author: Caldwell, J.

text:
    (Eighth Circuit—Cuyahoga County, Circuit Court
    Jan. Term 1898.)
    Before Baldwin, Caldwell and Hale, JJ.
    THE NEW YORK LIFE INSURANCE COMPANY v. HARVEY BLOCK, et al.

      Sill of Exceptions — Contract of Insurance — Law of this State controls, etc.

    1. The assignment of error that the verdict is not sustained by the evidence will not be considered by the reviewing court, although the bill of exceptions contains the statement that it embraces all the testimony, if, upon the face of the bill itself, it appears that the statement is untrue.
    2. A deposition,detached from the bill of exceptions a part of which appears to have been offered and read upon the trial, will not be treated as a part of the bill, in the absence of the statement therein that it is so made.
    8. A contract of insurance with a foreign Insurance Co., the assured residing in this state, the Company having complied with the conditions of our statute permitting it to do business here, by the terms of which contract it is agreed that the same shall be regarded as made under the laws of the state where the insurer resides, is, nevertheless, subject to the laws of this state in determining the rights of the parties thereunder, when sought to be enforced by the beneficiaries in the courts of this state. Laws founded in public policy, for the protection of all the citizens of the state, cannot be evaded or nullified by a contract between a citizen of this state and a citizen of another, permitted to do business in this state only by a compliance with the conditions imposed by our statute.
    Error to Court of Common Pleas of Cuyahoga County.
   Caldwell, J.

There are two cases here upon different policies of insurance. Samuel Block, who lived in this state and county, made two applications to this life insurance company for policies, one of which was issued some three years ■ before his death, and the other a few months before. These policies were in full force unless defeated by the matter set up in the answers of the insurance company. After the death of Block separate suits were brought in the common pleas court of this county for the collection of the amount due on the policies. In each case there was a judgment for the plaLitiff below, and the insurance company has brought the case to this court, alleging error.

In one of the cases it is contended that there is no error that this court can review, in the first place, under the decision of this court, it being claimed the court erred in the law in its charge and also in the rulings during the trial, because a bill of exceptions was not taken until more than fifty days after the time of such error, which was at the time of the trial.

As to whether the judgment in the case would be justified under the testimony received in the-case, it is claimed, upon final hearing, that we cannot examine into this question, because, although the bill of exceptions says that it contains all the testimony, yet it is the law of this state that if the court, upon looking into the bill, finds, as a matter of fact, that it does not contain all the testimony in the case, that the question cannot be considered by the court. It is insisted that, notwithstanding the assertion at the close of the bill of exceptions that it contains all the testimony,, it shows upon the face of it that it does not,as a matter of fact,contain all the testimony that was offered. Various depositions were offered and read upon the hearing, and among others was the deposition of Dr. Meyers Lee King, and all there is in regard to that deposition appears on page 62 of the bill of exceptions. Question 1 is objected to by the plaintiff and overruled, and the plaintiff excepts, and there is the same objection, ruling and exceptions to Nos. 2, 3, á, 5, 6, 7, 8, 9, 10, and some other of the questions asked of the witness in that deposition; and there are rulin6s where the plaintiff objects and the objection is sustained and the defendant excepts; and at the close of these rulings and exceptions the counsel offering the deposition says: “We offer to prove that each of the answers to the questions excluded are as written in the deposition.”

This is substantially all there is in this bill of exceptions as to this deposition. It is not attached, and there is nothing here showing that it is made a part of the bill of exceptions. Nothing here showing, in so many words, that any part of this deposition was read to the jury. It is left, then, for us to determine whether, when a deposition is spoken of in the testimony as though it was offered, and it appears that some parts are offered and objections made to those parts and the objections are overruled, and the party objecting takes exception, it is fair and right to hold that that is sufficient to show that the deposition was presented to the jury. While the question may be a little close, and a little uncertain, we hold in this case that that testimony, where the objections were made and overruled, was read to the jury; that being the case, that evidence is not here; and that being true, the only question to be considered by this court in case No. 1157 is entirely removed form the consideration of the court, and that being true it entirely disposes of that case. . . ■

In the other case, No. 1159, the answer of the insurance company sets up that in the application there was an agreement, which was carried also into the policy, between the insured and the insurer that all statements in the application were to be regarded as warranties, and being so regarded, if any of them were untrue, it should entirely nullify the policy.

The answer then goes on to state that under the law of New York, warranties in regard to answers in an application are to be given full force and effect, and if any of them are false, the effect is the same as in the case of misrepresentations in making any other kind of a contract.

It further states that it was agreed by the parties making the contract in the application and in the policy, that the contract should be construed as to its validity and effect, as to all questions between them, under the law of New York, the law of any other state to the contrary notwithstanding.

It is claimed in the answer that Mr. Block, in making this contract, whatever advantage he had or might have under the laws of Ohio, had completely waived all such rights, and the beneficiaries under this contract have such rights only as are afforded by the laws of New York, when applied to construction and determination of the rights of the parties under this contract.

The answer then sets up as a first defense, in addition to the facts already stated, a number of matters, wherein Block had made misrepresentations in regard to whether he had disease, whether he ever had a physcian, and various other matters; also that the agent had no knowledge that he had other insurance. Then, for a second defense, it sets up tnis matter of warranty, that the assured had made these representations which were false; that [they were fraudulently false, the assured knowing at the time he made them that they were untrue.

This case went to trial upon the issues made, and the defendant offered to prove everything alleged in its first defense. The court excluded all the testimony offered under that defense. Thereupon the insurance company stated to the court that it had no evidence to offer upon its second defense, and the court then ordered the jury to bring in a verdict for the amount of the policy and interest on it, which was done. Exception was taken, and the case brought here.

The precise question in this case is simply this: Here is an insurance company which has its residence in the state of New York. Under the laws of Ohio it is permitted to do business in Ohio. This contract was made by Mr. Block, being solicited by the agent of this company here in Ohio. The application was made here. The money that was required to be paid was sent on to New York. After the company had concluded in New York to issue the policy, it was sent here by mail to the agent for delivery to Mr. Block. The policy and the application both provided that this contract should be regarded as a New York contract, and not an Ohio contract. The question which arises is, when this contract issued upon in an Ohio court,as to whether this question of warranty is to be construed under the law of New York, or whether the provisions of the statutes of Ohio have the controlling influence in the case. The court below held that this contract is controlled, as between these parties, by the Ohio statutes, and therefore excluded all the testimony as to the truth of the answers contained in the applications.

The section of the Ohio statute relied upon by the plaintiff in the hearing below is section 3625: “No answer to any interrogatory made by an applicant in his or her application for a policy, shall bar the right to recovery upon any policy issued upon such application, or to be used in evidence upon any trial to recover upon such policy, unless it be clearly proved that such answer is willfully false, and was fraudulently made; that it is material, and induced the company to issue the policy, and that but for such answer the policy would not have been issued; and, moreover, that the agent of the company had no knowledge of the falsity or fraud of such answer,”

Also section 3626: “All companies, after having received three annual premiums on a policy, issued on the life of any perse n in this state, are estopped from defending upon any other ground than fraud, against any claim arising upon such policy by reason of any errors, ■omissions or misstatements of the assured in any application made by such assured upon which the policy was issued, except as to age. ”

I think it proper that these two sections should be read together. The policy was issued, and the question arises' whether it can be avoided after a certain number of annual premiums have been paid by the assured, or have been received by the insurer.

It is evident that if the law of Ohio is applied to this contract, the court below was right in excluding this testimony. If the law of Ohio does not apply, then the court was wrong.

A large amount of law has been cited, many cases that have some bearing upon this question, yet we may say that no case has been cited during the trial of this case that is a fair and square solution of the exact question before the court. There is no question but that a majority of the cases cited and read by the counsel for the insurance company, and also those cited in the last brief we have received, is good law. The only question is whether it is applicable to this case. There can be no question but that, as a general rule, where one of the parties to a contract resides in one state and the other in another, or where they both live in one state, and the contract" is carried out in another, and under other circumstances that might be named, the parties can contract with reference to the law of either state, and, having so contracted, the court that construes their contract, and determines its validity, will determine it by the law that they have made a part of the contract.

But, when this is admitted to be the general rule, it is claimed on the other side that there are exceptions, and one of those exceptions is, that where the state has established some rule of law in regard to a matter, to shield and protect its own citizens, that law shall govern and control in the making of such contracts; and where a contract is made by a party out of the state, whether the contract is made in the one state or in the other, that the law of the state where one of the parties resides, which throws its protecting shield over all the citizens of the state, is the law that will con trol the rights of the parties under the contract, if the law of the two places in any way conflict.

We have been cited to many cases in point upon that proposition, and we are,compelled to say that that is the law.

As to insurance contracts, where there are questions arising such as we have in this case, it is not a complete solution of the question, because the cases cited upon that point do not extend to cases where the parties have themselves agreed that the law of another state shall govern their rights under the contract of insurance that is made. This being true, we must therefore go a step forward and say what the law should be in a case like the one at bar.

It is contended by counsel for the insurance company, both in the oral argument and in the brief we have received, that there in no public policy involved in the statute of Ohio that we have read, and therefore that the parties are at liberty, under the circumstanes of this case, to say what law shall control their rights under the contract. Upon that question we have a case in point in our own state, 47 Ohio St., page 409, Insurance Company v. Leslie. In that case our own Supreme Court said:

“It is contended by counsel for the plaintiff in error that this statute does not apply to this policy because, first, the policy contained an agreement essentially different from the terms of the statute, which, it is claimed, it was incompetent for the parties to make, and by which they are mutually' bound; and, second, no examination of the property was made by the agent of the company, and they further contend that if the statute governs the policy, the statements in the application, of the value and condition of the property, constituted an intentional fraud.

“The statute rests upon considerations o£ public policy; one of its purposes being, to exact of insurance companies doing business in this state, reasonable diligence and care to avoid improper risks and over-insurance, by requiring their agents to make personal examination of the property, and fix its insurable value,before writing the insurance.”

This was a case of fire insurance. The statute under consideration in the case at bar is not precisely the same as the one in 47 Ohio St., but in stating the objects of these statutes the court, on page 413, says:

“The conditions contained in policies of insurance, both life and fire, and the exceptions to the risk, and the contingencies upon which the company should be relieved from liability, became so numerous and conflicting, usually ' printed in small type on the back of the policy, in terms which persons unused to the law or business of insurance would not readily understand, that it became a matter of no little difficulty for the assured to tell whether the policy afforded him any indemnity or not. ’ ’

On page 417 the court further says: “The statute cannot, we think, be treated as conferring upon the assured a mere personal privilege which may be waived or nullified by agreement. It has a broader scope. It moulds the obligation of the contract into conformity with its provisions, and establishes the rule and measure of the insurer’s liability. Terms and conditions embraced in the policy, inconsistent with the provision of the statute, are subordinate to it, and must give way. ”

That brings us fairly to a consideration of the question whether, in the making of a contract, the parties having agreed that the law of another state shall control and determine their rights under it, the law so agreed upon shall thus control. In the case of The Equitable Life Insurance Company v. Clements, 140 U. S., 226, the assured, in the policy, agreed to waive and relinquish all right or claim to any other surrender value than that provided in the policy, whether required by a statute of any state or not. The court found that the contract was a Missouri contract, as it was to be delivered in Missouri, and the premium was to be paid before it could have any binding force whatever. The law of Missouri having provided what shall be done by the insurance company in case a number of the premiums have been paid and then no further payments made, the court held that the parties could not by agreement evade or' nullify these provisions of the statute; that the rights of the parties under the contract were to be determined by the law of Missouri. The language of the court is: “It follows, from what has been said, that the insertion in the policy of a provision for a different rule of commutation from that prescribed in the statutes, in case of default of payment of premium after three premiums have been paid, as well as the insertion in the application of the clause by which the beneficiary purports to waive and relinquish all right or claim to any other surrender value than that so provided, whether required by statute of any state or not, is an ineffectual attempt to evade and nullify the clear words of the statute.”

That brings us one step nearer to the question under consideration, and that is this: If the parties reside in different states, the assured in one state and the insurer, as it is assumed, in another, and a contract is so made that it is construed as a contract made under the laws of the state where the assured reside^, and in such a contract the attempt is made to evade the law of that state, and the provisions thus entering into the contract are null and void, then there remains in this case this question only: If the parties reside in different states, and the contract, under the ordinary rules of law, is to be regarded as a contract of the state where the insurer lives, and in such contract they agree to evade the laws of the state where the assured' lives, what shall be the law applicable to such a case?

We cannot decide that question without considering, to some extent, these facts: Before this insurance company could do any business in Ohio it had to do certain acts to comply with the statutes of Ohio, as set out in section 3604, and a number of sections following. Among other things it had to establish an agent in this state upon whom service could be made. This insurance company, while not a corporation of Ohio, yet has been permitted to avail itself of the right under the law of doing business in the state, and we think it is a fair implication that, in doing business with the citizens of the state of Ohio, it will conform, in such policies and contract as it makes, to the laws of Ohio. Then we do not in this case have a party who resides in New York state exactly, but we have a party who resides in Ohio, a party who has an assumed residence in another state, but who has come into Ohio to do business upon such terms as is prescribed by this state. We think it is fair, under such circumstances, to say that, in doing business in Ohio, it ought to be understood that it will do business in accordance with Ohio laws, so far as those laws are founded in public policy.

The decision in the 47 Ohio St., we think, extends not only to fire insurance, but to life insurance as well, and when that court says that the law as to fire insurance is founded in public policy, it can be as truly said that the law of Ohio to which we have referred in this case, is also founded in public policy. It is our opinion, therefore, in this case, one of the parties residing in Ohio, the contract in part being made here, at least to be carried out here, the other doing business in Ohio under Ohio law, that they cannot, by agreement, evade laws of Ohio founded in public policy.

It is claimed by the counsel for the insurance company that the Ohio statute referred to is unconstitutional, under the fourteenth amendment of the constitution providing that no state shall enact a law that does not give equal lights to all citizens. This amendment was intended to prevent class legislation. But if the legislation is for a public purpose, and affects alike all persons similarly situated, then it is not within the amendment. This was decided in 113 U S., 31, and in 70S.. The latter case was where a city undertook by ordinance to provide that laundries in certain parts of cities should not run during certain hours, and it was held that it was not within article 14 of the constitution of the United States.

In 120 U. S., 68, it was held that a statute allowing the state, in capital cases, fifteen peremptory challenges to jurors in cities having a population of over one hundred thousand, while only eight challenges are allowed in other parts of the state, is not obnoxious to the amendment.

On page 71 the court say: “The fourteenth amendment to the constitution of the United States does not prohibit legislation that is limited either in the objects to which it is directed, or witihn the territory within which it is'to operate. It merely requires that all persons subject to such legislation shall be treated alike, under like circumstances and conditions, both in the privileges conferred and liabilities imposed. ”

It is contended that the life insurance companies doing business in the state of Ohio are subjected to a law different from that to which fire insurance companies are subject.

It has been decided by the United States Supreme Court that a law requiring certain dentists, before they can practice dentistry, to procure a diploma from a dental college, where as those in the practice at the passage of the law are exempt from its operation is not within the fourteenth amendment of the constitution. That court has made the same holding in regard to a law as to the qualification of physicians before they can practice, making . an exception as to physicians already in practice, the two classes being entirely distinct. So a statute in regard to dry goods merchants can not be said to be unconstitutional, because it does not apply to merchants in the grocery business, although it in some way touches the business of both merchants. Here are two distinct classes, fire insurance and life insurance, and, clearly, under these decisions of the United States Supreme Court a rule of law that applies to the one is not unconstitutional because it does not apply to the other. It is a different subject-matter. They are not in the same class. We think the law of Ohio is not unconstitutional, and the judgment of the court below is affirmed.

John A. Finch and Charlas F. Pennewell, for Plaintiff in error.

White, Johnson & McCaslin, for Defendants in error.


source: Caselaw Access Project

author: Bentley, J.

license: Public Domain

text:
    (Sixth Circuit, Ottawa Co., O., Circuit Court
    June Term, 1894.)
    Before Bentley, Scribner and Haynes, JJ.
    THE STATE OF OHIO ex rel. MYRON T. PALMER v. FRANCES L. S. DARBY.

      Councilmen — Appointed by Mayor to fill casual vacancy—
    1. The exclusive right of the council to judge of the election returns and qualifications of its own members, under section 1679 R. S., does not extend to a Case where the controversy is not simply which of the two or more persons was properly selected to fill a conceded vacancy, then to be filled by some one, but where the point in dispute is whether, under the law, there is any vacancy or office then to be filled by election or appointment.
    ‘2. The provisions of section 1724 must apply in determining whether the appointment shall be till the next annual municipal election or for the unexpired term, and, under that section, an appointment of a councilman by the mayor, made with the consent of the council, must be for the unexpired term of the person, who, after being elected and qualified, ceases to be a councilman before the expiration of the term for which he was elected.
    3. The misapprehension of the true tenure of the appointee, on the part of the mayor, the appointee or others, cannot abridge the term fixed for his continuance in office.

      4. In view of the particular'provisions of sections 1713 and 1724 Rev. Stat., in connection with the more general provisions of section 8, a councilman appointed for an unexpired term, may hold office until his successor is elected and qualified.
    5. While regular elections may be and are required to be held in anticipation of the expiration of an official term, and appointments to an office, originally appointive, may be made while the person holding the office is still serving his term, yet neither an election nor an appointment to fill a casual vacancy can be held or made anticipatory of the vacancy, nor until its actual occurrence.
    6. The appointment of a person as councilman to fill a vacancy occasioned by the removal of the person elected to the office, must be with the consent of the council, and such consent must be manifested by some affirmative act; mere silence or failure to object on, the part of the council is not sufficient.
    7. The council is not required to take immediate action upon the appointment, but may defer action, and it is competent for it to act upon the matter until the mayor, or the force of circumstances, has withdrawn the nomination; but whenever it gives the requisite consent, in the requisite way, it cannot thereafter undo its effect, nor oust one who thus becomes a de jure member, except in the manner provided by statute for his removal
    8. It is not absolutely required that the consent of the council should be expressed by actual vote upon the direct question of approving the mayor’s choice, if it be plainly and affirmatively given.
    9. A record o^the proceedings of the council indicating that the person appointed to"fill a vacancy was, after his appointment, elected clerk pro tempore, together with other like evidences of his recognition as a member, is sufficient to show that the council consented that he was then a member, and the appointment having been made in the presence of the council, its members knew that his only claim to a seat was by virtue of that appointment which only needed their consent to make it effective. Such affirmative action of the council should be allowed a broader significance than being treated as merely recognition as a de facto member of the council, as it^fully shows the consent required by section 1724 Rev. Stat.
    Quo Warranto.
   Bentley, J.

This action in quo warranto is brought for the purpose of obtaining a judgment ousting the respondent from exercising the office of councilman of the village of Wauseon, Fulton county, Ohio, and declaring the relator entitled thereto.

By the pleadings and proof it appears that in June, 1892, Wm, C. Barnes held said office of councilman, having been elected thereto for the term of two years in the spring of 1891, and having duly qualified. On June 20th, 1892, it was shown to the mayor and council of the village thatWm. Barnes had removed from the village, and the mayor thereupon declared said office vacant, and, with the advice and consent, of the council, duly expressed by a yea and nay vote, duly rendered, duly appointed John S. Dimke to fill said vacancy. .On July 18, 1892, Dimke having refused to accept said appointment or to qualify, the mayor appointed Myron T. Palmer, the relator, to fill the vacancy.

Mr. Palmer being present at the time, was sworn in and took his seat as councilman.

At the spring election of 1893, the mayor declared a vacancy in said office, and again appointed the relator to fill it, and the relator being present at the time, again took the oath of office, and continued to discharge the duties of councilman.

By reason of some misapprehension or other cause, the names of no candidates for said office were placed on the tickets of either or any political party in the spring of 1894; so, of course, no one was elected thereto.

Thereupon a special meeting of the council was called for April 12, 1894, and at that meeting the mayor and six members of the council, including the relator, were present. At this meeting the mayor declared said office of councilman vacant, “on account of expiration of time of Myron T. Palmer, an acting member’’ as the record recites, and appointed the respondent, Darby, thereto; and on motion then and there made, to confirm said'appointment, three of said council voted yea and three (including Palmer, the relator), voted nay, and the mayor’s name being thereupon called, he voted yea, and declared the motion to confirm carried, whereupon the respondent was sworn in and took his seat as councilman, and has since continued to act as such, in place of Palmer, who has not since acted, but brings this suit in the name of the state to determine the right of himself and the respondent to the office.

On behalf of the respondent it is urged that this court has no jurisdiction of such a case, since by section 1079 Revised Statutes, the council is made “the judge of the election returns and qualifications of its own members.” But we do not regard this exclusive right of the council as extending to a case where the controversy is not simply which of two or more persons was properly elected to fill a conceded vacancy then to be filled by someone, but where the point in dispute is whether .under the law there is any vacancy or office then to be filled by any election or appointment. It would hardly be contended, for instance, that a council could assume that the term of one of its members regularly elected under the law for two years, expired in one, and upon some other person being elected or appointed then to such supposed place, could vote to seat the new claimant in place of the old member, and successfully defend its action, and the old member be concluded by the action of the council under this section.

The principles recognized and enforced in the case of the State ex rel. v. O’Brien, 47 Ohio St.473, (see also 47 Ohio St. 566 and 44 Ohio St. 469,) in our view, forbid the conclusion that section 1679 confers the exclusive, if any, power on the cou cil to adjudge in such a case as is here presented.

If the relator has any right to exercise the powers and perform the duties of the office, it is wholly because he was legally an officer whose rightful incumbency had not terminated when the respondent was appointed, and no action of the council other than by the motion of a member (1684-5) according to the requirements of the statute, could interfere with a tenure positively fixed by law.

We must inquire, then, by what, if any, rightEú indefinite tenure was Palmer holding the office when Darby was appointed; or, in other words, was there a vacancy which could lawfully be.filled by appointment?

Under section 1673, the regular term of councilman is two years. In case of a vacancy in the council, were it not that section 1724 makes special provision applicable only to councilmen, it might well be held that the more general provision of section 1713, in the chapter on “Officers of Cities and Villages,” and which is made applicable “unless otherwise provided in this title, ” would apply; but since section 1724 being thus special, and containing provisions regarding the time for which vacancies in the council may be filled, wholly different from those in section 1713 regarding vacancies in municipal offices generally, we think it ■clear that -notwithstandng the reference to section 1713 in section 1693, these provisions of section 1724 must govern in determining whether the appointment shall be “till the next annual municipal election,’ 'or“for the unexpired term. ” The appointment,therefore, must be for the unexpired term. We think it is not competent for the mayor to fix the term of the appointment otherwise, and his appointment of a ■councilman, when made with the consent of the council, is for the unexpired term of the person who, after being elected and qualified, ceases to be councilman before the expiration ■of the term for which he was elected. And the misapprehension of the true tenure of the appointee, on the part of the mayor, the appointee or others, cannot abridge the term fixed by law for his continuance in office.

Section 1713 also provides that “unless otherwise provided, all municipal officers shall serve until their successors are qualified.”

See section 8 and section 11, Revised Statutes.

Mechem, in his work on Public Offices and Public Officers, section 402, lays down the rule that officers appointed to fill vacancies in elective offices are generally considered as appointed for the remainder of the unexpired term of' the person whose place they fill, and that on failure to elect at the regular election, they hold over, and that if the provision is that they are to continue until their successors are-elected and qualified, there must be an election, and not an appointment, of a successor.

In State v. McGregor, 44 Ohio St. 630-1, the Supreme-Court held that section 1208, and not section 11, applied to-the filling of vacancies in the office of sheriff or coroner.. And we suppose that in view of the particular provision in sections 1713 and 1724, in connection with the more general provisions of section 8, that if Palmer was legally appointed; and confirmed to fill the unexpired term of Barnes, -which would end in the spring of 1893, he would hold his office-till his successor is elected and qualified.

If, in 1892, Palmer was duly appointed by the mayor with the advice and consent of the council, properly expressed, there has never been a vacancy in the office since which could be legally filled by appointment, and the appointment of 1893, however formal, was of no effect. And if he was not so appointed and confirmed in 1892, he was simply a de facto councilman, at least till the alleged appointment of 1893, and there was, during all that period, a continuous vacancy which might at any time have been filled by appointment, in the spring of 1893, or before or since; or if he was never legally appointed and confirmed, by the appointment of another person, Darby for instance. While regular elections may and are required to be held in anticipation of the expiration of an official term, and appointments to an office originally appointive may be made while the-person holding the office is still serving his term and in anticipation of its regular expiration, yet, neither an election-nor an appointment to fill a casual vacancy can be held or made anticipatory of the vacancy, nor until its actual occurrence. This is manifest from the sections 1713 and 1724 providing for the filling of such vacancy, and from the opinion in State v. McGregor.

It becomes, therefore, of the first importance to determine whether, at any time since the vacancy occasioned by Barnes’ removal from the village, Palmer was legally appointed by the mayor, by and with the consent of the council, as required by section 1724. We regard that section as expressing the requirements of law as to the appointment of councilmen to fill vacancies, rather than the more’general sections 1711 and 1713, for the reason that it, 1724, is specially applicable to such officers only. It will be noticed that there is a difference in the wording of the three sections, sections 1711 and 1713 each requiring that the appointment be made “with the advice and consent of the council,” and section 1724 requiring that it be made “and with the consent of the council.” Whether the addition or omission of the word “advice” is of itself of any significance may not be clear, but the iteration or insertion, rather, in section 1724, of the requirement that the council should consent, would seem to indicate that it was intended to make full provision in this section alone for such appointments, and we think that the requirement of section 1711 as to the voting and recording of votes does not apply to this case. There must be, however, a consent to the appointment on the part of the council, and according to the authorities cited by counsel for the respondent, such consent must be manifested by some affirmative act and mere silence or failure to object on the part of the council is not sufficient. Whether or not there was a direct vote upon the question of confirming the appointment of Palmer in July, 1892, was a matter regarding which the evidence before us in the trial was conflicting, and we think there was not a preponderance of the evidence that such direct vote was had, but the weight of the evidence was otherwise.

Can the requisite consent be given by the council otherwise than by a vote upon the express question of consenting to such appointment? If we were permitted to determine this fact of consent by giving effect to those things by which the condition or state of the minds of men is usually determined in legal proceedings, there could be no hesitation in declaring that the council did consent to his appointment, since, without the sign of objection by anyone, Mr. Palmer, upon being appointed, took his seat as councilman and became an active and frequent participant in the proceedings of the council, and so continued for a year and three-quarters, or more, and was always in every way recognized as a member, his name being on the rolls and called for each vote taken by yeas and nays; he introduced resolutions, seconded motions, served on committees, made reports to the council, which were accepted and adopted, and during the entire period, when meetings were held almost weekly, his voice, his vote and his presence were always recognized by the other members of the council, and his rare absences were carefully noted by the clerk on the minutes which the council approved.

We have looked through the records of the council offered in evidence to see whether by any affirmative action it has manifested its consent to Mr. Palmer’s appointment. The council was not required to take action upon the appointment directly as it was made, but when the appointment was made before the council, it could then act, or defer action upon it, and it was competent for it to act upon the matter until the mayor or the force of circumstances had withdrawn the nomination. Until withdrawn and before action upon it, the nomination was a continual proposition before the council for its action, but, whenever it gave the requisite consent in the requisite way, it could not thereafter undo its effect, nor oust one who thus became a de jure member, except in the manner provided by[statute for his removal. We think that it is not absolutely required that the consent of the council should be expressed by actual vote upon the direct question of approving the mayor’s choice, if it be plainly and affirmatively given.

Does the record of the proceedings of the council sufficiently exhibit such affirmative action consenting to Palmer’s appointment?

We think it does

On August 15, 1892, the clerk being absent, the council itself elected Mr. Palmer as clerk, pro tempore. By section 1755 this election could only be of one of the members of the council. So that, a least, thus early after his appointment, Mr. Palmer was, by the affirmative vote of the council, recognized directly as a member, and though the vote was not expressly upon the question of his membership, it was a sufficient declaration that the council consented that he was then a member, and the appointment being made in the presence of the council, its members knew lhat his only claim to a seat was by virtue of that appointment, which only needed their consent, in session given, to make it effective. Again, it was the duty of the clerk (section 1755), to record the proceedings of the council, and it was a proper, if not a necessary, part of the record of each meeting that it should state the members present. During the time while Palmer served as councilman, the council met very frequently, on an average as often as once a week, and the clerk, in the reco: d of each meeting, gave the name of Palmer as one of the members of the council, either as present or absent (and he was almost invariably present), and such record was approved by the council at its next meeting, as shown by its records.

The council consisted of six members, and, of course, under the provisions of section 1693, it required four affirmative votes for the passage of legislation (unless the case fell within the exception provided in that section), andón many occasions, after the appointment of Palmer, in 1892, beginning as early as September 5, 1892, only four members of the council, including Palmer, were present at meetings when resolutions and ordinances of great importance were passed by yea and nay vote, all of said four present being recorded as voting aye; certain of the ordinances thus passed appropriating large sums of money out of the corporation treasury, and others making assessments for improvements, etc., and the record of such meeting and proceedings being approved by the council at the next subsequent meeting.

On April 17th, 1893, at the organization for the council for that year, the mayor appointed Palmer on certain of the standing committees, and chairman of one committee, thus clothing him, apparently at least, with the great and serious powers which, under section 1687, maybe exercised by such chairman and committee, and this appointment seems to have been approved by the council.

On April 24, 1893, Palmer’s committee having reported to the council on a certain matter, Palmer moved to recommit it to the committee, and his motion was carried by a yea and nay vote recorded on the records, showing six councilmen (of course, including Palmer) voting yea.

Again, on November 20, 1893, in the absence of the mayor from the council meeting of that date, the council chose Palmer as its temporary chairman, and under section 1675, such person appointed to temporarily take the place and perform the duties of mayor must himself be a member of the council.

It may be said, that all of this was merely the recognition of Palmer as de frcto member of the council and should not be regarded as equivalent to a vote directly upon his confirmation, but considering that his de facto character only needed, at any moment after his appointment, the consent of the council in order to make his position de jure, such affirmative action of the council itself ought to be allowed a broader significance, and, we think, fully shows the consent required by section 1724, if not the “advice and consent” which, under section 1711, in case of certain officers must be shown by yea and nay vote recorded on the journal.

Surd, Brumbaok and Thatcher, for relator.

Doyle, Scott and Lewis and W. W. Touvelle, for defendants.

Such being our conclusion, it is unnecessary for us to ■consider the arguments as to the mayor’s power to vote in case of a tie upon the question of the confirmation of his appointee, Mr. Darby; or whether, had there been a vacancy in April, Mr. Darby might be ousted at the suit of the state on the relation of Palmer: for there being no vacancy to fill, and Mr. Palmer the de jure incumbent until his successor is elected and qualified, the appointment of 1894, even had it been confirmed with the utmost unquestionable formality, would have been ineffective to confer any right upon Darby.

Judgment of ouster against Darby, and for the induction, or rather the restoration, of Palmer, will be entered, at the costs cf the respondent, Darby.


author: Swing J.,

text:
    (First Circuit—Hamilton Co, O., Circuit Court
    January Term 1896.)
    Before Smith, Cox and Swing, JJ.
    The STATE ex rel PRUDENTIAL INSURANCE COMPANY, v. CHARLES EVANS, one of the judges of the COURT OF COMMON PLEAS OF HAMILTON COUNTY, OHIO.

      Bill of exceptions — When to he presented to opposing counsel for inspection — What hill must contain to he complete—
    Mandamus.
   Swing J.,

The facts in this case show that on the last day on which the bill of exceptions could be presented to opposing counsel, plaintiff’s attorney came to the office of defendant’s attorney, and submitted to him the oral testimony, written out in proper form, and also offered to him an envelope containing numerous exhibits which had been offered in evidence in the case, but which exhibits were in no manner attached to the bill of exceptions. Defendant’s attorney refused to accept the bill of exceptions, on the ground that the bill was not a complete bill of exceptions, whereupon plaintiff’s counsel said he would attach the. exhibits, and took the written testimony and the exhibits, and on the following day, which was on the forty-first day after the exception was taken, presented to defendant’s counsel the bill of exceptions in controversy; which bill, it is admitted, is in proper form, containing all the oral testimony and written evidence presented at the trial. This bill the defendant’s counsel refused to receive, on the ground that it was not presented within the time required by law, and the trial judge refused to sign it for the same reason.

This is a suit in mandamus to require the judge to sign the bill.

We are of the opinion that the Judge was right in refusing to sign the bill. We think the bill of exceptions required to be presented to opposing counsel should be a bill of exceptions complete in form. If purporting to contain all the evidence, it should contain in the form of a bill of exceptions all the evidence which counsel presenting the bill claimed the evidence to be. It does not follow that the bill presented to counsel for examination should in fact contain all the evidence, for opposing counsel and the Judge might add to the bill certain items .of evidence omitted, or might strike from it certain matters improperly there; but this fact does not relieve the counsel from preparing and presenting to opposing counsel, within the time provided by law, a bill of exceptions compíete and proper in form in that it shall contain, if it purports to contain all the evidence, all that he claims to be the evidence, and not a part merely.

A. G. Shattuck, for the writ.

Thomas L. Michie, contra.

This we regard as a very strict and technical holding,but our Supreme Court has always construed the statutes relating to bills of exceptions strictly. Writ refused.

Judge Smith dissents from this ruling of the court, on the ground that he thinks there was a substantial compliance with the law.


author: Hale, J.,

text:
    (Eighth Circuit—Cuyahoga Co, O., Circuit Court
    Jan.Term, 1893.)
    Before Baldwin, Caldwell and Hale, JJ.
    THE STATE OF OHIO, ex rel. HAZEN COSGROVE v. A. MOSER, AS TREASURER, etc.

      Mandamus — Board of Education, Contracts etc.

    The Board of Education of G., a village, at a regular meeting, by motion, tendered C. the election as superintendent of a school in which branches other than those enumerated in the certificate issued to O. by the Board of School Examiners were taught, giving C. notice of such action. C. accepted the employment tendered, and entered upon its duties.
    Held, That this constituted a valid and subsisting contract between C. and the Board ; that, in the absence of proof, other teachers being employed in the school, no presumption arises that C. actually taught branches not enumerated in his certificate.
    Mandamus.
   Hale, J.,

This is an application for a peremptory mandamus to compel the payment of an order that was issued to the relator in April, 1892. Prior thereto the relator had for some time been in the employment of the Board of Education. On the 5.th daj of May there was issued to him an order in payment of his services during the month of April in the ordinary form, signed by the president and clerk of the board, and thereupon promptly delivered to him. The treasurer ■refused to pay the order, and still refuses to pay it. Application is made to this court for a peremptory mandamus to compel him to pay it. The petition is in the ordinary form.

The answer of the treasurer contains several defenses, but the substance of them all is that the relator had failed to obtain a proper certificate and file it with the clerk of the court at the time the order was drawn, and therefore he had no right to teach school, no right to be in the employment of the board, as he was, and that the clerk had no right to draw the order.

On the 21st day of May, 1891, the board took action, of which the following is the record:

“At the regular meeting of the board, motion by the clerk that the board tender to Mr. Cosgrove the election as superintendent for the term of two years, with an increase of salary of fifty dollars per year. Motion carried by the following vote, etc.:”

On the 21st day of June following, the clerk of the board sent to Mr. Cosgrove the following notice:

H. L. Cosgrove:

Sir: — At the last meeting of the Board of Education of the Village of Glenville, held at their rooms in said village, May 21, 1891, you were duly elected Superintendent of said school for the term of two years, with an increase of fifty dollars a year to your present salary, and this shall be your certificate of election.

Respectfully,

R. Foster,

Cleric of said Board,

Mr. Cosgrove accepted the employment thus tendered him, and on the following September entered upon his duties under that employment.

The sections of the statute relied upon by the defense are sections 4074 and 4051 of the Revised Statutes. The one provides that no person shall be employed as a teacher of a common school that has not obtained from the board of examiners, having competent jurisdiction, a certificate of good moral character and of his qualification to teach the branches enumerated in the statutes.

Section 4051 provides, in substance, that it shall be unlawful for the clerk to draw an order in favor of a teacher who has failed to file a certicfiate or copy of the same, showing that he has obtained such certificate from the board of examiners.

At the time this order was drawn the relator had a certificate issued to him by the board of examiners of this county, but it was only such a certificate as was known as a common school certificate, covering the branches enumerated in the section I have read, and there is no question about the validity of the certificate; no question that it was not properly filed with the clerk; but the claim is that he was required to teach certain branches not enumerated in that certificate, and that therefore the employment was illegal and no compensation can be recovered.

We are not disposed to evade or annul this statute, even in as hard and unconscionable a case as this would seem to-be, if it must be decided against this relator; but no such result is necessary. We hold that it was entirely competent for this board of education to employ the relator as superintendent and teacher in the school, even though he held only the certificate to which I have referred. The passage of the resolution of the board that I have read, the notice to the realator and his acceptance of that appointment, and entering upon its duties, constituted in the judgment of the court, a valid, binding and subsisting contract between him and the board. It will not be pretended, if the relator had been required by the board to teach only those branches enumerated in the certificate and superintend the school, that he would be without the pale of the law, and must go without his pay. What we hold is that the proof fails to show any specific requirement of the board that he should teach any other than the branches enumerated in that certificate. Certainly it fails to show that he did, during the month for which this order was drawm, teach any other than those branches.

Marvin & Cook, attorneys for Plaintiff.

T. K. Dissette, attorney for Defendant.

It is true that the Board of Education, prior to his employment, had adopted a course of study which included other and higher branches than those included in this certificate. But there were several teachers employed by this Board of Education, and precisely what branches this relator was required to teach is left without disclosure in the evidence, and we are not disposed, in the absence of some specific order requiring this relator to teach branches other than those enumerated in that certificate, which is conceded to be valid, to invalidate this contract and turn this relator out of court. I do not believe that the law requires any such hardship. We are of the opinion that this order should be paid, and a peremptory mandamus is issued requiring its payment.


author: Day, J.

text:
    (Third Circuit—Mercer Co., O., Circuit Court,
    May Term, 1896.)
    Before Seney, Day and Price, JJ.
    BERNARD SMITH v. FRENZER et al.

      Vacation of County road — Proper proceeding — Requisites to confer jurisdiction on Commissioner—
    1. Under section 4661, Revised Statutes, providing for the vacation of county roads, residence in the vicinity of the road proposed to be vacated, is an essential qualification of a petitioner for vacation ; and the fact of such residence is a jurisdictional one and must affirmatively appear in the record, to confer jurisdiction on the board of commissioners to order a vacation.

      Defective records of proceedings before lower courts — Liberal construction required—
    2. Tas provisions oE ths statute relating to appeals, appeal bonds, and proceedings thereunder to perfect an appeal, are remedial in their nature and character, and must be liberally construed so as not to defeat the remedy on unsubstantial grounds. In.furtherance of this beneficial purpose, by provision of statute, a bond that is insufficient in form or amount may be amended or an additional or new bond given; and all recitals in such bond, not pertinent, may be regarded and treated as mere surplusage.

      Same — Presumption is for validity of judgments, but jurisdiction ■must appear—
    :3. Presumptions of law favoring the validity of a judgment rendered by an inferior court or tribunal, do not arise, unless it affirmatively appears in the record that the court or tribunal has jurisdiction of the subject matter of the action or proceeding pending, and of the parties litigant. But when the record shows jurisdiction in the court or tribunal, and does not disclose some prejudi■cial error in the proceedings, in such cases presumptions of law ¡arise and sustain the judgment or order.
    Error to the Court of Common Pleas of Mercer County,
   Day, J.

The original proceeding was before the county commis¡s'ioners, and was for the vacation of a part of a county road, The application for vacation was under section 4661, Revised Statutes; was made by twelve or more freeholders of ■the county — they so subscribed themselves in the application — but it does not appear that they were residents of the vicinity or part of the county in which the road proposed to be vacated was located. The application stated good reasons for vacating, and was also read at a regular ■session of the commissioners, was continued to the next .-session and heard again, when objection was made in writing .by a number of persons, including Smith, the plaintiff in ■error; whereupon, as the law provides, the commissioners ¡appointed viewers to view the road and report their opinion .-as to whether the road ought to be vacated or not, which 4hey did, favoring a vacation of part of the road. The report of the viewers was approved, and the'jcommissioners adopting the opinion of the viewers, as expressed in their report, that the road should be vacated, made an order to that effect.

Bernard Smith, one of the objectors to the proposed vacation, gave notice of his intention to appeal the matter to the probate court. He caused a bond to be executed to the state of Ohio, for the use of Mercer county, in a proper sum, signed by two other gentlemen than himself, neither of whom were parties to the proceeding. The bond was approved by the auditor, who, upon its filing, at once sent the original papers and a transcript of the proceedings and order to the probate court. The case was docketed in the probate court by styling the applicants for vacation plaintiffs and Bernard Smith defendant, and a day set for the hearing, within twenty days from such docketing. On the day set for hearing the probate court heard the matter, and, notwithstanding the usual number of motions, objections, and exceptions, found the proceeding before the commissioners, prior to the appeal, substantially regular, and legal, and affirmed the orders of the commissioners, and entered judgment against the ippellant for all the costs created by the appeal. Smith excepted to the action of the court, and took a bill of exceptions embodying all the evidence produced to the court on the hearing, and filed it and a petition in error in the court of common pleas. On hearing, the common pleas affirmed the judgment of the probate court, and Smith now brings the case here, by petition in error, and seeks a reversal of both the lower courts, and also-of the judgment of the county commissioners ordering the-vacation of part of the county road.

Numerous errors of fact and of law are assigned in the-petition in erorr. Very many of them do not arise on the-record, are not before us, and we have not noticed them. Others there are, arising on the record, which we have not found it necessary to consider, as the commanding and controlling question- — -and which we regard as decisive of the Case — is the one as to the jurisdiction of the CDmmissioners, under section 4661, Revised Statutes, to make the order of vacation on the facts appearing in the application and record.

Had the commissioners jurisdiction to make the order of vacation ?

Counsel for petitioners, defendants in error, seek to avoid this question, and argue that it is not before the court, for the reason that this is a proceeding in error to the probate court, and that court was without authority to make any order - in the matter, as no appeal was effected to that court, no proper bond having been given, as required by the law, to perfect an appeal, and no matter what action was taken by the court, it was a nullity in no wise affecting the action of the commissioners, which is left standing and valid, unimpeached and unimpeachable, by a proceeding in error from some other court or tribunal. It is also urged, that, if the court shall hold that an appeal was accomplished, then all the parities to the proceeding are not made parties to the action in error, and that is a fatal omission, so that, in fact, no action in error is pending in this court.

Section 4689, Revised Statutes, relating to appeals in such cases provides, that in order to perfect an appeal, a bond shall be given by the party desiring to appeal, with sufficient sureties, and made payable to the state of Ohio, and it is urged that neither of the requirements has been complied with, and hence, an appeal not accomplished. The bond is for the use of Mercer county — is payable to the state of Ohio for the use of Mercer county, and it does not appear in the bond that either of the signers are sureties — indeed, it is recited in the bond that they are all appellants or principals. It is to be admitted that the bond, and, as well, the entire record, is somewhat defective in form. That is a condition that may be regarded as normal in many of the lower courts, and, possibly, furnishing a reason for the rule that the proceedings and judgments of such tribunals are not to be regarded or construed with undue strictness, but liberally, especially in matters of appeal and all matters remedial in their character. If we apply this rule, and liberally construe this proceeding and the law providing for an appeal, as we are required to do, and considering the provisions of the statute with reference to amending a bond that is insufficient in form or amount, allowing an additional or new bond where a defective, good-faith bond has been executed, we reach the conclusion that the bond will pass inspection, and is sufficient. The words “for the use of Mercer county, “may be regarded and treated as surplusage, and that two of the.signers are sureties, we think, may be fairly inferred from facts appearing from an inspection of the record and bond. Two of the signers did not appear to have been parties entitled to appeal, and the statement in the bond that they are appellants is a mis-statement. Smith, alone, gave notice of appeal. His name appears first in the bond, and the probate court, presumably in the discharge of an official duty, docketed the case, as the law requires, correctly by naming Smith as the only appellant, defendant. We conclude that a fair rendering of the situation, as apparent form the record and bond, would be, that Smith was the only appellant, and therefore principal, and the other .two, sureties on his bond for appeal. In furtherance of this view is the fact appearing that the auditor approved the bond as sufficient. If this is correct, it also answers and disposes of the suggestion, that all the parties in interest áre not parties to the proceeding in error.

Section 4690, Revised Statutes, provides that the probate court shall docket the case, and shall style the petitioner, plaintiff, and the appellants defendants. The legal presumption is that the probate judge has done his duty, and obeyed the law. He named Smith as the only appellant and defendant. It appears Smith was, in fact, the only appellant, and of necessity the only defendant in the appeal; all the other objectors and protestors quit the combat and dropped out, satisfied with the judgment of the commissioners; and Smith was the only one desiring to continue the contest. He was the only defendant in the probate court, and is the only necessary party in error, other than the petitioners, who are also made parties defendant to the action in error. The suggestion of counsel, therefore, in avoidance of the question of jurisdiction in the commissioners to make the order of vacation, is disallowed, and the question recurs: Had the commissioners jurisdiction to make the order of vacation ?

We are aware of the rule that all presumptions of law are in favor of the validity of the judgment and orders of the inferior courts and tribunals. But that presumption only arises where it affirmatively appears in the record that the court or tribunal had jurisdiction of the subject matter of the action or proceeding, and of the parties litigant. When the record shows jurisdiction in the court or tribunal, and does not show some prejudicial error in the proceedings, then in such case the legal presumption arising sustains the judgment or order, but not otherwise. Then the precise question we have is, does it affirmatively appear, in the record in this case, that the commissioners had jurisdiction over the parties and the subject-matter?

Section 4661, Revised Statutes, providing for the vacation of roads, among other things, provides: that any twelve freeholders residing in the part of the county where such road is, may make application for tne vacation of the same. Any kind of freeholders of the county may not make the application, and are not proper petitioners. Only freeholders living in the vicinity of the road proposed to be vacated are proper petitioners; and an application by twelve such freeholders is imperatively necessary to confer jurisdiction on the commissioners; and the fact of residence in the vicinity must appear in the record of tbe’proceeding. It is, perhaps, not absolutely necessary that the fact of residence in the vicinity should be stated in the written application, although that would be best; it would be sufficient, possibly, if the commissioners find the fact by entry on their journal. But the fact must appear somewhere in the record, else the commissioners have no right or warrant in law, to order a view or vacation of any established county road.

Le Bland, Loughndge & Sohlosser, for Smith.

Armstrong &' Johnson, for Frenzer et al.

In this case the fact of residence in the vicinity of the road proposed to be vacated, of the petitioners for vacation, does not appear of record in any proper place, either by a finding of the commissioners entered in the record, or in the original application. We regard this as a fatal omission; leaving the record in the condition that it does not show affirmatively jurisdiction in that board. We are not at liberty to presume jurisdiction, nor was the probate or common pleas court. Jurisdiction not appearing, there was no lega1 presumption arising to sustain the judgment or order, and it seems to follow, per force, that the judgment or order was unauthorized by the board.

The probate court should have dismissed the proceeding for want of jurisdiction in the commissioners to make the order of vacation; and it was error, in that court, to affirm the order of the commissioners; and the common pleas was in error in affirming the judgment of the probate court. The judgment of both these courts is reversed, with costs. And this court making the order the probate court should have made, dismisses the proceeding before the commissioners for want of jurisdiction appearing in the record.


author: Smith, J.

text:
    (First Circuit—Hamilton Co., O., Circuit Court.
    Jan’y Term, 1896.)
    Before Smith, Cox and Swing, JJ.
    BROOKS v. VILLAGE OF NORWOOD.

      Assessments for two street improvements within four years exceeding 25 per cent of value of property — No allowance for payment of later assessment on prior assessments—
    Where suit is brought to enjoin the assessment on abutting property for the,improvement of the street, on the ground that within the past four years the same property was assessed for another street improvement, the two assessments in the aggregate amounting to more than twenty-five per cent.of the value of the property, the injunction asked should be as to so much of the assessment for the later improvement as, together with the assessment for the prior improvemnt, was in excess of twenty-five per cent, of the value of the property. And when the owner has fully paid the assessment for the later"improvement, but not the assessment for the prior-one, such payment will not affect the assessment for the prior improvement, nor will the owner be allowed to recoup, as against the assessment for the prior improvement, his payment for the later improvement which he was not bound to pay.
    Appeal from the Court of Common Pleas of Hamilton-County.
   Smith, J.

This action is brought to enjoin the collection of the unpaid assessments made by the Village of Nor-wood on a lot owned by the plaintiffs, as tenants in common, situate on the---corner of Williams and Huston avenues in said village, which assessments have been levied for the improvement of Williams avenue, one of the ten installments of which has already been paid by the plaintiff. The ground upon which the injunction is asked for is this: It is averred that the village, within the past four years, has levied an assessment of $459.55 upon said lot of the plaintiffs for the improvement of Huston avenue, and of $79.30 for a sidewalk thereon, which has been fully paid by the plaintiff. That the value of said lot, after the improvement of both avenues,, is $1,560, and it is agreed that the assessment so made and paid for the improvement of Huston avenue exceeds in amount twenty-five per cent, of the value of said lot after both improvements were made, and that as the owners of two-thirds of the property abutting on the improvement of Williams avenue did- not petition therefor, that, under the provisions of section 2,283, Revised Statutes, as the improvement of Williams avenue was also made within the past four years, they are not liable for any part thereof.

The evidence in the case shows that the improvement of Williams avenue was commenced and finished before that of Huston avenue, and that the assessment here complained of was duly made and levied before the assessment was levied for the improvement of Huston avenue. So far as appears, there was no legal objection to the validity of this assessment. If it be conceded that the petition for its improvement was not signed by the owners of two-thirds of the property abutting thereon, yet there is no claim, or ground for claim, that the assessment levied for the improvement of Williams avenue was in excess of twenty-five per cent.of the value of the lot of plaintiffs, and at the time it was levied there being no other assessment on the lot for the improvement of any other street, it was valid and binding. If the village, after this, undertook to improve another street, and to levy an assessment therefor on the property of the plaintiffs, which, with the assessment before made for the improvement of Williams avenue, made the total assessment for the two to exceed twenty-five per cent, of the value of the lot, it was this last assessment which should have been attacked-, and unless the provision as to the twenty-five per cent, had been waived by the plaintiffs, they might have enjoined such part thereof as would make it exceed the statutory limit. But this plaintiffs did not do; they paid it in full, and now seek to escape the first assessment — that made for Williams avenue. The improvements were separate and distinct, made under independent proceedings, and each must stand on its own footing. And if there was any error for want of conformity to the law in the assessment for the improvement of Huston avenue, this cannot in any way affect the prior rated assessment for Williams avenue, and plaintiff will not be allowed to recoup as against the assessment of Williams avenue the amount he may have paid, which he was not bound to pay, for the improvement of Huston avenue.

Krato F. Topp, for Plaintiffs.

Wm. E. Bundy, for the Village.-

But aside from this clear principle of law, it would seem that the result which must follow will not be inequitable or unjust to plaintiffs in this case, when it appears from the evidence that this subsequent improvement of Huston avenue was made at the request of one of the plaintiffs, and who voluntarily agreed with the village and bound himself to pay the full amount of the assessment which would be made against this property.

The relief prayed for will be denied, the injunction dissolved and the petition dismissed.


author: Upson, J.

text:
    (Eighth Circuit—Cuyahoga County, Circuit Court
    Jan. Term, 1893.)
    Before Upson, Baldwin and Caldwell, JJ.
    WILLIAM NERACHER, et al. v. SEBASTIAN GEIER, et al.

      Revivor of Judgment — Motion—Cross-Petition etc.

    A motion asking for a conditional order of revivor of a judgment cannot be treated as a petition to which an answer and cross-petition may be filed asking for equitable relief.
    Error to Court of Common Pleas of Cuyahoga County.
   Upson, J.

This is a proceeding in error to reverse a judgment of the court of common pleas on an order of the court of common pleas to revive a judgment.

At the September term, 1877, a judgment was rendered in behalf of the defendants in this case against the plaintiffs in error.

A motion was filed to revive that judgment, by A. W. Eckhardt, to whom the judgment had been assigned. The costs had been paid, and two hundred dollars on the judgment.

February, 1889, a motion was filed asking for a conditional order of revival, and that it be made absolute on a final hearing. To that motion an answer and cross-petition was filed, setting up, among other things, an agreement of settlement, and stating that an omission was made, by fraud or mistake, of one payment that is claimed to have been made in this settlement.

The, prayer of the answer and cross-petition is, that this agreement be corrected, and that the judgment be declared satisfied.

The jourt treated this answer and cross-petition as immaterial, and revived the judgment, notwithstanding this cross-petition.

The statute provides that a dormant judgment may be revived in the same manner as prescribed for reviving actions before judgment, or by action.

It is provided, also, that actions before judgment may be revived, among other ways, by a conditional order of the court made in term, or they may be revived by a judge in vacation. Under these provisions of the statute, the owner of this judgment had the option either to proceed by a civil action, or by procuring a conditional order of revival, and he chose to proceed, or moved the court to proceed by a conditional order of revival, instead of proceeding by action.

Burton & Dake, for Plaintiff.

Arnold Green, for Defendant.

This cross-petition was filed in the same manner as an action would have been brought by the filing of a petition; and now, while we suppose it was entirely proper to show that the judgment has been paid, either by payment of money or an agreement of settlement, we do not suppose that a cross-petition may be filed in the nature of a petition in equity, and asking for a correction of an agreement.

If the things stated in the petition are true, they ought to have this agreement corrected; but we think it is entirely irregular to treat this motion as a petition, to which an answer and cross-petition may be filed asking for equitable relief.

The prayer of this cross-petition not only prays for a correction of the agreement, but asks for such other and further relief as the party may be entitled to; and we think, for that reason, that the party should bring an action to have the agreement corrected, rather than to attempt to do it in this manner, as now attempted. For this reason the action of the court of common pleas will be affirmed, but without prejudice to the parties, and they may proceed in the man ner indicated.


text:
    (First Circuit—Butler Co., O., Circuit Court,
    Jan’y Term, 1896.)
    Before Smith, Swing and Cox, JJ.
    WOLF v. CODDINGTON.

      Suit involving title to land — Sale of same by defendant pendente lite —Right of defendant after sale to appeal' case — Sec. 5012 Rev. Stat.—
    Where, during the pendency of a suit affecting the title to real estate, the defendant conveys the same to a third party, the rights of the plaintiff are not affected by such conveyance, nor is the defendant thereby deprived of the right to litigate the issues made by him in the case in the court wherein the suit is pending, or of the right-to appeal and litigate the case in the appellate court. — Section 5012, Revised Statutes, construed.

      Appeal from the Court of Common Pleas of Butler County.
    On motion to dismiss appeal.
   Smith, J.

We think it clear that Coddington had a perfect right to appeal this case, and to bring into this court all of the parties to the action, and that the case stands for hearing here upon all of the issues made in the Court of Common Pleas. At the commencement of the suit the legal title to the real estate in question was in Coddington. The action was brought by Wolf claiming that he Coddington had not the absolute title thereto, . but only held it as security for certain advances made by Coddington to Wolf, and that in equity he had simply a lien in the nature of a mortgage for the amount so advanced, with interest, and the prayer was that an account be stated between them, and the amount due from Wolf to Coddington be ascertained. During the pendency of the action, Coddington conveyed the land to his wife, who was then a party defendant to the action-with her husband, by a general warranty deed. The court decreed that Coddington only held the land as security for the amount due, and fixed that amount and ordered the land sold to pay it, and adjudged that Coddington pay one half of the costs.

Surely Coddington had a right to appeal from this decree. The judgment against him for costs, standing by itself, would entitle him to the appeal. But he bad the further right to appeal from the decree finding that he did not have the absolute title and that he only held it as security for advances, and from the decree finding the state of the account. Those were matters vitally affecting him. The conveyance of the property by him to his wife pending the suit, cannot in any way affect the rights of the plaintiff, and we do not see how it deprives the original owner from litigating the issues made by him in the case,either in the court in which it is pending when he made the transfer, or in a court to which he tabes it by appeal. He has the right, in the appellate court, still to claim that he was the absolute owner of the land when the suit wasjcommenced, or that the decree of the court as to the amount due him from Wolf, was too small or too large, and that thereby his liability on his covenant of warranty might improperly be affected, and we think that this is warranted by the terms of Section 5012, Rev. Stat., which provide, that “upon any other transfer of interest, the action may be continued in the name of the original party, or the court may allow the person to whom the transfer is made, to be subtituted for him.'1’ No such substitution was made in this case, and in our view Coddington was warranted to defend in the common pleas, and to appeal the case to the circuit court, and again try the questions there. The motion will therefore be overruled.

Millilcin, Shotts & Millikin, for motion.

Judge Hume, contra.


text:
    (Sixth Circuit—Lucas County, O. Circuit Court,
    Jan Term, 1893.)
    Before Bentley, Haynes and Scribner.
    PENNSYLVANIA RAILWAY CO. v. JOSEPH D. MEYERS, AND THE LAKE SHORE AND MICHIGAN SOUTHERN R. R. CO. v. JOSEPH D. MEYERS.

      Personal injury to Railroad employe in consequence of defective car — Railway 'company presumed to have knowledge — Construction of act of 1890, 87 Ohio Laws, p. 149.

    1. Where a defective car is delivered by one railroad to another, and while in the possession of the latter company, one of its employes is injured in consequence of th’e defective condition of such car, both railroad companies are liable to such employe for damages for such injury.
    2. Where the defect in the car is shown, under the Ohio statute of 1890, the fact of such defect constitutes prima facie evidence Of the negligence of the railroad company, which may be rebutted by the R. R. Co. by showing that it had in fact no knowledge of the defect, and was not guilty of negligence.
    Error to the Court of Common Pleas of Lucas county..
   Plaintiff below, an employe of the L. S. &. M. S. Ry. Co., was injured by the giving way of a hand-hold on a car in the company’s yard at Toledo, which car had come into its possession from the Pennsylvania Company at Erie, Pa. Suit was brought jointly against both companies, and a joint judgment rendered against them. The car belonged to the Pennsylvania Co., and was inspected by the servants of said company when delivered at Erie, Pa., to the Lake Shore Co., and by the Lake Shore Co.’s inspector also inspected when received, and was also again inspected by the Lake Shore Co.’s inspector at West Detroit, where the car was received from the Michigan Central Ry. Co., to whom it had been delivered by the Lake Shore Co., under the consignment made by the Pennsylvana Co. The Pennsylvania Co. claimed that if there was any liability to the plaintiff below, the liability was that of the Lake Shore Co. only, who had the sole possession and care of the car at the time of the injury received by plaintiff below. This court holds that the Pennsylvania Co. is rightfully held liable by reason of the condition of the car at the time it was loaded and sent out upon its journey by the Pennsylvania Co., no evidence having been given to show that the company had ever overhauled or examined said car to ascertain its condition or fitness for use prior to its arrival at Erie, Pa. Testimony showed that'the car had been built some sixteen years, and had been in use by the Pennsylvania Co. for thirteen years; the evidence further showed that the woodwork about the hand-liold which had given way, was in a very decayed and defective condition, so that it would not hold the screws, and that evidence of such decay was visible, and that the screws securing the hand-hold were only long enough to go through the outer roof-board, which was of softer wood, and cracked and decayed with long exposure to the weather.

In regard to the Lake Shore Co., it claims that it had the car inspected when it received the same at Erie, Pa., and again in Detroit, Mich., and that it had fully performed its duty in that regard and had no knowledge of the defective condition of the car, and that its inspectors had not been guilty of negligence in inspecting the car. That under the rules of law laid down by the Supreme Court, in Fitzpatrick v. Railroad, 42 Ohio St. 318, it is not liable to its employe, plaintiff below, and that if there was any negligence, it was the negligence of a co-employe, to-wit: the inspector. On the other hand, counsel for defendant in error relies upon the act of the General Assembly of Ohio, see Ohio Laws 1890, page 149, section 2, which section provides, among other things, that when an employe of a railroad company, operating a car in Ohio, is injured by a defective attachment upon a car, such corporation shall be deemed to have knowledge of such defect before and at the time such injury was so sustained, and when the fact of such defect shall be made to appear in the trial of any case in the courts of this state, brought by such employe on account of such injuries so received, the same shall be pi'ima facie evidence of negligence on the part of such corporation.

By the Court: Held, that the true construction of said statute is that said fact of defect being proved, it shall be prima facie evidence of knowledge of such defect and negligence on the part of the corporation, but the corporation may rebut such prima facie evidence by showing that it had no such knowledge, and was not guilty of negligence; and in support of such claim on its part, it may show that by careful and vigilant inspection of the car in question by competent inspectors when it received said car, no such defect had been discovered.

. Held, further, under the facts of this case, that the jury were warranted in finding that sufficient inspection and examination had not been made by the defendant corporation to rebut the prima facie evidence of knowledge and negligence imputed to it by the statute in question.

E. W. Toler ton and E. D. Potter, Jr., for Plaintiffs in-Error.

Scribner & Hurd, for Defendant in Error.

Claim is made that the damages awarded by the jury are-excessive. Upon careful review of the testimony this court-holds that there is nothing in the same to show that the jury were actuated by passion or prejudice in assessing damages. '

Judgment is therefore affirmed.


text:
    (First Circuit—Hamilton Co., O., Circuit Court,
    Jan’y Term, 1896.)
    Before Smith, Swing and Cox, JJ.
    PEALE & BRO. v. BOARD OF EDUCATION.

      Public contract — Surety of contractor completing contract abandoned by contractor — Notice to Board — Inability of Board—
    Where a contractor under a contract with a Board of Education, abandons the contract, and the sureties on his bond, on notice-by the board of such abandonment, thereupon undertake to complete the contract, taking from such contractor a formal assign, ment, in writing, of the contract and of all payments to be made thereunder by the board, which assignment they file with the-clerk of the board, at its office, and then proceed to finish the work, which was duly accepted by the proper officer, who had also-been duly notified of such agreement which was shown him, such notice is binding on the board, aDd where, after such notice, creditors of the original contractor, in a suit against him,garnisheed the board, the board should answer and set out the assignment of the contract and of the payments therefor. And if the board fails-to do so, but pays money on the garnishee process, without setting-up such assignment, or giving notice to the assignee of such contract, it does so at its peril, and will be liable to such assigneeof the contract for the money so paid on such garnishee process-
    Error to the Superior Court of Cincinnati.
   Smith, J.

Peale Bro. sued the Board of Education to recover an amount claimed to be due it, and defendant denied the liability. At the trial of the case the Superior Court at a special term made a special finding of facts, and of law, and rendered a judgment for the defendant, and this proceeding is prosecuted to reverse such judgment.

The finding is a very lengthy one, but I will endeavor to state the substance of it so far as it is materal to do so. In 1888 a contract in writing was made between Laubbert and another, and the Board of Education, for the painting and glazing of one of the school buildings, at the price of $1589.00, and the price was to be paid on estimates made by the Superintendent of Buildings, as the work progressed. That Peale & Bro. gave a bond for the due performance of the contract by the contractors. Soon after the contract j one of the contractors abandoned the contract, and Laubbert, with the consent of the defendant, continued the work under the contract, and received the first installment thereon, and receipted for the same. Soon after this Laubbert abandoned the performance of the contract, being then largely indebted to Peale & Bro. for materials furnished him to do the work, and the defendant notified the sureties that unless the work was proceeded with they would be held liable; that thereupon Peale &Bro. procured from Laubbert a paper addressed to the defendant, whereby in consideration of $800.00 in merchandise furnished, and completion of the unfinished work on the school house, ‘ ‘I hereby assign all my rights and interests in said contract for painting, glazing and varnish-J' ing said school house (before described) to Peale & Bro.;”] and on the same day, February 10, 1890, Peale & Bro. filed] this paper with the clerk of tho Board of Education, at the; office of the Board, and thereafter proceeded to finish the\ work, which was duly accepted by the proper officer, thelj Superintendent of Buildings, who also, on February 10, 1890, was notified by plaintiffs of said assignment, which was shown to him, and he was notified by Peale & Bro. to make no further payments on said contracto Laubbert. That in fact the paper was never laid before the Board at any meeting, by plaintiff, the clerk or said superintendent, and no formal act of transfer of the contract was ever made by any vote of the Board or building committee. But the clerk was the recording officer of the Board, and always kept the account in the name of Laubbert, and drew the warrants subsequently paid to Peale & Bro., in the name of Laubbert.

On February 19, 1890, Peale & Bro. filed with the clerk of the Board an order addressed to the Board, and signed by Laubbert, authorizing Peale & Bro. to receipt for the amounts due under the contract, and Peale & Bro. indorsed on it a memorandum to the clerk, asking to hold the order for them and that they would see that the receipt was signed by Laubbert, and the clerk indorsed thereon: “Look out for garnishee”- — -. After another installment became due on the contract, viz: in March 1890, a creditor of Laubbertsued him before a Justice of Peace, to which suit-Peale & Bro. were not parties, and of which they had no knowledge until after the payment of $60.25 by the Board, which was garnisheed in the cause, and a like-payment was made by it in another garnishment proceeding against Laubbbert, to which Peale & Bro. were not parties, and of which they had no knowledge until after such payment. The amount of this was $145.63. In the vouchers which were subsequently made out in the name of Laubbert, and which were signed “H. H. Laubbert per W. C. Peale & Bro.” those payments so made in the two suits were deducted, but in the final estimate and warrant, Peale & Bro. refused to acknowledge the validity of said payments, and sued for the amount of such two payments which they claim to be still due and unpaid to them.

Robert Fulton, for Plaintiff.

Corporation Counsel, for Defendant.

On this state of fact,if the Board of Education was warranted in making such payments on the garnishee process, the judgment was right. If not, the plaintiffs were entitled to recover.

We are of the opinion that the Board did not have such right. The contract and all rights under it were assigned to Peale &Bro., and the Board of Education was duly and ‘ legally notified thereof, and in fact accepted them, though not! formally, as the contractors, by dealing with them as such.! The fact that.the receipts were signed in the way they were' signed was a matter of no consequence. When the rights of Laubbert therein were assigned to Peale & Bro., and due notice thereof given, the Board could only pay to Laubbert or a creditor of his, even if garnisheed, at its peril. Its duty was, when so garnisheed, to file an answer settingup the facts in the case, and if this had been done, no order could properly have been made for any payment by them. But they did not even notify Peale & Bro. To deprive the latter of the benefit of the assignment under these circumstances would be manifestly unjust, and as we think, is not warranted by the law.

The judgment will therefore be reversed, with costs, and rendering the judgment the trial court should have rendered, there will be a judgment for the plaintiffs for the amount shown on the pleadings and findings to be due to them.


text:
    (Sixth Circuit—Lucas County, O., Circuit Court,
    Jan. Term 1893.)
    Before Bentley Haynes and Scribner JJ.
    JOHN BERDAN et al. v. ALEXANDER D. BROWNLEE.

      Sidewalk — Bight of property owner to obstruct—
    A property owner has the right to the reasonable use of the sidewalk and appliances thereon, for the purpose of receiving and shipping goods at and from his store, and while in the careful and reasonable use of the same, he may lawfully obstruct the walk temporarily, and persons using the [walk must either wait until such temporary hindrance was removed, or [otherwise avoid it; or, if with reasonable care they^couId’pass’over," they must exercise reasonable care in'choosing the manner of passing, and in the act of passing.
    Error to the Court ofJCommon ,Pleas of Lucas County.
   On May 22, 1890, and .long before and since, Berdan & Co., plaintiffs in error, carried on a wholesale grocery business in a building [fronting on St. Clair street in the, city of Toledo, a street 66 'feet wide, with a double track street railway in thejcenter, and a stone walk on each side 15 feet wide, the streets and walks being much used by the public; the building extending^back from the street to the alley in the rear, and having a doorjalso opening on the alley. They received at and shipped from their said building a large amount of grocer’s stock in boxes, packages and barrels over said walk on St. Clair street.

To haul the goods they employed drays which were backed up to the curb stone with the rear of their beds projecting over the outer part of the sidewalk about a foot, and about twenty inches above it. Across the rear of the dray bed was fastened a rod over which hooked irons formed the outer end of the side pieces of a “skid” which was formed of two wooden bars about two by four inches and twelve feet long, and twenty inches apart, and were held parallel to each other by wooden cross-pieces, the other end of which “skid” rested upon an “incline” which was about four inches thick, on the edge next to the door sill against which it lay, and ran to a thin edge about three and one-half feet on the sidewalk outwardly from the door sill, said incline being about seven and one-half feet wide and the inner end of the skid, when in position for loading and unloading goods from a dray, coming up to within about three feet of the door sill, thus forming an obstruction to those passing on that sidewalk entirely across the walk, except a three foot space over said incline around the inner end of the skid.

About one o’clock p. m.-, of said day, which was bright and pleasant, the skid was in said position, hooked on to the back end of a dray loaded with barrels of sugar, which was being unloaded and rolled down the skid into the building. Boxes and bales of goods were piled three or four feet high upon said walk on each edge thereof and for several feet on both sides of the skid, and coming up to within- three and ■one-half to five feet of the side, in such a manner as to leave a clear space three or four feet wide about the middle ■of the sidewalk.

'After two or three of said barrels had been unloaded, it became necessary to swing the inner end of the skid around towards the north (to the right when facing the building) ■partly off said incline, so as to allow a hand truck loaded with goods to pass from the south walk of the skid up said incline to the building. An employe of Berdan & Oo, had thus swung the skid around, and the truck had passed in, when a lady came along said walk from the south and started "to go around the inner end of the skid and across the in-line, but turned when she reached the end of the skid, and went back. The said employe thereupon, being on the south side of the skid, immediately stepped across to the north side of it, turned around, bent over and took hold of the ■skid to re-adjust it to the dray in order that the unloading might proceed, and at that instant the defendant in error, a business man of Toledo for many years, 37 years of age, with health and faculties unimpaired, came along said walk from the north unobserved by said employe, and glancing at the dray and doorway, but without pausing, or looking at either end of the skid, stepped upon it near where said employe then had hold of it, and by reason of its outer and northerly rail not being supported on the dray, on account of its being swung to the north, as aforesaid, it tipped, and the defendant in error fell to the walk and sustained a severe injury to his elbow. The position of the skid, and one rail so as aforesaid unhooked, could have been seen by .him plainly, had he looked at it.

Held, by the circuit court, that Berdan & Co. had a right to the reasonable use of the sidewalk and said skid for the purpose of receiving and shipping goods at and from their store, and that, while in the careful and reasonable use of the same, they might lawfully obstruct the walk temporarily, and that persons using the walk must either wait until such temporary hindrance was removed, or otherwise avoid it; or, if with reasonable care they could pass over, they must exercise such reasonable care in choosing the manner of passing, and in the act of passing.

Held, also, that a verdict against the plaintiffs in error, when the facts, as aforesaid stated, are undisputed, is not warranted by the evidence, and that the judgment should be reversed and the verdict set aside and the cause remanded, to the court of common pleas for a new trial.


author: Hale, J.

text:
    (Eighth Circuit—Cuyahoga Co., O., Circuit Court
    Jan. Term, 1893.)
    Before Baldwin, Caldwell and Hale, JJ.
    CLEMENTIA WHITWORTH v. PETER STEERS.

      Jury Trial — Waiver of right to, Eta.

    The right of trial by jury may be wajved in open court by the conduct of the party amounting to an estoppel.
   Hale, J.

This case is pending here upon a petition in error to reverse a judgment of the court of common pleas. A single-error is relied upon. The plaintiff below, the plaintiff here, commenced an action in the court of common pleas in which he sought to establish his title to the premises described in the petition, and to have the possession of the premises restored to him, with an accounting for rents and profits on the part of the defendant who is now in possession, as he alleges.

JE7. Sowers, for Plaintiff.

James Wade, for Defendant.

The case was tried in the court of common pleas to the court, without the intervention of a jury, and resulted in a judgment for the defendant. Thereupon the plaintiff took an appeal to the circuit court, which appeal, on motion, was dismissed on the ground that the case was one for a jury, not appealable; and after that was done the' plaintiff in error filed his petition in error in this court, alleging that the court below erred in the trial of this case in trying it without a jury. The plaintiff relies upon section 5204 of the statutes:

“In actions arising upon contract the trial by the jury may be waived by the parties, and in other actions with the assent of the court, in the following manner:

1. “By the consent of the party appearing, when the other party fails to appear at the trial, by himself or attorney.

2. “By written consent in person, or by attorney, filed with the clerk.

3. “By oral consent in open court, entered on the journal.”

This court holds, notwithstanding this statute, which is quite explicit, that the right to trial by jury may be waived by the conduct of the party, amounting to a waiver by estoppel, and that the conduct of the plaintiff in this case amounts to such a waiver; that having brought the action and invoking the power of the court to try it, without the intervention of a jury, taking his chances for judgment at the hands of the court, and taking an appeal from the judgment of this court, it is too late for him to predicate error upon the fact that the court tried his case without the intervention of a jury, doing precisely what he asked the court to do. . The judgment is affirmed.