text:
    NEGLIGENCE OF CHAUFFEUR AND LIABILITY OF HIS EMPLOYER.
    Circuit Court of Cuyahoga County.
    L. Q. Rawson, Administrator, v. The Olds Motor Works.

    Decided, May 27, 1912.

      Employer and Employee — Negligence of Employee in Use of Employer’s Automobile — Employer Not Liable, When.

    When an employee of the owner of an automobile steps aside from his employment and uses his employer’s automobile for his own purposes alone, during which use he negligently injures another, the employer is not liable for such injuries.

      Seaton & Paine, for plaintiff in error.

      V. H. Burke, contra.
    Niman, J.; Winch, J., and Marvin, J., concur.

      Affirming Rawson v. Olds Motor Works, 12 N.P(N.S.), 145; judgment of Circuit Court affirmed by Supreme Court without opinion, June 29, 1914.

   The action in the court below was brought by the plaintiff, who is plaintiff in error here, as administrator of the estate of Jerry Mahoney, deceased, to recover damages of the defendant for the death of the said Jerry Mahoney, claimed to have been caused by the negligence of the defendant, acting through one of its servants.

At the close of the plaintiff’s evidence the trial court, on motion of the defendant, directed a verdict for said defendant. Proper steps were taken by the plaintiff to save the question for review, and by this proceeding in error we are called upon to determine whether the court erred in so directing a verdict for the defendant.

The facts are substantially as follows:

The defendant, the Olds Motor Works, is a Michigan corporation and maintains a branch office in the city of Cleveland, for the sale and distribution of automobiles manufactured by it, and for the repair and maintenance of such automobiles.

On the 28th day of September, 1908, William Booth was in charge of the Cleveland branch of the defendant’s business as sales manager, and William Clark was employed there as a washer, and when not engaged in the work of washing ears, did general work about the branch office, and operated and delivered cars.

On the day mentioned Mr. Booth, having received a telegram from a main office of the defendant in Detroit, calling for the shipment to that city of a certain car then in the Cleveland Branch, by way of the Detroit boat, ordered and directed William Clark to take this ear to the dock of the Detroit boat and ship it to Detroit. This order was given about the close of the business day. The branch was located on Euclid avenue near East 22nd street; the dock is at the foot of Superior avenue, west of the place of business of the defendant. The boat left at 10:15 o ’clock in the evening, and in order that the car might be shipped it was necessary that it be at the dock by about 10 o ’clock.

The usual route over which cars were taken from the defendant’s branch was from the garage on Euclid avenue through an alley westerly to East 18th street, northerly on East 18th street to Euclid avenue, westerly on Euclid avenue to East 9th street, to Superior avenue, to the Detroit boat dock at the foot of Superior avenue.

On the day mentioned, Clark, about 6:30 p. mv took the ear which he had been directed to deliver at the boat and drove to a restaurant on Prospect avenue, where he obtained something to eat. After he had finished eating, he invited two waitresses at the restaurant to accompany him on a ride, and the invitation being accepted, they all got into the car and after driving about in various directions, drove onto St. Clair avenue from East 9th street and started east, in a direction exactly opposite to that necessary to arrive at the dock of the Detroit boat, for the purpose of taking a trip to Euclid Beach. While driving east on St. Clair avenue in the vicinity of East 14th street, at about 8 o’clock p. m., Clark struck Jerry Mahoney, a boy 15 years of age and ran over him and killed him with the automobile, under circumstances tending to show negligence on Clark’s part in the operation of the car. Later in the evening Clark took the car to the boat dock for shipment to Detroit.

The law of master and servant which we conceive to be appliable to this state of facts, is considered at length in The Lima Railway Co. v. Little, 67 O. S., 91. In paragraphs 2 and 3 of the syllabús the law is stated as follows:

“2. The test of a master’s liability is not whether a given act was done during the existence of the servant’s employment, hut whether such act was done by the servant while engaged in the service of, and while acting for the master, in the prosecution of the master’s business.
“3. A master is not liable for the negligent act of a servant or employee, if at the time of the doing of such act the servant or his employee is not then engaged in the service or duties of his employment although the act be one which if done by such servant or employee in his master’s service would be clearly within the course and scope of the usual and ordinary duties of such servant or employee.”

In the opinion on page 88, it is said:

“In determining whether a particular act was done in the course or within the scope of the agent’s employment, two things are always primarily considered.
“First. Was the agent engaged at the time in serving his principal ?
“Second. Even though he was so engaged, was the act complained of within the scope of the agent’s employment?
“The cases dealing with the subject have generally to do with one or the other of these questions, and can generally be classified under these two heads.”

Applying the principles announced in that case to the facts before us in the cases under consideration, was Clark, at the time of the accident to Jerry Mahoney, engaged in the service of the Olds Motor AYorbs, and was he in the prosecution of its business?

It is conceded that he was in the employ of the defendant, and that the fatal injury to the boy could not have occurred except for the facilities afforded Clark for committing the act complained of, by entrusting him with the automobile.

The only act required of Clark, however, was to take the car to the Detroit boat. Whatever may have been his intention when he started, he turned aside from the performance of the duty imposed upon him, and departed entirely from the scope of his employment with respect to that particular ear. For all practical purposes he appropriated the car to his own use and devoted it to his own purposes, exclusively. In starting on a ride to Euclid Beach for his own pleasure, he was engaged in his own exclusive enterprise. By thus stepping aside from his master’s business, to serve his own purposes, the relation of master and servant existing between the Olds Motor Works and himself was suspended, and no liability for his acts committed during the period when he turned aside from his master’s business attached to the latter, unless, as is contended on behalf of the plaintiff in error, the automobile is a dangerous instrumentality, 'and the master liable' for the negligent act of his servant, to whom he has committed the custody and control of such instrumentality, whether the servant is at the time of the injury complained of, in the master’s business or otherwise.

It has been held that the duty of those who use dangerous agencies in the prosecution of their business, to observe the greatest care in the custody and use of them, can not be shifted by a master from himself to his servant, so as to exonerate him from the negligence of the servant in the use and custody of them, and that where they are entrusted, the proper custody as well as the use of them, becomes a part of the servant’s employment by the master, and his negligence in either regard is imputable to the master, in an action by one injured thereby, and when the injury results from the negligence of the servant in the custody of the instrument, it is immaterial so far as the liability of the master is concerned, as to what use may have been made of it by the servant. Railway v. Shields, 47 O. S., 387.

The plaintiff in error invokes this principle and insists that the defendant in error having made its servant the custodian of a dangerous instrumentality, is liable for the negligence of its servant in the custody of such instrumentality, regardless of the use of it by him.

This contention would be sound if an automobile is to be classed as a dangerous instrumentality, but it can not be so classed. It is not inherently dangerous. In the hands of a careless or reckless operator in the public streets, it mry become a dangerous instrument, but the danger arises ñom ils use and operation, and not from any inherent quality of the r.u'or.cb Is,

In Cunmngham v. Castle, 127 N. Y. App. Div., 530, it was held:

“The owner of a motor car is not, as a matter cf law, liable for injuries caused by the negligence of his chauffeur when net engaged in the masters business, but using the car with the master’s knowledge and consent on a private pleasure trip cf his own.”

The court in answering the same argument advanced here said:

“It is urged that the automobile was a dangerous instrumentality, and having been entrusted to the chauffeur, the liability of the master still attaches because of its dangerous character. The automobile is not necessarily a dangerous device. It is no more dangerous per se than a team of horses and a carriage, or a gun, or a sailboat, or a motor launch. There is no evidence that the chauffeur was not competent and qualified to run the machine. In fact, he was employed by the defendant for that very purpose.
“If a game keeper had borrowed his master’s gun and had gone from the estate on a hunting expedition of his own, and had negligently shot a man, would the master be responsible because he was using that instrumentality which might be dangerous if carelessly used, the gun ? ’ ’

We are of opinion that the trial court did not err in directing a verdict for the defendant at the close of the plaintiff’s evidence, and this being _the only error complained of, the judgment of the court of common pleas is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    THE EQUITABLE REMEDY OF A RECEIVERSHIP.
    Court of Appeals for Hamilton County.
    The George Wiedemann Brewing Company v. Otto Herman et al.
    Decided, May 24, 1913.

      Receiver — Effect of Appointment — Will he Denied upon Petition of a Creditor, When — Section 11894

    There is no authority for the appointment of a receiver for the property of a debtor, where the plaintiff is the owner of a simple contract claim, and an appointment would exclude a judgment creditor from his right to levy upon the said property for the satisfaction of his judgment.

      Dolle, Taylor & O’Donnell, for plaintiff in error.

      James M. Stone and August Bruck, contra.
    Jones, O. B., J.; Swing, J., and Jones, E. H., J., concur.
   The only question involved in this case is the jurisdiction of the insolvency court in an action to appoint a receiver to take charge of all the property of a corporation on the petition of a creditor whose claim is on an account for merchandise sold, and has not been reduced to judgment, where the sole object of the receivership is to conserve the property of the defendant and prevent the levy of an execution or executions thereon and sale thereunder.

The corporation known as “the Spotlesstown Club,” whose property is thus protected, is a corporation not for profit and is operated for the “physical and social benefit” of its members. The property consists' of a club house with its furniture and fixtures on the Little Miami river near Milford Park, and its only other assets are the uncollected accounts owing to it by its members.

It appears that the next day after the George Wiedemann Brewing Company had received a judgment in the court of common pleas for more than $1,400 against the Spotlesstown Club, plaintiff below, wbo claims less than $45, filed his petition in the insolvency court praying for a receiver, in which he sets out the fact that the brewing company had obtained its judgment and threatened to levy execution thereunder, and that other creditors were also threatening suits, and that a sale 'by the sheriff upon execution would be at a sacrifice. The defendant club appeared contemporaneously with the filing of the petition and filed its answer consenting to the appointment of a receiver as prayed for, and the appointment was made. The brewing company had no notice and was not a party to the suit as originally filed. On its own application within three days after the filing of the petition the brewing company was made a party defendant and filed an application to vacate and set aside the appointment of the receiver. ' This application was denied and the brewing company brought these proceedings in error to reverse the action of the court thereon.

The action in the insolvency court was exclusively one for the appointment of a receiver. No other relief was sought that the court had jurisdiction to grant. The sole purpose of the proceeding as shown by the petition itself was to prevent credi-. tors from pursuing the remedies allowed them by law for the recovery and enforcement of their judgments. The only relief the plaintiff ’s claim primarily entitled him to was a money judgment for the amount of his claim, and the insolvency court has no jurisdiction to enter such judgment in favor of plaintiffs.

It is contended that Clause 1 of the General Code, 11894, authorizes the appointment of a receiver in an action “by a creditor to subject property or a fund to his claim.” But this is only in a proper cause pending in such court. It does not authorize the court on behalf of the owner of a simple contract claim through the medium of a receiver to take possession of the property of a debtor to the exclusion of the right of a judgment creditor to levy an execution thereon for the collection of his judgment.

As was said by the court in C., H. & D. R. R. v. Duckworth, 2 C. C., 518 (affirmed by the Supreme Court, 21 Bui., 36):

“The appointment of a receiver is merely a provisional remedy ancillary and auxiliary to the main action, and can only be made in an action brought to obtain some other equitable relief which the court had the right to grant and where it appears to be necessary to make such appointment in order to preserve the property during the litigation, so that the relief awarded by the final judgment, if any, may be effective. ’ ’

The appointment of a receiver can not be the ultimate relief sought. It is exercised by the court in a proper action to preserve the property upon which its subsequent judgment may operate. It is in the nature of an attachment or execution before judgment. Callahan v. Ice Co., 33 C. C., 479.

As said by Judge Spear in Cheney v. Maumee Cycle Co., 64 O. S., at 214:

“Ilis appointment is an equitable remedy bearing the same relation to courts of equity that proceedings in attachment bear to courts of law, the appointment being treated as an equitable execution. The purpose is to secure the means for satisfying the final order and judgment of the court in the action, and the effect of the seizure is to place the property seized in the custody of the court,” and citing R. R. Co. v. Sloan, 31 O. S., 1.

And the rule is thus stated in 34 Cyc., 29:

“It is well settled as a general rule that the appointment of receivers is an ancillary remedy in aid of the primary object of a litigation between the parties, and such relief must be germane to the principal suit; and a suit can not be maintained under this general rule where the appointment of a receiver is the sole primary object of the suit and no cause of action or ground for equitable relief otherwise is stated.”

The appointment of receivers for failing corporations made upon their own applications or that of some obliging creditor has been justly reprobated in numerous cases. Bank v. Lakeside Co., 19 C. C., 365; Delacroix v. L. Eid Concrete Steel Co., 7 N.P.(N.S.), 489; Gott v. Schultze Co., 12 N.P.(N.S.), 206; Fairmount B. A. v. Rehn, Jr., 6 N. P., 185.

The vigilance of a creditor is poorly rewarded if as soon as he has obtained his judgment he is prevented from collecting it by execution because some friendly creditor fearing that the debtor’s property may not yield the full value at judicial sale succeeds in inducing a court of equity to prevent such sale by a receivership. The ease at bar is certainly unusual because it can hardly be expected that the receiver could make a profit out of the operation of a social club, or that it would yield more if sold as ¿ going concern.'

Nor will the fact that the order authorized the receiver to collect club dues in arrears in addition to conserving the club house and furnishings give to the court the power of appointments which We have found to be otherwise lacking. -

The court below had no power to appoint a receiver and its order should be set aside and vacated. Cause remanded.


text:
    PROCEDURE WHERE CHARGES OF WRONGDOING ARE MADE AGAINST AN OFFICER ELECT.
    Court of Appeals for Jefferson County.
    The State of Ohio, on Relation of John G. Belknap, v. The Board of Deputy State Supervisors of Elections and Charles H. Graves, Secretary of State.
    Decided, May Term, 1914.

      Office and Officer — Construction of the Corrupt Practice Act — Board of Deputy State Supervisors of Elections Can Not Assume Judicial Prerogatives — Not Authorized to Refuse a Certificate of Election, When — Mandamus Against Board to Compel Issuance of Certificate —Secretary of State May Be Joined in such an Action, When — Sections 5175-2-3.
    1. When the person elected to the office of probate judge has filed itemized statements purporting to contain a full statement of all the money or other things of value promised, received or expended, and the liabilities incurred in connection with such election, and the primary election therefor, in substantial compliance with Sections 2 and 3 of the act known as the corrupt practice act (Section 5175-2 and 3, General Code) the board of deputy state supervisors of elections are not authorized under Section 8 of this act to refuse a certificate of election to such person on the grounds that the hoard believes the statements filed are false and incomplete.
    2. In mandamus proceedings by the person elected to the office of probate judge begun in the county in which the election was held against the board oí deputy state supervisors of elections to compel the issuing of a certificate of election to him, the Secretary of State may be joined with said board as a party defendant, where the Secretary of State under color of his office has assumed the right to direct said board to refuse the certificate, and where the certificate has been refused by reason of such direction.
    3. In the trial of such mandamus proceedings the defendants can not introduce evidence tending to prove that such statements are either false or incomplete.

      A. C. Lewis and J. O. Naylor, for plaintiff.

      Timothy S. Hogan, Attorney-General, James I. Boulger and M. N. Duvall, contra.
    Pollock, J.; Metcalfe, J., and Norris, J., concur.
   This is an action in mandamus and comes into this court on appeal. The relator, John G. Belknap, says that at the general election for state and county officers, held on the 5th day of November, 1912, he was elected to the office of probate judge of Jefferson county, Ohio, having received á plurality of the votes cast for candidatos for that office at this election; that the defendant, the board of deputy state supervisors of elections, afterwards refused to issue to him a certificate of election; that this refusal was by the direction and request of the defendant, the Secretary of State of the state of Ohio. He asks that a writ of mandamus be ordered issued requiring said board to issue a certificate to him of his election, and requiring the Secretary cf State to issue to him his commission.

An issue was joined by separate answers of the board and of the Secretary of State, denying that the accounts filed by the relator of Lis expenditures at the primaries and election complied with the stalute-, and that they contained all the expenditures made ly relator at either the primaries or election.

The case was heard upon a transcript of the evidence and evidence offered by the defendants in the court of common pleas, which was agreed to be received as the evidence, and evidence offered in the trial in this court.

The evidence in this ease proved that at the general election held cn the 5th day of November, 1912, the relator, John G. Belknap, received the highest number of votes of any candidate for the office of probate judge of Jefferson county, Ohio; that the returns were duly opened by the board of deputy state supervisors of elections, and an abstract of the votes east made by this board and signed by the board and clerk, and a duplicate copy thereof forwarded to the Secretary of State; that afterwards the relator tendered to this board five dollars, the fee required by statute, and demanded that this fee, together with a certificate of his election, be forwarded to the Secretary of State at Columbus. This was refused by that board.

It is further proven that after the election the Secretary of State directed this board that they should refuse to issue a certificate of election to relator, and it was in obedience to his direction that the board of deputy state supervisors refused the certificate to relator.

The testimony further shows that on the 21st day of May, 1912, the relator filed with the board of deputy state supervisors of elections, properly qualified, what purported to be an itemized statement of his receipts and expenditures as a candidate for the nomination to this office at the primary election held in that year, and that on November 6th, 1912, he filed a like statement, properly qualified, of his receipts and expenditures as a candidate for election to the office of probate judge. The relator then rested his case.

The defendants then, called as a witness Daniel Coll, who was asked' whether he received anything of value from any candidate for office at either the primary or the general, election in the year 1912.

Plaintiff objected, and the objection being sustained, was excepted to by the defendants. The defendants then stated that they expected to prove by this witness that at the May primary, 1912, the relator promised to give the witness a shotgun and case if he would agree to use his influence for relator at that primary, and afterwards, and before the election in November, did give him a shotgun and case for his influence at the primary election and at the general election.

The defendants also called a number of other witnesses, stating that they expected these witnesses to testify to the receipt of different sums of money from the relator for their influence in his favor as a candidate for this office, and which were not accounted for in his itemized statement. This testimony was objected to by the plaintiff, the objection sustained and exception noted. Defendants then rested.

The only issue to be determined in this action is the right of respondents to refuse to issue a certificate of election to relator for the reason that they claim the accounts of his expenditures which he filed were not complete, as required by what is commonly known as the “Kimble Corrupt Practice Act” (Section 5175-1 and following of General Code), and that the account which he did file of his expenditures was not true, and that he violated the provisions of that act in his expenditures.

This brings us to a consideration of the question, under what circumstances does the board of deputy state supervisors of elections, either on their own motion or by the direction of the Secretary of State, have a right to refuse to issue to the successful candidate at an election a certificate of his election?

Sections 2 and 3 of this act provide that every candidate who is voted for at any election or primary election, shall within ten days after such election file an itemized statement showing in detail all the moneys or things of value contributed, promised, received and expended, and all liabilities directly or indirectly incurred in connection with such election, and that this statement shall contain the full name and address of the candidate, the specific nature of such item, the purpose for which, the place where, and the date when it was contributed, promised, received, expended or incurred.

Section 7 provides that the Secretary of State shall prepare a form of the statement required by this act, and shall furnish the same to the board of -deputy state supervisors of elections for each county, and, upon application, to any candidate.

Section 8 provides that no board or officer authorized by law to issue commissions or certificates of election shall issue a commission or certificate of election to any person required by this act to file a statement or statements until such statement or statements have been so made, verified and filed by such person, as provided by this act. No person required by this act to file a statement or statements shall enter upon the duties of any office to .which he may have been elected until he has filed all statements provided for by this act, nor shall he receive any salary or emoluments prior to the filing of the same.

Section 13 provides that any person who violates any of the provisions of this act shall be held guilty of a corrupt practice, and shall be punished as hereinafter provided.

Section 14 then provides that where any person required to file such a statement has failed to do so, or has filed a false or incomplete statement or account, that upon petition being filed with the court of common pleas, or a judge thereof, the probate court, court of insolvency or superior court, the question of the failure to file an account, or its falsity or incompleteness, shall be investigated.

This petition can be filed by the Attorney-General of the state, or by the prosecuting attorney of the county, or by five residents and qualified voters who voted at such an election. If filed by the qualified voters they shall give bond to secure the costs, but this bond is not required of either the Attorney-General or the prosecuting attorney. Notice shall then be given to the person named in the petition to appear and show cause within ten days. This investigation shall take precedence over all other business in the court, and provides for a speedy hearing and determination of the question.

Section 21 of this act provides that if the person required to file this statement has failed to file such statement or account, or has filed a false or incomplete statement or account, the court or judge hearing the petition shall require him to file a correct one within ten days, and if such failure to file the account, or the filing of a false and incomplete account, was a wilful intent to defeat the provisions of this act, the court or judge shall forthwith transmit a copy of his decision and of the evidence to the prosecuting attorney of the county, with directions to such prosecuting attorney to present the same to the next grand jury of the county.

Section 32 provides that any person convicted of a corrupt practice under this act shall be fined or imprisoned in the county jail, or both, and if he shall have been elected to, office, shall in addition thereto, forfeit such office. The petition mentioned in Section 14 shall be filed within forty days after the election, if the statement was filed within the ten days required.

Section 34 provides that all of the prosecutions under this act shall be commenced within one year after the commission of the act complained of.

Respondents claim that under Section 8 they áre authorized to withhold a certificate of election from the relator for the reason that while he filed the accounts required by this act, yet they were not complete and they did not contain all of the expenditures made by the relator, and that he violated the provisions of this act in making expenditures.

The accounts as filed were on the forms prepared by the Secretary of State. The statements contained the full name and address of the relator, and are properly qualified to by him. An examination of the accounts will show that some of the expenditures are not properly itemized, and the purpose for which, and the persons to whom they were made, are not fully stated.

The question then arises whether the board of deputy state supervisors of elections are authorized to pass upon the statements where they are on their face regular and substantially complete, and refuse a certificate of election on the ground that in their judgment they do not fully comply with the statute, or on the ground that the successful candidate made other expenditures not included in his statements in violation of this act.

It will be noticed that a board or officer can only refuse to issue a certificate of election or commission until such statement or statements have been made, verified and filed by such person, as provided by this act. There is nothing in this act which authorizes a board or officer whose duty it is to issue a certificate or commission of election, to refuse because the statement filed is not a complete statement, or that it does not include all expenditures made by the candidate. All that such board or officer has to do is to determine whether such a statement has been filed or not. The duty of determining whether such a statement is either incomplete or false devolves upon the court before whom a petition is filed, charging that a candidate has not complied with the provisions of this act in either of these regards.

It was held in State v. Tanzey, 49 Ohio St., 656, that:

“The duties of the board' of deputy supervisors of elections, in making the abstracts of the votes returned by the officers of the election precincts of the county, are purely ministerial, and are limited to compiling the votes shown by the tally sheets so returned, and setting down to each candidate the aggregate number of votes so appearing to have been cast for him, and to certifying and transmitting the abstract so made, to the proper officer. ’

The only change in the duties of the board in.regard to returns of election, and returns of election made by Section 8 of this act, is that it shall not issue a certificate of election until the statements required by the act have been made, verified and filed. If the statements have been filed, the duties of a board or officer end, and the certificate should issue. The board can not assume the judicial prerogative of determining that the person receiving the plurality of the votes cast at the election has violated the corrupt practice act, and for that reason refuse to discharge their plain statutory duty.

The act leaves to the court or judge before whom charges have been made, the authority to determine whether the statements are either incomplete or false. The act then provides for a speedy hearing of the petition, and if the court finds that the statements were not filed, or if filed,' not correct or complete, he shall then be required to file statements or corrected ones. If the court or judge finds that he wilfully failed to file a statement, or wilfully filed a false or incomplete statement, then the attention of the grand jury shall be called to the matter, and, if indicted and afterwards convicted before a jury, he shall in addition to the other punishment forfeit the office. This forfeiture does not depend upon the will of any board or officer, or the judgment of any court. It is only after he has been convicted by a jury of a criminal violation of this act that a person elected to an office shall forfeit the office.

If charges of wrongdoing are made against the successful candidate, this act provides an easy and speedy way for the determination of his right to receive the office to which he was elected, and only when a jury has convicted him of violating one or more of the provisions of this act, shall he be deprived of the office to which the voters have elected him.

‘ ‘ Where a statute creates a new offense, by prohibiting and making unlawful anything which was lawful before, and providing a specific remedy against such new offense (not antecedently unlawful) by a particular sanction and method of procedure, that method of procedure and none other must be preserved. ’ ’ Commissioners v. Bank, 32 Ohio St., 194.

The same principle has been announced by the Supreme Court in the following cases: State, ex rel, v. Marlowe, 15 Ohio St., 114; Commissioners v. Ziegelhofer, 38 Ohio St., 528; State, ex rel, v. Dairy Co., 62 Ohio St., 124; State, ex rel, v. Ganson, 58 Ohio St., 313.

This statute prohibits and makes unlawful acts which were lawful before its enactment, and the act itself specifically points out a method of procedure and a remedy or punishment which we think is exclusive. '

It is claimed that the question involved in this case has been determined against the relator in the ease of the State of Ohio on the relation of William C. Brown, against these same defendants, which was an action for writ of mandamus filed in the Supreme Court. If the Supreme Court has determined this question it is our duty and we will willingly follow their decision.

The petition of the relator in that action made substantially the same allegations as the relator in this action does, and in addition thereto he alleges that he had been indicted by the grand jury of Jefferson county for the violation of this corrupt practice act, and that he had never been tried or convicted on said indictment, and that said indictment was still pending in the Court of Common Pleas of Jefferson County, Ohio.

The respondents, by their answer, denied that the relator had within the time provided by Law, or at any other time, filed the itemized statements required of him as a candidate at the primary election, or the itemized statement required of him as a candidate at the November election; they denied that the relator had done all and singular the things required of him by law to entitle him to the issuing of a certificate of election.

To this answer there was a general demurrer filed by the relator. This demurrer was overruled by the Supreme Court without any report, and this is the decision of the Supreme Court which it is claimed we should follow in determining the question before us.

It is a rule of procedure that for the purpose of a demurrer all of the allegations of a pleading, against which it is filed, which are well pleaded, are admitted to be true. This rule is too well known to attorneys to require any citations of authorities. The answer filed, in the Brown ease, as above stated, specifically denied that the relator had filed the statement required by this act, and specifically denied that the relator had done all and singular all the things required of him by law to entitle him to his certificate. The answer, after these denials, made some statements admitting that statements had been filed which were not correct or true; but in' passing upon the demurrer the court would accept the denials as statements of facts .submitted. These denials were good grounds for overruling "the demurrer.

And, again a demurrer searches the record, and the court in determining this demurrer would look to the relator’s petition as well as to the answer, and in his petition he admitted that he had been indicted by the grand jury of his county, and that the case was yet pending. This was an admission that the procedure provided for by this act had been put in motion, and was then pending undisposed of.

The writ of mandamus is only granted in the exercise of a sound judicial discretion, and the court might well refuse to sustain this demurrer while an indictment was pending against the relator, which, if npon trial he was convicted, would forfeit his right to the office.

In the case before us no action is pending against this relator provided by this act, and the time for bringing any such action has long since passed. For these-reasons we think that the decision of the Supreme Court in the case referred to should not control us in the determination of this question.

That the choice of the electors as expressed by their ballots should not be tainted with fraud and corruption is- of the utmost importance to the electors and to the state, and such laws as the one we are now considering, enacted for the purpose of enforcing the purity of the ballot, are wise and should be rigidly enforced; but it is of equal importance, both to the electors and to the person elected, that the person rightfully elected by the people should be permitted to perform the duties of the office when he has been legally elected.

The Legislature in enacting the provisions under consideration, wisely provided a speedy and efficient means of determining the right of a person elected to an office, who may be charged with improper conduct in securing his election. It will not do to brush aside the proceedings provided by this act for a forfeiture of the office as mere technicalities not controlling on the courts, and proceed as a court of equity to deprive the party elected by the electors of his office.

The defendant, Charles H. Graves, as Secretary of State, interposes a further defense that the cause of action alleged against him did not arise in Jefferson county, and that no cause of action in which he is properly joined is rightfully brought in said county. This was not urged before us, but we find it made in the pleadings and will refer to it briefly.

Section 11255 provides that any person may be made a defendant who "has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to the complete determination or settlement of the question involved herein.

The real question involved in this case is the determination of whether or not the relator is entitled to this office. The issuing of the certificate of election or commission is only the legal document conferring upon him the right to enter upon the office to which he has been elected; the ultimate object is the office, and the Secretary of State is a necessary party in conferring upon him the right to take possession of that office. He should not be required by legal action to first compel the board of deputy state supervisors of elections to issue to him a certificate, and then further prosecute another action in order to secure.his commission.

“In proceedings for a writ of mandamus to compel the levy of a tax by a town to pay a judgment all the officers whose action is necessary to the levy of such tax may be properly joined as defendants, although some of them may not have refused to act.” McKie v. Rose, 340 Fed. Rep., 145.

And again, it was held in Marion v. Coler, 75 Federal Reporter, page 352:

“Where a plaintiff has shown himself entitled to a mandamus to compel the levy and collection of taxes by a county to pay a judgment against it, he is entitled to one which will set in motion all the necessary machinery, including the action of the assessor and collector, required to be taken after the levy of the tax by the county court, although no demand has been made upon such officers to perform the act so required.”

The Secretary of State assumed, by virtue of the authority of his office, to control the action of the board of deputy state supervisors of elections, and the certificate was refused and is refused because of his directions and instructions to the board.

Section 11271 of the General Code provides:

“Actions for the following causes must be brought in the county where the cause of action or part thereof arose. * * *
“2. Against a public officer, for acts done by him in virtue or under color of his office, or for neglect of his official duty. ’ ’

The Secretary of State assumed the right to control the actions of the board, and because of his action in this regard the relator would have a right to join him as defendant with the board, in order to complete the determination of this action.

For these reasons we think the defendants can not introduce evidence offered by them, and- that the writ should issue. Exceptions will be noted.


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    AS TO AGREEMENT THAT NOTE MAY BE DISCHARGED OTHERWISE THAN BY PAYMENT.
    Circuit Court of Cuyahoga County.
    F. E. Wettstein v. The Bankers National Bank.
    Decided, May 27, 1912.

      Promissory Note — Verbal Agreement for Discharge Otherwise than by Payment, Vnenforcible, When — Usurious Interest.

    1. A verbal agreement made contemporaneously with the execution of a promissory note that it may be discharged in some other way than by the payment of money, while it remains executory, is no defense to an action on the note, but when fully executed it operates as payment, or accord and satisfaction.
    2. It is error to enter judgment on a promissory note for ten per cent. interest, though the note was executed and delivered in another state, unless there is proper evidence before the court that such interest is allowable under the laws of such other state.

      Lang, Cassidy & Copeland, for plaintiff in error.

      L. J. Grossman and I. N. Looser, contra.
    Marvin, J.; Winch, J., and Niman, J., concur.
   The parties to this action stand in the reverse order to that in which they stood in the court below. The terms “plaintiff” and “defendant” however, will be used in this opinion as applied to the parties in the original action.

The plaintiff is a corporation organized under the banking laws of the United States of America, and located in the city of Ardmore, Oklahoma, Suit was brought by this plaintiff upon a promissory note executed by the defendant to one C. W. Baumbach, or to his order, at Ardmore, Oklahoma, on the 1st day of August, 1907, by which the defendant undertook to pay to the order of O. W. Baumbach on the 15th day of October, 1907, the sum of $5,000 with interest at the rate of 10 per cent, per annum from maturity until paid, which said note was indorsed by said Baumbach and delivered by him to the plaintiff.

The petition is in the short form, and there is annexed to it and made a part of it a copy of the note upon which the suit was brought, together with endorsement thereon of C. W. Baumbach. The defendant filed an amended answer to the petition, in which he admitted the execution of the note, but says that he ought not to be required to pay because, he says, that at or prior to the date of the note here suéd on, C. W. Baumbach executed and delivered to the defendant his note for $5,000 due October 15, 1907, with interest at the rate of 6 % per annum; that at or about the time of the execution of the note here sued upon, it was agreed between the defendant and said Baumbach that in case said note so made to defendant should not be paid at its maturity, then defendant should not be liable upon the said note, so made by him either to Baumbach or to any transferee or holder thereof, but would be from thenceforth discharged from his obligation thereon; and it was further agreed that in case defendant failed to pay the note here sued upon, that Baumbach should not be liable upon his note to defendant or to any transferee or holder thereof, but would be from thenceforth discharged from his liability thereon. Defendant further says that the said Baumbach did not pay the said note at its maturity, and that the same is still unpaid. Defendant further says that at the time plaintiff acquired said note drawn by defendant to the order of C. W. Baumbach, and prior thereto, plaintiff was fully apprised of the agreement between the defendant and C. W: Baumbach as above set forth, and that plaintiff- took said note with full knowledge of all the conditions and limitations thereto attached by reason of the said agreement.

To this answer the plaintiff filed a reply, which consisted simply of a denial of the affirmative matter set up in the answer.

On this state of the pleadings, the court, on motion of the plaintiff, gave judgment in its favor for the entire amount called for by the note, including 10 per cent, interest from its maturity. It is to reverse this judgment that the present proceeding is prosecuted.

Of course, if the answer of the defendant makes a good defense, then there was error on the part of the court in granting the motion. We are of opinion that the answer did not make a good defense. We have examined the briefs of counsel both for the plaintiff and the defendant, and our decision is based upon a consideration of the points made by both, including the provision made in Section 8224 of the General Code, which provides: “A negotiable instrument is discharged by another act which will discharge a simple contract for the payment of money.”

The authorities with which counsel for both parties in this ease are familiar, and which are cited and quoted from in their briefs, fully establish the position taken by the plaintiff in error, “that a verbal agreement made contemporaneously with the execution of a promissory note that it may be discharged in some other way than by the payment of money, while it remains ex-ecutory, is no defense to an action on the note, but when fully executed it operates as payment or accord and satisfaction.”

This is the way in which the rule is stated in the case of Patrick v. Petty, 83 Ala., 420, and is borne out by a large number of authorities, the authorities all being to the effect that no such contemporaneous agreement, while it remains executory, will constitute a defense to the note; and we have, therefore, the question presented of whether the giving of the contemporaneous note by the payee of the note sued upon in this action, with the agreement that if that note is not paid, the'note sued upon was not to be paid, and that from that time on nothing was done by either party toward the payment of either note, constitutes an executed contract by which the note in suit should be discharged.

Certainly the giving of this contemporaneous note did not discharge the maker of the note in suit from the payment of such note. But it is urged that the non-payment of the note not here in suit itself operates to make of that note an executed contract, that is to say, the contract evidenced by that note, it is said, is executed because nothing was ever done about it. This contention is not, as we view it, sound. To make an executed contract which should operate as a discharge of the note in suit, something affirmative was required to be done after the execution of the notes. No affirmative thing ever was done; the result is that there was no executed contract for the discharge of this note, and the answer constituted no defense to the note sued upon.

Birt even though there had been no answer, it is said the court erred in giving judgment for the full amount- called for by the terms of the note, to-wit, interest at the rate of 10 per cent.

We think this contention is sound. It is settled law and known to every lawyer, that in the absence of evidence to the contrary, the presumption is that the law of the place where the contract is executed is the same as the law of the place where the enforcement is sought. In this case there is no evidence on the subject. If this contract had been made in Ohio, it would on its face show a contract for the payment of usurious interest, and as said by our Supreme Court in the case of Goode v. Sutton, 29 O. S., 587, “If the petition on its face shows that the action is brought upon an instrument for the payment of money, by which the maker has agreed to pay usurious interest at a stipulated rate, and the interest had been paid at the usurious rate stipulated, the court is required, in the absence of an answer, of its own motion to see that judgment is not rendered for more than the balance found to be due after deducting the excessive interest so paid and applying it as payment upon the principal, or, if the usurious interest has not been paid, then for the amount found due by computing interest at the legal rate.”

Keeping in mind, then, that the presumption is that the law of Oklahoma on the subject of interest is the same as the law of Ohio, the note on its face shows an agreement to pay usurious interest, and treating this as it should be treated, with this presumption of the law, it is clear that the court erred in allowing interest at a higher rate than 6 per cent., and unless the excessive interest is remitted by the plaintiff, the judgment will be reversed for error. If, however, such remittitur is made, the judgment for the amount of the note computed at 6 per cent, will be affirmed.


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    BREACH OF COVENANT NOT TO ENGAGE IN BUSINESS.
    Circuit Court of Cuyahoga County.
    John A. Arnold v. Wladyslaw Bukowski et al.
    Decided, June 3, 1912.

      Covenant Not to Engage in Business — Damages Instead of Injunction Alloioed, When.

    In an action by the purchaser of a grocery store against the person from whom he bought it under a covenant that the latter would, not engage in the grocery business within one mile of the store sold, to enjoin the violation of said covenant and for damages for its breach, if it appear that pending the suit the purchaser has given up his store and ceased' business, and is financially unable to continue business, an injunction against the defendant will not be allowed, but damages for violation of the covenant will be allowed the plaintiff.

      Henry Du La-wrence, for plaintiff in error.

      Hidy, Klein & Harris, contra.
    Marvin, J.; Niman, J., concurs; Winch, J., not sitting.
   There are painful features about this case. The testimony of the parties to the case is such that one is almost forced to the conclusion that somebody has committed perjury wilfully. We can by no possibility know certainly who has committed such perjury, but there can be no doubt that in answer to some of the questions put to Amelia Bukowski she answered what was not true. This is certainly true in reference to the purchase by her of the store in which she is now in business. The fact that she gave this testimony, which is not true, tends to shake our faith in all her testimony where it is to her interest to have the facts appear as she states them.

We do not regard it as necessary to here give the details of this litigation. If the written instrument which is in evidence and is signed by the defendants, Wladyslaw Bukowski and Amelia Bukowski, is the contract into which they entered with the plaintiff, then that contract has been violated by these two defendants, and although we can’t certainly know whether the written instrument which is in evidence is exactly as it was when it was signed by these parties, we think the evidence is such that we should say, and we do say, that we find that the contract read when signed as it reads now. True, there are some things about its appearance that give color to the claim made by the defendants that the restrictive clause in this instrument was written after the instrument was signed and delivered' to the plaintiff, but on the whole we think the evidence is not sufficient* to justify us in saying that the instrument is not now as it was when it was signed, and that being so, the Bukowskis ’ were under •contract, for which they received a valuable consideration, not to enter into the grocery business within one mile of the business which they sold to the plaintiff on the 14th day of November, 1911, yet, on the 18th day of February, 1912, they bought out a grocery from John Woisvill in the immediate neighborhood of the grocery which they had sold to the plaintiff, and went right on with the grocery business which they had thus bought and there continued in that business to the present time, all in violation of their contract with the plaintiff.

At the time this suit was begun and at the time of its trial in the court of common pleas, the plaintiff was in business at the place which he bought from the Bukowskis; he is not now in business there. He says that if he shall be successful in this litigation, he expects to go on with the business there, or rather to again open up the business which he has been compelled to give up. We do not think he can ever open up this business successfully. We think, in short, that so far as carrying on a grocery business in the neighborhood where this business was carried on, he is down and out.

We think, further, that he has suffered damage at the hands of the Bukowskis by their violation of their contract with him, but not to the degree that he and his counsel think that he has suffered. In his earnestness for his client, counsel for the plaintiff has brought himself to think that the defendant Amelia Bukowski is Michiavellian in her designs and ability to plot for the success of her schemes, and that she had in mind from the beginning that she would secure what money the plaintiff had and then, not only destroy bis business, but as counsel expresses it, ruin the plaintiff, and that she has succeeded in preventing him from doing any business, and that he would have done a profitable business but for her plotting and scheming.

In this we think counsel for the plaintiff somewhat overstates the results to the plaintiff from the acts'of the defendants Bukowskis. The plaintiff wás a stranger in the city of Cleveland when he bought this business; he had no knowledge of the grocery business, and it was a mistake for him to have gone into the business. It took almost all his money to pay the Bukowskis for the property and the good will of the business, in addition to the note for $350 which he gave them as a part of the consideration, which note is still held and owned by them, no part of it having been paid.

With the small amount of money which he had left, even if he had been experienced in the grocery business and had been acquainted with the wholesale dealers, it is very doubtful whether lie could have gone on with a profitable business. Tie thinks he made $500 the first month he was in business. We think lie has no such means of estimating the cost of the goods which he sold and the profits therefrom which would accrue on such goods, to know that he has made any such profits, and that he must be mistaken in putting the profits at that amount. He says that in his second month he lost some money. During his second month the defendants weren’t in business in his neighborhood, so that it was not because of the violation of the contract on their part that he did business at a loss the second month. It was three weeks after the close of his second month in business before the Bukowskis went into business, and during all that time he was losing money. His credit became bad with the wholesale dealers, not because of any dishonesty on his part, for we see nothing in his conduct in this matter in any way to indicate any dishonesty, but from the fact that his credit was bad with the wholesale dealers, and it was bad because his business was bad; it became very hard for him to supply himself with such goods as his customers needed, and we think it very natural that, as is said by some of the witnesses, they ceased to do business at his store, because they were unable to obtain the goods they wanted.

It is said in answer to this that though the plaintiff was losing money for the seven weeks or more immediately preceding the entering into business by the defendants in violation of their contract, yet this was because the defendants, especially the defendant Amelia. Bukowski, was inducing customers to leave the store of the plaintiff, and because she- induced an employee of the plaintiff who had been her employee, and who gave his special attention to the meat business, to leave the plaintiff’s employment. We think another reason, to-wit, the one given by the employee himself, that he failed to get his wages, was sufficient reason why he might naturally have left the employment of the plaintiff, and not only that but, though good morals and good faith should have prevented Mrs. Bukowski from seeking to divert trade from the plaintiff or seeking to induce any employee of his to leave his employment, yet there was nothing in the contract to prohibit her doing this other than the prohibition against her or her husband going into business themselves.

The fact that the defendants went into business in violation of their contract conduced to the failure of the plaintiff to successfully carry on his business, but we think it only hastened the time when he was sure to have to go out of business. Another store of a similar kind had been started in the immediate neighborhood shortly after he went into business, which tended, of course, to take away his trade. Our sympathies are with the plaintiff; his misfortunes in the grocery business are attributable in part to his want of experience, his want of acquaintance in the neighborhood, his want of capital, and in part to the violation on the part of the defendant Bukowskis of the contract which they made with him and forwhich they were paid.

It is impossible for us to fix exactly what part of the damages which he suffered resulted from the violation of the contract by the Bukowskis; we can only make an estimate. We know that many of the customers who had been customers of the Bukowskis when they kept the store which the plaintiff bought, and who were customers of the plaintiff when he first went into business, are now customers of the Bukowskis, but a considerable number of them had already quit buying from the planitiff some weeks before the Bukowskis opened up in their new place of business, and we have reached the conclusion, first, that the plaintiff is not now entitled to an injunction against the defendants, though as the facts were when this suit was begun, he was entitled to such injunction, and if we felt that the failure of the plaintiff to be able to go on in business was chiefly due to the violation on the part of the Bukowskis, perhaps the injunction should be allowed even as the facts now are, although by the direct terms of the restriction he would not be entitled to it, because the restriction was to only cover the buyer while he was in business at the place which he bought from them. But as already said, we think he can not carry on a business there successfully even though the defendants be enjoined, and so no injunction will be allowed, to prevent the defendants from continuing their business, but an order will be made directing that the note given by the plaintiff to the defendants be canceled and delivered to him and the defendants perpetually enjoined from asserting any claim under that note. In addition to this, we award to the plaintiff additional damages in the sum of $500, and the costs of this action will be adjudged against the defendants Wladyslaw Bukowski and Amelia Bukowski. If it shall appear that the damages allowed are somewhat large as compared with the loss of profits which the plaintiff might probably have made, the answer is that the defendants have brought this upon themselves by their own wrongdoing, and are entitled to no sympathy whatever from the court.


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    JURISDICTION OVER NON-RESIDENT DEFENDANT.
    Court of Appeals for Butler County.
    George B. Orr v. Robert H. Shoemaker.
    Decided, May, 1914.

      Attachment — Motion to Discharge Not an Appearance Conferring Jurisdiction Over the Person of the Defendant, When — Subject-Matter of Action is Existence of the Indebtedness Charged and Not Ownership of the Property Attached.

    1. Jurisdiction oyer the person of a non-resident defendant in a suit in attachment is not acquired by the filing of a motion by him for a discharge of the attachment for the reason that he is not the owner of the property upon which it has been levied.
    2. The overruling of a motion for judgment by default is not a final order to which error can be prosecuted.

      Harry T. Klein and Sam D. Fiiton, for plaintiff in error.
    Jones, O. B., J.; Swing, J., and Jones, E. H., J., concur.
   The point involved in this case is whether the defendant, by-filing of the motion to discharge the attachment, inadvertently entered his appearance in the cause and thus gave the court jurisdiction of his person.

Defendant is a non-resident of Ohio. Two causes of action are embraced in the petition; one upon a promissory note and the other upon an account. A farm and,certain chattel property upon it located in Butler county, were attached in said proceeding.

Defendant filed a motion in the following words:

“Now comes the defendant herein, by his counsel, and without entering his appearance herein and without waiving any of his rights, and for the purpose of this motion only, moves the court to discharge the attachment herein and to release the property claimed to have been attached in this proceeding, for the reason that said property is not subject to attachment herein as the defendant is not the owner of said property, and the court therefore has no jurisdiction of the subject matter.”

On hearing, this motion was overruled by the court. After-wards, in August, 1913, plaintiff filed a motion ashing for judgment by default against the defendant, on the ground that the defendant had entered -his appearance by filing the motion above quoted, and was in default for answer.

If this motion of defendant was for the purpose of contesting the merits of the cause in any particular, or the jurisdiction of the court upon the subject-matter of the action, it would constitute a waiver of all objections to the jurisdiction of the court over the person of the defendant, even though he had distinctly protested against such jurisdiction, as he did in this case. Elliott v. Lawhead, 43 O. S., 171; Long v. Newhouse, 57 O. S., 348, 370; 3 Cyc., 508.

It is clear, however, that the purpose of this action was to challenge the jurisdiction of the court to his person, by showing that the property sought to be attached was not his property and therefore the court had acquired no such jurisdiction over his-person, and he had not been brought before the court. The subject-matter in the case was not the ownership of the property sought to be attached, but was simply whether he was indebted on the note and upon the account. The only question, therefore, brought before the court by the motion was whether the court had acquired a jurisdiction as against him. This is the construction that must be placed upon the motion, although it is not clearly drawn. The use-of the words “subject-matter” in it does not refer to the subject-matter of the ease itself, but rather to the property sought to be attached. ’

The motion filed in the case of Newcomer v. Atkins, 9 N.P.(N.S.), 308, contained several paragraphs addressed to the merits of the ease, and yet the court properly held that the purpose of the motion was only to secure a discharge of the attachment and it did not effect an appearance.

The case of Blinn v. Rickett, 3 N.P.(N.S.), 345; 6 C.C.(N.S.), 513, is very similar to the case at bar; and the case of Smith v. Hoover, 39 O. S., 249, is exactly in point.

The court below was, therefore, correct in holding that jurisdiction over the person of the' defendant had not been acquired, and in overruling the motion for a judgment by default.

The record fails to show that any evidence was offered or submitted to the court on the hearing of the motion for judgment. In our opinion, the overriding of this motion for judgment by default was not a final order of the court below, and the prosecution of error in this court to that ruling is therefore premature, and the petition in error should be dismissed.


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    CLAIM OF ABUTTING OWNER TO PART OF ROADWAY.
    Court of Appeals for Hamilton County.
    The City of Cincinnati v. Emma F. Leeds.

    Decided, April 25, 1914.

      Dedication — Of a Roadway Where Not in Accordance With Statute— Easement Enjoyed by a Turnpike Company is Vested in the Public — Encroachments on Roadway.

    1. While there was no statutory dedication of what is now known as the Linwood road, the plat and deeds which are in evidence, taken in connection with the use of the strip as a public highway, have operated as a dedication to public use.
    2. Such dedication was in nowise prevented by the fact that the way, to which the plat and deed refer and with reference to which they were drawn, was for a long period the property of and under the control of a turnpike company.

      Walter M. Schoenle, City Solicitor, Frank K. Bowman, Assistant City Solicitor, Alfred Bettman- and O. S. Bryant, for plaintiff in error.

      C. Hammond Avery and Julius G. Penn, contra.
    Jones, O. B., J.; Swing, J., and Jones, E. H., J., concur.

      Motion to dismiss petition in error sustained by Supreme Court December 1, 1914,

   In 1815, John Morten became the owner of a tract of land of about sixty-five acres fronting on the south side of what is now known as Observatory avenue. About 1847, steps were taken before the county commissioners for the purposes of- establishing the county road southeastwardly through this land from Observatory avenue to Wooster pike, under which viewers were appointed who reported a line of road and recommended that same be opened as a sixty foot road. The record shows an objection, or notice of appeal given on the part of a property owner, owning land near Wooster pike, not however affecting the part of the Morten property, and the record fails to show that this road was ever opened in accordance with said view.

In 1852 a turnpike or plank road was established through this land. Under a special act, found in Volume. 49 Ohio Laws, 730, a company was organized under the name of the Union Bridge & Walnut Hills Turnpike Company,

“For the purpose of constructing and maintaining a turnpike or plank road commencing at the most suitable point in the Walnut Hills, Madisonville and Plainville turnpike east of Walnut Hills and running thence eastwardly to the Cincinnati, Columbus & Wooster turnpike, near the residence of John F. Ferris.”

And providing further that:

“The county of Hamilton shall have a right after twenty years to purchase said road in such a manner as prescribed by law. ’ ’

The record discloses a conflict in the testimony as to jnst how wide this plank road, as it is called, was opened, witnesses for plaintiff testifying that it was opened to a width of at least 40 feet, and a witness on behalf of defendant testifying that it was opened at least 60 feet in width. The law at that time provided that turnpikes should be not less than 33 feet nor more than 60 feet in width. There is no question but that it was actually improved in front of the property of plaintiff to a width of at least 24 feet.

July 2, 1856, a plat of John Morten’s 65 acre tract was prepared and placed on record in the county recorder’s office on August 14, 1856, which divided said tract into six lots, one of which contained 15.97 acres, marked “reservation, homestead lot,” and the other five lots numbered consecutively from 1 to 5 were marked with the respective names attached to the plat. The plat as recorded had .on its margin the following:

“Plat of partition of the estate of John Morten situate in Section 26, Township 4 (now Spencer), 2nd Fractional Range, Miami Purchase, 4 miles north of Cincinnati on actual survey. (Whole tract containing 65.75 acres.)” R. C. Phillips, Surveyor.
“Cincinnati, July 2d, 1856.
“We, the undersigned, the heirs of John Morten, agree that this plat in partition of the lands of said John Morten, as surveyed and set out by R, C. Phillips, Surveyor, is satisfactory to us and we do hereby adopt the same, and bind ourselves, our heirs and assigns to abide by it.
“In testimony witness our hand and seal.
“Andrew G. Morten (Seal.)
“Charlotte B. Cryer (Seal.)
“Mary Ann Morten (Seal.)
“Thomas H. Morten (Seal.)
“Thomas Cryer, in trust, etc., for
M. G. and T. E. Morten (Seal.)
“Scale 1 inch to 200 feet.
“R. C. Ppiillips, Surveyor.”

This plat delineates streets without giving the width thereof, but it is drawn to a scale, one inch to two hundred feet. Along the northern boundary of the Morten land the plat shows from the northwest corner to the angle at the north end of plaintiff’s property, the road which is now Observatory' avenue marked “plank road”’ and east of that point the same road, now Observatory avenue, marked “county road.” It also shows a stone in the center of this road 39.75 feet from the west line of lot numbered 2, and a road marked “plank road” extending south 38 degrees east 937 feet, to the south line of said Morten tract. The width of this road not being fixed in figures as above stated, scales slightly over 60 feet.

A deed was executed by John Morten and his wife, of general warranty, conveying Lot Number 2, as shown on this plat, to Mary Ann Morten, by the following description:

“All that certain lot or tract of land, situated in the county of Hamilton and state of Ohio, in section twenty-six (26) township four (4) and second (2d) fractional range in the Miami purchase, and known and designated as ‘lot No. two (2) on Plat in Partition the lands of John Morten’ recorded in Plat Book No. 1, page 281, Hamilton county records, bounded and described as follows, to-wit:
“Beginning at a stone in the north boundary line of said section twenty-six (26) and eastwardly from the N. W. corner thereof one thousand and thirty 89/100 feet (1030.69) being the N. E. corner of lot No. one (1) this day deeded to Thomas Henry Morten, thence with said section line S. 89° 12' E. thirty-nine 75/100 (39.75) feet to a stone in the section line and the angle of the plank road, thence along the center of the plank road S. 38° E. nine hundred and thirty-seven (937) feet to a stone, thence S. 38' W. three hundred and twenty-nine 80/100 (329.80) feet to the south line of said Morten’s land and to a stone therein, thence along the said south line N. 89° 12' W. six hundred and twenty-nine 26/100 feet to a stone at the S. E. corner of lot No. one (1) N. 0° 38' E. one thousand and seventy-two 80/100 feet to the stone at the beginning, containing ten and 46/100 acres (10.46) of land.”

On the same day a deed of special warranty was éxecuted to Mary A. Morten by Thomas H. Morten and the other so-called heirs of John Morten, for the same lot, No. 2, under the same description. These deeds were both placed of record on the same day the plat was recorded.

. Mary A. Morten, who became the wife of Samuel A. Leeds, thus became the owner of this tract of land known as Lot No. 2, and the plaintiff, her stepdaughter, holds her title under a deed from Mary A. Leeds and husband, which describes the east line as the center of Linwood road.

After the territory which included this property had been annexed to the city of Cincinnati, its platting commission on February 4, 1875, in pursuance of law, made a plat of this Section, on which Linwood pike is shown as a dedicated street to a width of 60 feet, on the same location as shown on the plat of John Morten’s estate above referred to. In 1880 the interests of the turnpike company were sold under foreclosure proceedings and conveyed by the sheriff to Samuel M. Ferris, under a description which located the road, but did not fix its width. On February 18, 1897, Samuel M. Ferris conveyed to the city of Cincinnati the Linwood pike under a deed which fixed its center line by courses and distances, and conveyed a strip of land 30 feet wide on each side of the center line, the part through the property under consideration coinciding and referring to the plat made by the platting commission.

In 1905 the city improved said Linwood pike to the width of 60 feet, and in so doing caused the fence and certain trees and shrubbery to be removed from between the lines of the road so fixed. The fence as it existed at the time the city commenced its improvement, according to plaintiff’s testimony, stood on the same line that an old fence had existed for many years, and was on a curved or crooked line extending in its widest part about 29 feet into said highway as so improved, and running from that to a width of nothing at each end.

The petition below stated two causes of action: The first cause asked compensation for the strip of land included within plaintiff’s fence and the west line of said Linwood road, and for certain trees and shrubbery thereon. And the second cause of action asked for damages by reason of the change of grade of Linwood road, which made a cut in front of plaintiff’s property.

In the trial below, at the conclusion of the plaintiff’s testimony defendant moved to arrest the evidence from the jury, and that judgment be given for the defendant separately in each cause of action, both of which motions were overruled.

After the defendant introduced its evidence and plaintiff introduced her evidence in rebuttal, the defendant again moved that the evidence on each of the two causes of action be arrested from the jury and judgment be entered for defendant. The court refused to arrest the evidence on the first cause of action, but granted the motion on the second cause of action, and made an order dismissing the second cause of action from the case, to which plaintiff excepted.

On submission, the jury rendered a verdict for $1,100 in favor of the plaintiff on the first cause of action, whereupon defendant moved for a judgment notwithstanding the verdict, and also filed a motion for new trial, and plaintiff made a motion to set aside the order dismissing the second cause of action and for a new trial of said second cause of action. All these motions were overruled by the court, and judgment was entered on the verdict for plaintiff on the first cause of action.

A bill of exceptions containing all the evidence in the case was taken, and a petition in error was filed by the defendant, seeking to set aside said judgment, and a cross-petition in error was filed by the plaintiff asking a reversal of the judgment entered against her on the second cause of action.

The question first to be determined is, the rights of the public in Linwood road, whether or not it is a dedicated street, and if so, to what width.

As was said by the Supreme Court in the ease of Village of Fulton v. Mehrenfeld, 8 O. S., 440:

“Dedication of ground for public uses may be made in Ohio either by the statute or according to the rules of common law.”

The record here fails to show a statutory dedication. The plat of partition of the John Morten estate was not signed by the owner of the fee, nor was it acknowledged. If it had been signed and acknowledged by the owner of the fee, it, in itself, followed by the public use of the plank road, would have effected a statutory dedication.

While John Morten did not himself sign this plat, it was signed by his children and “heirs,” who became at the same time his grantees, and his deed to Mary A. Morten described the property conveyed by reference to that plat, and its description referred to this plank road in such a manner as to show the adoption of that plat by him.' And the deed from Mary A. Morten Leeds and husband to the plaintiff below also refers to and uses the center of Linwood road as a part of its description.

No particular words or ceremonies, or form of conveyance is necessary to render the act of dedicating land to public uses effectual. Anything which fully demonstrates the intention of the donor, or the acceptance by the public, works that effect. LeClercq v. Gallipolis, 7 Ohio, pt. 1, 220.

It has been repeatedly held that where the owner of real property makes and records a plat showing streets, highways or public squares, and sells land with reference to that plat and the streets, highways or public squares thereon are used by the public, that he thereby dedicates them to the public. And this is true whether the plat is properly executed and acknowledged or not. 13 Cyc., 455, and cases cited; Darber v. Scott, 3 C. C., 313; Wright v. Oberlin, 23 C. C., 509, 511; Doren v. Horton, 1 Dis., 401, 404; Brown v. Manning, 6 Ohio, 298, 303; Huber v. Gazlay, 18 Ohio, 18.

While the record does not clearly show that there was in existence a public highway on this line prior to the construction of the plank road or turnpike, it is clear that from a time earlier than 1856, when this Morten plat was made, there was a traveled highway known as the “plank road” upon that line.

Under the authorities .we are of the opinion that the Morten plat and deeds above referred to, taken in connection with the use by the public of the highway shown as the plank road, known now as Linwood road, operated as a dedication of the same to public use, and this notwithstanding the fact that at the time of making that plat the road on that line then in existence was under the control of the turnpike company.

While a turnpike may be owned and operated by a private corporation, it is still a public highway. A turnpike road can only be constructed and operated under authority of law, and when used by the public it becomes a public highway. The purpose and object of a turnpike is merely to provide a public highway of a better quality than would be furnished by an ordinary county road, and it is maintained by tolls instead of by public taxes. It is not in any sense a private road or way; it could not be closed by the stockholders or corporation against the public use; it is constructed under or by virtue of public authority for the use of every person who desires to pass over it, on the payment of the toll established by law, and its use is common to all who comply with the law. The easement enjoyed by the public in a turnpike road is vested in the public, as much as that of a common highway. If for any reason the turnpike should be abandoned as such, it would still remain a public highway. R. R. v. Commonwealth, 104 Penn., 583; State v. Maine, 27 Conn., 41; People v. Davidson, 79 Cal., 166; Com’rs. v. St. Rd. Plank R’d Co., 1 N.P.(N.S.), 143 (aff’d by Supreme Ct.); Chagrin Falls & Cleveland Plank R’d v. Cane, 2 O. S., 419.

Some question is raised in the brief of the defendant in error as to the sanity of John Morten at the time of the making of this plat and deeds, but the only evidence on this subject shown in the record is on page 156, where his daughter made the statement, in answer to a question as to how her father felt about this road going through this farm: “Well, it worried his mind so that he was obliged,to go to the insane asylum.” This testimony is certainly not sufficient proof that the grantor in the deed under which she claimed title and under which plaintiff in error holds, was, at the time of its execution, non compos to such an extent that it would invalidate the deed or the plat which he adopted in the making of that deed; and plaintiff below as the grantee of her mother’s deed which described the premises conveyed to her as bounded by the center line of Linwood road, was bound to take notice of the existence of that highway and is chargeable with knowledge of its location. Seegar v. Harrison, 25 O. S., 14.

Plaintiff below, however, claimed that the highway which existed along the eastern boundary of her property was limited to the portion actually used, and that she was the owner of the 23/100 acres described in the petition which lay between the line of her fence and the west line of Linwood road to a width of 60 feet as improved by the city.

It is well settled in Ohio that an abutting property owner can acquire no right in a public highway by encroachment or occupation however long continued, where such encroachment or occupation is of -a temporary character such as fences, walls, shrubbery, etc., and is upon that part of a street not then required for public use. Lane v. Kennedy, 13 O. S., 42; McClelland v. Miller, 28 O. S., 488; Ry. v. Comm’rs, 31 O. S., 338; Ry. v. Comm’rs, 35 O. S., 1; Heddleston v. Hendicks, 52 O. S., 460; Ry. v. Elyria, 69 O. S., 414.

The deed under which plaintiff below held title fixed the center of this road as but one foot from her fence. It was conceded by her that the road was at least 40 feet wide. She therefore could make no claim that the entire 23/100 acres was her property from occupation, being simply enclosed by a fence for a dooryard of her residence. It is true the width of the road is not shown on the plat in figures, but as the plat was drawn to a scale it could be ascertained as- accurately as though marked in figures, and the plat has thus fixed the width. Zeller v. Littell, 58 Atl., 377.

Where a plat thus fixes the width of a highway, and the public uses only so much of it as might be necessary for the public travel at that time, its use will be held an acceptance of the street to its entire width fixed by dedication. This law is well stated in 13 Cyc., 488, as follows:

“If a street is dedicated by the platting of land into blocks and lots intersected by streets and the sale of lots -with reference to the plat, the width of the street is that fixed by the plat or map, and the failure to open and improve the street for its whole width does- not operate as an abandonment of the part not opened and improved. So, if a highway of a definite width has been commenced by an actual and recorded location, by proceedings not strictly conformable to law, the public after twenty years user is entitled to a way of the width originally laid out,-although the part traveled during that time may not have been so wide, and where a public street becomes such by dedication followed by an acceptance by use, the location of the street as delineated by the stakes which were set in the act of dedication according to which the street was opened and used, determines the lines of the dedication.” Lins v. Seefeld, 126 Wis., 610, 614; Ry. v. Ferris, 93 Cal., 263, 264; Commonwealth v. Shoemaker, 14 Pa. Super. Ct., 194.

We therefore conclude that Linwood road was a dedicated highway within the lines to which the city made its improvement, and plaintiff below failed to sustain her first cause of action against the city, and the court below erred in not upon its motion withdrawing the case from the jury and entering a judgment for defendant.

As the record fails to show that any claim was filed for damages by reason of change of grade in the improvement of Linwood road, as required by Section 3823 of the General Code, the action of the court below was correct in withdrawing the second cause of action from the jury and entering judgment thereon for defendant.

The judgment below will therefore be reversed as to the first cause of action, and sustained as to the second cause of action, and final judgment will be entered for plaintiff in error.


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    ESTOPPEL THROUGH ACQUIESCENCE IN A BOUNDARY LINE.
    Court of Appeals for Licking County.
    Edward S. Rutledge v. The Presbyterian Church of Johnstown, Ohio.
    Decided, April Term, 1914.

      Boundary — Held to be Where the Parties Have Long Believed It to Be —Bather than on the Line Shown by a Survey.

    The boundary line between the lands of two adjacent owners may be determined by agreement or acquiescence for so long a period of time as to estop either of the owners from asserting that the true boundary is on a different line.

      A. A. Stasel, for plaintiff.

      Fitzgibbon, Montgomery As Black, contra.
    Powell, J.; Yoorhees, J., and Shields, J., concur.
   The plaintiff, for his cause of action, sets out in his petition that he is the owner of certain real estate in the village of Johnstown, this county, describing the same. He alleges that he is in possession of such real estate, and that he, and those through whom he claims title, have been in possession thereof for more than forty years. He alleges that the defendant is a church organization and a church corporation; that the- defendants, McCurdy, Ross and Densmore are the trustees of such corporation; that they are constructing a church edifice upon the lands lying immediately north of his lands which are described in the petition, and they claim the right to go upon the land of plaintiff and construct such church building upon some five feet thereof; that they threaten to cut down certain fruit and shade trees standing upon his land, and remove a building thereon used by him for storing coal; that they threaten to forcibly take possession of said land and building, and destroy his improvements thereon; that they threaten to do this under a claim of right, and that, unless restrained, they will so enter upon his land and build a structure thereon, to his irreparable damage. He prays for an injunction. A temporary injunction was allowed and a motion was filed to dissolve the same. The cause was heard upon such motion, although the defendants, at the same time that they filed their motion to dissolve the injunction, filed an answer and cross-petition to the petition of the plaintiff. An appeal was taken from the order of the court of common pleas to this court, where the same was heard upon such motion and the evidence adduced in support of the same.

It is disclosed by the evidence that the defendant is the owner of the lands described as follows:

Situated in the county of Licking, state of Ohio, and in the village of Johnstown, and being a tract or parcel of land lying and being in the state of Ohio, and county of Licking, being a part of a town lot lying in the northeast corner of lot No. 8, second range of house lots in the village of Johnstown, Ohio, beginning at the northeast corner of said lot; thence running south, forty degrees east, four rods; thence south, fifty degrees west, seven rods; thence north, forty degrees west, four rods'; thence running north, fifty degrees east, seven rods to the place of beginning, containing twenty-eight rods of land.

Between the lands of plaintiff and the church lot, it appears that a fence had formerly been erected, and as claimed by the defendant, it lived the usual life of a picket fence, and then disappeared. Such fence wa.s an extension of the north line of a coal house standing upon the plaintiff’s land, but which abutted upon the lands of the defendant. On the north side of the lands of plaintiff had been planted certain fruit trees, which were still standing at the commencement of this action. The testimony discloses that said fence was built where it stood in the neighborhood of forty years or more ago; that after it had worn out, no new fence was erected in its place, but that the ground stood open between the land of the plaintiff and the lot of the defendant. The testimony discloses that the fruit from the trees which stood on the south side of the old fence was claimed by the parties then owning the land of the plaintiff, and who claimed to own the same; that the trees were planted by them; that the coal house was used by plaintiff’s predecessors in title, and was built by them where it now stands, and the plaintiff-continued the use of such coal house and still uses the same. It further appears from the testimony of certain witnesses that when such fence was standing it stood between the trees on the south side and the church upon the north side of such fence; that they had stood on the fence and gathered fruit off of the trees, and at the same time could reach over and touch the church building on the north side of such fence; and that the same evidently had been used as a dividing line between the property of plaintiff and defendant.

It further appears by a recent survey that the south line of the church lot was found to be from five to seven feet south of where such old fence had stood, It is claimed by the defendant that such strip of ground, five to seven feet south from where such old fence stood is, a part of said lot.

It is well settled that a line may be established by an agreement of parties and occupancy of such land for a long period of years; and that when a line is so established by prescription, it continues to be the line between the lands of the parties abutting thereon. We think this rule applies in this case. The line was established or acquiesced in, at least, for a long period of years and was never questioned until a new survey was made, and such acquiescence would constitute an estoppel against either of the parties owning lands on either side of such line from asserting a claim to any other land, even though it should be determined not to be the true line by a survey thereof.

As was said by Judge Cooley in a Michigan case: “In eases of this kind, it is not so much as to where the true line is, as to where the parties have agreed that it is, and have made their improvements in reference to such agreed line.”

We think that is the rule that applies in this state, and that a line can be determined or agreed upon, or at least acquiesced in, for such a period of time as to constitute an estoppel against claiming any other line as the true boundary.

The motion to dissolve the temporary injunction will be overruled. Exceptions may be noted.


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    DETERMINATION AS TO TESTACY.
    Court of Appeals for Licking County.
    Gilbert B. Goff v. James K. Moore et al.

    Decided, April Term, 1914.

      Descent — Devise of Life Estate But Not of Fee — How the Fee Passes in Such a Case — Wills—Sections 8574 and 8577.
    The relict of a deceased husband or wife, who leaves a will bequeathing a life estate only, permitting the fee to go where the statute sends it, dies intestate as to real estate inherited from such deceased husband or wife, and in consequence the title to- such real estate passes under the provisions of Section 8577 and not under Section 8574.

      A. A. Stasel, for plaintiff.

      Flory & Flory and Kibler & Kibler, contra.
    Powell, J.; Voorhees, J., and Shields, J., concur.

      For opinion below see Goff v. Moore, 11 N.P.(N.S.), 543.

   So much of the facts in this case as are necessary to understand the issue involved are as follows:

Abner Goff died in 1896, intestate and without issue, leaving Martha Goff, his widow, surviving him. She was his sole heir at law. At his death he was seized in fee simple of 162 acres of land in this county, which is the’subject of this controversy. Martha Goff, his widow, died in May, 1907, seized of the real estate which had descended to her from her said husband, Abner Goff. Martha Goff left a will, by the terms of which she gave a life estate in said lands to her brother, Ensley Finney Haas, but made no disposition of the remainder in said lands after the termination of said life estate. The item of the will of Martha Goff disposing of said real estate is as follows:

“First: I give and devisé to my brother, Ensley Finney Haas, to have and to hold during Lis natural life, 'all of the farm with its appurtenances which was owned by my husband, Abner Goff, at the time of his death, and of which I became seized as his widow, consisting of 162 acres, more or less, and situated in Washington township, Licking county, Ohio.”

There is no other reference in her will to this real estate. Ens-lay Finney Haas was the sole heir at law of Martha Goff, and he died shortly after the death of his sister, Martha Goff, leaving a will by the terms of which he gave the residuum of his estate to the defendant, Allen B. Gregg.. This action is for partition of the lands described, and being the 162 acres mentioned above. An issue was made by the pleadings as to the descent of the title to this land from Martha Goff, and this is the question to be determined in this action.

Martha Goff took title to this land by virtue of Section 8574 of the General Code. At her death intestate and without issue, it would pass one-half to her brothers and sisters, and one-half to the brothers and sisters of her deceased husband, Abner Goff. If she should dispose of it by will or deed, of course, it would descend according to the terms of such deed or will. This, however, she did not do. The question peculiar to the case is whether or not Martha Goff died intestate, or testate, so as to control the descent of this land from her. It is conceded that in either event one-half of the land would descend to her brother, Ensley Finney Haas, he being her sole heir at law, and the same would pass under his will to the defendant, Allen B. Gregg. But what of the other one-hal.f? She died leaving a will, but she did not dispose of the fee of this land in her said will. If she died intestate, the second half of this land would pass to and vest in the brothers and sisters of Abner Goff, deceased, under Section 8577 of the General Code. If she died testate, the land would not pass under Section 8577 ht all, but according to the terms of her said will. If she died testate, but without disposing of said lands in her said will, it is claimed that they would pass, not under Section 8577, but under Section 8574, to which it is held 8577 is supplementary. If said lands passed from Martha Goff under Section 8574, the whole of said lands would descend to her brother, Ensley Finney TIaas, and no part thereof would pass to the brothers and sisters of her deceased husband, Abner Goff. But is this the true 'construction of said sections, or the true construction to be given to the words ‘ ‘ die intestate, ’ ’ as used in Section 8577 ? This court is of the opinion that such is not the true construction to be given to these words. The word "intestate,” as used in Section 8577, does not apply to the person alone, but to the property of which such person may die seized. Martha Goff died testate; that is, she died leaving a last will and testament, which was afterwards duly admitted to probate and record in the probate court of this county. She also died intestate as to the fee in this 162 acres of land, which had descended to her from her deceased husband. The word "intestate” not only applies to a person dying without a will, but applies also to any property which descends under and by virtue of the statutes and not by the terms of any last will and testament.

It is the opinion of the court that Martha Goff died intestate as to the real estate which she inherited from her husband, and that the title to such real estate "would pass and descend in accordance with the terms and provisions of Section 8577, and not according to the terms and provisions of Section 8574. Or, in other words, the one-half of this land will pass and descend as intestate property to the brothers and sisters of said Abner Goff, deceased, or to their legal representatives and a partition of the same will be ordered as prayed for by them.

The cause will be remanded to the court of common pleas to carry this order of partition into effect.