.

If security is not thus given, the judgment should be reversed and cause remanded with direction to the court of common pleas to authorize the administrators to invest the fund according to the statute or deposit it in the county treasury.


author: WASHBURN, J.

text:
    COURTS — ELECTIONS—QUO WARRANTO
    [Summit (9th) Court of Appeals,
    January 19, 1923.]
    Washburn, Pardee and Punk, JJ.
    State ex rel Gaylord v. George H. Herdman, and Eight Other Cases.
    Quo Warranto Court of Appeals does not Lie to Determine Validity of Elections, Common Pleas is Proper Forum.
    Provision has been made by the general assembly for trial of election contests in the court of common pleas, and the court of appeals is without jurisdiction to inquire into the validity of an election in a quo warranto proceeding.
    Demurrer to petitions.

      Irvin <& Laybourne and Geo. W. Coble, for defendants.

      Arthur W. Boyle, Prosecuting Attorney, and Charles II. Howland, for plaintiff.
   WASHBURN, J.

These eases are all before this court upon demurrers to the petitions. We will first take up the case of State of Ohio ex rel Gaylord v. Herdman.

It appears from the petition that the city of Cuyahoga Falls is a municipal corporation of about 10,000 inhabitants.

At the regular election in November, 1921, there was a mayor and other municipal officers to be elected. Gaylord was regularly nominated at the primaries as the Republican candidate for mayor, and no other nomination for that office was made at the primaries.

Herdman became a candidate for mayor on what was known as a Citizens ticket, by filing a petition therefor.

The deputy state supervisors of the county accepted said petition, and no objection being made thereto, placed Herd-man’s name on the ballot as a candidate for mayor, and at the election lie received a majority of the votes cast, and in due time was regularly declared elected and a certificate of election was issued to him.

He qualified and took office on January 1, 1922.

Neither his nomination or election was contested under the statutes providing for such contests, and Gaylord did not attempt to qualify or claim the office, and nothing was done in reference to the matter by Gaylord until Herdman had been discharging the duties of the office with the full acquiescence of the public for about six months, and until after the Supreme Court had announced that there was no provision in the law for the nomination of candidates by petition in cities of more than 2000 population.

Then suit was brought in this court by Gaylord, the same being a suit in quo wa/rranto, in which no complaint is made concerning Herdman’s right to the office except that Herdman’s name was improperly placed on said ballot, because there was no law by which his name could be placed on the ballot by petition.

The prayer of the petition is that Herdman “be adjudged not entitled to hold said office, and that judgment of ouster therefore be pronounced against him, and that said relator (Gaylord) be adjudged entitled to said office and its franchises. ’ ’

As has been said, the matter is before this court on demurrer to .the petition, the grounds of demurrer being that the petition does not state facts sufficient to state a cause of action and that this court is without jurisdiction to hear and determine the controversy.

It is claimed that as the statutes provide a means by which Gaylord could object to Herdman’s name appearing on the ballot and could later contest the election in the court of common pleas, he is bound to proceed under such statutes, and that therefore this court has no jurisdiction to try such matter in quo warranto proceedings.

In discussing this question, it should be borne in mind that the petition shows upon its face that this proceeding is a contest of election between Gaylord and Herdman — simply that and nothing more.

The nest proposition which must be considered as settled beyond peradventure, is that “elections belong to the political branch of the government and not to the judicial, and are not per se the subject of judicial cognizance, but are matters for political regulation. ’ ’ State v. Graves, 90 Ohio St. 311 [107 N. E. 1018] ; Link v. Karb, 89 Ohio St. 326, 104 N. E. 632; State v. Joyce, 87 Ohio St. 126 [100 N. E. 325]; State v. Harmon, 31 Ohio St. 250.

“While by the Constitution the judicial power of the state is vested in the courts, the absolute, unlimited and unqualified power over elections, being political and not judicial, is vested in the legislature by Art. 2 Sec. 21, of the constitution, which provides that “the general assembly shall determine, by law, before what authority, and in what manner, the trial of contested elections shall be conducted.”

In early times it was the practice of the legislature to try all election contests itself, but now the legislature has provided for the trial of most election contests by courts or other tribunals.

But when the legislature provides that a certain court shall try a certain class of election contests, it does not thereby confer judicial power upon the court but it simply confers a special power to try election contests which it might have conferred upon any branch of the government or body of men. Thompson v. Reddington, 92 Ohio St. 101 [110 N. E. 652].

One other proposition, and the one that determines this case, is that when the legislature has conferred upon any court or other tribunal or other body of men the power to try any class of election contests, that statutory proceedings so provided must be followed and is exclusive.

The legislature has not conferred upon this court the specific power to try election contests of the character here involved. The constitution, however, has conferred jurisdiction in quo warranto upon this court, and it has been held that where the legislature has provided no other court or tribunal or body of men to try a given class of election contests, then this court has authority to inquire into the validity of such elections by proceedings in quo warranto. The question, then, is: Has the legislature provided a court or tribunal before which contests of elections of the character here involved may be tried ?

Section 5169 G. C., provides before what authority and in what manner the tidal of contests of election of municipal officers shall be conducted. It provides that in cities, the contest of election of municipal officers, except members of council, shall be in the manner provided for contests of election of county officers.

And the legislature has provided that the contests of election of county officers shall be “by appeal to the common pleas court of the county.” Section 5148 G. C.

The legislature has therefore conferred special power upon common pleas courts to try contests of election of mayors in cities.

“A specific mode of contesting elections in this state, having been provided by statute, according to the requirement of the Constitution, that mode alone can be resorted to, in exclusion of the common law mode of inquiry by proceedings in quo warranto. The statute which gives this special remedy, and prescribes the mode of its exercise, binds the state as well as individuals.” State v. Marlow, 15 Ohio St. 114.

The proposition that where the legislature has provided the authority before and the manner in which a contest of election shall be tried, such remedy provided by statute is exclusive, is too well settled in this state to admit of doubt. Peck v. Weddell, 17 Ohio St. 271; Ingerson v. Berry, 14 Ohio St. 315; State v. Stewart, 26 Ohio St. 216; Dalton v. State, 43 Ohio St. 652; State v. McLain, 58 Ohio St. 313; State v. Berry, 47 Ohio St. 232; State v. O’Brien, 47 Ohio St. 464; Link v. Karb, 89 Ohio St. 326; Prentiss v. Dittmer, 93 Ohio St. 314.

The case cited and relied upon by Gaylord, the recent case decided by the Supreme Court, State v. Boards of Elections, 105 O. S., -, does not deny the soundness of the foregoing proposition. That was not a case in quo warranto, and the court in its opinion expressly states that as the form of the remedy sought was not questioned, the court did not consider that question.

That ease was not brought after the certificate of election had been issued to the successful candidate and he had duly qualified and had entered upon the discharge of his duties and had continued to occupy his office and discharge the duties thereof for more than six months; that was a proceeding in mandamus to compel the election board to count certain ballots and the question decided in the majority opinion and discussed in the dissenting opinion was as to whether or not the law provided for nominations by petition in cities of over 2000 population, and not what would be the effect upon an election if a nomination was made in such manner and was not objected to and the party so nominated -was declared elected and entered upon and discharged the duties of the office for six months before any suit or contest was brought.

In that case the relief sought by the relator was denied, and our judgment is that that case might very well have been determined as it was upon the very, proposition which we feel controls us in this case. In a case decided by the court of appeals of the eighth district in Cuyahoga county in September, 1920, the case of State v. McDonough, (not reported), the court of appeals followed the decisions above cited, and the supreme court refused to review the ease.

Ve are clearly of the opinion that the Legislature, having provided a remedy by which Gaylord could try his election contest in the court of common pleas, we are without authority to inquire into the validity of such election in this qua wafranto proceeding, and that therefore the petition does not state facts sufficient to constitute a cause of action, and the demurrer is therefore sustained.

The same reasoning applies to the case against Geo. W. Coble, solicitor, and a like entry may be made in that case. As to the cases in reference to the election of councilmen, there are two classes of cases involved.

It appears from the petitions that three of the councilmen, who were in like manner nominated and declared elected, duly qualified and entered upon the duties of the office to which they were elected; it also appears that they afterwards resigned and the council elected others to succeed them, and some of the contests here are against those three who were elected by the council.

As to this class, it is to be observed that the validity of their election by the council is challenged only on the ground that the councilmen who elected them were themselves not duly elected councilmen.

The electing councilmen were at least de facto officers. Their names were placed upon the ballots as candidates for lawfully and regularly established offices; they received a majority of the votes cast; they were given certificates of election by the regular election officials; they qualified and assumed the duties of office without the least objection or opposition from the public or any member thereof, not even the plaintiffs in these actions. Since then these acting councilmen have occupied offices created by law and have daily discharged duties affecting the rights of the city and private rights of individuals.

If they be treated as mere usurpers and trespassers, their every official act would be a nullity, and interminable confusion would follow; but the law wisely holds that under the circum-' stances stated, they being the only persons claiming to be acting as such councilmen, and being generally and publicly known and acknowledged as such, to the exclusion of all others, they became at least de facta officers, and it is well settled that their official acts, as against collateral attack, are as binding as if there was no question about their election.

While so acting, their vote for the election of the new members of the council was perfectly legal and binding — the same as were their votes in transacting the regular and ordinary business of the city.

In a very early case in Ohio, it appears that a clerk of courts was elected by certain men who were acting as judges, but who were afterwards found to have no right to so act. After it was determined by the Supreme Court that they had no right to act as such judges, a proceeding in quo warranto was brought to oust the clerk who had been elected by them at a time when they did not in fact 'have a right to act as judges. In that case the Supreme Court held that while they were acting under color of right and were actually discharging the duties of the office with the full and complete acquiescence of the public, they were do facto officers, and that so far as the community or third persons were concerned, neither the validity of their appointments or judgments could be gainsaid or denied, and the facts appearing upon the face of the petition in that case as they do in the cases here, a demurrer was sustained. State v. Alling, 12 Ohio 16.

The rule is well settled that the title of the officer de facto, and the validity of his acts, can not be collaterally questioned in proceedings to which he is not a party. State v. Jacobs, 17 Ohio 143; Strang, Ex parte, 21 Ohio St., 610; Smith v. Lynch, 29 Ohio St. 261; State v. Gardner, 54 Ohio St., 24; State v. Smith, 44 Ohio St. 349, 368; Plymouth v. Painter, 44 Am. Dec. 574; Attorney General v. Crocker, 138 Mass., 214; Brown v. Flake, 29 S. E. 267; Stiess v. State, 103 Ohio St. 33.

In the cases of Sanger, Weaver and Herrick, it appears upon the face of the petitions that they were elected by councilmen whose authority to so elect can not be questioned in this proceeding by the plaintiffs in these eases, and therefore in none of the petitions are facts stated sufficient to constitute a cause of action, and the same entry may be made in those cases as in the others.

The other class of cases involving the election of councilmen are those against councilmen who were in like manner nominated and declared elected and who qualified and entered upon the discharge of duties of the office and are still serving. As to these, the statute provides that the contest of their election shall be before the council, and the reasons heretofore given for sustaining the demurrers in the cases of the mayor and city solicitor apply. The statute having provided the remedy, that remedy must be followed. In these cases petition must be judged by its own allegations, and so judged it does not appear that the remedy provided by statute would be inappropriate or inadequate.

The suggestion made in argument that such remedy would have been inadequate because all but one of the councilmen were alike usurpers of office, is unavailing, for the reason that no such facts are alleged in these petitions.

An entry may be made in all these cases sustaining the demurrers on the ground that in each case the petition does not state facts sufficient to constitute a cause of action.

Pardee and Funk, JJ., concur.