text:
    ARSON — CONSPIRACY—CRIMINAL LAW — EVIDENCE.
    [Fulton (6th) Circuit Court,
    January, 1906.]
    Haynes, Parker and Wildman, JJ.

      George Hutchinson v. State of Ohio.
    1. Peoper to Charge Ownership in Holder or Legal Title.
    An iDdictment for arson properly charges the ownership of the property/ when the owner named is the holder of the legal title though not in possession.
    2. Indictment eor Arson, oe Husband oe Owner oe Building, is Proper, Although Intent mat have Been to Defraud Insurance Company.
    Where a building to which a wife held the legal title was set on fire and burned under circumstances indicating guilty' complicity on the part of the husband, and there is no evidence that she had any connection with the crime, an indictment charging him with arson is proper rather than one charging him as an aider or abettor with intent to defraud an insurance company, although such may have been his intent.
    3. Aider and Abettor mat be Indicted and Tried as Principal.
    One who aids, abets, or procures the burning of a building may be charged in the indictment and tried as a principal offender, the word “prosecuted” in Rev. Stat. 6804 (Lan. 10400) being broad enough to cover all the proceedings.
    4. Not Error that Stenographer Testified as to Testimony of Witness at Former Trial if not Shown that She Read from her Notes — Court Presumed to Have Admitted only Competent Testimony.
    Where a court stenographer is asked on the stand as to the testimony of a witness, given at a former trial, there is no error in admitting her testimony in evidence where the record does not show-that she was in fact reading her stenographic notes. The court will be presumed to have had ali the circumstances before him at the time and to have admitted only competent testimony.
    5. If Stenographic Report of Testimony of Witness at Former Trial be Read, Transcript Thereof is Deemed to be in Evidence.
    If the court permitted a stenographic report of testimony taken at a previous trial to be read in evidence, a transcript thereof should be deemed to be in evidence, with the privilege to the opposite party, of examining it and cross-examining upon it.
    6. Query, Whether Court Stenographer’s Report of Testimony not Presumed to be’Accurate.
    Inasmuch as an official stenographer is an officer of the court and under oath accurately to report the testimony offered, query, whether a presumption does not arise in the absence of evidence to the contrary, that the report so made is accurate.
    7. Statement of Conspirator Implicating Defendant Admissible though Conspiracy not yet Sufficiently Established, if for Purpose of Showing a Link in Chain of Causation.
    In a trial for arson it is proper to admit in evidence the testimony of P that S employed him to do the act even at a stage when the evidence is very slight as to the existence of any conspiracy to do the burning between the defendant and S, if sufficient evidence of the conspiracy is later introduced, and even though the testimony of P involves a statement to him by S, implicating the defendant. Such testimony is not admissible for the purpose of proving the defendant’s connection with S but as showing a link in the chain of causation between P and S.
    8. Pbooe Required to Establish a Conspiracy as Groundwork for Implioatins Defendant Is only Such as Makes a Prima Facie Case.
    The proof required to establish a conspiracy for the purpose of introducing evidence implicating the defendant in such conspiracy is not proof beyond a reasonable doubt but such proof as fairly raises a presumption or inference of a conspiracy.
    [Syllabus approved by the court.]
    ERROR to Fulton common pleas court.
    Files & Parson, for plaintiff in error.
    Handy & Wolf, for defendant in error.

      Motion for leave to file petition in error in Supreme Court overruled on February 20, 1906. Hutchinson v. State, 51 Bull. 56.

   WILDMAN, J.

In the case of George Hutchinson against the state of Ohio, the plaintiff in error brings the case here for the purpose of a reversal, if his contentions are correct, of a judgment of conviction in the court of common pleas of this county. He was tried and convicted upon an indictment charging him with arson, said to have been committed on August, 10, 1896, in the burning of property of Rebecca Hutchinson who, it is agreed, was the wife of the plaintiff in errot here, the defendant below.

Several grounds are urged upon the '.court as reasons for setting aside the verdict below and reversing the judgment therein. In the limited time at our disposal we shall not be able to discuss at great length the various propositions made. Our attention has been especially invited in argument to the following claims:

That the indictment does not correctly describe the offense which was disclosed by the evidence, if any offense at all was so shown.

That the court erred in permitting the introduction of evidence upon the trial, and especially the testimony of John Page as to a certain conversation or certain conversations said by him to have been had between him and one Swisher, in the absence of the defendant below.

That the ownership of the property was not correctly described in the indictment, it being therein alleged as owned by Rebecca Hutchinson, when, as contended, it should have been charged as being owned by a man named Holden, otherwise called Nicely, who, at the time of the destruction of the building, was its tenant.

That the court erred in permitting the introduction of the testimony of the witness, Nellie Brown, an official stenographer of the court, it being claimed that sbe read from ber stenographic notes of the testimony given upon a former trial, or a part thereof.

That the court erred in permitting the evidence as to the amount' of the insurance which had been taken out and was in force upon the-building at the time of the fire.

And generally, that the verdict is not sustained by the evidence.

Some of these questions seem' to us very substantial and important, and one or two others of almost equal difficulty, though based rather' upon technical rights, perhaps, than really substantial ones.

Without tarrying too long upon the form of the indictment, it is' sufficient to say that we think the indictment properly charges»the ownership of the property in Eebecca Hutchinson. The testimony discloses i that the title was prima facie in her and that Holden, or Nicely, by whatever name you call him, occupied the property simply as her tenant. Whether or not the indictment might have charged the ownership as in Nicely, we think that it was entirely proper to charge it as in the person who held the legal title.

A more important question is that raised by the contention as to whether it was proper to charge the defendant with being guilty of arson in the destruction of the property of another, instead of charging him under another section of the statute for burning property with intent to defraud an insurance company. We think it very clear that the defendant could not properly be charged as burning his own property with intent to defraud an insurance company. He was not the owner of the property. Whether or not he might have been indicted and tried under the section of the statute referred to, Eev. Stat. 6832 (Lan. 10438), upon the basis of the other statute, that one who aids, abets or procures another to commit a crime may be prosecuted and punished as the principal offender, it is not necessary for us now to determine. There is no evidence that we have discovered in a very careful examination of the bill of exceptions that his wife, Eebecca Hutchinson, procured the defendant to set this building afire. So that without regard to the form of the indictment, it can hardly be contended that there would be sufficient justification under the evidence here for the claim that he aided and abetted his wife in the destruction of the property, or that she con-; spired with him or he with her for the setting fire to her building for the purpose of defrauding an insurance company. We think he was properly indicted under the statute which punishes the burning the property of another — Eev. Stat. 6831 (Lan. 10437).

The contention of the state as to the facts is, that Hutchinson, the husband of the owner, for the purpose of defrauding an insurance company — because it is not disguised that that was his motive if he entered into this transaction — employed one Swisher to burn or cause to be burned the building in question; that Swisher employed John Page to do the same thing, and that Page, connecting with himself a man named English, did’ the direct act of destroying the building. It is not contended that Page himself set fire to the building, but he entered according to the claims into so close connection with the transaction that it may fairly b'e said that he was one of the two committing the overt act — that is to say, he carried English in his vehicle to the place where the building was destroyed, taking with him at the same time some coal oil; that he was present when shavings were prepared and placed against the building, and that, although he went away a short distance, he came back before the building was destroyed and then took English away with him. “We think it may fairly be said that the destruction of the property was directly caused by these two men, Page and English. It does not appear that either Hutchinson or Swisher took any active part in the transaction itself. The testimony tends to show that Hutchinson and Swisher procured the two men who directly caused the fire, and the question then .arises as to whether Hutchinson was properly indicted as a principal offender. It is contended with great earnestness that he should have been indicted for aiding and procuring another to do the act; that he should not have been charged, with the burning of the building directly. And some cases have been cited in support of this proposition; among them the case of Chidester v. State, 25 Ohio St. 433.

In a case decided by this court in 1890, while Judges Scribner, Haynes and Bentley were upon the bench and were sitting in the case, this question was touched upon and to some extent discussed. The case is the somewhat famous one of Devere v. State, 3 Circ. Dec. 249 (5 R. 509). Lydia Devere was convicted and sent to the penitentiary upon the charge of forging and uttering forged paper. And it is said that Lydia Devere is the same person who within the memory of all of us — at a very recent date — was tried and convicted for violation of law under the name of Cassie Chadwick. Without stopping to read the ease, it is sufficient to say that she was indicted for forgery and, I believe, uttering forged paper. I read from the language of Judge Bentley on page 259:

“It is also said by counsel.for defendant that she could not be convicted under the second count of the indictment for uttering this note, and Brown v. State, 18 Ohio St. 508; Chidester v. State, 25 Ohio St. 438, and certain English reports, are cited in support of that position. At the time that the cases in the 18 Ohio St. and 25 Ohio St. were decided, the section of the statute bearing upon the subject was different in form from tbe provisions tbat existed at the time of the transaction in question here. Section 6804 [Lan. 10400] now reads, as it did not -then: ‘Whoever aids, abets, or procures another to commit any offense, .may be prosecuted and punished as if he were the principal offender. Since the other decisions were made, the Supreme Court in Hanoff v. State, 37 Ohio St. 178, have construed this section, and have given particular emphasis to the word ‘prosecuted’ as appearing therein; so that it is now held, by the provisions of this section, that the indictment may charge an aider and abettor as if he were the principal offender, the word ‘prosecute’ being broad enough to have reference to the form of the indictment itself. So that whatever objection might have been taken in this line prior to the amendment of Sec. 6804 [Lan. 10400] is no longer tenable. ’ ’

Motion for leave to file petition in error to the Supreme Court was by that court overruled.

The case of Hanoff v. State, 37 Ohio St. 178 [41 Am. Rep. 496], should be read in this connection. It is our view that the indictment i was properly drawn under the section of the statute providing that aiders, abettors and procurers may be prosecuted as principal offenders.

We come then to the questions raised during the trial of the ease as to the admission of the evidence:

The testimony of Nellie Brown, stenographer, contains certain references to the notes which she had taken upon the trial of Swisher, who was himself prosecuted for his complicity in this alleged crime. It is not said in the introduction of this testimony that she was giving the -contents of any writing, that she was reading from her stenographic notes, or any transcript thereof; but she was asked the direct question as to what was testified to on the former trial, and her answer was given to that question. Objection was made to her reading from the notes. Nothing was said by the court below as to whether his observation led '.him to the judgment that she was reading from the notes, or whether she was testifying from her recollection of the testimony on the former •trial, refreshing herself by an examination of her own notes. Later she ■was asked the question as to whether all that she had read was from her official notes taken on the former trial, and she answered in the affirmative. But it nowhere directly appears that the testimony which was first •objected to was read from the notes, and in considering whether or not the court below erred, presumption must be permitted in favor of the record below. In other words, the court is not presumed to have erred; .he saw the witness; he could determine for himself whether she was "testifying from memory or from a reading of the notes which were in her hands, and we are not disposed to hold, under the circumstances,, that error was committed by the court in this respect.

There is another principle which may possibly apply to the consideration of this question. That is, the extent to which the rule of the-Supreme Court in the case of Moots v. State, 21 Ohio St. 653, and Shriedley v. State, 23 Ohio St. 130, should apply. Those cases recognized the propriety of permitting in evidence in the one case a record, in the other, certain check slips made by a witness for the purpose of preserving the information of some transaction where the memory of the witness would be likely to fail, and although in each of these cases the witness-may have testified that he had no recollection of the transactions, the memory of which was so sought to be preserved, the writings were permitted as original evidence in lieu of the memory of the witness. In the case of Pennsylvania Co. v. Trainer, 5 Circ. Dec. 519 (12 R. 66), the circuit court of the seventh circuit held:

“Where it is claimed a witness who testified upon a former trial has changed his testimony, an official stenographer who took the testimony at the former trial, who produces his notes in short hand of the testimony of the witnesses, may read his notes to the jury as affecting the testimony of the witnesses, if he remembers that at the time the testimony was correctly taken, and that the notes contain all the testimony of such witness, although at the time he is called upon to testify he has no independent recollection of what the witness did testify.”

That is the syllabus; whether it was prepared by the judges or by a reporter, I do not know. Oh page 520, Judge Frazier, announcing-the opinion of the court, says:

“Counsel for defendant in error cite a number of authorities in-support of the proposition that the notes of a stenographer, like other-writings made by the witness at the time of the occurrence, can only be-used to refresh his memory.”

And then certain quotations are made from one or two works -and the judge adds:

“It has long been an established rule of evidence that a witness-who has made entries in a book or reduced to writing facts which he is-required to do in the regular order of his employment, on the day they purport to have been made, though he has now no independent recollection of the facts mentioned in it, if he remembers that at the time he-knew the facts were correctly stated, may be permitted to use it to refresh and assist his memory; but the writing itself must be produced in court, in order that the other party may, by cross-examination, have the benefit of the witness refreshing his memory by every part. The American. courts have carried the rule farther than it has been carried in England, by admitting the writing itself to go in evidence to the jury in all cases where it was made by the witness at the time it occurred, for the purpose of preserving the memory of it, if, at the time of testifying, he can recollect nothing further than that he had accurately reduced the whole transaction to writing. 1 Greenleaf, Evidence Sec. 437 and note 3 to twelfth edition; Moots v. State, 21 Ohio St. 653; Shriedley v. State, 23 Ohio St. 130.
“If entries or writings, made by a person in the performance of a private employment, are admitted in evidence upon the testimony of the person who made them that they are correct, although he has no recollection of the facts, why on principle and reason should not the testimony of a witness taken in shorthand by an officer of the court appointed for that purpose, and whose sworn duty it is correctly to report the testimony, be admitted when it is competent to prove it, although the officer at the time of testifying has no independent recollection of what the-witness testified.
“The violent changes effected in the modes of procedure by the courts, in the last few years, the progress of science, the startling and violent inroads effected by the telegraph, the telephone, the phonograph, the application of electricity as motive power and to other purposes with the application of photography in evidence, and the employment of court stenographers, have placed the line of relevancy far beyond what would be recognized by the courts of even twenty years ago. # * *
“A recent author says: ‘At the present time the custom of employing a court stenographer, whose duty it is to take down the testimony -of the witnesses examined, is nearly universal. He is usually a sworn officer of the court, and his notes, or 'transcripts of them, possess an official character and authenticity which render them of great value in case of the subsequent death or absence of a witness. Where such records exist, their production on the subsequent trial should, it seems, be required under the rule requiring the production of the best evidence.’ Underhill, Evidence page 171.
“In Rice on Evidence, Vol. 1, page 399, referring to stenographer’s report of the testimony taken upon a former trial by a witness since deceased, says: ‘ There is no substantial reason why the testimony taken in such trial should not be read. The party was on the stand, and could have been cross-examined, and the same opportunity for scrutiny and for contradiction existed as if the jury had agreed upon a verdict.’ ”

Tarry but for a moment and consider this case in which Judge Frazier renders the opinion. I may say that it should be remembered that we have a statute permitting the introduction of a stenographic report taken upon a former trial under certain circumstances, where a witness has died or has so departed from the jurisdiction of the court that his oral testimony is not at the time of the trial obtainable. Judge Frazier, after citing another authority in the case, Bennett v. Insurance Co. 39 Minn. 254 [39 N. W. Rep. 488], and a text-book, 2 Rice, Evidence 658, says, page 522:

“It is a rule of universal application that a party must produce the best evidence within his control, and though the notes of a stenographer may not be the best evidence in the sense that it excludes all others, experience teaches that it is more reliable than unassisted memory, and in practice is consulted with deference by counsel and judges in cases of controversy or doubt as to what a witness said.”

Without going further with a consideration of this question or further quotations from this opinion of Judge Frazier, it is enough to say that we think the reasoning by Judgei Frazier is worthy of most careful consideration and thought. We do not find it necessary to adopt the principle in this case, that wherever an official stenographer presents in court a stenographic report of the testimony of a witness on a former trial, whose testimony is sought to be impeached, or the testimony of a party on a former trial where admissions of that party would be relevant, such a stenographic report would be admissible in evidence. I say we are not forced to that conclusion because of the reason which I have already given, that it does not affirmatively appear in this case that the stenographer read to the jury the particular part of the testimony which was objected to. If the stenographer did read it to the jury, that was equivalent to offering it in evidence to the jury. If the court permitted it, the stenographic report or transcript thereof would in that case be deemed to be in evidence so that the opposite party had opportunity for examination of it and cross-examination upon it. We think that no error is apparent in the admission of the testimony of Nellie Brown, the official stenographer. Before leaving this branch of the case it might be properly added that the statute itself for the appointment oi stenographers requires that they shall take an oath accurately to report the testimony, and we have a principle well recognized in the courts that an officer will not be presumed to have failed in the performance of a duty. There is no presumption, in other words, that the report taken by an official stenographer, sworn to make an accurate report, is inaccurate. On the contrary, it might, perhaps, properly be held that there is a presumption of accuracy, a presumption that the officer performed her duty, and that without other evidence or without her statement that she had correctly reported the testimony, the court in the absence of any evidence of inaccuracy might permit it to go to the jury. It is not, however, necessary for us in this case to go that length. I simply submit the matter ás a query.

Did the court err in the very important matter of admitting the “testimony of John Page as to what had been said to him by Swisher, including the statement by Swisher, in substance, that he had been employed by Hutchinson to commit this crime?

Clawson v. State, 14 Ohio St. 234, was cited by one of the counsel for plaintiff in error in support of the proposition that, on the trial of a defendant charged with crime, evidence of the declarations of a conspirator for the commission of such crime, made in the absence of the .accused, is not admissible to prove either the body of the crime or the •existence of the conspiracy, unless they either so accompany the execution of the common criminal intent as to become a part of the res gestae or in themselves tend to further the execution of the common criminal intent.

Assuming for the moment the existence of the conspiracy and dealing with the question as to how far the testimony of one conspirator may be used against another, it may be said in response to this contention of counsel for plaintiff in error and the citation of the case referred to, that if Swisher was a coconspirator with Hutchinson, if Swisher had jbeen employed by Hutchinson to destroy this building under such circumstances as would make it a crime, the whole conversation which Swisher had with Page was surely in furtherance of the conspiracy, because he was simply causing, by means of that conversation, the destruction of the building; he was employing another to carry on the work, and in doing that he was telling that other the occasion for it, who was employing him to do it. We are not quite disposed to go so far as to hold that the statement in that conversation by Swisher of what had been' said to him by Hutchinson could be taken as affirmative evidence of the statements by Hutchinson; but we do hold that if there was sufficient proof to justify the introduction of the testimony as to the conversation at all, I mean if there was adequate proof of the conspiracy between Swisher and Hutchinson, that then this conversation was necessarily and properly shown as one of the links in the chain of causation, the ultimate result of which was the destruction of the building in violation ■of law. Without that there would be a missing link in the chain; the chain would be broken, and it could hardly be .said that Hutchinson had caused the fire. This was a passing along by sequence of events the act of Hutchinson in first procuring, if he did procure, Swisher to commit the crime. It was passing it on, and every transaction from Hutchinson, to English would be competent in evidence as bearing upon the original cause of the ultimate effect.

We think that that evidence was properly admitted. The effect of it, and the effect of every part of it, was a question for subsequent consideration, and no request appears to have been given to the court for instruction to the jury that they could not consider the statement of Swisher to Page as evidence of what Hutchinson had said to Swisher. If the evidence was properly admitted, and if the use of it was to be restricted as simply having the effect of passing along the act to furnish, the link in this chain of causes — in other words, of employing Page to go on with the transaction and carry it to a conclusion — I say if it was to be so restricted, it would have been proper for counsel to ask the court for a specific instruction to that effect and for the court to have given it; but no such request seems to have been made; at least, our attention has been called to none, and no exception was taken to any action of the court in refusing.

An effort was made by counsel to eliminate this evidence in its entirety from consideration by the jury, and we think that the request in that direction was by the court properly refused. But was Swisher a conspirator with Hutchinson so that testimony was properly admissible as to the statements and acts of Swisher in furtherance thereof ? Up to-the time of the introduction of this testimony the evidence to support the charge of conspiracy was very slight, if there was any at all. The evidence upon this subject was introduced in substance, after the court had made its ruling permitting Page to testify to what Swisher had said to him. There is no arbitrary rule as to the order in which evidence shall be introduced upon the trial of a cause; this matter must rest largely in the discretion of the trial court. Ordinarily, it would unquestionably be better, before the testimony as to statements of a claimed conspirator is admitted, that adequate evidence should be given of the conspiracy; but we think that there was no abuse of discretion on the part of the court in permitting this evidence to come in, if it was finally made competent by sufficient evidence of a conspiracy.

What is sufficient evidence of a conspiracy? Evidence to satisfy the court beyond a reasonable doubt that a conspiracy exists is not required. It is sufficient if a conspiracy is established by prima facie evidence, evidence which makes a prima facie case, which fairly raises a presumption or inference of a conspiracy; and in this case we are not disposed to differ with the court below that there was sufficient evidence to justify the inference that these men had formed a combination for tbe purpose of committing a crime, the crime charged in the indictment. It is true that a large part of the evidence comes in the form of the testimony of men who were themselves conniving at or taking part in this criminal offense. Their evidence should be received with caution; and tlie court properly instructed the jury as to the caution with which the testimony of an accomplice should be received. But after all, we think that there was such a combination of circumstances here, and there are so many witnesses testifying as to facts bearing in one way and another upon the claimed guilt of this defendant, that we are not disposed to hold that the court erred in the first place in permitting the testimony of Page as to his employment by Swisher to go to the jury.

And along the same line, and upon the vital question as to whether the jury erred in finding this defendant guilty under the evidence which was submitted, we are not disposed to hold that the evidence would not justify a conviction. Twelve men saw the witnesses upon the stand; they heard them testify, and notwithstanding the fact that some of these witnesses were themselves violators of law, still, in view of all the circumstances, the appearance of the witnesses, the manner in which they testified, the many circumstances which are not brought so clearly to our attention as to the attention of the trial judge and the trial jury, the latter found this man guilty of the crime defined in the indictment. Considering the case in its entirety, we have concluded that the judgment of the court below in overruling the motion for a new trial ought not to be disturbed, and the judgment will, therefore, be affirmed.

Haynes and Parker, JJ., concur.


source: Caselaw Access Project

author: SULLIVAN, J..

license: Public Domain

text:
    DRAINS AND DITCHES.
    [Fayette (2nd) Circuit Court,
    June, 1906.]
    Dustin, Wilson and Sullivan. JJ.
    Charles Sollars et al. v. Mary Sever et al. Charles Sollars et al. v. William Ging et al.
    1. Petition to Altee, etc., a Township Ditch must be Presented to Township Trustees and They Refuse to Act before County Commissioners may Act Thereon.
    Tlie petition filed with a county auditor by an owner of land abutting on or benefited by a ditch located, established and constructed by a board of township trustees, to straighten, widen, alter, deepen, etc., such ditch, may not be considered or acted upon by the board of county commissioner-! until a similar petition has been filed with the board of township trustees ■and they have refused to act thereon.

      2. Petition eor Construction op Laterals and Alteration op onlt Part op-Township Ditch must First be Presented to Township Trustees.
    The fact that a petition filed with a county auditor, praying that the hoard of county commissioners widen and deepen a township ditch, contemplates the construction of laterals and the alteration of only a part of the-township ditch, does not make a petition for a new ditch-or an improvement rendering unnecessary a prior submission to the board of township, trustees.
    [Syllabus approved by the court.]
    ERROR to Fayette common pleas court.
    Post & Reid and Creamer & Creamer, for plaintiffs in error.
    H. H. Sanderson and F. A. Chaffin, for defendants in error.
   SULLIVAN, J..

Where a township ditch has been located, established and constructed by township trustees as provided by law, the commissioners of the county in which said ditch is located cannot acquire jurisdiction under Rev. Stat. 4447 (Lan. 7628), upon the petition of the owner of any lot or tract of land abutting upon, and benefited by, said improvement, to straighten, widen, alter, deepen, box or tile said ditch or any portion thereof, until the township trustees of the township in which said ditch has been established and constructed upon a petition filed with them to widen and deepen, etc., have refused to act under Rev. Stat. 4510 (Lan.. 7693).

If the commissioners act on a petition filed with the auditor, without such refusal be made to appear, all proceedings by them on such petition, will be a nullity.

The record in these cases shows that the ditch, for which the petition, was filed with the auditor to straighten, widen, etc., is a ditch theretofore-located, established, and constructed by township trustees, as provided by law, and that no application was first made to the township trustees, and that they refused to act. The fact that the petition filed with the auditor included laterals and only part of said township ditch does not constitute a new ditch.

Where proceedings are instituted to widen, deepen, etc., any ditch, drain, etc., if to accomplish the purpose of the improvement laterals are necessary, they are a part of the improvement, and therefore when included do not constitute an improvement different from that set forth in the petition.

The county commissioners, therefore, not having acquired jurisdiction over the subject-matter set forth in the petition filed with the auditor, the proceedings had by them were a nullity.

Being a nullity, the probate court acquired no jurisdiction over the-subject-matter on appeal, and hence all the proceedings had before said court were a nullity.

The common pleas court in reversing the judgment of the probate court entered a correct judgment, except it should not only have reversed the judgment of the probate court, but set aside the proceedings before the county commissioners, and dismissed the petition filed with the auditor. That court having failed to enter such judgment, the judgment of that court is affirmed as to the reversal of the judgment of the probate court, the proceedings before the county commissioners will be set aside, and the petition filed with the auditor by the petitioners for the improvement dismissed.

If the judgment rendered by the common pleas court includes costs of proceedings before the county commissioners and probate court, that part of its judgment is reversed; with that exception its judgment will be affirmed. The judgment of this court includes only the costs of the proceedings in error in this court and the cause is remanded to the common pleas court to carry the judgment into execution.

.Dustin and Wilson, JJ., concur.


author: JELKE, J.

text:
    EMINENT DOMAIN — ERROR.
    [Hamilton (1st) Circuit Court,
    June 16, 1906.]
    Jelke, Swing and Gifferi, JJ.
    Covington & C. Bridge Co. v. George A. Magruder et al.
    1. Money Deposited in Court on Award of Jury in Appropriation need not be Refunded by Land Owner Before Proceeding to Second Trial.
    A company which has appropriated land and paid into court the amount of compensation fixed therefor, under a stipulation that the money may be withdrawn by the landowner without prejudice to any other right, may he required in the discretion of the court to proceed to a second trial without a refunder by the landowner, of the amount of the first award withdrawn by him.
    ¿. On Remand of Appropriation Case by Supreme Court, Common Pleas may Retain Same for Pinal Judgment on Reversal of Probate.
    The Supreme Court (in Covington & G. Bridge Go. v. Magruder, 63 Ohio St. 455, and State v. Hamilton Go. (Judges) 69 Ohio St. 372, having remanded a condemnation case to the common pleas court for retrial, “as . provided by law,” the common pleas court, under Rev. Stat. 6438 (Lan. 10015), may retain the case for trial and final judgment if it reverse the judgment of the probate court.
    '[Syllabus approved by the court.]

      ERROR to Hamilton common pleas court.
    Maxwell & Ramsey, for plaintiff in error.
    Harmon, Colston, Goldsmith & Hoadly, Harper & Allen and Richards & Richards, for defendants in error.
   JELKE, J.

We find no error in the action of tbe trial court in the second proceedings in requiring the plaintiff in error to proceed to a hearing and trial without requiring a refunder of the amount of the first award withdrawn froin the depository of the court. This withdrawal had been made under a stipulation by the parties that it was to be without prejudice to any other rights. The- Covington & Cincinnati Bridge Company had ceased to pay rent under the lease, and were in possession of the premises, practically as the absolute owner in fee simple, and said bridge company was satisfied to let the award made theretofore in the probate court stand and was endeavoring to preserve that award and prevent a re-examination in the court of common pleas of the question as to the amount of compensation to be paid to Magruder and others. It is true that there was an apparent inconsistency on the part of Magruder and others in holding on to this money, and at the same time insisting upon a re-examination of the question as to how much -they were entitled to, and yet they stated that in the event of a smaller award they stood ready and were able to refund the difference.

We think that this, was a matter largely addressed to the discretion of the court, and in all events was a matter which could be provided for in the court’s judgment when the amount of the award had once been finally fixed. Further, even if there were any error in this regard, it turned, out to be without prejudice, because the award of the jury was largely in excess of the amount so withdrawn from the depository, if the proceedings leading up to said award were without error.

If then we find no error in the second proceedings in submitting this question to the jury, there will be no error in requiring the plaintiff in error to proceed to a hearing without requiring such refunder.

The trial court did not err in refusing to consider the errors assigned upon the first proceedings in error, and in failing and refusing to set aside the first judgment, and in failing and refusing to affirm the j adgment of the probate court. It is plain from the language of the opinions of the Supreme Court in the case of Covington & C. Bridge Co. v. Magruder, 63 Ohio St. 455 [59 N. E. Rep. 216], and State v. Hamilton Co. (Judges) 69 Ohio St. 372, 378 [69 N. E. Rep. 659], where the Supreme Court says that when it remanded the cause to the court of ■common pleas for trial as provided by law, it meant the provision of law contained in Rev. Stat. 6438 (Lan. 10015), which provides that if the court of common pleas upon the hearing of the cause reverses such .judgment, it shall retain the cause for trial and final judgment. We think that the trial court below followed the instructions of the Supreme _ ■Court and did right in this regard. The trial in other respects was routine and the questions as to value, stereotyped.

We find no error in the special charges or the charge of the court; neither was any error in this regard strenuously urged at the argument. The court did not err in overruling the motion for a new trial. Having disposed of all the questions antecedent to the trial to the jury below, we find no prejudicial error in the trial to the jury, and are therefore ■of the opinion that the judgment of the court of common pleas should be -affirmed.

Swing and Giffen, JJ., concur.


text:
    INSURANCE — ESTOPPEL.
    [Hamilton (1st) Circuit Court,
    December 18, 1905.]
    Jelke, Swing and Giffen, JJ.
    Prudential Ins. Co. v. John J. Gilligan.
    1. Application op Rev. Stat. 3623 (Lan. 5776) to Renewal op Policy op Lipe Insurance.
    The requirement of Rev. Stat. 3623 (Lan. 5776), that life insurance companies return a copy of the application for a policy of life insurance, contemplates more than one application in connection with one policy of life insurance, and the statute applies to the application for a renewal, and a copy of such application must he returned to the applicant if the company would avail itself of false statements in the application.
    2. Acceptance op Premiums as an Estoppel port Defects in Application por Renewal op Policy.
    Premiums having been accepted by a life insurance company for three years after the application for renewal and reissue of the policy without return of the application as containing false statements, the company is, under Rev. Stat. 3626 (Lan. 5779), providing that receipt of three annual premiums estops ail defenses by reason of errors or misstatements in the application, estopped from denying the validity of the policy because of such statements.
    [Syllabus approved by the court.]
    Error to Hamilton common pleas court.
    D. F. Cash, for plaintiff in error..
    C. F. Williams, for defendant in error.
   JELKE, J.

This action was brought by the plaintiff below against defendant on certain policies upon the life of one Mary McG-rew, which it alleged had been assigned to him.

The answer sets up that there were certain false statements in the application upon which the policies had been renewed at one time, after they had lapsed. To this answer is a reply that no copy of the-application upon which said policies had been renewed had ever been returned to the insured. This is not controverted on behalf of the company, and it appears from the record that this is so. It is contended on behalf of plaintiff in error that inasmuch as this application was made long after the insurance policy had been issued, that in the-nature of things it could not be returned with, and as part of, the policy as provided in Rev. Stat. 3623 (Lan. 5776), and that therefore said section of the statute is not applicable to it. We are of opinion that this contention is not well taken. Said Rev. Stat. 3623 (Lan.. 5776), reads as follows:

“Every company doing business in this state shall return with,, and as part of any policy issued by it, to any person taking such policy,, a full and complete copy of each application or other document held by it which is intended in any manner to affect the force or validity of such policy, and any company which neglects so to do shall, so long as it is in default for such copy, be estopped from denying the truth of any such application or other document; and in case such company neglect, for thirty days after demand made therefor, to furnish such copies, it shall be forever barred from setting up, as a defense to any suit on such policy, any incorrectness or want of truth of such application or other document.”

The words of the statute clearly contemplate that there may be more than one application in connection with any policy. It certainly, at the time of renewal, was within the power of said insurance company to have returned to the insured a copy of the application on which said policy was renewed.

We are further of the opinion that the plaintiff in error was estopped below from making the defense relied on by Rev. Stat. 3626 (Lan. 5779), said company having received premiums for more than, three years thereon.

Judgment affirmed.

Swing and Giffen, JJ., concur.


author: SWING, J.

text:
    CONTEMPT.
    [Hamilton (1st) Circuit Court,
    June 8, 1906.]
    Jelke, Swing and G-ifEen, JJ.
    Ex Parte Froome Morris.
    1. Assistant Prosecutor not Amenable to Charge of Contempt for Refusing-to Enter Nolle Prosequi.
    An assistant prosecuting attorney is not amenable to a charge of contempt for refusing to obey an order of court to prepare and present a nolle - prosequi in a specified case. Such an order should be directed to the-prosecuting attorney.
    2. Jurisdiction of Circuit Court in Contempt Proceedings.
    The circuit court has jurisdiction in habeas corpus in the case of one committed for contempt by a common pleas judge who was without jurisdiction in the premises.
    3. Courts Should Conform to Statute Prescribing Manner of Exercise of Contempt Proceedings.
    While courts do not derive their power to punish for contempt from any statute, it is their duty to conform to a statute which does not abridge' this power but simply points out the manner in which it shall be exercised.
    4. Refusal to Enter Nolle Prosequi not Punishable Summarily.
    Resistance to a command of court to enter a nolle prosequi in a certain case is not punishable summarily but only under the procedure» provided in Rev. Stat. 5641 (Lan. 9173), and unless that procedure as to the filing: of written charges, etc., is conformed with, a court is without jurisdiction to punish for a contempt thus committed.
    [Syllabus by the court.]
    Habeas Corpus. •
    H. M. Rulison, L. B. Sawyer, E. M. Ballard and Froome Morris, for petitioner.
    F. F. Dinsmore and W. L. Dickson, contra.
   SWING, J.

This is an action in tbis court in habeas corpus. In the case of. State v. William Utz, said Utz was tried in the court of common pleas: and a verdict of guilty was rendered by the jury. A motion for a new-trial was filed, which motion the court granted, as shown by the following entry:

• “This day came the prosecuting attorney, on behalf of the state of Ohio, the defendant being brought into court in custody of the sheriff,, his counsel also appearing. And this cause coming on to be heard upon, the motion for a new trial, after full consideration and being fully ad!vised in the premises, the court grants the motion for a new trial, and the verdict heretofore entered herein is set aside and held for naught. It is further ordered that a nolle prosequi be entered in this cause, and the defendant is discharged from further answering to the indictment filed in this court against him.”

Then follows the following entry:

“It appearing to the court that in this case the court upon consideration of this motion for a new trial from the evidence overwhelmingly in favor of the prisoner, .granted saicí motion, and in view of the fact that the defendant established an alibi by a great preponderance of the evidence, directed and commanded Mr. Fi*oome Morris, the assistant prosecuting attorney of this court, to draw in form a nolle prosequi; that said assistant prosecuting attorney thereupon retired in the forenoon and without having produced said nolle, the court again called for said form, to which Mr. Morris did not respond; that thereafter the court again called for Mr. Morris and he responded, declining to produce or draw said nolle on the ground that the court had no authority so lo do, and that he as assistant prosecuting attorney had no authority so to do. He also admitted in open court that he summoned the reporters ■of the papers, stating to them that if he found the court was wrong he •would refuse to comply with the court’s order. All this having been done in open court and in the presence of the judge presiding in said room, the court again cautioned Mr. Morris that it would be a contempt if he failed to obey the court’s order, and said Morris again refusing to obey said order, unless the court put it in the form of a-request instead of a command or order, and after consulting Hiram Rulison, the prosecuting attorney, who was willing that a nolle be entered, said Morris again refusing to draw said form, the court thereupon found said Froome Morris guilty of a willful contempt and disobedience to the order of said court, and ordered that he pay a fine of one hundred dollars, to be paid into the county treasury, and that he be committed until sqch fine is paid, to all of which Mr. Froome Morris objected and excepted.
“And the sheriff of Hamilton county, Ohio, is hereby ordered to take the said Froome Morris into custody, he having refused to pay said fine into court, and that he be confined until said sum is paid or he be otherwise discharged by law.” ;

The entry recites that Froome Morris is the “assistant prosecuting attorney of this court” and that Hiram Rulison is the prosecuting attorney. It does not appear from the record in the case of State v. Utz, that said Morris had anything to do with the trial of that case. On the contrary, the record discloses that the case was prosecuted by the prosecuting attorney, but we think it is fair to presume that Froome Morris at least assisted in the prosecution and was so engaged at the time the judge found him guilty of contempt.

We think the court is justified in construing the order of the court to be one directing Froome Morris to furnish an entry as prosecuting attorney to nolle the indictment. It cannot be, that the judge was directing said Morris to furnish a form of a nolle, and that said Morris refused this kind of an order; this would be such a trifling matter that we cannot conceive that either the judge or said Morris would enter into it; besides a fair construction of the order excludes any such construction. In effect then the order of the judge was a punishment for a contempt of Morris as prosecuting attorney in not presenting to the court a nolle prosequi of'the indictment against Utz. Whether or not the judge would be justified in this ease in making such an order on the prosecuting attorney is not here for determination, but we think it evident, if he had such power, it must be directed to the prosecuting attorney himself, and not to an assistant prosecuting attorney. The assistant prosecuting attorney certainly would not, without first being authorized by the prosecuting attorney, ask the court to enter a nolle prosequi in a case. The statute points out that the prosecuting attorney may by consent of the court enter a nolle prosequi. Revised Statutes 1275 (Lan. ,2653) is as follows:

[Nolle prosequi not valid unless entered by leave of the court.] The prosecuting attorney shall not enter a nolle prosequi in any cause, without leave of the court, on good cause shown, in open court; and any nolle prosequi entered contrary to this section shall be invalid.”

We are therefore of the opinion that the judge was not justified in ordering the said Morris to enter the order in question. '

Possibly we are not called upon to make this holding from the record in this case, but are of opinion that it should be done in view of what may arise in the case.

The main question in the case is whether this court has jurisdiction in habeas corpus, and- that, we think, depends on whether the judge had jurisdiction to punish Morris as for a contempt upon the facts as disclosed by the record. Our statute, commencing with Rev. Stat. 5639 (Lan. 9171), provides for punishments for contempts of court. While it is evident that courts do not derive their power to punish for contempts from the statute, as such power must exist from necessity, for without it courts could not hear and decide cases or enforce their judgments when rendered, and therefore any law passed by the legislature which would in a substantial manner abridge this power would be invalid, we are of opinion, however, that our statute does not abridge this power of the courts. It simply points out the manner in which this power shall be exercised and to this we think the courts should conform; and in conforming to these provisions, we think the court is aided rather than hindered. They seem to us wise and reasonable, and should be followed In such proceedings.

Revised Statutes 5639 (Lan. 9171), is as follows:

“[What contempts may he punished summarily.] A court, or judge at chambers, may punish, summarily, a person guilty of misbehavior in the presence of or so near the court or judge as to obstruct the administration of justice.”-

The record shows that Morris was not obstructing the administration of justice, and therefore could not be adjudged guilty of contempt and punished under this section. He was ordered to furnish a nolle prosequi in the case of Ohio v. Utz, and refused to do it; if guilty of a contempt' in refusing to obey this order of the court, it came under the first provision of Rev. Stat. 5640 (Lan. 9172), which is as follows: “Disobedience of, or resistance to, a lawful writ, process, order, rule, judgment, or command of a court or an officer;” and if under this section, by Rev. Stat. 5641 (Lan. 9173), which is as follows:

“[When accused entitled to he heard.] In cases under the last section, a charge in writing shall be filed with the clerk, an entry thereof made upon the journal, and an opportunity given to the accused to be heard, by himself or counsel; but this section shall not be so construed as to prevent the court from issuing process to bring the accused party into court, or from holding him in custody, pending such proceedings. ’ ’

Morris was entitled to be heard before the court upon written charges. And this was not done. The decision of the court on the hearing on the written charges is what the court is authorized to punish as for a contempt, and without such charge in writing the court had no jurisdiction to punish for contempt.

We therefore hold that we have jurisdiction in this case, and that the prisoner should be discharged.

Jelke and Giffen, JJ., concur.


author: McCARTY, J.

text:
    MANDAMUS — OFFICERS.
    [Muskingum (5th.) Circuit Court,
    1906.]
    Donahue, McCarty and Taggart, JJ.
    State ex rel. Lewis Soller v. James A. Brown, Clerk.
    Mandamus will not Lie to Compel a Clebk of Courts to Comply with an Oedeb of Court where his Refusal is Based upon a Dispute as to the Interpretation of the Order.
    ■Where a court has ordered a party to an action then pending, to deliver to the clerk of the court a good and sufficient warranty deed to certain property, and has directed the clerk to pay over to the said party the purchase price of the property in question, then in the hands of the clerk, such party may not, by suit in mandamus, compel the clerk to comply with the order on his tender of a deed, where a dispute arises as to the sufficiency of the deed under the order. His proper remedy is to have the dispute determined by a motion filed in the original case.
    [Syllabus approved by the court.]
    Mandamus.
    F. S. Gates, for plaintiff.
    C. C. Lemert, for defendant.
   McCARTY, J.

This is a mandamus proceeding, the nature of which cannot be better stated than by reading the pleadings:

“The relator says that the defendant is the clerk of the courts of Muskingum county, Ohio, and duly qualified and acting as such; that at the September term of the court of common pleas of Muskingum county, Ohio, a certain action was pending in said courts, wherein Louis Soller was the plaintiff and Andrew ^Arnold was the defendant; and at said term, to wit, on the ninth day of September, A. d. 1905, it was ordered by said court that Louis Soller, the plaintiff in said action, should within ten days execute and deliver to said defendant a good and sufficient deed for certain real estate therein described. Said order was made by said court upon the answer and cross petition of said Andrew Arnold, praying for specific performance, and it was further ordered by said court that, upon said deed being executed and delivered ás therein directed, said clerk of courts pay to plaintiff in said action, and being the relator in this action, the sum of $3,037.50, the said sum being then in the custody and control of said court, being the amount of the purchase money for said place that was found by said court to be due from said Andrew Arnold to said Louis Soller, as purchase money for said premises in said petition described.
“The relator further says that within ten days from the ninth day of September, said deed was tendered by relator to said clerk of courts and payment of said money demanded and said clerk refused and still refuses to make payment to relator of said sum of money as ordered by the clerk as aforesaid.
“Wherefore, your relator prays that a writ of mandamus be issued commanding said defendant as clerk of said common pleas court to pay to the said relator the amount found due to him and ordered to be paid to him by said court of common pleas.”

To that petition an answer has been interposed as follows:

“The defendant for answer to the petition herein filed, admits that he is the clerk of the courts of Muskingum county, Ohio, and duly qualified and acting as such, and that at the September term of the court of common pleas of Muskingum county, Ohio, a certain action was pending in said courts, wherein Louis Soller was the plaintiff and Andrew Arnold was the defendant.
Defendant further answering says that it is not true that on or about September 9, a. d. 1905, it was ordered by said court that Louis Soller, the plaintiff in said action, should within ten days execute and deliver to said defendant a good and sufficient deed for the real estate therein described, but on the other hand that on said date it was ordered by said court that Louis Soller, the plaintiff in said action,, should within ten days execute and deliver to said defendant a good and sufficient warranty deed for the real estate therein described; that it is not true that said order was made by said court upon the answer and cross petition of said Andrew Arnold praying for specific performance, but that said order was made upon the amended answer and cross petition of said Andrew Arnold.
Defendant further answering says that it was, by the court, further ordered that upon a good and sufficient warranty deed being executed and delivered to the said Andrew Arnold, as therein directed, this defendant was to pay to the said Louis Soller the sum of $3,037.50, and this answering defendant admits that said sum was then and there in the custody and control of said court, the same being the amount of the purchase money for said premises that was found by said court to-be due from said Andrew Arnold to said Louis Soller as and for purchase money for said premises in the petition described. This answering defendant -says that it is not true that within ten days from September 9 a good and sufficient warranty deed was tendered him by the relator herein, but admits that the relator herein, through his attorney, tendered him a deed signed only by Louis Soller who was at that tim® a married man and whose wife was then and there living, which fact was known to this defendant, and that said deed was only signed by Louis Soller, which deed this defendant refused and still refuses to accept for the reason that the same is not a good and sufficient warranty deed, as was ordered by the court to be made. '
Wherefore, this defendant prays that this writ of mandamus be dismissed at the cost of relator herein and for all other relief that is just, equitable, and proper.”

These are all the pleadings in this case, and the question propounded to us is whether or not the plaintiff relator is entitled to the specific remedy of mandamus.

We have been referred to some authorities, one of which is Peoples’ Sav. Bank Co. v. Parisette, 68 Ohio St. 450 [67 N. E. Rep. 896; 96 Am. St. Rep. 672]:

“Where a vendor of land has obligated himself by written contract to convey ‘by good warranty deed and abstract of title from organization of county,’ but the contract contains no stipulation for a deed containing a covenant against incumbrances generally, and none against any inchoate dower right, it is not essential to the performance of the contract by the vendor that his wife should join in the deed and release her right of dower.
“Where, in an action brought in a court of equity to enforce the specific performance of a contract for the sale of land by the purchaser against a married man, the owner of the fee, who alone signed the contract, it appears by the contract itself that some one other than the husband was expected to sign it but has not done so, and the contract contains a stipulation to convey by a good warranty deed, but contains no agreement for a covenant against incumbrances, and it appears further that the wife has not agreed to sign such contract or in any way release her inchoate right of dower in the land, and that the purchaser at the time knew that the vendor had a wife who would, under the law, be entitled to a right of dower, and there is no collusion between the husband and wife relating to the contract or deed, the court will not decree specific performance against the husband with an abatement, in the contract price of the land of the estimated value of the prospective dower of the wife.”

The claim of the defendant is, that the money is now in court, the clerk as the officer of the court being in custody of the same, and, this dispute having arisen, all that remains for the plaintiff to do is to ask that the court order in direct payment thereof, and that he, as such clerk, is not authorized or empowered to settle the dispute between the parties, but that the plaintiff may have full relief simply by filing a motion in the original case, asking the court to find that he has complied with its order and directing the clerk to make payment thereof, and thereupon, there being full and adequate remedy at law, mandamus will not lie: We think this claim is correct. There is no reason for making the extraordinary remedy of mandamus. Plaintiff can have full and adequate remedy from such a motion, and therefore by the very terms of the statute mandamus will not lie or is not necessary. The peremptory writ js refused and costs taxed against the plaintiff. Motion for new trial overruled. Exceptions. Execution awarded.

Donahue and Taggart, JJ., concur.


author: GIFFEN, J.

text:
    CONSTITUTIONAL LAW — TAXATION.
    [Hamilton (1st) Circuit Court,
    March 10, 1906.]
    Jelke, Swing and Giffen, JJ.
    Marmet-Halm Coal & Coke Co. v. Cincinnati, L. & A. Elec. St. Ry.
    1. Uncertain Tax Deed cannot be Supplemented bt Auditor’s Plat to which no Reference is Made Therein.
    Where the description in a tax' deed is so indefinite as to make it impossible to locate the land, the holder of the deed cannot bring to his aid a plat in the auditor’s office to which no reference is made in the deed or on the duplicate, and such deed is void for uncertainty.
    '2. Revised Statutes 4114 (Lan. 6789) Unconstitutional as being Confiscation of Property.
    Revised Statutes 4114 (Lan. 6789), which makes knowledge by a person acquiring title to property by deed of a prior tax sale and consequent claim of title and ownership conclusive proof of adverse possession against him, is unconstitutional as being in effect a confiscation of property. •
    [Syllabus approved by the court.]
    Maxwell & Ramsey, for plaintiff.
    Shepherd & Shaffer and Peck, Shaffer & Peck, for defendant.
   GIFFEN, J.

The plaintiff seeks to quiet title to three and sixty-four hundredths acres of land in Miami township, Hamilton county, Ohio, being the south part of lot No. 13 as designated on the plat of subdivision made in partition proceedings among the heirs of Anna H. Taylor, deceased, the entire lot containing nine and fourteen-hundredths acres. The plaintiff shows title by deed and possession of the land.

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

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

The description on the tax duplicate is as follows:

“Fred C. Schwartz, Tax — Miami township. Part lot 13, Taylor’s heirs, 3.64 acres. Value, $710.”

It is impossible to tell, from either of. these descriptions, where in Miami township Lot 13, Taylor’s heirs, is situated, or in what part of lot 13 the 3.64 acres may be found, but it is claimed that the description is aided by a plat in the auditor’s office of lot 13, marked Taylor’s heirs, showing 3.64 acres in the southern part of the lot. Counsel rely upon the case of Stewart v. Aten, 5 Ohio St. 257, 261, where it is said:

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

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

As to the claim of adverse possession, the defendant does not rely upon actual possession, but such as arises by force of Rev. Stat. 4114 (Lan. 6789), which provides:

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

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

“The provision of the act of May 7, 1869 (66 O. L. 338), prescribing wbat shall constitute conclusive proof of possession in favor of' a purchaser at a tas sale, cannot constitutionally operate to set the statute of limitations running in favor of such purchaser prior to the passage of the act.”

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

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

And at page 238 he quotes with approval from Cooley, Const. Lim. as follows:

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

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

Jelke and Swing, JJ., concur.


author: DUSTIN, J.

text:
    CONFLICT OF JURISDICTION — ERROR—NEW TRIAL.
    [Miami (2nd) Circuit Court,
    April 5, 1904.]
    Sullivan, Wilson and Dustin, JJ.
    Willliam Oberer v. State of Ohio.
    1. Revised Statutes 6454 (Last. 10031) Giving Probate Court Jurisdiction Concurrent with Common Pleas in Certain Counties, Constitutional.
    Revised Statutes 6454 (Dan. 10031) giving jurisdiction to the probate court in certain counties concurrent witb that of the common pleas court, is not unconstitutional as special legislation, and a conviction and judgment under the Beal law in the probate court will be sustained.

      2. Appeal Lies to Common Pleas Court from Probate Court in Counties Affected by Rev. Stat. 6454 (Lan. 10031).
    Appeal lies to the common pleas court from the probate court on a conviction under the Beal law in counties where the probate court has concurrent jurisdiction in certain cases with the common pleas. The appeal need not be prosecuted directly to the circuit court.
    3. Absence op Stenographer in Probate Court in Criminal Trial not Reversible Error unless Form allí Objected to at the Time.
    In a criminal trial before a probate court where defendant simply protests at the absence of a stenographer but does not make demand for one, nor ask a continuance on account of said absence, nor take exception to being forced to trial under the circumstances, he is not prejudiced.
    •4. Motion for New Trial — Holiday Counts as One op the Three Days unless the Last.
    In the three days allowed for filing a motion for a new trial, a holiday counts unless it is the last day.
    5. No Indictment Necessary in Probate Court under Rev. Stat. 6454 (Lan. 10032) and Affidavit before Magistrate is Effective Throughout.
    An indictment is not necessary in the probate court under Rev. Stat. 6454 (Lan. 10032) and the information need not be sworn to as the affidavit before the magistrate on the preliminary hearing is effective throughout the proceedings.
    <5. That tiie Place was “not a Drug Store” Sufficiently States the Exception under the Statute for Keeping Open on Sunday — Information Containing Two Charges, Sufficient nr One Properly Stated Although the Other is wot.
    An information charging two offenses in violation of Rev. Stat. 4364-20 (Lan. 7259), one keeping a place open on Sunday, the other selling intoxicating liquor on Sunday, is sufficient as to the former charge if it states that the place was “not a drug store,” and this will sustain a conviction under that charge of the information although the exception as to selling, viz., that the accused was “not a regular druggist,” is not properly stated. The latter charge becomes mere surplusage.
    7. Under Rev. Stat. 7327 (Lan. 11082) Probate Court may Commit until Fine and Costs are Paid.
    Revised Statutes 7327 (Lan. 11082) authorizes a commitment by the probate court until fine and costs are paid, but any possible objection thereto is waived by payment.
    [Syllabus approved by the court.]
    ErROr to Miami common pleas court.
    R. J. Smith, for plaintiff in error.
    A. B. Campbell and W. H. Gilbert, for defendant in error.
   DUSTIN, J.

Plaintiff in error was tried before tbe probate court for keeping open a saloon on Sunday, in violation of Rev. Stat. 4364-20 (Lan. 7259), known as tbe Beal law. He was found guilty and fined $100 and costs, which amount was paid for him by bis attorney, who forthwith prosecuted error to the common pleas court. The ■ common pleas court affirmed the judgment of the probate court, and the case is here on pro-eeeding in error to reverse the judgment of the common pleas. The points relied upon are:

First. That the law giving jurisdiction to the probate court of Miami county (Rev. Stat. 6454; Lan. 10031), is unconstitutional because special legislation and in violation of Sec. 26, Art. 2 of the constitution-of Ohio..

This point, we think, is not well taken, because See. 8, Art. 4 of the constitution, provides that)

“The probate court shall have jurisdiction in probate and testamentary matters * * * and such other jurisdiction in any county or counties, as may be provided by law.”

Within the limits of this authority, the legislature has conferred upon the probate court in certain counties, including Miami, “concurrent jurisdiction with the court of common pleas in all misdemeanors and all proceedings to prevent crime.” The offense here charged is certainly a misdemeanor.

But it is urged that even if the probate court has jurisdiction it is concurrent with the common pleas, and the common pleas therefore has no appellate jurisdiction, because “courts have no power to interfere with the judgment and decrees of other courts of concurrent jurisdiction,” arguing that error must, therefore, be prosecuted directly to the circuit court, which would give the circuit court of this county jurisdiction different from that conferred in other counties. N

This point is not-well taken because, while it is true that of courts having concurrent jurisdiction, the one first obtaining jurisdiction of the parties retains it without interference by the other, yet the rank of courts and the right of appeal is regulated by statute, and Rev. Stat. 6708 (Lan. 10298), gives the common pleas court the right to review the action of the probate court. It would hardly be contended that because a magistrate’s court and the common pleas have concurrent jurisdiction in certain cases involving not more than $300, the judgment of said magistrate could not, in such eases,, be reviewed in the common pleas.

Again, it is claimed that the plaintiff in error was fefused the services of a stenographer in the trial before the probate court, which deprived him of obtaining an accurate record of the proceedings and the means of prosecuting error thereon. The affidavit offered with reference to that matter is contradicted by the bill of exceptions, but taking the affidavit of plaintiff’s attorney, as though uncontradicted,'a'case oi prejudicial error is not made out, because it appears that- an inquiry only was made as to whether a stenographer would be present. There was no demand made for a stenographer, and no continuance asked on account of his or her absence, and no exceptions taken to being forced to trial under such circumstances. Plaintiff simply submitted, with a protest, to the situation and proceeded to trial. '

Strictly speaking, however, we cannot consider this matter before-us. The motion for a new trial was not filed in time. The trial was on November 24, 1903. The motion for a new trial was filed November 28. An affidavit was filed by defendant’s attorney setting up that the twenty-sixth was a national holiday, and that on the twenty-seventh he was engaged in another trial, and on account of illness in affiant’s family he-was prevented from filing the motion. This is not- a sufficient excuse. A holiday counts unless it is the last day, and the excuse does not apply to all three days allowed by the statute.

Another error claimed is, that no indictment was returned, and the-information was not sworn to. Indictment is not necessary under Rev. Stat. 6455 (Lan. 10032), and there is no requirement that the information be sworn to. Of course in original proceedings in criminal matters (other than by indictment) there must be an affidavit upon which to-found a warrant. And that was the case here. In the preliminary proceedings before the mayor’s court there was an affidavit, and that was-sufficient to carry the matter all the way through.

Again, it is urged that the information was insufficient to charge the offense defined in Rev. Stat. 4364-20 (Lan. 7259), because it does not properly negative the exception and set forth that the accused was “not a regular druggist.” That exception applies only to the clause with reference to the sale of intoxicating liquors, and not to the offense of beeping open on Sunday a place where intoxicating liquors are usually sold. Thq information contains matters with reference to two charges, one of keeping open a place, etc., and the other of selling, etc. The first, charge is sufficiently stated because it negatives the exception by stating that the said room was “not a drug store.” The second charge does-not state that the accused is not a regular druggist, and is defective. The latter charge, therefore, being insufficient, may be considered as-surplusage, and the accused is deemed to have been convicted of the offense properly charged.

Lastly, it is claimed that the judgment of the probate court is erroneous in that it provides for the commitment of the plaintiff in error to jail until fine and costs are paid. Revised Statutes 7327 (Lan. 11082), authorizes such a sentence, but if not, it was waived by payment.

The judgment, therefore, of the common pleas court will be affirmed.

Sullivan and Wilson, JJ., concur.


author: PER CURIAM.

text:
    CONSTITUTIONAL LAW — SCHOOLS.
    [Fulton (6th) Circuit Court,
    June, 1906.]
    Haynes, Parker and 'Wildman, JJ.
    Peter Bower et al. v. Fulton Tp., Fulton Co. (Bd. of Ed.) et al.
    1. Revised Statutes 2834b (Law. 4286) as Applied to Boaeds of Education Is Unconstitutional and Void.
    Revised Statutes 2834b (Lan. 4286), insofar as it applies to boards of education is unconstitutional, and a failure of a board of education to comply with its requirements in incurring obligations does not render those obligations void.
    2. Money Boebowed to Pay Janitors, Teachers, etc., Must be Repaid, Though Statutory Requirements not Complied with. 1
    Money borrowed by a board of education on its note as such, used for the purpose of meeting accruing obligations to teachers, janitors, etc., must be repaid, and its repayment may not be enjoined on the ground that the statutory requirements respecting resolutions and certificates have not been complied with, because of the latter part of Rev. Stat! 2834b (Lan. 4286), commencing with the words, “Provided that,” and the principles declared in State v. Van Burén Tp. (Bd. of Ed.) 5 Circ. Dec, 447 (11 R. 41).'
    [Syllabus approved by the court.]
    Error to Fulton common pleas court.
    Files & Paxon and Ham, Ham & Ham, for plaintiffs in error.
    Handy & Wolf, for defendants in error.
   PER CURIAM.

It being shown that on and before September 7, 1905, the board of education of Fulton township had incurred valid and existing obligations under' contracts with teachers, drivers for wagons to convey pupils, janitors, etc., for services for the school year, 1905-1906, to the amount of $3,696 and that on that day there was but $437 in the treasury of said board to meet said obligations, but a legal levy of taxes had been made and was in process of collection sufficient to meet the same, but not so soon as they would mature, and that in anticipation of such collection and to meet said obligations as they should mature, said board on said day borrowed from the bank of Swanton $2,000 and gave to it the note of the board, payable in one year, with interest at 6 per cent pe>" annum; and that the board and the bank proceeded in good faith and under the belief that the transaction was lawful,- and that all steps required by law to make it strictly legal had been taken, but that the board, before making said loan, did not, by a formal resolution, determine upon the existence or validity of any indebtedness or obligation ■of said board nor did tbe clerk of said board.prior to the time said loan was made, and said note given certify that the money required for the payment of said note was in the treasury to the credit of the fund from which it was to be drawn, or had been levied and placed on 'the duplicate and was in process of collection, and not appropriated; nor was any resolution adopted or certificate made in accordance of the provisions of Rev. Stat. 2834a, 2834b (Lan. 4285, 4286), governing cases where such resolutions and certificates are required; and this action having been brought by certain taxpayers of the school district to enjoin the payment or collection of said note on'the ground that it is null and void and no legal obligation has arisen thereunder because of noncompliance with said statutes: Held,

First. That Rev. Stat. 2834b (Lan. 4286), insofar as it applies to boards of education is unconstitutional, null and void, because it is a law of a general nature, but as to such boards it does not have a uniform operation throughout the state, certain city districts being excepted from its operation. Section 26, Art. 2, constitution of Ohio; Kelley v. State, 6 Ohio St. 269, 270; State v. Bargus, 53 Ohio St. 94 [41 N. E. Rep. 245; 53 Am. St. Rep. 628]; State v. Buckley, 60 Ohio St. 273 [54 N. E. Rep. 272]; Gaylord v. Hubbard, 56 Ohio St. 25 [46 N. E. Rep. 66]; State v. Yates, 66 Ohio St. 546 [64 N. E. Rep. 570].

Therefore, failure to comply with the requirements of Rev. Stat. '2834b (Lan. 4286) does not render said obligation void.

Second. Whether Rev. Stat. 2834a (Lan. 4285) is subject to the same infirmity we are not called on to decide, since all action that might be taken thereunder has been taken in this transaction, and nothing remains to be done thereunder that might be enjoined.

Third. Even if a failure to observe formalities or statutory requirements renders the note unenforeible at law, we are of the opinion that the principles declared in State v. Van Buren Tp. (Bd. of Ed.) 5 Circ. Dec. 447 (11 R. 41), affirmed by State v. Board of Ed. 53 Ohio St. 656 [48 N. E. Rep. 1148], which we regard as sound and applicable here, forbid any hindrance to the collection being interposed by the court, and require, the recognition by the board of the obligation incurred through borrowing and using the money, and require its repayment by the board. These principles seem to us to apply with especial force here, because of the last clause in Rev. Stat. 2834b (Lan. 4286), to the effect that the requirements before mentioned, respecting resolutions and certificates, shall not ‘ ‘ apply to contracts authorized to be made by other provisions of law for the employment of teáchers, officers and other .school employes of boards of education,” and the fact that this money was borrowed and presumably used to discharge obligations of the character named in said proviso.

Injunction refused. Petition as to that dismissed. Judgment against plaintiffs for costs on that issue. Motion for new trial overruled \ exceptions noted. Statutory time allowed for filing bill of exceptions.


text:
    CARRIERS — NEGLIGENCE.
    [Hamilton (1st) Circuit Court,
    May 19, 1906.]
    Jelke, Swing and Giffen, JJ.
    Sallie Riley v. Cincinnati Trac. Co.
    Passenger Alighting on Platform and Stepping into Visible Hole mat not Recover for Injuries.
    One who receives injuries from stepping from a street car into a hole in a platform provided by the company for passengers may not recover, where the defect is visible and nothing appears by which his attention was diverted. Conneaut (ViZJ v. 'Neff, 64 Ohio St. 629, followed.
    [Syllabus approved by the court.]
    ERROR to Hamilton common pleas court.
    J. T. Harrison, for plaintiff in error.
    Kittrédge & Wilby, for defendant in error.
   PER CURIAM.

The plaintiff was a passenger upon one of the defendant's street ears which’ had stopped at the terminus of the line, when she alighted upon a wooden platform provided for passengers, and stepped into a hole in the platform, six by twenty inches in size, and about two feet-from the running board of the summer car, whereby she was thrown, to the platform and injured.

The defect in the platform was plainly visible and there was no^ circumstance or condition which would divert her attention, but she heedlessly and carelessly stepped into the hole. The facts in the case bring it within the principle announced in the case of Conneaut (Vil.) v. Neff, 54 Ohio St. 529 [44 N. E. Rep. 236], and the court properly instructed the jury to return a verdict for the defendant.

Judgment affirmed.