text:
    (Sixth Circuit — Lucas Co., O., Circuit Court
    Sep. Term, 1898.)
    Before King, Haynes and Parker, JJ.
    JUSTY J. DEVEAUX v. FRANK LESLIE.

      Proceedings in aid of execution before J. P. — Appeal-

      In a proceeding in aid of execution before Justices of the Peace, under the act of April 27, 1896, the judgment debtor is made a necessary party to such proceeding, and an appeal will lie to the court of common pleas from the order of the justice to pay over to the judgment creditor the money found due to the judgment debtor, under see. i of that act, as well as from the judgment in the suit which may subsequently be brought to compel the creditor of the judgment debtor to pay over.
    Error to the Court cf Common Pleas of Lucas county.
   Haynes, J.

This case is here upon a petition in error filed to reverse the judgment of the court of common pleas for dismissing a certain appeal.

The proceedings under which the questions arise here were had under an act passed on April 27, 1896,entitled “An act providing for proceedings in aid of execution before justice® of the peace.” Frank Leslie appeared before John M. Keisyon,- a justice of the peace of Port Lawrence township, and filed an affidavit setting forth that he had procured a judgment against .lusty J. Deveaux, no part of which had been paid, and that the Merchants’ National Bank, of Toledo* Ohio, was liable to said J. J. Deveaux in a certain sum of money, and prceedings under the statute were had, whereby a notice was issued to the bank to appear at a certain time to make answer, and service of notice was also made on the defendant of the time and place when this examination would occur. The bank appeared by Charles C. Doolittle* cashier, who was sworn and testified. The transcript them recites that “May 12, 1897, parties appeared and trial was resumed. Upon hearing the testimony, and arguments of counsel, it is considered by me that the plaintiff have an order of this court upon the Merchants’ National Bank ©I Toledo, Ohio, that said bank forthwith pay unto the plaintiff the sum of $11.87, being the amount of money due said defendant from said bank, as shown by the testimony of its oashier, to be applied, first, to the costs of this proceeding; and the balance, if any, to the discharge of said judgment John M. Kenyon, J. P.” “Notice of appeal given by defendant May 12,1897.” Thereupon an appeal bond was filed on behalf of the defendant and on behalf of the bank, as it appears from the transcript Transcript was filed in the court of common pleas,and thereupon afterwards it appears by the reoord that the bank came and moved that the appeal as'to it be dismissed, which motion was granted, and then the case came on to be heard on the motion of th© plaintiff Frank Leslie “to dismiss the appeal taken in the above entitled action from a certain order made in the court of John M. Kenyon, a justice of the peace in and for Port Lawrence township, Lucas county, Ohio, and the court being fully advised in the premises order that the said appeal be dismissed as to the said Justy J. Deveaux, and aft his costs.” Thereupon he filed this petition in error to reverse the action of the court.

Nc arguments have been filed by counsel in the case on either side. The question stands before us as to whether the court of common pleas erred in dismissing that appeal. It will be observed that the appeal was taken at the close cf thejexamiuation before the justice, and upon the order being made that the money be paid over to the plaintiff. This brings us tc a discussion of the provisions of this act.

The act in substance provides:

“That when a judgment creditor, his agent or attorney, makes oath in writing before the justice of the peace whq rendered the judgment, or before his successor, that the affiant has good reason to believe, and does believe, that any person, partnership or corporation, naming the same, is liable to the judgment .debtor in any sum of money, whether then due or not, and that said money is not exempt from execution or attachment under the laws of the state of Ohio, the justio6 shall order such person, partnership or Corporation, to appear before him at his office at a time and place specified in such order,and answer under oath respecting such liability. ”

The second section provides among other things:

“That the judgment debtor, if found within the county, ' shall be served with notice in writing at least three days before the hearing provided for in the foregoing section, which notice shall then be served like a summons.”

The third provides:

“If the person, partnership, or corporation against whom such order is issued, appear and answer, he shall be examined under oath touching the money for which he is liable as aforesaid, and the justice shall hear any proper evidenoe respecting the same.”

If he fail to appear, it shall be taken that he is indebted.

Section 4 provides:

“If it appear by the admissicn or examination cf the person, partnership or corporation against whom the proceedings are pending, or by other evidence, that such person, partnership or corporation is liable for any money to the judgment debtor, whether sufficient to satisfy the judgment or not,the justice shall order such person, partnership or corporation, tc pay the same to the judgment oreditor to be applied first to the costs of the proceedings, and the balance to'the discharge of the judgment; but if it be shown that such sum of money is net yet due and payable, the order shall be for the payment thereof, at the time when it shall be due and payable, whioh time shall be stated in the order; no order shall be for a sum in excess of suoh judgment and costs.”

Now we come to section 5:

“If the justice shall make an order, pursuant to the preceding section, directing the payment of money by the person, partnership or corporation,against whom the aforesaid proceedings are instituted, and if such person, partnership or corporation fail to comply with said order, the judgment creditor may proceed against suoh person, partnership cr corporation by civil action; and thereupon such proceedings may be hadas in other civil aotions,and judgment may be rendered in favor of the judgment creditor for what shall appear to be owing the judgment debtor by such person, partnership or corporation not exceeding the amount of such order and the costs of the proceedings against suoh person, partnership or corporation. An appeal shall lie from such proceedings to the common pleas court in like oases and manner as from other judgments of the justices of the peace.”

The question is whether the proper construction of that statute is that the appeal only lies from the subsequent suit brought against the person or ccrporation to oompel the payment of the money, or whether it lies from the original order to pay over mentioned in section 4. To me the question is of a good deal of doubt and uncertainty. However, we think there should be a liberal construction of the statute, and my brethern are more dear, I think, than I am, that the judgment of the court of oommon pleas should be reversed.

It will be observed, if this civil action is brought the judgment will be rendered in favor of the judgment creditor for what shall appear to be ewing to the judgment debtor— not for w.hat the court shall order to be paid, but what shall then appear to be owing to the judgment debtor. The real question is, it seems to me,whether this original proceeding is of such a character that it is brought within the terms of the provisions for the appeal. It will be noticed that the entire act is denominated “proceedings in aid of execution”. It is a proceeding from beginning tc end; it is a proceeding from the time that it commences down to the time when the order is made that the sum found to be owing from the person or corporation is to be paid over on the judgment originally taken, as well as the proceeding had afterwards in the nature of a civil action tc compel the payment

One very material question, it seems to me,is whether this order is a final order; whether it is an order that can be contested afterwards in a civil action. It is true that upon the order being made, the judgment debtor or the person who is called in, corporation or party, can pay this money over to the original plaintiff in the judgment. I suppose that that payment would conclude the judgment debtor.

It will be noticed in this case that the judgment debtor is made a party to the original summons. It would seem that he would be bound by that examination, so long as he is made a party and brought before the justice, and that if payment is made by the party who is brought in,that would out him-off from ever contesting that question afterwards. We think, giving a liberal construction to the statute, that we ought to hold that the right of appeal will lie from the original order as well as from the final judgment which was made. If a suit should be brought as another civil action, and a judgment rendered in that case,.then an appeal would lie. It would lie under the original appeal act, being a final order before a justice of the peace, and it would seem to be unnecessary to inlroduce this clause in regard to appeals unless it was intended tc have a further application than a mere application to an appeal from that final order.

We sought to find some light in regard to the question, if possible, from decisions of the supreme court. We find only one case — Welch v. Pittsburgh, Ft. Wayne & Chicago R. R. Co., 11 Ohio St., 569. There the question was taken up on error, no exception or bill of exceptions having been taken. The syllabus of this case is:

B. F. Reno, for Plaintiff in Error.

Lewis B. Hall, for Defendant in Error.

“Where in a proceeding before a judge, under section 464 of the code,to examine a person alleged to have in his hands property belonging to the judgment debtor, an order is made, after the examination, discharging such person as having no property in his hands subject to the satisfaction of the judgment; without some exception taken at the time, and some step to suspend the effect of the order, and on a petition in error to which the judgment debtor alone is a party, the action of the judge cannot- be reviewed.
“Whether such proceeding is not merely ex parte and preliminary, and net subject to review on error — quere?”

But in this proceeding, the proceeding had in that court, it was not necessary to make the judgment debtor a party, although he might be made a party. In the present proceeding he must be made a party.

We have examined some of the decisions made under the garnishee proceedings and attachment, but those cases are different from this, because the supreme court has held that the party garnisheed is not properly a party to the suit. If he comes in and makes answer after the suit, the plaintiff in the original action then has his defense,and has the right to defend and set up all the defenses he may have against the alleged obligation to pay money to the plaintiff in the original action. Upon that theory, I say those cases shed very little light upon this question; but from the fact that they have seen fit to introduce this clause out of an abundance of caution, or else out of a determination to give him a full right of appeal, we hold, as I have stated already, that the better view of the case is that the party had a right to appeal at the time he did appeal in the present case.

Therefore the judgment of the court of common pleas will be reversed, and the oase remanded for further proceedings.


source: Caselaw Access Project

author: Wilson, J.

license: Public Domain

text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Jan. Term, 1899.)
    Before Shearer, Summers & Wilson, JJ. [Of the Second Circuit sitting in the First Circuit. 1
    THE INTERSTATE CASUALTY COMPANY v. MARY BIRD, Administratrix.

      Accident Insurance — Death from fall — Vertigo—
    1. Injuries caused- by a force due to a temporary and unexpected physical disorder, are violent, external and accidental, within the meaning of such words in an accident insurance policy. Same — Burden of proof—

    2. Evidence of a sudden faintness, immediately preceding a fall and injury, does not conclusively prove that the fall was caused by fits or vertigo so as to avoid the policy, under a condition avoiding the same for these causes; physicians testifying that the insured’s condition might have been due to other causes.
    3. In a suit on an accident insurance policy the burden is on the defense to prove the breach of conditions avoiding the same, by affirmative evidence.
    E^ror to the Court of Common Pleas of Hamilton county.
   Wilson, J.

This was an action in the court below to recover a death loss upon a casualty insurance policy. The trial resulted in a judgment for the plaintiff below. Error is now prosecuted to reverse the judgment, for that it is not sustained by the evidence, and for error in the charge and refusal to charge. These are the assignments of error upon which the plaintiff in error relies. Whether, or not, the judgment is fairly, supported by the evidence depends largely upon the application of the law to the proofs as claimed by the plaintiff in error. The claim is that the evidence proves the deceased died from an attack of vertigo, and that this is established by the admissions of witnesses for the plaintiff below, proving that the deceased complained of feeling faint just before the accident, as well as by the position of the body when found immediately after the fall which caused the injury from which death ensued. Physicians testified however that the insured’s condition might have been due to other causes.

Admitting these contentions as to the state of the proof, they do not, under the law as applied by the court, raise the necessary inference that the fall resulted from vertigo or any disease which is excepted in the policy sued upon. In the language of the authorities . upon which the trial court relied, as is disclosed by the charge, this evidence “does not conclusively prove that the fall was caused by fits or vertigo, so as to avoid the policy under a condition avoiding the same in such event; physicians testifying that insured’s conduct might have been due to other causes.” And further, “that injuries caused by a fall due to a temporary and unexpected physical disorder are violent, external and accidental within the meaning of such words in an insurance policy.” Meyer v. Fidelity & Casualty Co., 65 N. W. R., 328; Manufacturers’ Accident Indemnity Co., 58 Fed. R., 945.

We are inclined to follow these authorities, and so doing, we do not find that the judgment is so clearly against the weight of the evidence as to justify a reversal upon that ground.

As to the burden of proof, the court in the charge gave the rule as laid down in Niblack, section 380. This rule is supported in a well reasoned case,found in 145 Mass., 226. It is the same rule established in life and fire insurance eases, as exemplified by numerous authorities. We see no reason for a different rule in accident insurance.

In the case of Moody v. Insurance Co., 52 Ohio St., 12, it is held:

‘.‘Conditions which provide that the policy shall become void or inoperative, or that the insurer be relieved wholly or partially from liability upon the happening of some event, or doing or omission to' do some act, are matters of defense, and to be available must be pleaded and their breach alleged.”

Paxton, Warrington & Boutet, for Plaintiff in Error.

F. M. Coppock, contra,

It follows that the burden is on the defense to prove the breach of the conditions by affirmative evidence. Upon this •point, therefore, we conclude that the court charged the law correctly. There was no error in the refusal to charge and ■no error in the record.

The judgment will be affirmed.


author: Summers, J.

text:
    (Second Circuit — Montgomery Co., O., Circuit Court
    Jan. Term, 1899.)
    Before Summers, Wilson and Sullivan, JJ.
    THE STATE OF OHIO v. THE DAYTON TRACTION COMPANY and THE CINCINNATI AND MIAMI VALLEY TRACTION COMPANY.

      _Street Railroad — Power to carry freight—

    1. A street railway is a railway constructed upon streets or highways and for the purpose of facilitating the use thereof in the transportation of persons and property; and a company organized under general laws for the purpose of constructing and operating a street railway has, in the absence of a statute prescribing its powers, corporate power to carry freight as well as passengers.

      Same — City can not restrict statutory powers of street railway—
    2. The council of a city may refuse permission to a street railway company to construct its road in its streets, but if it grants permission, it may not do so upon the condition that the company does not exercise one of its corporate powers, and therefore a condition or regulation that the company shall not carry freight is void.
    Quo Warranto.
    The petition in this case is tiled by the Attorney-General of the state, and its material averments are that each of the defendants is a corporation under the laws of Ohio, the first named having its principal place of business in the city of Dayton, in Montgomery county, and the second doing business in said county;]that eachAasAffendedAgainst the law3 of said state and the ordinancesAf said city,and grossly abused, misused and exceeded its ^corporate authority,franchises and privileges, and has unlawfully]'assumed and usurped franchises and privileges noCgranted to it in this, that in the operation of a street railway in said city it transports over the same for hire merchandise and freight in cars specially designed for that purpose,And otherwise.
    The prayer is that each be ousted from such franchise.
    The Dayton Traction Company answers that prior to the bringing of the suit it had, by lease for nine hundred and ninety-nine years, transferred all of its property, privileges and franchises to its co-defendant,and that it had not since then claimed or exercised the right or privilege named in the petition.
    The Cincinnati and Miami Valley Traction Company makes two defenses: First,that it has no place of business in Montgomery county; that its office is in Butler county, and that in its charter the principal place of business is located at Hamilton,in said county, and that its co-defendant has no interest in the controversy by reason of the lease. Second, that each company was incorporated as a street railway and for the purpose of constructing and operating an inter-urban road upon the public highways.
    A copy of the articles of incorporation of each company is set out, from which it appears that “the right to carry passengers, mail, express and freight” is expressly conferred upon the Cincinnati and Miami Valley Traction Company, and that the Dayton Traction Company “is formed for the purpose of building, acquiring, maintaining, leasing and owning a street railway, to be operated by steam, horse or other motive power, on and through the turnpikes of said county of Montgomery and on and through the streets of the city of Dayton.” The answer concludes as follows:

      “It admita that it carries express matter and freight through the said city, which it does with the consent of said city under the laws of the state.”
    “It admits that the grant to it of the right of way through the city does not contain an express grant to the Dayton Traction Company of the right to carry mail, freight and express, but said city, believing it to be to the best interest of the city of Dayton and of its merchants and business men to permit this defendant to carry freight and express, as inter-urban roads more recently chartered have been permitted to do, has taken no steps to prevent its action.”
    “And this defendant avers that the suit is not brought in the interest of the city of Dayton, nor at its request, nor in the interest of the state of Ohio, or other public interest; but at the instigation of a parallel steam railroad company, whose attorney’s name is signed to the petition without being an authorized assistant to him; and there is another remedy appointed by statute for the grievances related in the petition, if it be so found.”
    • The cases are submitted upon motions of the plaintiff (to require the defendant to strike out of their answers certain matter, to make more definite, and upon general demurrer.
   Summers, J.

The questions considered and upon which the cases are determined are whether a company, organized for the purpose of constructing and operating a street railroad,is authorized to carry freight,and whether a municipal corporation, in granting permission to construct the road upon its streets, may prescribe as one of the terms and conditions that the road shall not be used for the transportation of freight.

It is said, in argument, that a general street railway ordinance passed by the city in 1869 provides: “And no' road (meaning street railroad) shall be used for transportation of freight, but only for passengers and their ordinary baggage or packages in hand.” Upon demurrer, this fact can not in this manner be brought to the knowledge of the court, but the relator is given the benefit of it by considering as its equivalent the allegation of the petition that the defendants have offended against the ordinances of the city by the transportation of freight. ,

There is no law prohibiting the transportation of freight on a street railway. The statutes (sections 2502, 2505, Revised Statutes) restricting the power of cities to grant the right to construct such roads upon its streets to the company that will carry passengers at the lowest rates of fare, and providing in case of extension that the fare shall not be increased, and similar statutes,do not limit such companies to the carrying of passengers. In 1861 (58 O. L. 66) an act was passed to provide for and regulate street railroad companies, and section 2 provided that such corporations should be authorized to construct and operate a street railway on the streets specified in its certificate,and to transport thereon passengers and their packages and baggage. Under this law, in the application of a familiar rule of interpretation, a street railway company would probably be held to be restricted to the carrying of passengers and their packages and baggage; but this law was repealed in 1869 (66 O. L. 285), when the municipal code was enacted, and thereafter, until 1894, the statutes were silent as to the powers of such corporations, and when the statutes are silent the powers of a corporation can be determined only by ascertaining the purpose of their creation.

“Where a corporation is authorized by a general grant to exercise a franchise or to carry on a business, and the grant contains no words either defining or limiting the powers which the corporation may exercise, it will take, by implication, all such powers as are reasonably necessary to enable it to accomplish the purpose of its creation. ” Halsey v. Rapid Transit St. Ry. Co., 47 N. J. Eq., 380.

A street railway is a railway laid in a street to facilitate its use by the public. Nichols et al. v. Ann Arbor & Ypsilanti St. Ry. Co., 87 Mich. 361.

And “the dominant purpose for which streets in a municipality are dedicated and opened is to facilitate public travel and transportation,and in that view new and improved modes of conveyance by street railways are by law authorized to be constructed. ” Railway Co. v. Telegraph Association, 48 Ohio St., 390.

A railroad also is used for the transportation of persons and freight, and yet a “railroad and a street railway are distinct and different things” (Mass. Loan & Trust Co. v. Hamilton, 88 Fed. Rep. 588; Louisville & Portland R. R. Co. v. Louisville City Ry. Co. 2 Duv. 175); but the distinction is not that one is for the transportation of both persons and freight and (he other for the carrying of passengers only. There is no inherent distinction in this respect.

“The author regards the appropriation under legislative authority of a reasonable portion of a street for a horse railway, constructed on the graduated surface of the street, and used under municipal regulation in the ordinary mode, to be such a use as falls within the purposes for which the streets are dedicated or acquired under the power of eminent domain, When thus authorized, and so regulated by the public authorities as not to destroy the ordinary and usual street uses, this is a public use within the fair scope of the intention of the proprietor when he dedicates the street or is paid for property to be used as a street. Such proprietor must be taken to contemplate all improved and more convenient modes of use which are reasonably consistent with the use of the street by ordinary vehicles, and in the usual modes. There is solid ground to distinguish between horse railways in streets as ordinarily laid and used, which do not exclude the public,and steam railways, which are generally so constructed as altogether to exclude a portion of the street from public use in the accustomed methods; and there is much to recommend as sound the view that wher« property is dedicated to the public for a street, the dedicator must be presumed to intend that it may be used as a street in such a way as the legislature representing the public, and best acquainted with the public needs, may authorize, the limitations being that such use must not deprive the abutter of his property rights and easements in the street, or destroy the ordinary uses of the street as a public and common highway open to all”

Dillon’s Mun. Cor, (4th ed.) section 722. Cooley’s Coast.Lim. (5th ed.) 676-687. Booth’s Street Ry. Law, aection 82, Elliott on Road and Streets, 528, 558. Lewis on Eminent Domain, section 124. Cincinnati etc. Ry. Co. v. Cumminsville, 14 Ohio St., 523.

That such is now the law, established by the overwhelming weight of authority, will appear from the cases cited in ■the above authorities. See also Chicago, etc., Ry. Co. v. Street Ry. Co. 139 Ind., 297, 47 Am. St., 264 and note; Sells v. Col. St. Ry. Co., 28 W. L. B., 172; Pelton v. East Cleve. R. R. Co., 22 W. L. B., 67.

It is decided also that the distinction consists in their use, and not in their motive power (Mass. Loan & Trust Co. v. Hamilton, 88 Fed.Rep. 588), and that no new servitude is imposed by substituting electricity for horses as a motive power (H. R. T. Co. v. W. T. and R. Co. 135 N. Y. 393; Taggart v. Newport St. Ry. Co. 16 R. I., 668), nor by the substitution of cables (Matter of Petition of T. A. R. R. Co. 121 N. Y., 536; Harrison v. Mt. Auburn Cable Ry. Co., 17 W. L. B., 265; Clement v. City of Cincinnati, 16 W. L. B., 355, nor by the substitution of steam motors (Briggs v. Lewiston, 79 Me. 363; Williams v. City Electric St. Ry. Co., 41 Fed. Rep. 556; Newell v. Minneapolis L. and M. Ry. Co., 35 Minn. 112) nor by placing the .poles in the middle of the street for the purpose of using electricity for street-car propulsion (Halsey v. Rapid Transit St. Ry. Co., 47 N. J. 380; Nichols et al. v. Ann Arbor and Ypsilanti St. Ry. Co., 87 Mich. 361), nor even by the erection of an elevated street railroad (Doane v. Lake St. Elec. Ry. 165 Ill. 510; 56 Am. St., 265).

The distinction between the two kinds of railways is in the manner of construction and in the mode of operation. The track of the steam road in a street is generally so laid as to exclude vehicles from passing along it and from crossing except at places specially provided, and in, its operation the running of the trains drives traffic from the streets and tends to destroy the use for which the street was acquired, while a street railway is so constructed and operated as not to destroy, but to facilitate the use of the street.

And if the reason street railway companies did not carry freight was not because the law or the purposes of their creation precluded them from doing so, but because the state of the art was such that they were not able to serve the public in that way,then it is no reason that they should not do so now, for a street railway company is not limited to the methods of operating its road known and in actual use at the time of the passage of the act authorizing it to construct and operate its road. (H. R. T. Co. v. W. T. & R. Co., 135 N. Y., 393; Easton, S. E. & W. E. P. R. Co. v. Easton, 133 Pa. St., 505.) And if its existence in the street was justified on the ground that it facilitated the use of the street in the carrying of passengers, it is doubly so now, that, by its enlarged field and improved methods of operation, it serves the public by the transportation of both freight and passengers.

So far the question has been considered as the statutes existed prior to 1894. In that year a law was passed (91 O. L. 285), entitled “An act to authorize and regulate electric railways,” which seems to recognize, if not expressly to confer, the authority on a street railway to carry freight. The first section authorizes electric street railway companies to construct and operate such a railway upon the highways outside of municipalities for the transportation of passengers, packages, express matter, United States mail and baggage and freight; section 6 provides that they shall have, in so far as applicable, all the powers and be subject to the regulations of other street railroad companies; and ■section 4 is as follows:

“Such compauies shall have power to lease, purchase or make traffic arrangements with any ether street railroad company as to so much of its tracks and other property as may be necessary or desirable to enable them to enter or pass through any city or village, upon the same terms and conditions applicable to other street railroads. And any existing street railroad company owning or operating a street railroad shall receive the cars, freight, packages or passengers of any other road, upon the same terms and conditions as they carry for the general public.” (910. L. 286.)

Four days later, May 21, 1894, (91 O. L. 379), section 2505 of the Revised Statutes was supplemented by the enactment of section 2505c, which provides that a .company organized for the purpose of constructing a railroad to be operated by electricity from one municipality to another shall have authority to make an agreement with any street railway company “whereby the passenger cars of such railway company may be run over the tracks of such street railway company, and that it shall not be necessary for it to obtain any additional grant, franchise or right in case it uses in any such municipality only the tracks of such street railway company.” It is not necessary, in the determination of the questions considered in this case, to ascertain the precise scope and meaning of these two laws; they do not necessarily conflict, and it may be that the latter was intended to be, as it is in terms, applicable to a commercial electric railway only, and not to a street railway, and in that case very properly provided for tbe transportation of the passenger cars only of a commercial electric railway on the tracks of a street railway.

The contention that the transportation of freight is limited to electric roads outside of municipalities does not seem to be supported by the law of 1894 (91 O. L. 285), fair whether section one be construed merely to give the right to construct the road upon the highways outside of municipalities.or to give such right and also to define the purpose for which it may be used, still it does not apply to street railways in a municipality, and section 3ix imports that in the legislative mind existing street railway companies had the right to carry freight, for it provides that such companies shall receive the cars, freight, packages or passengers of any other read upon the same terms and conditions as they carry for the general public; and further authorizes the electric railway company to lease or arrange with the street railway company for the use of so much of its track as may be desirable to enable it to enter or pass through any city or village upon the same terms and conditions applicable to other street railways,

The Cincinnati and Miami Valley Traction Company was incorporated for the purpose of constructing and operating an electric street railway upon the highways as well as upon the streets, and ha3 therefore not only express power by its charter to carry freight, but also under this law exprese power to lease the railway of the Dayton Traction Company and to use it upon the same terms and conditions applicable to other street railroads.

This brings us to the question ef the validity of the provision of the ordinance prohibiting the carrying of freight.

It is contended, however, that an ordinance granting permission to construct a street railway is a contract (Street Ry. Co. v. Smith, 29 Ohio St, 306; C. & S. Ry. Co. v. Village of Carthage, 36 Ohio St., 631; City of Columbus v. Street Railroad Co. 45 Ohio St., 98); that quo warrant© is not the remedy for enforcing a contract (State ex rel. v. Railroad Co. 50 Ohio St., 239), and further that a special remedy is provided by section 1777, which makes it the duty of the city solicitor, whenever an obligation or contract made on behalf of the corporation granting a right or easement is being evaded or violated, to apply for the forfeiture or the specific performance of the same.

It is true that such an ordinance is in some respects a contract, and so is a franchise. And in some stateB it is held that the right acquired by ordinance to construct a street railway is merely a license or easement, and that quo warranto is not the proper remedy to enforce the ordinance. (Maybury v. Mutual Gas Light Co. 38 Mich. 154; C. C.R. W. Co. v. The People ex rel. 73 Ill. 541; Met. City Ry. Co. v. Chi. W. D. Ry. Co., 87 Ill., 317; G. C. Ry. Co. v. G. C. S. Ry. Co., 62 Tex. 529; Atchison St. Ry. Co. v. Nave, 38 Kan. 744.) But the better considered cases hold that the permission given by ordinance to construct a street railway in the street is a franchise granted by the state through the agency of the municipality, and that a violation of the same may be inquired into in quo warranto. Wright v. Milwaukee Electric Ry. etc. Co., 95 Wis. 29; State ex rel. v. Madison St. R. R. Co., 72 Wis. 612; Port of Mobile v. Louisville and N. R. Co. 84 Ala. 119; State of Mo. ex rel. v. East Fifth St. Ry. Co., 41 S. W. Rep. 955,and cases cited in the opinion.

However, it is provided by section 6761, Revised Statutes, that such an action may be brought against a corporation when it has misused a franchise,privilege or right conferred upon it by law, or when it claims or holds by contract or otherwise, or has exercised a franchise, privilege or right in contravention of law,and this seems broad enough to authorize this action, whether the grant is a franchise or merely a license, if the provisions of the ordinance prohibiting the carrying of freight are valid.

If the conclusion that the right to carry freight, in the absence of legislative restriction, is one of the corporate powers of a company organized under the general laws to operate a street railway is sound, then it is manifest that a municipal corporation can not require the surrender of this corporate power as a condition of its consent to the construction of the road in its streets, nor prevent its exercise by the regulations it adopts for the operation of the road. The city has only delegated power; it acts only as the agent of the state, and can not act in regard to matters which the principal has determined. It can not confer corporate power (Sims v. Street Ry. Co., 37 Ohio St., 556), nor withdraw it. It may refuse its consent, but if it consents it can not impose condition inconsistent with rights granted by the state.

It is held by some of the courts that the city may impose any terms or conditions that it sees fit, and that the company will be bound by them, on the ground that it can not accept the benefits and at the same time reject the burdens. See Galveston & West. Ry. Co. v. Galveston, — — Tex.——, 36 L. R. A., 1, which supports our conclusion, and in which and in the note the cases are reviewed.

In this case Brown, J, well says, in reviewing Northern C. R. Co. v. Baltimore, 21 Md., 93, “After deciding the case correctly under the charter powers of the city and the statute referred to, the court, in support of its decision, quotes from Mager v. Grima, 49 U. S., 8 How., 490, 12 L. Ed., 1168, the following language of Chief Justice Taney: ‘If a state may deny the privilege altogether, it follows that, when it grants it, it may annex to the grant any conditions which it supposes to be required by its interests or policy. ’ Judge Taney was speaking of a body clothed with all legislative power that belongs to a republican form of government, while the court of Marlyand applied the language used by him to a body which had only such power and authority as were granted to it by its charter. The quotation has no application to the case, and the decision was not based upon it; but Judge Dillon,in the case of Pacific R. Co. v. Leavenworth, used much the same language as that quoted from Northern C. R. Co. v. Baltimore, citing that case as authority. Other courts and text writers have cited Judge Dillon in support of that proposition expressed in the language of Judge Taney, and thus a doctrine which originated in the misapplication of a correct rule of law is maintained as a basis for the solution of questions like that presented in this case, notwithstanding it is directly antagonistic to the fundamental doctrine that a municipal corporation has no power except that which is conferred by its charter. ” See also Allen v. Mayor, etc., of Jersey City (N. J.,) 22 At. R., 257; Matter of K. C. Ele. R. R. Co., 105 N. Y., 97.

F. S. Monnett, Attorney General, and H. R. Probasco, Attorneys for the State.

McMahon & McMahon, Attorneys for Defendants.

Booth on Street Railways, sec. 13, gives examples of many conditions and regulations that have been ordained, and none of them appears to conflict with corporate powers.

It follows that the facts stated in the petition do not constitute a cause of action.

The motions are therefore overruled, the demurrers to the answers overruled as to the answers and sustained to the petitions, and the petitions are dismissed.


author: Parker, J.

text:
    (Sixth Circuit — Lucas Co. O., Circuit Court
    January Term, 1899.)
    Before King, Haynes and Parker, JJ.
    ROSE CONNELL v. ORVILLE S. BRUMBACK et als.
    (For opinion in this case in the Court of Common Pleas by Pratt, J., see 4 Nisi Prius Rep. 404.)
    ¡f* Contract of administratrix with law firm, for share of judgment or sum of settlement, in suit for damages for death of R. R. employe —Settlement by R. R. Co. with administratrix without knowledge of attorneys — Suit against R. R. Co. and administratrix to recover share under contract—
    A^law firm brought suit for an administratrix against a R. R. Co., to recover damages for negligently causing the death o one of its employes, the intestate of the administratrix, after having made a contract with the administratrix that for their fees they should have a certain share of the judgment if any was recovered. They notified the R. R. Co. of their interest in and alleged lien on the result of the suit or any settlement thereof, but the R. R.Co., without their knowledge or consent, entered into negotiations for a settlement with the administratrix, and finally settled with her, payng her a certain amount of money, and agreeing to pay the fee of her lawyers, no amount thereof being agreed upon. The law firm thereupon brought suit for a certain portion of the amount paid in settlement of the claim, making the R. R. Co., the administratrix as such and individually, and the guardian of the minor children of the deceased as such and individually, parties defendant. On demurrer to the petition on the ground of misjoinder of parties, and generally for insufficiency of facts stated in the petition, held:

      No cause of action against administratrix as such—

    (1) . That there i3 no cause of action that can be maintained against either of these representative parties, either the administratrix or the guardian, in their representative capacities.

      R. R. Co. and administratrix individually properly joined—
    (2) . That there is but one cause of action stated against the Railway Company and Rose Connell individually, and therefore there is no misjoinder of causes of action, and the two parties can properly be united in the case as defendants.

      Good cause of action against administratrix individually—
    (3) . The petition sets up a good cause of action against Rose Connell individually, arising out of her breach of contract with the plaintiffs’ law firm.

      Unessential averments in petition may be disregarded by court—
    (4) . Where the petition contains certain allegations unessential to the cause of action, the court may disregard these and render judgment in the case on-the strength of the essential allegations.

      Contract made with administratrix as such — Action for breach aqainst her individually—
    (5) . Although the contract was made by the defendant Rose Connell in her capacity as administratrix, yet the action can be maintained against her individually for breach of the contract. The contract having for-its subject-matter a claim i¿ which she was personally interested, and for its object the enforcement of that claim, absolute control of the proceedings or of the fund by her was immaterial.

      Order of dismissal of some defendants final order as to them — _
    (6) . An order of the court dismissing a petition as to some of the defendants, is a final order as to them, upon which error will lie, and a cross-petition in error against such dismissed defendants, filed more than six months after the date of sucfi order of dismissal, by the plaintiff below in error proceedings instituted by the other defendants, must be dismissed.

      Railroad not liable under facts of case—
    <7). Under the facts of this case there was no cause of action against the Railroad Co., as it had a right to settle the case with these parties, and under the evidence it did not promise to pay any particular sum to counsel in the damage suit, nor did it agree to pay according to the terms of the contract between the law firm and the administratrix. Perhaps a lien might he obtained upon the funds that would arise immediately- upon a settlement being made, so that the railway company might be charged as trustee, or might be required, if proper notice had been served, or proper steps taken, to withhold some share of the fund for the protection of the right and interests of the attorneys. But the notice served upon the railway company in this case was^not to that effect.
    Error to the Court of Common Pleas of Lucas county.
   Parker, J.

This is a proceeding brought to reverse a judgment obtained by the defendants in error against the plaintiff in error, in the court of common pleas of this county. The action in that court was by Hurd, Brumback, A Thatcher, a law firm, against the Wheeling & Lake Erie Railway company, Rose Connell individually, Rose Connell as'administratrix of the estate of John Connell, deceased, and Abby Riley as guardian of John Connell and Frank Connell, minors.

The petition sets forth, in substance, that the plaintiffs were employed to prosecute an action against The Wheeling & Lake Eire Railway Company,on behalf of the beneficiaries, or those entitled to recover, on account of the decease of John Connell, late of Huron county, Ohio; that they were employed by Rose Connell, his widow; that subsequently they were employed on the same terms of employment by Rose Connel, as administratrix of the estate of John Connell, deceased.

The case that they were employed to prosecute arose, as they say in the petition, on the following facts: That on or about the 12th day of February, 1894, and for a number of years prior thereto, said John Connell was in the employ of the defendant railway company as an engineer, engaged in running an engine on said line of railroad; that on account of the carelessness and negligence of the said defendant railway company, said John Connell was killed near the city of Belleyue, in said state, on said last named date, and the petition sets forth particularly' the circumstances under which this occurred; that Rose Connell was the wife of said John Connell; that Anna May Connell, aged 19 years, John Connell, aged 16 years, and Frank Connell aged 9 years, were children of the deceased. It is averred that ty the terms of this employment and in consideration of the services to be rendered by plaintiffs below, said Rose Connell agreed to pay the plaintiffs out of the money to be recovered in said action, either¡by suit or settlement,one half of the sum so recovered after first deducting the sum of $1500, and that they institued an action in the court of common pleas of Lucas county, for the purpose of recovering $10,000 damages, which they averred had been sustained; that they prosecuted this action with diligence, and the petition sets forth certain services rendered by them in that behalf. The petition contains the following averments:

“That thereafter all of the defendants herein conspired together for the purpose of defrauding these plaintiffs of the compensation to which they were entitled by reason of their services in said action, and without the knowledge or consent of plaintiffs, did, on or about the 21st day of May, 1895, enter into a contract and agreement of settlement, by the terms of which said railway company agreed to pay to said Rose Connell, as such administratrix, the sum of thirty-five hundred dollars in settlement of said case. That as a part of the consideration of said settlement said railway company further agreed in writing to pay the attorney fees which these plaintiffs were entitled to in said above-named case. That in furtherance of said fraud and conspiracy and for the purpose of making it appear that the said administratrix received but the sum of fifteen hundred dollars in the said settlement, and for the further purpose -of deceiving these plaintiffs as to the true amount of said ■settlement, the said defendants conspired together and caused the records of the probate court of Huron county to be so prepared as to show that the said Rose Connell, as ■such administratrix, settled said cause for the sum of fifteen ■hundred dollars. That at the same time of preparing said records, on or about the 21st day of May, 1898, the said railway company, through its officers and attorneys, and through the intervention of the said Rose Connell, and Abby Riley, caused the defendant Abby Riley to be appointed guardian of said John Connell and Frank Connell, children of said decedent. That instead of paying.the full sum of money to be paid in said settlement, except the compensation due these plaintiffs, said defendants conspired together and caused the sum of two thousand dollars, which ■was a part of the consideration of said settlement,to be paid to the said Abby Riley as such guardian.
That a short time before the said 21st day of May, 1895, and before said settlement was consummated between the defendants, these plaintiffs served written notice upon the defendant railway company and upon its attorneys of record in said above-named case, Messrs. Swayne, Swayne & Hayes, that they had an interest in, and a lien upon, the proceeds of any settlement made or judgment rendered in said action so brought by the said Rose Connell, administratrix; and requested the said railway company to consult with plaintiffs before any adjustment of said cause was made, and told said company that these plaintiffs would favor a settlement of said cause upon a reasonable basis. That said company, through its said attorneys, in response to said notice told these plaintiffs that the said company would consult with them, and would make a proposition of settlement of said case to plaintiffs; as attorneys for the said administratrix; but instead of doing so, did wrongfully, fraudulently and with intent to defraud plaintiffs of the just compensation to which they were entitled, cause said settlement to be brought about, without the knowledge or consent of plaintiffs, and without giving them any notice thereof."

The petition then avers that they claim as their compensation $1000; that they have presented their claim for this fee to the railroad company, to the guardian, to the administratrix and to the parties individually, and it has not been paid, and they ask for judgment against all the parties for $1000 and interest.

The answer filed to this petition on behalf of such of the defendants as answered, is substantially a general denial.

Now the case in the court below took this course: On motion of the defendants, certain allegations in the original petition were stricken out,to which plaintiff excepted. We find that these averments which were stricken out were either matters of evidence or immaterial matters, and that the action'of the court with respect to that was proper.

Upon the 27th day of October, 1897, a demurrer was filed by the defendants, and was heard and sustained as to Rose Connell as administratrix, and as to Abby Riley as guardian, and the petition as to them was dismissed. The plaintiffs excepted and took leave to file an amended petition, making Abby Riley individually a party defendant". The journal entry of that date with respect to this matter reads in part as follows:

“In consideration whereof, the court being duly advised in the premises,' in sustaining said demurrer in part and overruling same in part, find as follows, to-wit:
“First. That there is one cause of action in said petition contained and set forth, the same being in tort and not in contract, against the defendants The Wheeling & Lake Erie Railway company and Rose Connell individually.
“Second. That there is no cause of action in said petition contained and set forth against said defendants Rose Connell as administratrix of the estate of John Connell, deceased, and Abby Riley guardian of John Connell and Frank Connell, minors.
“The court therefore sustains said demurrer of said defendants as to Rose Connell, administratrix of the estate of John Connell, deceased, and sustains said demurrer as to the defendant Abby Riley, guardian of John Connell and Frank Connell, minors, and overrules the said demurrer as against the defendants The Wheeling & Lake Eire Railway company and Rose Connell individually, to which ruling of the court the plaintiffs by their counsel excepted and leave is given the plaintiffs to file an amended petition in ten days, and upon application of the plaintiffs, Abby Riley is made a party defendant.”

An amended petition was filed, and the averments in the amended petition are substantially the same as those in the original petition, excepting that the parts stricken out from the original petition were omitted from the amended petition, and Abby Riley was made a party defendant. The amended petition contains a prayer for judgment against all of the defendants precisely as if Rose Connell as administratrix, and Abby Riley as guardian, had not been dismissed from the case, (as we find they had been, in effect,) without changing the averment as to, them.

Answers were filed on behalf of the railway company and on behalf of Rose Connell and Abby Riley individually and upon these pleadings the parties went to trial to a jury.

After the evidence was all in, by agreement of parties, the jury, was discharged from the consideration of the case and the whole matter was submitted to the trial judge,

On the 31st of March, 1896, there was a finding and judgment for the plaintiffs and against Rose Connell for $1000 and accrued interest, and in favor of Abby Riley and the railway company as against the plaintiffs.

Nothing is said in the record as to Rose Connell, as administratrix, or as to Abby Riley as guardian, after the 27th of October, 1897.

On June 16th, 1898, a petition in error was filed by Rose Connell against the plaintiffs below to reverse the judgment against her. On July 23, 1898, a cross-petition in error was filed by plaintiffs below against Rose Connell, as administratrix, Abby Riley, as guardian, Abby Riley personally and the railway company, to reverse the judgment and orders entered in favor of these defendants below against plaintiffs below.

The first inquiry arises upon the petition in error filed by Rose Connell. We find that the case stated in the amended petition against her is fairly made out by the evidence. It is quite apparent that this settlement included a payment of $3500 to the beneficiaries, all of whom were represented by Rose Connell, as administratrix. Whether the method pursued of distributing the amount received was regular and lawful and exonerates her as administratrix, so that she may not be called upon to surrender some share of the $1500, which the records of the probate court show she received on behalf of all the beneficiaries, (the $1500 is shown by her report and the court’s finding to have been the whole amount received on behalf of all the beneficiaries), we need not now inquire.

While the court below in passing upon the demurrer expressed the opinion that the action was founded on an alleged tort, and that the plaintiffs might recover judgment against so many of the parties as may have participated therein, we are of the opinion that the amended petition sets forth a good cause of action against Rose Connell, individually, arising out of the acts done by her, including her breach of contract, and that under the proofs the judgment against her is fully warranted, And in arriving at this conclusion we do not find it necessary to invoke either Revised Statutes, §5207, as to the submission of cause without pleadings, or Revised Statutes, §5114, as to amendments, to sustain the action of the court below. It was only necessary for the court to disregard certain allegations of the petition unessential to the cause of action against her. And we do not deem it necessary to determine whether the action against her comes strictly within the category of tort or that of contract. It is clear however, that it had its foundation in contract and a breach thereof, and, so far as she alone was concerned, all other matters were immaterial. It is not apparent to us that the plaintiff in error was prevented in any way from setting up and taking full advantage of any defenses she may have had to the case stated against her, whether the case was viewed as one sounding in tort or upon contract.

It is urged that the action could not be maintained against the plaintiff in error on her contract, because she therein agreed to do that which was legally impossible for her to perform; that is, to institute and prosecute and perchance settle an action over which she as an individual had and could have no control, and had no right of control, since an administrator of the estate of the deceased was the only proper or lawful representative and person in authority in the premises.

We discover no such obstacle to the enforcement of this contract. Rose Connell was the widow of the deceased, and therefore, one of the beneficiaries.

This contract having for its subject matter a claim in which she was personally interested, and for its object the enforcement of that claim, absolute control of the proceedings, or of the fund, was immaterial. Even an administrator could not obtain absolute control of the litigation or the fund, since such trustee is subject to the control of the probate judge in- the enforcement of such claims, and in the distribution of the fund. How far an administrator may bind himself as such so as to affect the fund, or how far the fund may be bound by the contract of the administrator or the beneficiaries wilh an attorney, or by the service of the attorney in securing the fund, we need not now consider. It is sufficient that she was a beneficiary, (if indeed any interest in or right of control over the proceedings or the fund is required, which is not apparent), and as such cestui que trust she would have some right to be heard and to, in some measure, by proper proceedings, regulate the action of the administrator, acting as her trustee, if he should attempt to proceed in disregard of her rights and interests in the premises.

Besides this, she had the first right to the office of administratrix, and she availed herself of this right, and thereafter accepted the services of plaintiffs below tendered and performed under the contract, so that after all the questions as to her right and power in the premises had been removed, she ratified the contract, and it then became legal and obligatory, if it had not been so befoie.

Upon the receipt of the $11500 her obligation to pay $1000 to the plaintiffs below arose. If the settlement was upon the terms she states in her testimony, the amount to be paid was really $5,500, and the plaintiffs below were entitled to $2000; that is, the share of the beneficiaries of the amount received over $1500 was to be one-half, and the share of the attorney was one-half. By agreement with the railroad company, which had notice of this contract, she was to have as her share,$2000, and, therefore, their share would be an amount equal to that. But since they hav9 claimed but $1000, and have recovered a judgment for but $1000, this may be dismissed without farther remark.

As io the cross-petition in error of the defendant in error the time limited for the filing of a petition in error to reverse the judgment of the court below dismissing the petition of the plaintiff as to the administratrix and as to the guardian had expired before the cross-petition in error was filed. As I have said, that judgment of the court was entered upon the 27th day of August, 1897, and the cross-petition in error was filed on the 23d day of July, 1898. Therefore the court has no jurisdiction in the premises. Young v. Shellabarger, 53 Ohio Statutes 291.

Such jurisdiction cannot be conferred upon this court by the voluntary appearance, or agreement of the parties. King v. Penn, 43 Ohio St. 57.

We regard the order of the court dismissing the petition as to the defendants Rose Connell as administratrix and Abby Riley as guardian, as a final order upon which error could be prosecuted. If, however, the order does not have that effect, then there is no judgment of the court below as to these defendants. No order respecting them was made subsequently to October 27th, 189-7, and if that is not a final order, then the case in the court below is still pending as to these defendants.

Secondly: as to Abby Riley individually. The proof in the case indicates that she was the passive agent of the other parties in accepting the guardianship and the funds of the wards. It does not show that she designed to assist in the perpetrating of any fraud upon the plaintiffs. We think that the evidence was not sufficient to warrant a judgment against her personally, and that the judgment of the court below as to her was not opposed to the evidence.

Third: as to the railroad company. Though the proof may justify the conclusion that it conspired with RoseConnell and others to deceive and defraud the plaintiffs below, does it appear that any fraud was accomplished, or any legal wrong done?

This is not an action to charge or subject the fund. If it were, the railroad company might well answer that there is now no fund in its hands subject to the orders of the court. It is not an action upon the contract of the railway company to pay the plaintiffs’ fees. If it may be viewed as such an action — 'there are certain allegations in the petition which would indicate that some such idea may have been entertained by the plaintiffs below — 'but if it were viewed in that way, then there is no sufficient evidence in the record to indicate that the railroad company entered into any obligation to discharge the promise or obligations of Rose Connell to the plaintiffs; that is to say, to pay the amount that she had promised to pay.

If this were an action upon a contract or promise of the railroad company growing out of this settlement, we cannot ses that the statute of frauds would prevent a recovery, since it would be part of the consideration of the settlement, part of that agreed to be paid, in effect, to Rose Connell as administratrix. But on this theory the finding of the court in not so clearly against the evidence as to warrant a reversal, The evidence tends to show that the railway company did not promise to pay any particular sum, or any more than it might please to pay. It does not show that the railway company agreed to pay according to the terms of the contract between Rose Connell and the plaintiffs below.

The action against the railway company is really upon the theory that it defeated some right, lien or legal advantage of the plaintiffs below, and that it may be required to respond on account of the damage thereby done.

Assuming that Rose Connell, personally, or as administratrix, might and did by her contract give a right to or a lien upon a share of the fund,or that plaintiffs’ services gave rise thereto, still the contract made by Rose Connell with the plaintiffs made her the paymaster of plaintiffs.

The contract reads, as follows:

Agreement.
“Rose Connell, party of the first part, hereby employs Hurd, Brumback and Thatcher, parties of the second part, who undertake to prosecute an action against the Wheeling •& Lake Erie Railway Company to recover for damages sustained by her, and the heirs of John Connell, deceased, on account of the death of the said John Connell occasioned by the negligence of the railway company, on cr about the I2th day of February, 189L
“The said party of the first part hereby agrees to pay to the parties of the second part, out of any money recovered in said action, by suit or settlement, one-half of said moneys first deducting the sum of $1,500.
Then follows a stipulation as to the amount to be paid in •case no suit is instituted, and the agreement is signed by Rose Connell and by Hurd, Brumback & Thatcher.
The railway company settled with Rose Connell, as administratrix, as it had a right to do. That is not questioned. It is not pretended that by any contract or arrangement with Rose Connell the law firm could interfere with, or obstruct, or in any way affect the right of the railway company to settle its cause of action with the representative of the beneficiaries, and, under the statutes, upon the making of this settlement, she had a right to receive the funds growing out of the settlement. (Revised Statutes, sec. 6185.) There is no allegation or evidence in the case, nothing to make it appear that this firm of attorneys had ■any prior right to receive the fund or to have the fund pass through their bands. The contract, as I have said, does not provide for that. The contract provides that they are to receive their pay from Rose Connell. Notwithstanding this, perhaps a lien might be obtained upon the funds that would arise immediately upon a settlement being made, so that the railway company might be charged as trustee, or might be required, if proper notice had been served, or proper steps taken, to withhold some share of the fund for the protection of the rights and interests of the attorneys. But the notice served upon the railway company was as follows:
“Defendant will take notice that under and by virtue of the terms of an agreement between the plaintiff and the undersigned, her attorneys, the undersigned have an interest in the proceeds of any settlement made or judgment obtained in the above entitled action.
“Please consult us before entering into any compromise. May 17, 1895.
(Signed) “Hurd, Brumback & Thatcher.”

There is nothing in this notice to require the railway company to hold any part of the funds or pay them into the hands of the attorneys in order that they may protect any right or lien that they may have by virtue of these transactions. The conversations between the plaintiffs below, the members of this law firm, and the representatives of the railway company, go no farther than this notice. There is-nothing in those conversations requiring the railway company to withhold the funds for their protection. We hold that the railway company did only what it had a right to do in the premises in paying over the amount of money agreed upon in settlement to Bose Connell, or to those to whom, she directed that it should be paid.

There is no allegation or proof of the insolvency of Bose Connell. Some remark was made by Bose Connell when under examination, after the case had be9n heard and decided and an effort was being made to obtain a re-hearing and a new trial, which might indicate that she was then insolvent; but that was not one of the issues in the case. The alleged efforts to deceive the plaintiffs as to the amount in settlement came to naught, and do not appear to have in any way affected the plaintiffs below to their detriment or disadvantage. There is nothing in the case made to show-that the railway company did anything but that which it had a legal right to do, or to show that Bose ConnelJ is not now as good a paymaster aa she was when the contract was made, or, if she is not, there is nothing to show that the railway company is in anyway responsible for her being less, able to pay. If the railway company had been notified that the plaintiff desired it to retain and pay their' share to them , direct, a very different question would be presented to us. for consideration. This view of the matter upon the evidence makes it unnecessary for us to consider or discuss the ■ authorities cited with reference to the right of attorneys to. obtain or acquire liens upon funds under circumstances like ■ these.

Swayne, Hayes & Tyler, for Plaintiff in Error.

Hurd, Brumback & Thatcher, for Defendants in Error.,

The cross-petition in error as to -the administratix and guardian will be dismissed, and the judgment of the court, below as to the other parties will be affirmed.


author: Voorhees, J.

text:
    (Fifth Circuit — Stark Co., O., Circuit Court
    Sept. Term, 1899.)
    Before Adams, Douglass and Voorhees, JJ.
    ALBERT E. WINNETT v. THE STATE OF OHIO.

      Criminal Law — False Pretenses—
    (1) . W. procured the signature of S. to a promissory note for $200, by representing that he wanted to show the note to-one H., to show H. that W. had a good standing where he lived, had friends who had confidence in him, who would sign and endorse bankable paper for him; that he wanted the note for no'other purpose, promising that it would then-be left in the possession of W., and he would destroy it. Said representations and promises were false. Held, that there were no false pretenses, as S. was deceived not by any statement of facts on the part of W., but by reliance upon a promise not meant to be fulfilled, and a false statement as to intention.
    (2) . An indictment for false pretenses cannot be founded upon an assertion of an existing intention, although it did not in fact exist; there must be a false representation as to an ex- ■ isting fact.
    (3) . A false pretense, within the meaning of the statute, must relate to a past event or an existing fact. Any representation or assurance in relation to a future transaction is not-included.

      Error to the Court of Common Pleas of Stark county.
   Voorhees, J.

The case of Albert E, Winnett, plaintiff in error, against the state of Ohio, defendant in error, is in this court on error. The plaintiff contends that the court below erred in overruling a demurrer to the indictment upon which he was tried and convicted. The indictment charged plaintiff in error with obtaining the signature of one Swartz, to a prum- . issory note for two hundred dollars by false pretenses,

The indictment is founded upon section 776, Revised Statutes of Ohio, which provides:

“Whoever, by any false pretense, with intent to defraud, obtains from any person any thing of value, or procures the signature of any person, as maker, indorser, or guarantor thereof, to any bond, bill, receipt, promissory note, draft, or check, or any other evidence of indebtedness, * * * shall, if the value of the property or instrument so procured, etc., is thirty-five dollars or more, be imprisoned in the penitentiary,” etc.

The indictment in this case is drawn upon the above section of the statute, and (omitting formal parts) is as follows:

“The defendant, Albert E. Winnett, about October 7th, 1896, at the county of Stark, and state of Ohio, did unlawfully and falsely pretend, with intent to defraud one Oalvin Swartz, that he wanted to show to one Harmon, who was at his house and a special friend of Winnett, that he, Win-nett, had a good standing in the community of Middle-branch, Ohio, where he, Winnett, lived, and that he had friends there who had confidence in him, who would sign and endorse bankable paper for him; and did further unlawfully and falsely pretend, that he wanted him, Swartz, to make, sign and endorse some promissory notes with him, Winnet, for the purpose aforesaid, and for no other purpose; and that the notes would then and there be left in the possession of him, the said Winnett; that he would keep the said notes in his possession, and he would then destroy them; by which said false pretenses theretofore made by Winnett, he did unlawfully procure the signature of said Swartz as maker to a certain promissory note of the value of two hundred dollars — a copy of the note is set forth in the indictment — whereas in truth and in fact, he, Winnett, did not want to show to said Harmon that he, Winneti, had a good standing in the community of Middlebranch, Ohio, where he lived, and did not want to show that he had friends there who had confidence in him, who would sign and endorse bankable paper for him; that he did not want Swartz to make, sign and endorse some or any promissory notes for bin; for the purpose aforesaid, but did want said signature to said note for the purpose of raising money thereon; nor did he intend said notes would be left in the possession of him, Winnett, nor keep them in bis possession, or destroy the same; and at the time he did pretend as aforesaid, he well knew said false pretenses to be false.”

To constitute the offense described in the statute and set forth in the indictment, it is not sufficient simply to follow the language of the statute. The particular pretense or pretenses by which the signature of the person to the instrument was procured must be specifically stated; and the indictment must aver all the material facts whmh it is necessary to prove to produce a conviction, and with such reasonable certainty as to advise the accused what he' may expect to meet on the trial. Four things must concur, and four distinct averments mush be proved.

First: There must be an intent to defraud.

Second: There must be an actual fraud committed.

Third: False pretenses must be used for the purpose, of •perpetrating the fraud; and

Fourth: The fraud must be accomplished by means of the false pretenses made use of for the purpose, viz., they must be the cause which induced the party to sign the in ■struments or part with his property.

The pretense or pretenses relied upon must relate to a past event, or an existing fact; and any representation or assurance in relation to a future transaction, however false or fraudulent it may be, is not, within the meaning of the statute, a false pretense which lays the foundation for 3 criminal prosecution. Dillingham v. The State, 5 Ohio St., 280, 283; Commonwealth v. Drew, 19 Pick, 179, 185.

Tt is contended on behalf of the state that the intent, the mental operation of the mind of the accused, existing-at the time he procured the signature of Swartz to the note, was an existing fact, and, although such existing intent or mental action was coupled with a promise as to what he would do in the future with the note, would constitute a crime under the statute,

The defendant went to Swartz and requested him to sign a note, pretending he wanted to show.the note to his friend Harmon, who, he represented, was then at his, Winnett's, home. It is not alleged in the indictment that Harmon was not at his home, and his representation was therefore false. Such a statement or pretense would have related to an existing fact. Representing that Harmon was at his house, and in using that pretense for the purpose and with the intent to get the signature of Swartz to the note, and lae did so get it, and it was untrue, this would be a statement or assurance of an existing fact.

What influenced Swartz to sign the note ? It was not that Winnett wanted to show the note to Harmon that induced him to sign the note; but rather his promises that he would retain the note in his possession, and would destroy it, influenced his action. The indictment does not negative the statement that Winnett did not retain the note in his possession or did not destroy it. These are material matters.

But first, was there a pretense or a representation made of a past or existing fact?

An indictment for false pretenses cannot be founded upon an assertion of an.existing intention, although the intention did not in fact exist; there must be a false repre-sentation as to an existing fact. The People of the State of New York, etc., v. John H. Blanchard, 90 New York, 314, is an authority in point here.

That case, was an indictment for obtaining property under f alse pretenses. The representations alleged to be false-were, that the accused “was agent for Otto Gulick of Utica, and that he wanted to buy eighteen cattle for Gulick, and' that Gulick wanted him to buy for and send him eighteen' cattle; and that he had a contract with Gulick for buying: cattle for him, and Gulick had agreed to pay him $1.00 a' head for buying cattle.” “This”, says the judge announcing the opinion, page 318, “taking this accusation as a whole, and construing it in the ordinary sense and acceptation of the language used, charges a false representation, or agency in the purchase of the cattle for Gulick,. It is impossible to misunderstand the tenor of these representations taken together. They import an agency existing, action desired and intended under such agency, and a compensation of $1.00 a head as a reward for the services rendered.”

But the court says, at page 319,

“Disregarding entirely the alleged claim of agency, two statements were culled from the representations recited in the indictment, and made the sole basis of the conviction. These were, that Blanchard said he wanted to buy eighteen cattle for Otto Gulick, and that Otto Gulick wanted him to buy for him and sent him eighteen cattle; and the meaning attached by the court and jury to these words was that Blanchard represented that he had wanted to buy in his own name and on his own responsibility for Otto Gulick, a customer of his, and that Gulick stood ready as such customer to make the purchase and take the property.”

And continuing, at page 324,

“This brings us to the final question of the nature of this-representation. It declares an intention, and involves a promise. It states a present purpose and design to sell the-cattle, when bought, to Gulick, and a promise to apply the proceeds resulting from such sale to the payment of the post dated check. ‘I am buying for Gulick’, ‘I want these cattle for Otto’, could mean only that the defendant bought with a then present intention of sending them to Gulick. It was a statement of the design and motive of the accused in making the purchase. It represented what was at the time in his mind, and constituted his intention, and so far as it tended to affect or influence the seller, it was essentially a promise, and related to the future, * * * So far as this intention and promise were concerned, the seller necessarily took the risk of its fulfillment. He had to rely alone upon the supposed honesty and integrity of the defendant, and he was cheated not by any false statement of facts, but by reliance upon a promise and intention not meant to be fulfilled.”

When Winnett applied to Swartz to get his signature to 'the note, he represented that he wanted to show it to Harmon. Grant that this was false, and that such intention did not exist, he having no such intention in his mind. Under the New York case this was not the representation or assurance of an existing or past fact. Winnett’s declaration and intention to show the note to Harmon was coupled with a promise that after he did so, he would retain the note in his possession or would destroy it. He wanted to get the note to show to Harmon to convince him that he had good 'standing in that community; that his friends would endorse for him. This is what he represented he wanted the note for, and what he intended to do with it; but so far as the intention and promise were concerned,Swartz, like the seller ■of the cattle in the New York case, supra, took the risk that after Winnett had shown the note to Harmon to convince him that he had friends who would indorse for him, he would destroy the note or keep it. Swartz took the responsibility on himself, or the risk, that Winnett would do so. He had to rely upon the supposed honesty and integrity of •the defendant, and he was deceived — not by any false statement of a fact, but in relying upon a promise and intentiop not meant to be fulfilled.

In Archer’s case (Dearsley’s C. C., 453), Pollock O. B, describes the present case very nearly in his statement, that if a man says: “I want goods for a certain house, and I mean to send them to that house; sell them to me”; that would not be a representation of an existing fact. Other authorities lead to the same conclusion. (2 Whart, Sec. 2118; Wests’ Case, I. D. & B. C. C., 575; Ranney v. People, 22 N. Y., 417; Reg. v. Bates, 3 Cox’s C. C., 201, 203; Reg. v. Jennison, 9 Id., 158; Rex. v. Goodhall, Ruse & Ry, 461; People v. Tompkins, 1 Park Cr., 238).

It is claimed, and this is the contention on the part of the state, that a promise or an intention — the intention existing in the mind of the party, and at the same time, not meant to be fulfilled- — -is an existing fact. We think the authorities will not sustain this contention,

In 12 Am. & Eng. Enc. of Law (2nd Ed.,) on page 811, the author says:

“False representations amounting to mere promises, or professions of intentions, though they induce the defrauded party to part with his property, are not false pretenses, for they have reference to future events”. (Citing in the note among cases from other states, Dillingham v. State, 5 Ohio St., 280.)

In the case of Commonwealth v. Warren, 94 Ky, 615, it is held:

“To constitute the offense of obtaining the signature of another to a writing by false pretense, the false pretense must be a statement of some pretended past occurrence or existing fact, made for the purpose of inducing the party injured to sign the writing. No statement or representation of anything to take place in future is a pretense in the meaning of the statute, whether it be in the form of a promise or not. One who induces another to sign a note upon the representation that it is to be used as a renewal of an existing note upon which the person signing is bound, does not violate the statute, although he intends to and does use the note for another purpose,"

To same effect is Com. v. Moore, 99 Pa. St., 570; s. c. 4 Am. Crim. R., 230.

In the case of Reg. v. Woodman, 14 Cox C. C., 179. s. c., 28 Moak’s Rep., 561;

“An indictment charged one Gregory with having obtained £30 from the prosecutor, Woodman, on the false pretense that he, the said Gregory, then wanted the loan of £30-to enable him to take a public house at Melksham; by means of which said false pretense, the said Gregory did then unlawfully and fraudulently obtain the said sum from the said Samuel Woodman with intent to defraud, Where-as the said Gregory was not then going to take a public house at Melksham, as he the said Gregory well knew. And whereas the said Gregory did not then want a loan of £30 or any money to enable him to take the said house. Held, not a false pretense as to an existing fact."

To a suggestion of the prosecutor, in the above case, “That there the existing fact was the intention of the prisoner,’’ Mellor, J. replied, “How can you define a man’s mind? It is a mere promissory false pretense.’’

In the State v. De Lay, 93 Mo., 98, the indictment charged the defendant with having obtained the signature of the parties to the promissory note set forth in the indictment by falsely pretending that said note was to be used for the purpose of playing a joke upon certain citizens of New Hamberg, and not for the purpose of obtaining any money on it; and that the defendant after thus obtaining the signatures, did use said promissory note for the purpose of obtaining money on it.

“The sole inducement held out to the parties to sign the note was, that it should not be used by defendant as a genuine note, but as a mere sham and pretense; this was a false pretense according to the charge in the indictment, but its falsity consisted in the use to be made of the note after the signatures were obtained; the defendant was guilty of a gross breach of confidence, but not of a criminal false pretense, within the meaning of the statute. The word ‘pretense’, when used in a criminal statute, is to be understood in its legal and technical sense, it having a well defined, as well as a peculiar and appropriate meaning in law. * * * ‘A^false pretense’, says Mr. Bishop, ‘is such a fraudulent representation of an existing or past fact, by one who knows it not to be true, as is adopted to induce the person to whom it is made to part with something of value.’ ” 2 Bishop Crim. Law, section 415. ‘'A promise is not pretense”. Ib. section 419. * * *
‘‘If the indictment had contained the ordinary and proper averment that the parties whose signatures were obtain3d believed, relied upon, or confided in the truth of the false representation in connection with the word induced as used in the indictment, it would have become at once apparent that reliance was, and could only have been, placed in the representation by defendant of the future use he intended to make of the note, as that was the only representation adopted to induce them to part with their signature upon which they could have relied.”

The moving cause that induced Swart? to sign the note for Winnett must have been the promise that he would destroy the note or keep it in his possession, which would render it a harmless instrument; and as it is not alleged in the indictment that he did not keep it in his possession or destroy it, the indictment is fatally defective.

We do not mean to say that the statute in its operation' is limited to cases against which ordinary skill and diligence cannot guard, for one of its principal objects is to protect the weak and credulous from the wiles and stratagems of the artful and cunning. Bartlett v. State of Ohio, 28 Ohio St., 669-670.

To constitute a false pretense within the purview of the statute, the representation must be such as either with or without the co operation of other causes had a decisive influence upon the mind of the party defrauded, so that without its weight he would not have parted with his property.

Welty & Albaugh, for Plaintiff in Error.

Atlee Pomerene, Prosecuting Attorney, and C. C. Bow, for the State.

The only possible thing that could have influenced Swartz in the representation or assurance made to him by Winnett which could have induced him to sign the note, was the statement, that Winnett would keep the note in his possession, after showing it to Harmon, and would destroy it. And this is nowhere negatived in the indictment, It is entirely consistent with all its averments that Winnett still has the note, or has destroyed it as he promised he would. This omission alone would make the indictment defective. Dillingham v. The State of Ohio, 5 Ohio St., 280-284.

The question involved here is a difficult one. We are not entirely free from doubt. In criminal cases where the liberty of an individual is at stake, and there exist in the mind of the court a reasonable doubt as to the criminal liability of the accused, it is the duty of the court to resolve the doubt in his favor. In this case in the light of the authorities and under the circumstances we cannot do otherwise than hold that the indictment under which the plaintiff in error was convicted was insufficient,and the demurrer should have been sustained, and in overruling the demurrer the court of common pleas erred, and that the judgment should be reversed.

We are herejnet with another question. If the indictment had been objected to by motion to quash,and the motion sustained, the subsequent proceedings would be plain enough under Revised Statutes, section 7252. Where the attack is by demurrer, and the demurrer is sustained, there is no alternative but to discharge the defendant, and this will be the order of the court,