text:
    FRANCHISES
    [Tuscarawas (5th) Court of Appeals,
    February 6, 1919.]
    Powell, Houck and Shields, JJ.

      Newcomerstown (Vil.) v. Consolidated Gas Co. et al.
    1. Gas Franchise Expired Imposes no Obligation to Supply Village.
    A franchise, whereunder a gas company furnished gas to a village and its inhabitants for a specified number of years, becomes at the expiration of the term named an indeterminate franchise, under which the company is not bound to continue to supply gas, but if it elects so to do the rate charged must be the same as during the period in which the franchise was in force.
    2. Adoption of Subsequent Ordinance Granting Renewal of Franchise but on Different Terms not Repeal of Former Ordinance.
    The adoption By the village of a second or third ordinance, granting a renewal of the first ordinance but on different terms, does not repeal the first ordinance by implication and does not become binding upon the company until accepted by it.
    3. Injunction does not Lie to Compel Gas Company to Continue Service under Unaccepted Franchise.
    It follows that where the gas company has not accepted the terms provided in the second franchise, it is at liberty to terminate its connection with the village at any time it sees fit to remove its property therefrom, and an action does not lie to enjoin the discontinuance or an impairment of the service.
    Appeal.

       Affirmed Newcomerstown v. Consolidated Gas Co., 100 O. S. 494.

   POWELL, J.

The plaintiff is the village of Newcomerstown, Ohio, a municipal corporation, and the defendant, Consolidated Gas Co., is a corporation which has been and now is furnishing gas to consumers in that village. It is alleged that the defendant, Walker & Co., have some interest in the property of the other defendant, the gas company.

Plaintiff seeks by this action to enjoin the defendant gas company from discontinuing or in any way impairing its service of gas to the said village and the inhabitants thereof. The gas company claims the right to discontinue its service to said village and to withdraw and remove its property therefrom. The legal rights of the parties, so far as this case is concerned, and their relations to each other are fixed and determined by four separate ordinances passed by the council of said village. The first of said ordinances was passed August 15,1904, and granted to the Consolidated Gas Co. the right or franchise to use the streets of said village in the operation of its gas plant. No question is made as to the legal effect of its terms or as to the service rendered by the defendant gas company under its provisions and terms. This ordinance was accepted in writing by the plaintiff. It is admitted that under the provisions of this ordinance the defendant gas company installed its plant in the village and performed the service required of it by said ordinance until the termination of the time fixed by it for service, at the specified rate provided bjr such ordinance, namely, ten years. It is claimed on the part of the gas company that it continues in the streets of said village, and renders the service that it has rendered to the present time, under the provisions of this ordinance.

The second ordinance was passed by the council of said village in April, 1905, and provided a modification for some of the provisions in the first ordinance mentioned. It also extended the term for which service might be rendered under the rate fixed to ten years after the passage of said second ordinance. This was also accepted in writing by said plaintiff. No question is made that the gas company performed the conditions and carried out the terms imposed by said second ordinance in said village. The ten year period, for which rates were fixed, expired in April, 1915, and the defendant gas company continued in the operation of its gas plant in furnishing gas to said village and other consumers, under said ordinance, until a new ordinance was passed in October, 1915. This ordinance was passed by the council of said village on October 4, 1915, but the same was never accepted in writing by the defendant gas company; and it is contended on the part of the plaintiff that, by the conduct of the gas company relative to said ordinance, an implied contract arises thereunder in favor of the village, by which the gas company was bound to continue to furnish gas to said village and residents thereof on the terms proposed in said third ordinance, while it is contended on the part of the defendant gas company that said ordinance is without any legal effect; that its terms and provisions were never accepted by it, and no contract arose by reason thereof between it and the said village.

The fourth ordinance mentioned was passed by the council of the village of Newcomerstown in August, 1918. There is no contention but that the gas company entered the village of Neweomerstown under the terms and provisions of the ordinance of August, 1904, and continued under the second ordinance passed in April, 1905, as modified, until the end of the ten year period, for which rates had been fixed. It is contended on the part of the gas company that its tenure continued under said ordinances after the ten year period for which rates were fixed, had expired, and that it had never consented or agreed to the terms and conditions of any other ordinance passed by the council of said village and that, so far as its legal rights in said village were concerned, it is governed by the provisions of said two ordinances only.

The court is of opinion that this contention is well taken; that the franchise granted by the first ordinance mentioned is not limited as to time but is indeterminate in duration and constitutes an express contract when accepted, for ten years, the rate or price of gas having been fixed and agreed to for that period; that the ordinance passed in October, 1915, was only in the nature of a proposal to a contract yet to be made, which would necessarily have to be accepted by the party to whom the proposal was made, in order to constitute a valid and binding-contract. This acceptance never took place either actually or by implication. The record discloses that the officers of the gas company appeax-ed before the coxxncil in session and notified them that the terms and conditions of such ordinance would not be accepted by said company, and it is admitted that they were never accepted in writing by the gas company. Said village, however, contends that the ordinances of 1904 and 1905, were repealed by implication, by the ordinance of October, 1915. It is a -universal rule that repeals by implication are not favored, and only occur in case of direct conflict, or repugnancy, existing between two ordinances or statutes, in which case the first ordinance is repealed to the extent of such conflict or repugnancy. No such conflict or repugnancy is found in the ordinance mentioned.

The gas company, however, filed a schedule of rates, as required b3r the public utilities act, with the public utilities commission, and service was continued by it at the new rate without reference to any of the terms, conditions or provisions of said ordinance of October, 1915, and the company continued to operate under this arrangement until the fourth ordinance was passed in August, 1918. This ordinance was not intended to establish a contract between the village and the gas company, but simply provided a regulation on the part of the village by which any person might supply gas to said village or to the inhabitants or other consumers thereof, at the rate of 47c per thousand cubic feet, which was largely in excess of any rate that had before that time been in use in said village. After this ordinance was passed, the gas company again filed a schedule of rates, fixing the same rate that the ordinance had fixed, at which it would supply gas to said village and such others as might desire its use.

It is contended on the part of the village that the ordinance of October, 1915,'repealed the ordinances of 1904 and 1905, and that by reason of the continuance of the gas company in supplying gas to said village, it in effect or by implication adopted the ordinance of 1915, and that it thereby became and is now the basis of the legal rights of the parties to this action.

The majority of the court is of opinion that the village could not enter into a contract by implication under the circumstances shown by this record; that the gas company’s entry into said village was under the ordinances of 1904 and 1905; that no direct repeal of said ordinances has ever been made; that the franchise granted by said ordinances of 1904 and 1905, became, after the expiration of the ten year period, a contract at will, that might be terminated by either party to the contract at any time that such party saw fit to withdraw therefrom; and that such rights as the gas company has in the streets of said village and under said contract are referable solely to tbe ordinances for 1904 and 1905.

It is further contended on tbe part of plaintiff that the action of the gas company in filing its schedule of rates after the passage of the last two ordinances named, constituted an acceptance of the terms of said ordinances on the part of said gas company, under the provisions of Sec. 614-44 Gr. C., which provides that the filing of a complaint by a public utility under the provisions of said Sec. 614-44 would constitute in effect an acceptance of the terms of said ordinances; that by reason of having filed a schedule of rates after the passage of the third and fourth ordinances mentioned, it would be bound by their terms for the period, at least, provided by said ordinances.

The court is of opinion that the filing of the schedule of rates under said two ordinances was not in the nature of a complaint, as contemplated by said Sec. 614-44, but was rather the filing of a rate as provided by other sections of said Public Utilities act, and that it did not, in the circumstances, constitute an acceptance of the terms and conditions of said ordinances of October, 1915, and August, 1918; but that the gas company, from the time it entered said village until the commencement of this action, was there solely under the terms and conditions of the ordinances of 1904 and 1905; and that, as held in the 81 O. S., 33, it became and was an indeterminate franchise after April, 1915, when the ten year period, during which rates were fixed by said two ordinances, was terminated.

We are of the opinion that on the record shown in this case the defendant gas company has the right to terminate its connection with said village' and remove its property therefrom at any time it may see fit to do so; that it is bound, however, while it remains in said village, to supply gas according to the terms of the original contract or by the terms and conditions of the ordinances of 1904 and 1905.

It follows from this finding that the plaintiff is without legal standing in this court and is not entitled to the relief prayed for in its petition.

It further follows that the petition should be dismissed at the costs of the said plaintiff and such order may be entered.

Houck, J., concurs.

Shields, J., dissents.


source: Caselaw Access Project

author: MIDDLETON, J.

license: Public Domain

text:
    JUDGMENTS — PLEADING—PRINCIPAL AND SURETY
    [Cuyahoga (8th) Court of Appeals,
    July 2, 1919.]
    Walters, Middleton and Sayre, JJ.
    Walters, Middleton and Sayre, JJ., of fourth district, sitting by designation.

      Fidelity & Deposit Co. of Maryland v. Cleveland (City).
    1. Effect of General Demurrer when One Cause of Action well Pleaded.
    ■ It is a fundamental rule of pleading that a general demurrer to any pleading, containing two or more causes of action or defenses, may not be sustained if any one cause of action or defense therein is well pleaded.
    2. Surety Entitled to Jury Determination of Representations Affecting His Liability on Contract.
    A surety has the right to have determined primarily by a jury whether representations upon which he claims to have relied to his injury were sufficient to justify an avoidance of the contract of suretyship.
    3. Modifications in Contract Affecting Surety’s Liability Question for Jury.
    Provisions which permit of alterations or modifications of a contract, for the purpose of taking care of conditions and situations arising during the course of the work and which could not be anticipated at the time of making the original agreement, are such modifications as do not increase the liability of the surety. Whether other modifications have resulted in increasing the liability of the surety is a question which he is entitled to have determined by a jury, and if found to be material and to have substantially increased such liability, they are fatal to the right of the obligee to recover on the bond.
    4. Surety not Concluded by Former Judgment were thought Erroneously Dismissed from Action.
    The conclusiveness of a judgment against a contractor and his surety can not be maintained as to the surety, when it was rendered in an action from which the surety had been dismissed, and therefore at the time the judgment was rendered was not a party nor in privity with anyone who was a party; and this is true notwithstanding the order dismissing the surety was probably erroneously entered.

      Tolies, Hog sett, Ginn & Morley, and Hoyt, Dustin, McKeehan & Andrews, for plaintiff in error.

      W. S. FitzGerald, and Alfred Glum, for defendant in error.

       Motion certify dismissed by Supreme Court, December 9, 1919.

   MIDDLETON, J.

It appears from the record herein that on August 22, 1896, the plaintiff in error, the Fidelity & Deposit Company of Maryland, hereinafter designated as the surety company, executed and delivered to the defendant in error, the city of Cleveland, a certain bond in the sum of $262,000, conditioned for the faithful performance of a contract by one W. J. Gawne. This contract was one for the construction of a lake tunnel, which was intended to afford the city a better and purer supply of water. The conditions of the bonds were as follows:

“The Condition of this Obligation is such that, whereas, the above named principal did on August 22, 1896, enter into the foregoing agreement with the said city of Cleveland, which said agreement is made a part of this bond the same as though fully set forth herein:
Now, if the said party of the second part in the said foregoing agreement, shall well and truly execute all and singular the stipulations of said agreement by him to be executed, and shall pay all just and'legal claims for labor performed upon, and for materials furnished for the work specified in the said agreement, then this obligation to be void, otherwise to remain in full force and virtue in law; we agreeing and hereby consenting that this undertaking shall be for the use of any laborer or materialman, having a just claim as aforesaid as well as for the said city of Cleveland, and further, that the parties to the foregoing agreement may, from time to time, and as often as they see fit, make any additions to, omissions from, or modification of the work and the said agreement, which in the judgment of the said parties do not materially increase the liability thereon, without consulting the sureties hereto, and without in any way affecting their liability hereon. ’ ’

Subsequently this action was brought by^he city against the plaintiff in error to recover the full penalty of the bond. The amended petition, on which judgment was rendered in the court below, contains two causes of action. In the first cause of action the city alleges a breach of the contract on the part of the contractor Gawne, and avers violations of the conditions of said contract on his part, the doing of defective work and the use of defective materials, and his refusal to make proper repairs necessitated by such defective work and material, and many other breaches of the contract. The amended petition further alleges that the city was obliged to complete the work by the expenditure of a large amount of money, whereby the contractor and the surety company became indebted to it in the sum of $262,000, with interest from January 1, 1904.

In the second cause of action the city alleges that on April 4, 1905, said contractor began an action in the court of common pleas of this county against the city, in which he claimed a balance due on said contract of $123,147.34; that the city filed an answer and cross-petition in said action and made the surety company herein a party defendant; that said cross-petition set forth the bond aforesaid and the breaches of the contract by the contractor Gawne aforesaid, and asked a judgment against said contractor and against said surety company in the full amount of the penalty named in the bond. It is further alleged in said second cause of action that a summons was issued on said cross-petition and served upon the surety company, and that the surety company thereupon filed a demurrer to said answer and cross-petition upon the ground that there was a misjoinder of parties defendant; that said demurrer was thereafter sustained by the court and the cause thereupon proceeded between the con7 tractor and the city, resulting in a judgment in favor of the city and. against the contractor in the sum of $234,802.85, whereby a judgment is asked against the surety company in the present action for the full penalty of its bonds, amounting to $262,000.

To this amended petition the surety company filed an amended answer containing many defenses, which hereinafter will be noted more in detail. A general demurrer to said amended answer was sustained by the trial court, and the surety company not desiring to plead further a judgment was entered against it for the full amount of said bond, namely, the sum of $262,000 with interest. These proceedings are now prosecuted to reverse that judgment.

From the opinion of the learned trial judge, filed with the briefs herein, it seems that the general demurrer to the amended answer was sustained upon the theory that the judgment obtained by the city against the contractor in the first suit, as set forth in said second cause of action aforesaid, concluded the surety company in respect to all matters litigated in that ease or which might have been litigated; in other words, that the judgment recovered in the first case was res adjwMcata as to all questions of the surety’s liability to the city. The trial court’s conclusions in this regard are stated in the opinion as follows:

“In an action against a surety, where the covenant is that the principal shall well and truly execute all and singular the stipulations on his part to be performed, the judgment in the original ease between the obligee and the principal is conclusive against' the surety, due notice of such suit having been given as to all matters which were or which could have been adjudicated between the obligee and the principal. Such judgment will not conclude the surety from setting up any defense which is purely personal as to the surety or which would relieve the surety from liability on its bond, and the surety may set up a defense for fraud or collusion between the principal and obligee.”

The learned trial court, then applying the law so determined by him to the facts pleaded in the amended answer, held that the defenses numbered two, three, four and five therein dealt with matters which were or might have been litigated in the original suit, and therefore, constituted no defense in the instant action. It may be admitted that all of the facts pleaded in said defenses have to do with matters which could have been litigated in the former action had the surety company the opportunity so to do. But it did not have that opportunity, and as the first cause of action in the amended petition is founded wholly on alleged breaches of the contract by Gawne, and therefore tenders the same issues on the part of the city as were presented by it and determined in the original action, it certainly follows that so long as. the city stands upon this first cause of action these defenses are pertinent and’proper to the issues thus presented. A general demurrer, therefore, to the amended answer as a whole could not properly be sustained. It is a fundamental rule of pleading that a general demurrer to any pleading containing two or more causes of action or defenses may not be sustained if any one cause of action or defense therein is well pleaded. 1 Bates Pleading & Practice, p. 415. For that reason, if no other, a general demurrer to the amended answer should have been overruled.

In the first special defense in the amended answer the surety company pleads that the bond never went into effect nor became binding. It alleges that certain misleading statements were made by the city which affected the risk and which were material to the surety, and by reason of which it should be released from the bond.

Further pleading in this defense it states that the contract between Gawne and the city, made a part of the bond executed by the company, was materially altered without the surety’s knowledge or consent before it was accepted by the city, and that by reason thereof it never went into effect and never was intended to, nor did it, secure the performance of the contract as actually entered into by Gawne and the city. The matters in this defense were held insufficient on the theory that the bond itself provided for the alterations made in the contract before it was accepted, and the misleading statements relied upon by the company as a defense were not material.

We regard the facts pleaded in this defense as sufficient to raise a question for the determination of a jury. The company has a right to have a jury determine primarily whether the misrepresentations it relies upon are sufficient to justify an avoidance of the contract on its part. This defense, however, is subject to a motion to make more definite.

In respect to alterations made in the contract before it was accepted by the city, it is not our conclusion that such alterations are provided for in the bond. The bond does not provide in specific language that alterations may be made in the contract before it is accepted by the city. The manifest purpose of these provisions permitting an alteration or modification of the contract, and of the work to be done thereunder, is to take care of conditions and situations which may arise in the course of the construction of the tunnel and which could not be anticipated in the making of the original agreement. We do not hold that every alteration or modification of this contract after the bond was executed and before the bond and the contract were accepted by the city would release the surety and vitiate the bond. We are, however, convinced that a material alteration or modification in the contract before its acceptance would have that result, and that whether or not such modification increased the liability of the surety is a question for a jury and may not be determined by the city and Gawne under the authority of the bond. This is so because the provisions of the bond relied upon as authorizing such modifications did not become operative until both the contract and the bond were accepted. Both constituted one contract in so far as the liability of the surety was involved. When they were presented to the city no substantial change could be made in either without the knowledge and consent of the surety. "Whether the alterations or modifications complained of were and are material to the'surety is, in our judgment, as before observed, a question for the jury; and if determined by the latter to have been material, and such as to substantially increase the liability of the surety company, they are fatal to any right to recover on the bond. "We are, therefore, not in harmony with the conclusions of the learned trial judge in his determination of the sufficiency of the first special defense.

"We now come to consider what may be regarded as the controlling question in this case. The city’s second cause of action, as before noted, is founded upon a judgment it recovered against Gawne in a prior suit on the contract. To this cause of action the surety company now pleads that, after the filing of the so-called answer and cross-petition of the city in said former suit, it filed a demurrer to said answer and cross-petition, upon the grounds that there was a misjoinder of parties defendant therein, that several causes of action were improperly joined, and that separate causes of action against several defendants were improperly joined in said answer and cross-petition. It alleges further in its sixth defense that a final judgment was entered in said action in favor of it upon said demurrer, from which judgment no proceedings in error were prosecuted and the same became a final judgment in favor of the surety company, and that said judgment still stands unmodified and unreserved. Pleading further it says:

‘ ‘ That by virtue of the foregoing it was not, and should not now be held to be or have been, bound in any wise by any adjudication had or made in said action other than the adjudication made in its behalf upon said demurrer. * * That it should not be in any wise bound by any judgment in said action or proceedings, and that the city of Cleveland is now, by virtue of the judgment entered in favor of this answering defendant upon the sustaining of its demurrer, forever stopped from claiming this answering defendant is or was bound by any adjudication, finding or judgment entered or made against W. J. Gawne in said action. ’ ’

The court below found that the surety company was con-eluded by tbe judgment against Gowne, and could not in the instant case religate any matters which were or might have been litigated in that suit. This ruling is very vigorously attacked by the surety company, and just as strenuously defended by the city.

It would be impossible within any reasonable limits to notice in detail the authorities submitted by counsel upon both sides in support of their respective claims on this question. In a general way it may be noted that many of the eases relied upon in support of the claim of the finality of the former judgment are cases in which the defendant was by law or contract responsible over to the party claiming the conclusiveness of the judgment. The general rule in this character of cases is well stated in 24 American & Eng. Ency. Law (2 Ed.) p. 740, 'et seq:

“Where a person is responsible over to another, either by operation of law or by express contract, for whatever may be justly recovered against such other, and he is duly notified of the pendency of the suit and requested to take upon himself the defense of it and is given the opportunity to do so, the judgment therein, if obtained without fraud or 'collusion, will be conclusive in a subsequent suit against him for the indemnity, whether he appeared or not.
“In such a ease the person responsible over is no longer regarded as a stranger, because he has the right to appear and defend the action, and has the same means of controverting the claim as if he were the real .and nominal party upon the record, and it would be unreasonable to permit him to contest the justice of the claim in the suit against himself after having neglected or failed to show its injustice in the suit against the person he was bound to indemnify.”

Clearly, the instant case is not within the letter or reason of this rule. The surety’s obligation here is a direct obligation to the city, which was the plaintiff, and not to Gawne, who was the defendant, in the former action. The surety company owed no duty to Gawne to defend the former suit, and it had no opportunity in that suit to defend against its own liability. Under the plain terms of its bond it made itself directly responsible to the city for the faithful performance of the contract by Gawne, and upon a breach thereof by him the city had a right of action against it, which action might be either joint or several.

In the case of Walsh Construction Co. v. Cleveland, 63 Bull. 197 (16 O. L. R. 62), in the United States court, northern district of Ohio, eastern division, a bond, identical in every respect to the one involved in the instant case, was before the court for construction upon a demurrer to the cross-petition, which demurrer was based upon the same grounds as the demurrer of the surety company in the original case against Gawne. Judge Westenhaver, in discussing the liability of the principal and surety under the bond, says:

“The fundamental assumption of this argument is that the construction contract and the performance bond are separate and independent contracts. This assumption can not be admitted. On the contrary, these several documents are expressly made a part of the same contract. They were all executed at the same time upon the same consideration, and for the same purpose, and took effect by a single delivery. As a result there is in law but one contract. A simple test of the question presented, is whether or not an original action against the Walsh Construction Co. and its surety could be maintained on the third cause of action set up in the cross-petition. Such an action on well settled legal principles could undoubtedly be maintained without first compelling- the obligee to sue the principal on the contract and exhaust his remedies against him. Both defendants have agreed jointly and severally to perform all the terms of the construction contract. They are in law joint and several contractors and obligors. The surety’s obligation is not that of an indemnitor or of a collateral guarantor against whom no action can be brought without demand or notice or until after failure to collect from the principal; the obligation is an absolute and unconditional one, binding both principal and surety for the full performance of each and every one term, condition and requirement of the contract. A joint or separate action might at common law and under Secs. 11256 and 11258 G. C. be brought thereon. Stage v. Olds, 12 Ohio 159; Neil v. Agricultural & Mech. College, 31 Ohio St. 15; Saint v. Wheeler & Wilson Mfg. Co., 95 Ala., 362 [10 So. 539; 36 Am. St. 210].”

This able interpretation of the rights and liabilities of the parties to a contract of the kind involved here is, in our judgment, a correct statement of the law.

Many cases have been examined by us in which, under bonds of the kind involved here, a judgment of a materialman against the obligee was held conclusive against the surety. The conditions surrounding cases of that kind, however, are entirely different from the circumstances here. In those cases there was a responsibility over; that is to say, the obligee of the bond was the defendant in the original suit, and therefore should not be' compelled after he had given notice to his surety to relitigate the claims made against him. We have also examined very carefully the case of McConnell v. Poor, 113 Iowa 133 [84 N. W., 968]. This case appears to support the contention of the 'surety company in the instant case. It is there said:

“The defendant in the ease at bar was not a party to the contract, nor could he have insisted on being made a party to the action between Evans and McConnell thereon. The latter might have brought suit against both principal and surety on the bond; but he chose, as was his right, to base his action on the contract alone. Even if these might have been regarded for some purposes, as one instrument, the appellant elected to treat them as distinct and separate by basing his suit against Evans solely on the contract, and that against Poor on the bond. The surety may require the principal to defend, for this is his duty; but the surety owes no obligation to defend him. * * * Privity, says Greenleaf, denotes mutual or successive relationship to the same right of property. Privity in law involves the right of representation, and certainly the principal, in an action against himself alone, may not represent the surety. ’ ’

In the case of Friend v. Ralston, 35 Wash. 422 [77 Pac., 794], it was held that a judgment obtained in good faith by the owner of the building against the contractors for breach of the conditions of the contract, is conclusive against the surety in an action to recover on the bond if there was no fraud or collusion in obtaining the first judgment. This case discusses the case of McConnell v. Poor, supra, and the court in referring to the latter case say:

“The case of McConnell v. Poor, 113 Iowa, 133, is an authority upon which appellant places its principal reliance, but we fail to discover wherein it is in conflict with the conclusion heretofore declared respecting this feature of the present controversy. Notwithstanding the statement in the syllabus, the case fails to show that the surety had notice of the prior suit against his principal, or was given any opportunity to appear and defend such action, and it further appeared that the plaintiff had elected to treat the bond and contract as separate instruments for the purposes of the litigation. The able court properly held that a judgment rendered in favor of the obligee for breach of the contract against the principal did not estop the surety, when sued on the contractor’s bond.”

A consideration of .all the cases will disclose, we think, that the courts have been inclined to base their conclusions in each case on some particular facts involved, and were not inclined to apply any infallible rule or doctrine of law. This we are disposed to do in the instant case, because it presents certain facts which are not to be found in any of the cases cited and which, in our judgment, removes it from the operation of any general rule which has been applied in other cases. We are, however, inclined to the opinion that there is no more foundation for the claim of the city of the conclusiveness of the former judgment than there would be if that judgment had been recovered against Gawne upon a joint and several promissory note, executed by Gawne and the surety company, instead of the contract and bond in this case.

Where the rule of the conclusiveness of a former judgment has been applied by the courts they all agree that two things must be present: first, there must have been a notice to the surety of the pendency of the original suit, and the surety must have had the opportunity to defend. In the instant ease the last essential element is lacking. The surety company in the suit against Gawne had no opportunity to defend. The court in that case, in ruling upon the demurrer, said to it in so many words: “You are a stranger to this action. You can not be heard in this suit. Your liability to the city of Cleveland is not a joint liability with Gawne, but it is a several liability, and the city can only assert its claims against you in a separate and independent action. ’ ’

The amended answer avers that the judgment on the demurrer is still in full force, unmodified and unreversed. While the answer does not plead upon what ground the demurrer was sustained, that is immaterial as all were directed to the question of a joint liability, and whether it was sustained on all the grounds or only one of them the result is the same. It was a determination by a court of competent jurisdiction that the liability of the surety company under its bond was a several and independent liability. It was a determination, in other words, of all the matters legitimately involved in a consideration of the law invoked by the demurrer, and was and is conclusive against the city. It is now urged that this judgment was erroneous. In that contention we fully concur; but if erroneous, it is none the less binding and effective. It is said in Peck v. Jenness, 48 U. S. (7 How.) 612-624 [12 L. Ed. 841],

“It is a doctrine of law, too long established to require a citation of authorities, that where a court has jurisdiction it has the right to decide every question which occurs in the case, and whether its decisions be correct or otherwise its judgment, till reversed, is regarded as binding on every other court.”

It was once said by an eminent judge in commenting upon the finality of a former adjudication that a judgment of a court of competent jurisdiction, if based upon erroneous notions of law or founded upon false evidence, was, nevertheless, when rendered by the court, the “infallible truth.” These principles, however, are elementary. The judgment on the demurrer in the original suit determined conclusively the manner or mode by which the city could then and thereafter enforce its rights against the contractor and the surety company. It was an adjudication by a court of competent jurisdiction of all the remedies available to the city in respect to any claim it might desire to assert against the contractor and his surety growing out of the breach of the contract by the former. It was not, of course, a judgment on the merits of such a claim, but it was a determination against the city in respect to its right to prosecute a joint action against Gawne and the surety company; and, right or wrong, this court and other courts are bound to observe it in subsequent litigation between the same parties in respect to the same subject-matter. This being so, upon what theory may the city now plead the law of res adjudicaba against the surety company. It was not a party to the former suit when the judgment was rendered; nor, under the ruling of the court, was it in privity with anyone who was a party at the time the judgment was rendered. Privity, as declared in McConnell v. Poor, supra, involves the right of representation. If the surety company could not represent itself in the original action, how may it now be claimed that it was represented by Gawne ?

We are impelled to conclude that the judgment in the original ease, dismissing the surety company from that suit, while erroneous, is nevertheless binding upon all the parties to this suit, and therefore completely estops the city from now claiming any adjudication in the former case of the merits of its claim against the surety company. That judgment confined the city to a several action against the surety company, in which any and all defenses affecting or relating to the latter’s liability are available to it. In other words, the city must now prosecute its claim against the surety company as if the judgment against Gawne in the original action ‘ ‘ is not and never was. ’ ’

An amendment to the petition in error was filed, and a motion to strike this amendment from the files was submitted to the court. Under our conclusions in this case we regard this amendment now as immaterial and that the motion should be sustained. One of the things which the amendment sought to bring into the ease was the insufficiency of the amended petition. As the case must now be retried, we would suggest that the first cause of action in the amended petition be amended so as to show a performance by the city of all the conditions of the contract on its part to be performed. We regard the first cause of action in the present amended petition defective in that respect.

In view of the foregoing considerations, the demurrer to the amended answer should have been overruled and the judgment of the lower court, therefore, in sustaining the same is reversed, and the case is remanded to the court of common pleas of this county for further proceedings according to law.

Walters and Sayre, JJ., concur.


author: POWELL, J.

text:
    APPEAL
    [Licking (5th) Court of Appeals,
    October Term, 1918.]
    Powell, Houck and Shields, JJ.

      Newark Nat. Gas & Fuel Co. v. Newark (City) et al.
    1. Petition for Modification of Decree to Adhere to Gas Rates not Appealable.
    A petition for modification for a decree and finding by the court of appeals, provision for a modification should it be shown to _be necessary being found in the decree, is not an original and independent action, but rather an additional proceeding in the original action, and is not appealable.
    2. If Treated as Original Action not Appealable Being Action for Money Only.
    Moreover, if such a proceeding were to be treated as an original and independent action, then it would in the case at bar become an action for money and not a chancery case, and would not be appealable for that reason.
    Appeal.

      8. M. Douglass and J. B. Fitzgibbon, for plaintiff.

      Henry C. Ashcraft, Frank A. Bolton and Edward Eibler, Sr., for defendants.

       Opinion below see, Newark Nat. Gas & F. Co. v. Newark, 31 Dec. 44

   POWELL, J.

A motion has been filed to dismiss this appeal and the case is presented to us on this motion and the briefs of counsel.

This is the second case between the parties to this proceeding, the first having been commenced in March, 1911. Newark v. Newark Nat. Gas & F. Co., 35 O. C. C. 94 (3 App. 383; 20 N. S. 254). The original case was an action for mandatory injunction to compel plaintiff to comply with the ordinance of March 6, 1911, fixing a rate for the sale of gas to the inhabitants of Newark and to the city itself. The defendant, Metz, was appointed receiver in the original case by agreement of parties; his duties were to collect and keep until final order was made the amount of the difference between the original franchise rate allowed to the plaintiff and under which it was supplying gas to the city, and the rate under the ordinance of March 6, 1911. In that case judgment was given to the city as prayed for, both in the court of common pleas and in the court of appeals, on appeal to that court. The latter judgment was affirmed in the Supreme Court of Ohio, Newark Nat. Gas & F. Co. v. Newark, 92 Ohio St. 393 [111 N. E. 150], and later by the Supreme Court of the United States. Newark Nat. Gas & F. Co. v. Newark, 242 U. S. 405 [61 L. Ed. 393], It was finally determined on January 8, 1917.

The judgment in the original ease, as entered in the court of appeals, contained a provision as follows:

“This finding and decree of the court is made, however, without prejudice to the right of defendant company at any time to apply to a court of competent jurisdiction to modify said finding, if at any time it should appear that said rate of eighteen cents net does not render an adequate return to said defendant company. ’ ’

The petition in the present case is based upon this reservation or exception in the judgment of the court rendered in the original action, together with such averments as show that plaintiff was entitled to recover the proportionate amount due for the time covered by the rate of March 6, 1911, to the time when settlement was made between the parties by an agreement upon the rate between the city and the said plaintiff. The amount claimed is $29,434.63.

A hearing was had upon the issue joined in the present case resulting in an order dismissing the petition on the ground, first: that the court of common pleas was without jurisdiction to entertain the action; and second: that the proof was insufficient to sustain the averments of the petition. An appeal was taken from the judgment of the court of common pleas to this court.

After an extended and somewhat careful examination of the record in this case this court is of the opinion that the motion to dismiss the appeal herein should be sustained.

First: This is not an original and independent action, but is an “additional proceeding in the original action.” It is not an action to impeach the judgment in the original action for fraud, but is one to modify or vacate a proportionate part of that judgment by reason of a changed condition of fact. The right to maintain such proceedings was reserved in the original judgment as well as authorized by statute. Section 11631 G. G.

That the petition and summons did not make a new action see Misner v. Misner, 41 Ohio St. 678.

Additional proceedings in an original action are not appeal-able. Taylor v. Fitch, 12 Ohio St. 169.

One appeal has already been had in the original action.

Second: If this case can be regarded as an original and independent action, then it was commenced in the wrong court. The judgment sought to be vacated or modified was recovered in the court of appeals of this county in an action pending in said court on appeal from the court of common pleas. This action was commenced in the court of common pleas to modify the judgment of the court of appeals.

We think the court of common pleas is without jurisdiction to vacate or modify the judgment of the court of appeals. The petition pleads a continuing order and thereby avoids the effect of an answer of res adjudieata, but an action based on a continuing order is not an original and independent action, nor is it “the civil action” of the code, but is incidental to and part of the original action and is not appealable.

Third: If this action is original and independent, it is an action for money only, and not in chancery, and for this additional reason is not appealable.

Upon the grounds stated, the appeal will be dismissed.

Houck and Shields, JJ., concur.


author: WASHBURN, J.

text:
    MASTER AND SERVANT
    [Cuyahoga (8th) Court of Appeals,
    October 17, 1919.]
    Dunlap, Vickery and Washburn, JJ.
    Fred Napoli v. Standard Parts Co.
    Fact of Protection of Emery Wheel is for Jury in Personal Injury Case.
    When the issue of proximate cause is made an issue by the pleadings, the trial court without any facts cannot determine the issue. Hence, in an action for recovery of damages on account of injury to a workman from the bursting of an emery wheel which he was operating, the question whether an accident of that character can be attributed to the failure of the employer to comply with the statute requiring that such wheels be covered with a sheet or cast iron hood or hopper to prevent dust or refuse from rising therefrom, is one which should be determined by the jury from the facts and circumstances of the case, rather than from any narrow construction by the court of the purpose of the law, and the plaintiff in such a case should be given an opportunity to prove that the cause of his injury was the absence of such an appliance.

      Gilbert Morgan, for plaintiff iu error.

      Day, Day & Wilkin, for defendant in error.
   WASHBURN, J.

This was an action in which Fred Napoli sought to recover damages for an injury received while in the employ of the Standard Parts Co. The injury was caused by the bursting of an emery wheel, a piece of which struck him in the throat. The Standard Parts Co. employed more than five employes and complied with all the requirements of the workmen’s compensation act.

Napoli, therefore, could not maintain such suit unless such injury arose from the failure of such employer to comply with a lawful requirement for the protection of the lives and safety of employees. See. 1465:76 G. C. Napoli claimed that such was the case, and that the injury to him was caused by the failure of the Standard Parts Co. to comply with the requirements of Sec. 1027, which required the emery wheel in question to be provided “with a sheet or cast iron hood or hopper of such form and so applied to it that the dust or refuse therefrom will fall from such wheels or will be thrown into such hood or hopper by centrifugal force and be carried off by the current of air into a suction pipe attached to such hood or hopper. ’ ’

The case came on for trial, and the court sustained an objection to any evidence and rendered judgment for the Standard Parts Co. on the ground that the lawful requirement referred to was for the purpose of protecting its employees from dust or refuse and not from the bursting of the emery wheel.

It must be conceded that Sec. 1027 requires the installation of dust or refuse removing apparatus, but Napoli claimed that if such apparatus had been provided, it would have not only have protected him from dust and refuse from said emery wheel, but would also have protected him from injury from the bursting of the emery wheel — in other words, that the absence of such apparatus was the proximate cause of his injury.

No evidence having been permitted, we have no facts before us by which we can form any opinion as to whether or not such apparatus would have afforded him any protection from injury from the bursting of said emery wheel.

Proximate cause is usually a mixed question of law and fact for a jury to determine, and in no event can a court determine it without any facts where the issue is made in-the pleadings.

So that this case falls within the familiar rule that evidence as to this issue should have been permitted, unless the contention of the Standard Parts Co. is correct, — that the statute being for the purpose of preventing injury from dust or refuse, it can not, as a matter of law, be considered as a lawful requirement for any other purpose. We can not accede to .that proposition. If an apparatus is required which will afford protection against a certain kind of injury, and if it will also protect against another kind of injury, we perceive no good reason why it is not a lawful requirement as to both kinds of injuries.

Whether or not this apparatus would have afforded protection against injury from the bursting of the emery wheel, and whether or not the injury in this ease was caused by the employer’s failure to provide such apparatus, is the very question at issue which we hold should be determined upon the facts rather than by a narrow construction of the purpose of the law.

We are cited to former decisions of this court holding that a statute requiring certain machinery to be protected by a guard to prevent the operator coming in contact with the machinery did not require guard to prevent parts of the machinery from flying off and injuring the operator. Marble & Shattuck Chair Co. v. Dubroy, 42 O. C. C. 257 (17 N. S. 515). That case differs from the case at bar in that the facts were before the court, and it further appears that the court found that “it would be impossible to conceive” of the machine being so guarded that the accident “would or might not have happened.” It is apparent that the facts in that case disclosed to the court that the guard required could not have prevented the accident and that, therefore, failure to have the guard could not be the proximate cause of the accident.

We are also cited to another case in which this court determined the same law requiring a guard to prevent injury to persons coming in contact with machinery does not require such machinery to be so guarded as to prevent injury from material or particles being thrown off from such machinery. Kump v. Kilby Mfg. Co., 43 O C. C. 156 (18 N. S. 453). But the evidence was also before the court in that case, and moreover, after the first case cited above was decided the Legislature made a significant change in the statute by requiring that guards and appliances be provided to “prevent injury to persons who use or come in contact with machinery. ’ ’ That is now the language of the law declaring the purpose of the lawful requirement in the case at bar.

The purpose is to prevent injury to persons who use or come in contact with machinery, not any particular kind of injury but injury generally, any injury which the appliances required would prevent.

Our attention is also called to another case decided by this court holding a violation of a statute prohibiting the employment of a minor to operate an elevator can not be the proximate cause of injury to the minor. Schaber v. Hinig, 43 O. C. C. 128 (18 N. S. 414).

That case presents a much different question than is presented by the ease at bar, and it is to be noted that in that case also the facts were before the court, and, moreover, it does not appear that in deciding the case it was necessary to promulgate the above proposition of law; in fact a judgment for plaintiff was affirmed in that case.

"We are further cited to Slaline v. Cincinnati Sand Blast Co. 31 O. C. C. 390 (12 N. S. 208). In that case, as in all of the other cases cited, the facts were before the court. None of them sustain the proposition that where the issue of proximate cause is made by the pleadings, the trial court, without any facts, can determine that issue. In the case at bar, the petition liberally construed, alleges that the statute required protecting appliances to be attached to the emery wheel in question for the purpose of preventing injury to plaintiff, and that the absence of such appliances was the cause of plaintiff’s injury. These allegations were denied in the answer. The plaintiff should have been given an opportunity to prove that the absence of the required appliances was the cause of his injury, and for error in sustaining the objection to any evidence and rendering judgment for the defendant, the case is reversed and remanded for further proceedings according to law.

Dunlap and Vickery, JJ., concur.


author: HOUCK, J.

text:
    SALES
    [Muskingum (5th) Court of Appeals,
    1919.]
    Houck, Shields and Patterson, JJ).
    Harley B. Warne v. Herman T. Bond.
    Representations by Seller as to Soundness of Horse Sold Constituting Express Warranty under Sales Act.

      Assurances given the purchaser by one selling a horse, that the animal was sound in every way and especially was free from any disease of the eyes and that both of the eyes of said horse were sound, are sufficient to constitute an express warranty under the sales act.

      Harry G. Shepherd- for plaintiff in error.

      H. W. Kuntz for defendant in error.
   HOUCK, J.

The petition (below) alleged a warranty of the soundness of a horse sold by Warne to Bond, a breach of said warranty, and as a result thereof damages to said Bond in the su n of $125.

The answer contained two defenses: first, a £ eneral denial; second, that at the time Bond purchased said horse of Warne, he knew the eyes of said horse were defective.

The reply denied the second defense of the answer. Upon these issues the cause was submitted to a jury and a verdict was returned in favor of Bond for the sum of $90. The trial judge overruled a motion for a new trial and entered a judgment on the verdict.

Counsel for plaintiff in error urges that an inspection of the record will disclose the following errors prejudicial to the rights of his client, and seeks a reversal of said judgment so entered:—

(a) That there was no legal proof establishing the alleged warranty.

(b) That the trial court erred in its admission and rejection of testimony.

(e) That the judgment is against the weight of the evidence.

We have read the entire record in this case and, therefore, are familiar with the proven facts as well as the rulings of the trial judge, on his admitting and refusal to admit certain testimony offered during the progress of the trial.

As to the first ground of alleged error, we will say that the recovery in this case is based upon an express warranty in this, to wit: that the horse in question was sound in every way and especially was free from any disease of its eyes and that both eyes of said horse were sound. Express warranties are those stipulations and promises, with regard to the condition or general or particular qualities of the article or property sold, which the seller makes to the buyer in express terms, at the time of the sale.

It is claimed that the words and language used by the seller, at the time of the transaction, were not sufficient, in law, to constitute an express warranty. The law does not draw a close line in this respect; no particular words are necessary. Any language, statement, assertion, or act on the part of the seller, in the present case, going to the soundness of the horse in question, if they were intended by Warne, and understood by Bond, as a warranty as to the soundness of said horse, must be considered as such.

The question is, did the words and language used, at the time of the sale, fairly and reasonably indicate an intention, on the part of Warne, to warrant the horse sound, and did Bond so understand it? This was a question of fact and éntirely within - the province of the jury and for its determination. This was done, and we think its response is in full accord with the facts and the law.

The testimony of Warne, the defendant below, clearly was such as to satisfy the jury as to the warranty as claimed by Bond.

We hold that, in fact and law, an express warranty was established. The “Sales Act,” Sec. 8392 G. C., reads:

“An affirmation of fact or any promise by the seller relating to the goods is an express warranty if the natural tendency of such affirmation or promise is to induce the buyer to purchase the goods, and if the buyer purchases the goods relying there-0I1 # # *

This statutory rule of law, when applied to the undisputed facts now before us, is decisive of the real question presented, namely: Was there an express warranty as to the soundness of the horse? and but one answer can follow, Yes.

How stands the claim as to the second alleged error:

An inspection of the record here presented satisfies us that no prejudicial error exists as to the rulings of the trial court in the admission and rejection of testimony.

As to the third ground of error, is the judgment, as entered here, against the weight of the evidence ? This we answer in the negative. The judgment is amply supported by the facts as well as the law is applicable to them.

The record being free from prejudicial error, the judgment of the common pleas court must be and hereby is affirmed.

Shields and Patterson, JJ., concur.


author: SHIELDS, J.

text:
    GUARDIAN AND WARD — LIMITATIONS
    [Tuscarawas (5th) Court of Appeals,
    February 12, 1919.]
    Houck, Shields and Patterson, JJ.

      State ex rel George W. Clark et al v. James M. McClelland, Gdn.
    1. Citation against Sureties; Lies on Application of Wards Without Determination of Amount of Guardian's Default.
    When a guardian has failed for a long period to file an account showing the condition of his trust, and his wards are without knowledge as to the amount of money which has passed through his hands, and a summons issued for him at their instance on a citation to file an account is returned “not found,” application lies by the wards to the probate court for a citation against the sureties on the bond of the guardian as a preliminary step to enforce an accounting as to the amount of his default.
    2. Running of Ten Years Limitations on Bonds of Guardians.
    The ten years statute of limitations on the bringing of suits on the bonds of guardians does not begin to run until the right of action accrues — that is from the filing of the final account, or an ascertainment as to the amount unaccounted for by the guardian.

      H. I. N. Stafford and Welty & Burt, for plaintiff in error.

      W. V. Wright, for defendant in error.

       Affirmed McClelland v. State, 101 Ohio St. 42.

   SHIELDS, J.

It appears by the record herein that on March 16, 1893, the defendant in error, James McClelland, was duly appointed guardian of the persons and estates of the relators, George W. Clark and Bertha Clark, minors, by the probate court of Tuscarawas county, Ohio; that a bond in the sum of $150 was then given by the said McClelland as such guardian with the defendants in error. David Whitmire and Henry Centavin as sureties thereon, and that an additional bond in the sum of $500 was given by him as such guardian in the year 1895, by order of said probate court, with the defendants in error, Herbert A. Wright and Lyman Hardman as sureties thereon; that at the time of said appointment the said George W. Clark was ten years of age, October 3, 1893, and the said Bertha Clark was twelve years of age, May 5, 1893, both of whom were then entitled to receive a pension from the United States Government, and which fact was entered of record in said probate court at the time of said appointment; that no account has been filed by the said McClelland as such guardian from the time of his said appointment; that on January 2, 1918, a citation was issued by said probate court to the said McClelland as such guardian to file an account of his guardianship in said court upon a date therein named, and a summons was thereupon issued upon said citation for him directed to the sheriff of Cuyahoga county, Ohio, which was returned indorsed “not found”; that afterward and on February 8,1918, an application for a writ of citation to issue against the said Herbert A. Wright and Lyman Hardman, sureties as aforesaid, was filed in said probate court to file an account in the matter of said guardianship, when the said Hardman filed an answer to said application setting up, among other things, the following:

“This defendant further says that the older of said wards, ■Bertha Clark, became of full age on May 5, 1899, and that the younger of said wards, George W. Clark, became of full age on October 3, 1904, and that as the time for filing the said application for a writ of citation did not accrue within ten years next preceding the date of filing the same, the. said application is therefore barred by the lapse of time and the statute of limitations in such case made and provided.”

And that upon a hearing had upon said application to issue said writ of citation said probate court held:

“That the said application and motion on the part of relators to procure an accounting at this late date is barred by lapse of time and the statute of limitations in such case made and provided, and it is further ordered and decreed that the several applications and motions heretofore filed in this court by the said relators requiring and demanding an accounting of said guardianship be and the same are hereby dismissed at the cost of said relators.”

Error was prosecuted to the common pleas court of said comity from said judgment, which said court affirmed said judgment of the probate court, not, however, upon the ground that said relators were barred by the statute of limitations, but because said application was open to the objections that it did not definitely state the amount then due and owing to said relators by said guardian so that said probate court, if it found it necessary to render a judgment, might do so for the amount appearing due in the application made. A petition in error was thereupon filed in this court to reverse said judgment.

The facts in the case are not disputed. If the action here was an action to compel the sureties on a guardian’s bond to account for a default made in the payment of trust funds by a guardian, the law is well settled that before such action could be maintained there must be a finding and adjudication by the probate court of the amount due on final account to be filed by the guardian. Newton v. Hammond, 38 Ohio St. 430.

But the view we take of the question made by the record before us does not involve the preliminary steps necessary to be taken for suit against the sureties on this bond, but relates solely to the legal right of the relators to,file an application for a writ of citation to issue against the sureties on said bond to account for the default of said guardian. Failing to get service of process on the guardian, resort was had to proceedings instituted against the sureties, and it was upon the commencement of such proceedings, namely, the application filed for a citation to issue against the sureties that the right of the relators is challenged — challenged by an answer filed by one of the bondsmen wherein he pleads the statute of limitations as a bar against the right of the relators to have such writ issued.

As already indicated, the probate and common pleas courts appear to have entertained widely divergent views of this case, the former holding that the statute of limitations operates as a bar, the latter holding that it does not, but rests its affirmance of the judgment by the former on other grounds. Under the general powers incident to the jurisdiction conferred on probate courts in the matter of guardian accounts and the duty enjoined upon such courts by law to guard and protect the interests of minors, we do not incline to the opinion that a case where such interests are endangered by a long continued violation of duty on the part of the guardian that such courts are not authorized to act upon an application filed for a writ of citation to issue for such guardian to account, unless said application shows the amount appearing to be due from said guardian under said trust.' We think that the application is but a preliminary step to enforce such accounting and that a statement of the fact that the guardian is or has been delinquent of duty is sufficient. As was said by Judge Mcllvaine in announcing the opinion of the court in the case already cited when discussing the powers of probate courts and the duties of guardians.

“All these considerations show the wisdom and propriety of the rule which requires the settlement of guardians’ accounts by the probate court, which, for that purpose, possesses all the powers of a court of equity, instead of a jury, which does not possess such facilities.”

Here it appears that the guardian never filed any account since his appointment and it was not known to the relators, nor had they any means of knowing at the time said application was filed of the amount of pension money collected by him for his said wards. In the application made for the appointment as such guardian by said McClelland, who made oath to the same, the statement therein shows that the property of said wards “consisted of an interest in a pension claim, the value of which is indeterminate. ’ ’ Hence in view of what the record shows they were not then advised of the status of said guardian of said trust in respect to the amount of pension moneys collected by him and with which he was chargeable as such guardian.

We think that said probate court was also in error in dismissing said application. Section 11226 G. C., provides that,

“An action on an official bond, or undertaking of an officer, assignee, trustee, executor, administrator, or guardian, or on a bond or undertaking given in pursuance of statute, shall be brought within ten years after the cause thereof accrued. ’ ’

In the case of Newton v. Hammond, Supra, it was held that,

“A right of action on a guardian’s bond to recover from the sureties the amount remaining in the hands of the guardian, first accrues to the ward when such amount is ascertained by the probate court on the settlement of the guardian’s final account.”

And in the opinion of the court in said case it was said “that an accounting must precede judgment is clear from the fact that the amount of the judgment can not otherwise be ascertained.” The reason for this statement requires no elucidation for it is evident that until a finding is made by the court of the amount due under his final account filed, there can be no way of ascertaining the liability of his sureties. It is then that the right of action first accrues. But the sureties make reply and say that the statute provides that unless suit is brought within ten years, etc., they are discharged from liability. But the same statute likewise adds “after the cause thereof accrued.” It is not difficult to understand that there may be cases where the neglect of duty by a guardian may entail liability upon sureties, but it must be remembered that such risk is incurred by the relation they voluntarily see fit to assume. And in this case it may be said that if these sureties had cause to apprehend loss through the neglect or failure of a guardian to perform duty, the law afforded them an opportunity to protect themselves. They are not permitted to sign a bond and thereby say to the court and those interested in an estate that they will be answerable for the conduct of a guardian who later on may be found to be derelict of duty, and then escape liability on their bond, unless it is made to appear that they are clearly entitled to the benefit of the statute referred to. Probate courts were established to protect the estates of orphans. It is in a certain sense a trustee designated by the law to look after and protect the interests of the living and dead, and in a rigid and faithful execution of the duties of said office by the incumbent thereof is the only hope of a trusting public. Under the law the probate judge is the person who appoints the person or persons to administer estates; he is the person who fixes the amount and passes upon the sufficiency of bonds to be given for the faithful performance of the trust; and he is the person whom the law designates as the person to see to it that all duties devolving upon guardians under the law are faithfully carried out, either with or without complaint first made. Section 10939 provides,

‘ ‘ The court by which a guardian is appointed, shall enforce the return, at the prescribed times of all inventories and accounts required to be filed therein by him, and enforce the performance of all other duties devolving upon guardians appointed by it, either with or without complaint first made; and thereupon make and enter such judgments and orders as are reqrdsite in any ease to promote the faithful and correct discharge of such duties, or to preserve the estates of minors for whom guardians were appointed.”

“With or without complaint first made.” Charged by the law with the supervision of estates as he is, and “to preserve the estates of minors for whom guardians weré appointed, ’ ’ it would seem that a duty rests upon the probate judge in cases like the one under consideration, and' if such view is correct, ought minors of tender years pay the penalty of such failure of duty in later years? The above statute is cited simply to illustrate the solicitude shown by the law and the care required by it in the administration of estates of minors. The statute is both a humane and just one, and when such estates are taken over and given into the charge and control of others, the latter should be held to a strict account in performing a “faithful and correct” discharge of duty, and the sureties of such person or persons pledging, as they do, their property for such discharge of duty, should be held to the letter of their suretyship contract.

Counsel for defendants in error argued and cited in his brief cases wherein it is held that the limitation of suit on an administrator’s bond is fixed at ten years from the time action accrues, which under the application of the rule laid down by the Supreme Court in this state, as we interpret it, is ten years af ter a final account is filed when the statute of limitations begins to run, and not till then. While it is unnecessary to here state that the statutes in all jurisdictions pertaining to the administration of estates, including the limitation of time in which suits may be had on bonds of administrators and guardians are not the same, and while the statutes of this state have undergone change in this respect by amendment from time to time and the powers of probate courts enlarged, we are of the opinion that the proceeding instituted in the probate court to compel an accounting by these sureties was a proper exercise of the powers incident to the jurisdiction conferred by law on probate courts, and that said court erred in dismissing said proceedings for the reasons hereinbefore stated.

The judgment of the court of common pleas in affirming the judgment of the probate court will be reversed and said cause will be remanded to said probate court for further proceedings.

Houck and Patterson, JJ., concur.


author: JONES, J.

text:
    MUNICIPAL CORPORATIONS
    [Warren (1st) Court of Appeals,
    May 25, 1917.]
    Jones, Gorman and Hamilton, JJ.
    Robert A. McCutcheon v. Franklin (Vil.)
    Necessary Declaration by Council in Ordering Public Improvement.
    The requirement found in amended Sec. 3812 G. C. that, in authorizing an improvement, council shall find and declare not only the necessity therefor hut also that it will conduce to the public Health, convenience or welfare, has reference to the improvement of ditches, etc., as specified in the amendment, and not to the numerous street, alley, sidewalk, curb and other improvements provided for in the section as it stood in its original form.
    Appeal.

      Gaynor & Harding, for plaintiff.

      Arthur Bryant and Ben Harwitz, for defendant,
   JONES, J.

Plaintiff seeks an injunction, as a taxpayer, against the village of Franklin and its mayor and clerk from entering into a contract for the improvement of certain parts^ of Park avenue, Center, Front and Second streets in said village, from proceeding with said improvements, or issuing bonds to pay for any part of the cost thereof.

1. It is first contended that Sec. 3812 G. C.; as amended 101 O. L. 134, requires a finding and declaration by council not only of the necessity of such improvement, which is required under See. 3814, G. C., but also that such improvements are conducive to the public health, convenience or welfare; otherwise, that no assessment can be levied for the cost of said improvement.

The language that was inserted in Sec. 3812 by the amendment of April 10, 1910, above referred to is relied upon for this contention. The new language inserted by that amendment in Sec. 3812 is as follows:

“And any part of the cost and expense connected with or made for changing the channel of, or narrowing, widening, dredging, deepening or improving any stream or watercourse, and for constructing or improving any levee or levees, or boulevards thereon, or along or about the same, together with any retaining wall or riprap protection, bulkheads, culverts, approaches, flood gates or waterways or drains incidental thereto, Avhieh the council may declare conducive to the public health, convenience or welfare” * * *

It will be observed by an examination of Sec. 6443 G. 0., relating to county ditches, and Sec. 6612 G. C., relating to township ditches, that the purpose of this amendment was to permit the improvement of water courses, ditches and drains and the appurtenances thereto in a manner similar to county and township ditch improvements, and that the declaration that such improvements were conducive to public health, convenience or welfare has always been embraced as an essential in the ditch laAv; and in the opinion of the court the intention of the Legislature in this amendment to Sec. 3812 G. C., was to require the declaration that such improvement would be conducive to the public health, convenience or welfare, to apply only to such improvements as are included in the new language imported into the section by this amendment, and not in any way to apply to the numerous improvements provided for in that part of the section as it existed before the amendment.

2. It is contended that no plans, specifications, estimates and profiles for the proposed improvement were prepared or approved by council at the time of the passage of the resolution declaring it necessary to improve said streets. The recital embraced in See. 3 of the improvement resolution, a copy of which was offered in evidence, is in itself sufficient to refute this claim. Said resolution to improve was passed April 17, 1916, and bears the signature of both the mayor and the clerk. Sec. 3 thereof is as follows:

‘ ‘ That the plans, specifications, estimates and profiles of the proposed improvements heretofore prepared by the engineer of said village and now on file in the office of the clerk thereof, be, and the same are, hereby approved. ’ ’

There was, however, considerable testimony offered on the subject of the approval of the specifications. The original specifications as prepared by the engineer are in evidence. The mayor testified that he saw no copy of the specifications as approved until bids were submitted by the bidder. The clerk testified that plans and specifications for these improvements were not on file on April 17; but he admitted in his testimony that he never marked specifications with the date of filing or approval as his duties as village clerk would require; and he further admitted that he gave to the village attorney the original specifications two or three days after the council meeting, for the purpose of permitting exact copies to be made by the attorney and the engineer for the use of bidders; and he fails to explain where he got these original specifications unless they were left with him at the council meeting. On the other hand, the engineer testified that the original specifications, plans, profiles and estimates were prepared by him and were brought to the council meeting and submitted to council — being laid upon the table in front of the clerk on the evening of April 17, prior to the reading and passage of the resolution declaring the necessity of said improvements. His testimony is supported by that of four members of council and also by that of the village attorney. The further fact appeared from the testimony of one member of council as well as that of the attorney, that the resolution declaring the necessity of the improvement had been prepared by the attorney and was ready for introduction at a previous meeting of council, about two weeks before that of April 17, and that it was not then introduced for the reason that the attorney advised council that the law required that the specifications should be prepared and approved before the passage of the resolution. This requirement is found in Sec. 3815 G-. C. The resolution declaring the necessity of the improvement as provided by Sec. 3814 G-. C., has been held to be a condition precedent to the levy of a valid assessment for a street improvement. Welker v. Porter, 18 Ohio St. 85; Stephan v. Daniel, 27 Ohio St. 527, 531.

The original specifications are prepared upon printed blank forms, with some pen and ink changes and some typewritten changes, sections written out and pasted over printed sections, and some blanks are filled in with lead pencil. Their condition is far from complimentary to the engineer who prepared them. The copies which were prepared for the use of bidders are not in all respects the exact copies of the original; but under the terms of the bid, the original specifications would bind where any discrepancies appear. The only important discrepancy noticed, between the form used by the successful bidder and the original adopted by council, is in relation to the proportion of gravel required in the concrete. This in the original is six parts, while in the copy bid upon it is seven parts. However, as before stated, in case of any discrepancy the original specifications control.

The village has no municipal office open other than at council meetings, and has limited facilities for carrying on the necessary clerical work connected with its matters, but the proceedings in regard to this letting seem to have been had with a carelessness considering the cost of the improvements and the importance of the work, that subjects the public officials to merited criticism. However, the court finds, upon a consideration of the evidence, that the specifications, plans, profile and estimates were duly approved by council as part of and concurrent with the adoption of the resolution declaring the necessity to improve these streets.

3. It is further contended that the specifications and advertisement did not specify any particular kind of brick to be used in the pavement of these streets, but that bids were taken upon several kinds, and the particular brick to be used was selected at the time of the award of the contract.

We find no inhibition in the law against this mode of procedure. On the contrary, it has been upheld in the cases of Scott v. Hamilton, 29 O. C. C. 652 (7 N. S. 493), and Tucker v. Newark, 10 Circ. Dec. 437 (19 R. I.); and our own court has sustained alternative bids on different materials and methods of construction in the awarding of the contract for the building of the Hamilton county court house, in State v. Green, 39 O. C. C. 636- (22 N. S. 1).

4. Another objection is that the contract was not let to the lowest bidder.

The statute under which the letting was made, Sec. 3833 and 4328, authorizes the letting “to the lowest and best bidder.” The evidence shows that Bigler Bros., to whom the award was made, were not the lowest bidders. But it has frequently been held that in the absence of allegations of fraud and collusion —which are not charged in plaintiff’s petition — courts will not interfere with the exercise of discretion by public officers in determining who is the lowest and best bidder. This rule is so well settled in Ohio that it is hardly necessary to cite cases. State v. Columbus (Bd. Pub. Ser.), 81 Ohio St. 218, 225 [90 N. E. 389]; State v. Hermann, 63 Ohio St. 440 [59 N. E. 104] ; Scott v. Hamilton, Supra, (N. S.), 493; Yaryan v. Toledo, 28 O. C. C. 259 (8 N. S. 1); Coppin v. Hermann, 9 Dec. 146 (6 N. P. 452), affirmed no op. Coppin v. Hermann, 63 Ohio St. 572.

5. Another objection, and the last which is necessary to notice, is that the making of these improvements would require bond issues by the village of Franklin in excess of the amount authorized by law.

A careful consideration of the evidence shows that there is no question but that authority lies in the council, if it so desires, to issue the necessary bonds without exceeding the limitation fixed by law, even though it may become necessary to reduce some other expenses, although that necessity is not apparent from the evidence before us.

The finding of the court is therefore in favor of the defendant,- and plaintiff’s petition is dismissed at his costs.

Gorman and Hamilton, JJ., concur.


author: SHOHL, J.

text:
    DIVORCE AND ALIMONY — JUDGMENTS
    [Hamilton (1st) Court of Appeals,
    February 24, 1920.]
    Shohl, Hamilton and Cusbing, JJ.
    Robert C. Heflebower v. Helga V. B. Heflebower.
    1. Alimony Based on Future Personal Earnings not Authorized.
    In an action for divorce and alimony the power of the court to make provision in favor of a wife, against whom a divorce has been ordered for her aggression, is fixed by Sec. 11993 G. C. It is authorized to order the transfer to her of a share of real or personal property, owned by the husband at the time of the decree,, but it may not order alimony based on future personal earnings.
    2. Determining Whether Decree is Alimony or Share of Property.
    Whether a decree entered constitutes an order for the payment of alimony or a share of the husband’s estate, is to be determined by the legal effect of the judgment entry as a whole.
    3. Alimony Decree Modifiable. Division of Property Final.

      An order for alimony can be modified upon a change of circumstances and conditions and differs from an order adjudging a share of the husband’s real or personal property, which is a final determination of the rights of the parties.
    4. Alimony Payable in Monthly Sums not Share or Division of Property.
    When the court makes an order for the payment of a monthly sum for an indefinite time, not out of property then owned by the husband, the total amount of which is neither fixed nor ascertainable, the award is not a “share of the husband’s real or personal property.”
    5, Void Alimony Decree Collaterally Attacked in Contempt.
    If a court makes a decree which is not within the powers granted to it by the law of its organization, the decree is void and it may be attacked collaterally in proceedings in contempt to enforce it.

      Closs & Luebbert and Dempsey & Nieberding, for plaintiff in error.

      Peek, Shaffer & Williams, for defendant in error.
   SHOHL, J.

Tbis is a proceeding in error to tbe judgment of the court of insolvency finding plaintiff in error guilty of contempt of court because of disobedience of an order directing him to pay $35 per month to defendant in error against whom he had been granted a divorce.

In January, 1910, the plaintiff in error brought an action against the defendant in error, praying for a divorce and for general relief. Defendant filed a cross-petition praying for alimony. In September, 1910, the court entered a decree in favor of the plaintiff finding the defendant guilty of wilful absence and dissolving the marriage relation between the parties. The court i-eserved all questions of alimony and support of children and attorneys’ fees for further hearing. After the further hearing, the court entered the following:

‘ ‘ This cause coming on further to be heard upon the matter of alimony allowance to the defendant and upon the- evidence, the court find that the defendant is entitled to alimony, and it is ordered, adjudged and decreed that the plaintiff pay to the defendant the sum of $35 per month upon the first day of each and every month, and the further sum of $100, to be paid to the counsel for said defendant as an allowance of counsel fees herein.
“And it is further ordered that the custody and support of the children be committed to the defendant until further order of the court, and that the support of said children, during their minority, be borne by the defendant. ’ ’

In September, 1918, tbe defendant filed charges of contempt against plaintiff for failing to pay the sums ordered. The plaintiff answered alleging that the plaintiff had been granted a divorce against the defendant by reason of her aggressions; that the plaintiff at the time of the decree had no property or estate of any kind, except his ability to earn money in his profession, and that there was no order, decree or judgment awarding to the defendant any property or estate belonging to the plaintiff; that the court was without power or authority to enter a decree for weekly alimony and for other reasons. All of the pleadings and orders of the court in the divorce case were placed in evidence.

It is admitted that after January 1, 1917, plaintiff has made' no payments under the order of court.

The case raises several questions.

1. May a court grant to a wife, against whom a divorce has been ordered for her aggression, alimony payable periodically for an indefinite time, and is this an order for the payment of a share of the husband’s real or personal property?

2. Dtoes it appear from the record that the trial court did so decide?

3. If the court did so decide, and if such decision is incorrect, can it be questioned in an action for contempt ?

Jurisdiction in matters of divorce and alimony is purely statutory. Marleau v. Marleau, 95 Ohio St. 162 [115 N. E. 1009].

Sections 11990 and 11991 G-. C. fix the rights of a wife to whom a divorce is granted because of the husband’s aggression. The rights of a wife against whom a divorce is granted by reason of aggression are fixed by Sec. 11993. These sections are as follows:

Section 11990. “When a divorce is granted because of the husband’s aggression, by force of the judgment the wife shall be restored to all her lands, tenements and hereditaments, not previously disposed of, and the husband barred of all right of dower therein. If she so desires the court shall restore to her any name she had before such marriage, and allow such alimony out of her husband’s property as it deems reasonable, having due regard to property which came to him by marriage and the value of his real and personal estate at the time of the divorce. ’ ’
Section 11991. “Such alimony may be allowed in real or personal property, or both, or by decreeing to her such sum of money, payable either in gross or installments, as the court deems equitable. If the wife survives her husband, she also shall be entitled to, her right of dower in his real estate not allowed to her as alimony, of which he was seized during the coverture, and in which she had not relinquished her right of dower. ’ ’
Section 11993. “When the divorce is granted by reason of the aggressions of the wife, she shall be barred from all right of dower in the lands of which her husband is seized at the time of filing the petition for divorce, or which he thereafter acquires, whether there is issue or not. The judgment of divorce shall restore to her the whole of her lands, tenements or hereditaments not previously disposed of and not allowed to her husband as alimony, subject to the dower right of her husband therein. The court may adjudge to her such share of the husband’s real or personal property, or both, as it deems just; * * *.”

Unless the wife, who is adjudged to be in the wrong, acquires her rights under Sec. 11993, there is no foundation for a provision in her favor. It is necessary, therefore, to examine the language of that section. The statement “the court may adjudge to her such share of the husband’s real or personal property as it deems just, ’ ’ seems plain. Its power to make an award in her favor is to order the transfer to her of a share of certain existing property.

It is urged on behalf of the defendant in error that the Supreme Court in the ease of Lape v. Lape, 99 Ohio St. 143, in construing Sec. 11990 held that jurisdiction to grant alimony “out of her husband’s property” permitted the allowance of alimony based on future earnings or wages of the husband. The decision in that case holds that as the court has power to order “alimony” the phrase “out of her husband’s property” is not of controlling force.” In determining what the legislature meant by “alimony,” the court reiterates the statement in Fickel v. Granger, 83 Ohio St. 101 [93 N. E. 527; 32 L. R. A. (N. S.) 270; 21 Ann. Cas. 1347], that it is founded on the obligation which grows out of the marriage relation that the husband must support his wife, which obligation continues after legal separation, without her fault. The decision as a whole is an application of the doctrine stated by Judge Thurman in the ease of Tracy v. Card, 2 Ohio St. 431, and referred to in Lape v. Lape, Supra, that “it is by no means unusual in construing remedial statutes to extend the enacting words beyond their natural import and effect in order to include cases within the same mischiefs.” The construction there given was required to prevent injustice to a wife who had been wronged. Those considerations can not fairly be said to be applicable to a case where the marital relation is terminated by reason of the misconduct of the wife. The language of the statute, Section 11993, is plain and the sole function of the courts is to enforce it according to its terms. Elmwood Place v. Schanzle, 91 Ohio St. 354, [110 N. E. 922]; Slingluff v. Weaver, 66 Ohio St. 621 [64 N. E. 574]; Woodbury & Co. v. Berry, 18 Ohio St. 456; Caminetti v. United States, 242 U. S., 470, 485 [61 L. Ed. 442]; United States v. Detroit First Nat. Bank, 234 U. S., 245, 258 [58 L. Ed. 1298]; United States v. Lexington Mill & Elevator Co., 232 U. S., 399 [58 L. Ed. 658]; Lake County v. Rollins, 130 U. S., 662, 670, 671 [32 L. Ed. 1060],

We are of opinion, therefore, that under Section 11993 a court may award to a wife, for whose aggression a divorce has been granted to her husband, a share of such property only as the husband may own at the time of the rendering of the decree. It is not empowered to order payments out of future personal earnings or wages of the husband.

Ibis urged, however, that the court is bound to presume that the decree, the enforcement of which is sought in these contempt proceedings, included a determination that the husband then owned the property which was ordered to be paid. While it will be presumed in the absence of a showing to the contrary that the court proceeded in accordance with law and found the husband to be possessed of property out of which the payments could legally be decreed, the record is inconsistent with the contention that the decree is an order for the payment of a share of existing real or personal property. On its face it purports to be an alimony allowance. That statement alone is not conclusive. The legal effect of the judgment entry as a whole and not the mere language used must govern. It is not payable from any existing property owned by the husband, nor is the total sum payable fixed or ascertainable. In the case of Hassaurek v. Markbreit, 68 Ohio St. 554, 578 [67 N. E. 1066] Judge Shauck said:

“The finding of the court * * * that the wife had been absent for more than three years * * * excluded her right to alimony. ’ ’

He , had in mind a distinction between ‘ alimony ’ ’ and “share of the husband’s property,” as appears from page 580 of the same case where a reference to what was then Sec. 5700 R. S.: “And the court may adjudge to her such share of the husband’s real or personal property, or both, as it deems just and reasonable.”

Counsel for defendant in error offer the ingenious suggestion that the court in presuming such a state of facts to have existed as would justify the judgment, might assume that the plaintiff at the time of the original trial had an annuity or other fixed source of monthly income without possession or right of possession of the principal or corpus of the estate from which it was derived, and without power of anticipation of the principal. The right to receive such income would undoubtedly be property and a portion thereof would be literally a share of the husband’s property. Had such a state of facts existed and had the court adjudged to the wife a share of such property, his obligation would have been limited to the payment of that income, so long as it was received. Insolvency of an obligor of the annuity or other loss of source of income, might destroy the property and would excuse further payments, if the court had merely transferred to the wife an interest in such property. The terms of the decree in the case at bar preclude such possibility. Under its terms, the payments go on indefinitely.

It appears, therefore, that the order of the trial court in the divorce case was not a direction for the payment of a share of the property, but was an order for the payment of permanent alimony. They are different in their nature. If the order were alimony, it might be modified upon a change of circumstances and conditions. If it were in the nature of a permanent division of the husband’s property, it would be a final determination of the rights of the parties in that respect. Fenn v. Fenn, 44 O. C. C. 215 (23 N. S. 205); Lally v. Lally, 152 Wis. 56 [138 N. W. 651]; Norris v. Norris, 162 Wis., 356.

If the court was without power to grant alimony to the defendant, and, if what it did grant constituted alimony, can the validity of the decree be brought in question in this case ? If the court which has jurisdiction renders a judgment which it has the power to make, but which is merely erroneous, its decision can not be attacked collaterally. Bly v. Smith, 94 O. S., 110. Though a court may possess jurisdiction of a cause, of the subject matter, and of the parties, it is still limited in its modes of procedure and in the extent and character of its judgments, and, if it makes a decree which is not within the powers granted to it by the law of its organization, the decree is void. Standard Oil Co. v. Missouri, 224 U. S., 270, 281, 282 [56 L. Ed. 760]; Works, Courts, 2nd Ed., Sec. 8; Windsor v. McVeigh, 93 U. S. (3 Otto) 274, 282 [23 L. Ed. 914] ; 15 R. C. L., 853.

The power of the court is limited to adjudge a share of the husband’s real or personal property. Its attempt to do more than that being in excess of its powers, is of no legal effect. It follows, therefore, that the order of committment by the court of insolvency for failure to obey that part of the decree which was void was improper.

The judgment will be reversed.

Hamilton and Cushing, JJ., concur.