text:
    Lien lost by failure to record assignment of MORTGAGE.
    Circuit Court of Wood County.
    Electa Conklin v. Rozell Tyler et al.

    Decided, October 24, 1912.

      Failure to Record Assignment of Mortgage — Renders Lien Invalid as to a Subsequent Innocent Purchaser from the Mortgagee — Steps Necessary to Make a Tender Effective.

    1. Where a grantor of land accepts in part payment a note and mortgage, which he assigned but no record was made of the assignment, and subsequently the grantee and mortgagor reconveyed the property to the grantor, who promised to surrender the mortgage but delayed doing so, and in the meantime he sold the property to a third party who had no knowledge of the assignment of the mortgage, the said innocent purchaser takes the property free from the lien of the assigned mortgage.
    2. To render a tender effective, it is necessary not only that it be ma.de prior to the bringing of the action, but also that the amount be brought into court and paid over to the clerk before trial is had of the ease.

      E. D. Bloom, for plaintiff in error.

      N. B. Harrington, contra.
    Kinkade, J.; Wildman, J., and Richards, J., concur.
    Error to the Common Pleas Court of Wood County.

       Affirming Conklin v. Tyler et al, 13 N.P.(N.S.), 441.

   This was an action in the court of common pleas based upon certain promissory notes secured by two mortgages. There was no dispute as to the balance due upon four of the notes secured by one of the mortgages, nor as to the validity o£ that mortgage. The contest was with respect to one note secured by the other mortgage. As was found by the common pleas court, very little dispute, if any, existed between the parties as to the facts in the case touching even this note and mortgage. The question presented for our consideration can be “stated briefly and the dates omitted, as they are numerous and not material to the decision of the question here.

Twenty acres of land were sold by the owner thereof and a deed executed; the grantee at the same time executed to the grantor a purchase money mortgage to secure the greater part of the selling price. After this occurred the grantor to secure an indebtedness of his own to a third party assigned the purchase money note and mortgage to the third party as collateral security for that debt. Following this the grantee concluded that the sale was one he would not be able to carry out and solicited the grantor to surrender his note and mortgage and take a reconveyance of the property. Three hundred dollars had already been paid by the grantee on the purchase price and for this he took a promissory note from the grantor, and executed a warranty deed in due form, reconveying the property to the grantor. The assignment of the purchase money note and mortgage by the grantor to the third party was not entered upon the record until long after this. The grantor explained to the grantee, upon receiving a reconveyance of the property, that he was unable at that time to return the purchase money note and mortgage for the reason that it was temporarily beyond his control and concealed the fact that he had hypothecated it for his own purposes, as stated.

After receiving a reconveyance of the property from his grantee the grantor placed the deed reconveying the property to him upon record and then sold the property to the defendants in this action prior to the time of the entering upon the record of the assignment of the purchase money note and mortgage that he had hypothecated, as stated, and the record shows that at the time the defendants (Tyler) bought the property they had no notice, actual or constructive, of the assignment of this mortgage by the grantor to a third party or that any such mortgage was outstanding. The record charged them with notice, of course, that such mortgage had been executed and recorded, and so far as the record of that mortgage was concerned it stood unreleased of record and the record also gave them notice that the mortgagor had, as stated, duly reconveyed the property to the mortgagee, the party from whom he had received title.

The question is whether, under this state of facts, a good faith purchaser of the property for value can hold the property, as against the owner of the mortgage by assignment, when there appeared nothing upon the record to charge the purchaser of the land with notice that the person holding the mortgage was the owner of it or that any one other than the original mortgagee had ever acquired any interest in it.

The court of common pleas held that the defendants having purchased the premises under the circumstances stated had a title thereto superior to that of the party holding the outstanding mortgage, the assignment of' which had not been entered of record. We fully concur in the conclusion reached by the court of common pleas on this branch of the case.

The defendants in the case were allowed to recover their costs upon the ground that a tender of the full amount had been made before the commencement of the action.

We can not concur with, the conclusion reached by the trial judge, as the record shows that it was admitted in court that the amount due on the 28th day of March was $1,718, and shows that upon that day a tender was made according to a certain paper writing which is copied in the record, and the paper writing avers that the tender was made on the 29th. If the amount mentioned was the correct amount due on the 28th a tender of the same amount on the 29th, evidently would not be sufficient. This may be a mere error of dates and is not the serious thing that attracts our attention. Section 11390 of the code states distinctly what must be done to constitute a valid tender. The section reads as follows:

Section 11390. “In an action on a contract for the payment of money, if the defendant answers and proves that before the commencement of the action, he tendered payment of the money due thereon, and before trial pays to the clerk the money so tendered, the plaintiff shall not have judgment for more than the money so due and tendered, without costs, and shall pay the defendant his costs.”

It will be noted that it is not sufficient to tender the amount prior to the suit, but that it is quite as important that the amount be brought into court and paid to the clerk, if the party making the tender would avoid a judgment for costs. Nothing appears in the record to show that this was done, and no claim was made in argument that it had been done.

In this state of the record we think the plaintiff is clearly entitled to recover costs as part of the judgment to which she is admittedly entitled to have entered in her favor on the third, fourth, fifth and sixth causes of action, and the judgment of the court of common pleas as thus modified will be affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    MISREPRESENTATIONS AS TO THE CHARACTER OF REAL PROPERTY.
    Circuit Court of Cuyahoga County.
    J. A. C. Golner v. George Luttner.
    Decided, May 22, 1912.

      Fraud — Measure of Damages in Exchange of Properties.

    The measure of damages in an action for fraud in the exchange of property is the difference between the value of the thing received, if it had been as represented, and its actual value at the time of the exchange.

      Hidy, Klein & Harris, for plaintiff in error.

      David & Heald, contra.
    Winch, J.; Marvin, J., and Niman, J., concur.
   This was an action to recover for an alleged fraud practiced upon Luttner by Golner in inducing Luttner to exchange his property in Cleveland, worth about $7,000, for some notes secured by mortgages on land in Lorain County, which Golner and his associates, or alleged fellow-conspirators, represented to be upon the shore of Lake Erie and ample security for the notes, whereas the lots described in the mortgages were not upon the shore of the lake and were not good security for the notes. There were other misrepresentations alleged to have been made.

The ease was tried to a jury, which brought in a verdict for the plaintiff, and we have reviewed the evidence upon a claim by plaintiff in error that the verdict was not sustained by sufficient evidence in two particulars — that is, that it was not shown that Luttner was deceived by any false representations made as to the location of the land, if any were made, for he had opportunity from a plat to ascertain that the lots mortgaged were not located upon the shore of the lake, and that Golner’s connection with the fraud was not shown.

There is no need to recite the facts in this case — counsel for the parties are familiar with the record. It unfolds a tale of apparent fraud. Though, there are some contradictions in the evidence, this is not unusual.

Suffice it to say that if the jury believed some of the witnesses and disbelieved others, as they had a right to do, and considered all the probabilities of the case, the age, business and capacity of the parties, they might well have come to the conclusion that Luttner had been wronged by G-olner in the manner claimed in the petition and was entitled to damages.

It is claimed, however, that the case must be reversed for error in the charge on the measure of Luttner’s recovery if the jury should find in his favor. On this subject, the court charged as follows:

“If from a consideration of all the testimony your verdict is for the plaintiff against the defendants, or either of them, you will award to the plaintiff such amount as will compensate him for any damages he lias sustained; and in arriving at the proper measure of recovery, in case your verdict is for the plaintiff, you will take into consideration the difference, if any, between the value of the securities, consisting of notes and mortgages transferred to the plaintiff, and what would have been the value of the same at the time they were transferred, if the lots covered by said mortgages had been located on or near to the shore of Lake Erie. ’ ’

Plaintiff in error claims that the court should have charged that the measure of damages in a case such as this is the difference between the actual value of the thing parted with and the actual value of the thing received.

There is respectable authority for the rule contended for, but it seems that it makes a new contract for the parties. One may trade his property for another’s because he expects to make a good bargain and a profit, and would make a decided profit if the thing traded for were as represented; by reason of the false representations, however, he receives something worth less, instead or more than what he parted with. The rule urged cuts out the profit he had a right to expect and remits him to the actual value of what he parted with.

Both the rule given by the court and the rule contended for are given in 20 Cyc., 132, with authorities sustaining each. In a note giving cases purporting to sustain the rule as given by the trial judge is cited the ease of Linerode v. Rasmussen, 63 O. S., 545, a ease very similar to the one at bar. There it was held:

“Where the defendant was sued on notes given for purchase money for a farm, and sought to recoup damages on the ground that the plaintiff had represented that ‘underlying said premises was a three or 'three and a half foot vein of .good bituminous, minable coal,’ whereas there was no coal whatever under said premises, the measure of damages is the difference between the value of the farm as it was represented to be and its actual value at the time of the purchase.”

From this authority we conclude that there was no error in the charge given.

See also Wilkinson v. Root, Wright, 686.

On the whole record it seems that substantial justice was done in this case, and the judgment is affirmed.


text:
    TO PREVENT DECEPTION IN THE SALE OF MILK.
    Circuit Court of Lucas County.
    George O. Jury v. State of Ohio.
    Decided, March 16, 1912.

      Constitutional Law — As to Provisions for Protection of the Public Health and Detection of Offenses Thereunder.

    Section 13169, General Code, relating to the filling and refilling of milk bottles and glass jars, is not repugnant to any constitutional provision and is a valid enactment.

      Byron F. Ritchie, for plaintiff in error.

      Holland C. Webster and Lawrence F. Conway, contra.
    Richards, J.; Wildman, J., and Kinkade, J., concur.
    Error to the Court of Common Pleas of Lucas County.
   This is a proceeding in error to reverse a judgment of the court of common pleas, affirming a conviction of the plaintiff in error in the police court of the city of Toledo. George O. Jury was charged in the police court with the violation of Section 13169, General Code, on the 23d day of June, 1910. The only question argued in this court is the constitutionality of the section of the statute to which reference has just been made; it not being contended but that Jury was rightly convicted if the statute is constitutional. The section reads as follows:

“Whoever fills or refills with milk, cream or other milk product, a glass jar or bottle having the name of a person, firm or corporation blown therein, with intent to sell such milk, cream or other product, shall be fined not more than one hundred dollars. This section shall not apply to a person, firm or corporation whose name is blown in such glass jar or bottle or an authorized agent or employe thereof.”

It will be conducive to a better understanding of the objects and purposes of this statute to refer briefly to its history. The original statute was enacted on May 9, 1908, and is found in 99 O. L., 454; the title of the statute being “An act to regulate the filling and re-filling of milk bottles and glass jars.” This act contained three sections; the first section being substantially the same as is now found in Section 13169 of the General Code. The second section of the act is now Section 12730 of the General Code. This act was amended, 100 O. L., 17, but only for the purpose of correcting an error in that portion providing a penalty. Under the classification adopted by the commission to codify, the laws, Sections 1 and 2 of this act have become widely separated in the General Code, but the purpose and object of the two sections was clearly to prevent deception in the sale of milk, and to thereby aid in the preservation of the public health, and to render easier a conviction of those who sell impure milk or milk or the products thereof placed in bottles which have not been cleansed and sterilized.

Section 12730 of the General Code is found under Chapter 6 devoted to offenses against public health; while Section 13169, General Code, is found under Chapter 16, which covers the subject of frauds. The species of fraud, -however, to which this latter section is referable, is of such a character as relates to the public health and the detection of offenses against the same.

Counsel for plaintiff in error contend that the section in question in this ease is unconstitutional on authority of State v. Schmuck, 77 O. S., 438. The act which was in review in that case was plainly repugnant to the Constitution by reason of provisions which are not found in Section 13169. The Supreme Court in the opinion in that case delivered by Judge Price said (page 454):

“It is manifest that the general public has not been offended by the commission of the acts alleged in the indictment, nor does the statute in question make criminal any act in which the general public is concerned.”

The court said further upon the same page:

“The statute is not aimed at the adulteration of any merchandise, food or beverage, nor does it appear from its terms that a compliance with it will tend to prevent adulteration, or to secure to the public pure ‘merchandise,’ pure ‘food’ or pure ‘beverages.’ Its sole purpose seems to be the protection of the owners of certain described articles of personal property.”

The differences between the act so under review and the section of the General Code which we are considering are so manifest as to render further reference to this case unnecessary. The statute we have under consideration is more nearly parallel to the one considered by the Supreme Court in State, ex rel, v. Capital City Dairy Co., 62 O. S., 350. I cite also Walton v. Toledo, 3 C.C. (N.S.), 295.

Having no doubt of the constitutionality of the section, the violation of which was charged in the affidavit filed against the plaintiff in error, and being fully convinced that it is a valid and constitutional enactment, the judgment of the court of common pleas will be affirmed.


text:
    VALIDITY OF THE EXECUTION OF A WILL.
    Circuit Court of Cuyahoga County.
    Edna Giddings v. George Schmuck, as Executor of the Last Will and Testament of William Gable, Deceased, et al.
    Decided, May, 1912.

      Wills — Signature to Will.

    A will is signed at the end thereof, as required by the statute, when the signature of the testator appears after the will, just below a line intended in a blank form for the signature and in a blank space in the attestation clause intended for the name of the testator as part thereof, said name also appearing in the attestation clause, in the handwriting of the scrivener of the will, just below the testator’s signature in such position as to be read as a part of said attestation clause. Sears v. Sears, 77 O. S., 104, distinguished.

      C. W. Toland and H. G. Shaibley, for plaintiff.
    M. P. Mooney, contra.
    Marvin, J.; Winch, J., and Niman, J., concur.
   A writing purporting to be tbe last will and testament of William Gable, deceased, was admitted to probate by the probate court of this county on the 26th day of January, 1909. Proceedings were brought in the court of common pleas to set aside this will, with the result that on motion, the court directed the jury to find a verdict that the purported will was in fact the will of said deceased. Tt is to reverse this judgment that the present proceeding is prosecuted.

The parties here are as they were in the court below, the defendants being the proponents of the will.

Pursuant to the provisions of Section 12085 of the General Code, the proponent offered in evidence the will, or order of probate, including the testimony taken in the probate court by the defendant’s witnesses, and rested. Thereupon the contestors of the will moved the court to direct a verdict thát this writing was not the will of said testator. This motion was overruled, and then the motion, already mentioned, was made by the proponents of the will that a verdict be directed finding for the proponents.

The only question in the case is as to whether the writing claimed as a will was executed in accordance with Section 5916, which was the statute in force at the time this will purports to have been executed. That section requires that wills, except nuncupative wills, “shall be signed at the end thereof by the party making the same, or by some other person in his presence and by his express direction, and shall be attested and subscribed in the presence of such party by two or more' competent witnesses who saw the testator subscribe or heard him acknowledge the same. ’ ’

The present statute, General Code, 10505, has practically the same provision, although the wording is somewhat different, but this case must be governed by the statute in force at the time the will was executed, although, as already said, the present statute is practically the same, and if the case were to be governed by the present instead of by the former statute, the result would be the same.

The real question in the case is whether this writing was signed at the end thereof by the maker.

The attesting witnesses swore in the probate court that it was signed by William Gable in their presence, and that all the other formalities were complied with as the statute requires, and we are brought to the inquiry whether the writing itself contradicts this evidence.

The writing is in the usual form of a will, making various bequests and nominating an executor, and then is followed by these words: “In testimony whereof, I have set my hand to this my last will and testament at Cleveland this 22day of September, in the year of our Lord 190Eight.”

Then follows a blank line, thus: “......................” evidently intended to indicate where the testator should sign, but there is no writing on this line. Then follows the following in print:

“The foregoing instrument was signed by the said.......... ......,...... in our presence, and by him published and dedared as and for .... will and testament, and at .... request and in .... presence, and in the presence of each other, and we hereunto subscribe our names as attesting witnesses at........ this..........day of..................A. D...........”

And then follows in writing the names of two apparently attesting witnesses, they being the names of the witnesses who testified as to the execution of the will in the probate court at the time it'was admitted to probate.

Filled in the first blank in this printed form appear, in writing, the words, “William Gable,” and then, almost immediately under these written words and between the first and second lines of this printed form, appear again in writing the words, “William Gable,” and the other blanks are filled out with the pronouns “him” and “his” respectively and after the word “at” is the written word “Cleveland,” and after the word “this” is “22,” and after the words “day of,” is written the word “September,” and after the letters “A. D.,” the figures “1908.”

Since it appears by the testimony of the attesting witnesses taken in the probate court, that they saw William Gable sign this will, it follows, since there is no place where his name appears that could be a signature to the will, except the two places already indicated, that William Gable either wrote his name in the blank left in the printed form on the first line, or he wrote it at the place where it appears between the first and second lines;. one or the other of these must be his signature. It is difficult to present in words just how this appears on the instrument itself, but it is clear, by an inspection of the instrument, that in one place where this name “William Gable” appears, it is intended to be read in connection with the printed form, and that it is so intended to be read in but one place in such printed form. If the words were erased where they appear in the first line, there can be no doubt that those words, as they appear between the two printed lines, would be read in connection with the first line, and so read, the words as they appear in the first line, if restored, could mean nothing but a signature of William Gable; but if they are left in the first line, then the place where they appear between the two lines must mean nothing except that they are the signature of William Gable, so that in either case, we have án instrument, in form a will, and following that we have the signature of William Gable.

From an inspection of the handwriting, we have little doubt that the words “William Gable” appearing in the first line were written by him. The second place where the name appears seems to be in the handwriting of him who wrote out the body of the will, which leads us to the conclusion that the words written in the first line of this form for the attesting witnesses were written by William Gable, and we still have the complete sentence for the attesting clause. We think, therefore, that this writing is clearly shown to have been signed by William Gable at the end thereof.

It is urged on the part of the plaintiff in error that the case must be governed by the case of Sears v. Sears, 77 O. S., 104. In that case the name of the testator, Arminda S. Nicholson, appears in the same place as the name of William Gable appears in the first line in the attestation in the ease before us, and it Avas held, although it Avas shoAvn that this name was written by the testator, that it Avas not a signature at the end of the aaúII. In speaking of this the court said, at page 127:

“The attestation clause signed by the witnesses, recites that ‘the foregoing instrument was signed by the said Arminda S. Nicholson in our presence,’ but this does not change the fact, and in the absence of a signature, is Avithout legal effect. If a sez’ivener had prepared the Avill and had written her name Avhere it appears in the attestation clause, her nazne there would have been merely descriptio personae; and whezz it is shown that the testatrix was her oAvn scrivener, the natural presumptiozz is that it was so intended; and even if the fact was that the testatrix Avrote her name there, intending by that act to sigzz her will, still her signature would not be at the end of the will, and her intention cozzld not have the effect of transposing it.”

It must be remembered that in that case the name appeared but once, and necessarily, "therefore, was to be read as a part of the attestation clause, whereas, here it appears twice, and the name can be read but once as a part of the attestation clause,

We think, therefore, that it materially differs from the ease cited in that the attestation clause is complete without reading what purports to be the signature, and this coming after the will, as already said, we hold to be a signing at the end of the will, and the judgment of the court of common pleas is affirmed.


text:
    RIGHT OF APPEAL IN MUTUAL BENEFIT SOCIETIES.
    Circuit Court of Cuyahoga County.
    The St. John Nepomicine Society v. Josephine Zoulek, Guardian of John Zoulek.
    Decided, May 27, 1912.

      Mutual Benefit Society — Appeal Within the Order — When None Provided — Jurisdiction on Appeal from Justice Oourt — Interest Claimed for First Time in Common Pleas Court.

    1. While a member of a mutual benefit society claiming to be entitled to the payment of sick benefits from it, which are refused, must first seek his remedy for such refusal before the tribunals of the order provided for deciding such claims, still, if the society has provided no method whereby a member whose claim has been rejected may obtain a review of the decision and no tribunal for the hearing of an appeal from such decision such member may sue on hi;, claim in the civil courts.
    2. Where the only regulation with regard to appeals in the constitution and by-laws of a mutual benefit society is as follows: “As a sign that a member should be punished for a transgression of the society’s or the union’s constitution either for indecent or immoral conduct by a jury or by the constitution alone, or by the vote of the members, he has no right to arise against the society except by an appeal to the union,’’ there is no provision with regard to an appeal from a refusal to pay sick benefits.
    3. Where suit is brought in a justice court for $202 without interest upon appeal to the common pleas court and trial there on a petition asking judgment for $202 and interest, if no objection is made to the claim for interest until after judgment in the common pleas court, the cause will not be reversed because verdict ani. judgment included such interest.

      Kerruish, Kerruish, Harishorn & Spooner, for plaintiff in error.

      Hart, Canfield & Croke, contra.

      Niman, J.; Winch, J., and Marvin, J., concur.
   This proceeding in error had its inception in an action started by the defendant in error, as guardian of John Zoulek, against the plaintiff in error, in the court of a justice of the peace, to recover certain sick benefits claimed to be due from the plaintiff in error. The ease was appealed to the court of common pleas and a verdict there rendered in favor oE the plaintiff in the action for $299.46. A motion for a new trial was overruled, and judgment entered on the verdict. The plaintiff in error is here seeking a reversal of this judgment.

The St. John Nepomicine Society is a mutual benefit association, the members of which are entitled to receive sick benefits upon the terms and conditions prescribed by its constitution and by-laws. That part of its constitution and by-laws dealing with sick benefits is found in Article XV, which is as follows:

“Benefits in Case of Sickness.
“1. Each member, who is a member for six months after his admission, will in case of sickness receive weekly sick benefits of such amount as the society is then paying provided that he has all his lawful dues paid up and is adjudged worthy of the sick benefit. No sick benefits shall be paid for less than seven days, counting from the day when his application was presented to the financial secretary.
“2. The society shall decide the amount of this sick benefit at a regular meeting, according to conditions, which decision shall be a part of the minutes 'and shall hold good until according to new conditions this is changed. For the change of this amount will be required a two-thirds vote of -the entire membership.
“3. If a member is afflicted with sickness of long duration he shall receive sick benefits for one year; after which time it ceases, and only by good will and decision of the society he shall be supported by voluntary contributions. Each member, during his membership is entitled to sick benefit for an aggregate time of one year. If a member draws sick benefit for 52 weeks he will in case oE another sickness be debarred from further support.
“4. If a member falls sick owing to bad or immoral life, such as drunkenness, staying out late at night, and such, he shall not receive sick benefit in case of sickness."

John Zoulek, the ward of the defendant in error, on or about the 1st day of September, 1903, was a member of the society. At about that time he became insane, and has remained in this condition ever since. The defendant in error was appointed his guardian, and as such made application to the society for the payment of sick benefits on account of the sickness of John Zoulek. The society, however, after investigation, refused the application on the ground that Zoulek’s condition was due to drink, and, according to the contention of the society, his case came under Section 4 of Article XV of the constitution and bylaws already quoted.

After the refusal of the society to pay any benefits suit was brought in the maimer and with the result above indicated. The plaintiff in error contends that on the evidence, the defendant in error was not entitled to recover on the claim sued on, for the reason that she had hot exhausted her remedies in the order or association, and that the verdict was therefore either not sustained by sufficient evidence, or was contrary to law.

It is undoubtedly the law that when a member of such an organization as this society, claims to be entitled to sick benefits, he must seek his remedy in the first instance in the organization and before the tribunals provided by it for deciding such claims. Myers et al v. Jenkins, Admr., 63 O. S., 101.

However, if the society has provided no method whereby a member whose claim has been rejected by it, may obtain a review of the decision and no tribunal for the hearing of an appeal from such decision, the member whose claim has been rejected may sue for the recovery of the same in the civil courts.

The defendant in error did not make any appeal within the society from the rejection of her claim, and this leaves for determination the question whether any such appeal was required under the laws of the organization.

It is provided by Section 1 of Article XXI, in substance, that each member who is admitted to the society is required to sign his name to the constitution as a sign that as a member, he acknowledges the constitution and the constitution of the • union as the law of the society, and will be guided by the rules therein contained, and will fulfill all his duties and observe all laws thereof.

Section 2 of Article XXI of the constitution of the society provides:

“As a sign that a member should he be punished for a transgression of the society’s or the union’s constitution either for indecent or immoral conduct, by a jury or by the constitution alone, or by the vote of the members, he has no right to arise against the society except by an appeal to the union.”

Section 1 and 2 of Article XVIII of the constitution are as follows:

“1. Should a member be dissatisfied with the finding of the jury or the society’s decision, he may appeal to the union.
‘ ‘ 2. The appeal must be handed to the local president within at the most 20 days, and must contain definite reasons for complaint, when and how he was unjustly treated by the society. ’ ’

It is claimed that by virtue of these provisions, the defendant in error was required to appeal to the union, but no mention is made of the subject of sick benefits in any of the sections of the constitution referred to, and, in our opinion, they do not refer to such benefit.

The appeal from the finding of the jury or the society’s decision to the union, that is provided for, apparently refers to any punishment for a transgression of the society’s or union’s constitution, and it can hardly be contended that the refusal to pay sick benefits is a punishment for a transgression of the constitution of the society or of the union, even though the refusal be based upon the claim that the member asserting his right to benefits has, by his own immoral life, produced his sickness.

No appeal having been provided whereby the defendant in error could obtain a review óf the action of the organization in refusing to allow her application for benefits, it follows that she had the right, upon the rejection of her claim, to institute a suit to recover them.

Error is also claimed to have been committed by the trial court in refusing to receive in evidence a certain letter and the minutes of certain meetings of the society.

The bill of exceptions contains no intimation of what the contents of this letter or of the minutes offered may have been. There was no offer made to prove their contents, so that we are unable to pass upon their competency. No prejudicial error in the ruling of the trial court on matters of evidence has been brought to our attention.

Another ground of alleged error is founded upon the contention that the court erred in charging the jury in that part of the charge in which the court, in substance, told the jury that the only question for their determination was whether or not intoxication or the excessive' use of intoxicating liquor was the cause of the insanity of John Zoulek.

We think, however, that in the state of the pleadings and the evidence, the court was right in so charging the jury. There was no dispute in the evidence that at the time suit was brought, John Zoulek was a member of the society; that all of his dues and assessments had. been paid; that he was adjudged insane about the 1st day of September, 1903, and has been insane ever since; that the society had been requested to pay the benefits sought to be collected in the suit and had refused payment.

The answer filed in the court of common pleas in the action based the refusal of the society to-pay sick benefits to John Zoulek upon the ground that he had led such an intemperate life as to bring about his sickness, and in view of the undisputed facts to which attention has been called, there was no issue of fact left in the ease but the simple determination of whether or not Zoulek’s sickness or insanity had been caused by his own addiction to drink.

It is also claimed by the plaintiff in error that the verdict is excessive to the extent of interest on $202 from September 1st, 1903.

The bill of particulars filed in the justice court asked for judgment for $202 only, no mention being made of interest. The petition filed in the court of common pleas prayed, not only for judgment for $202 but also for interest from the 1st day of September, 1903. The charge of the court authorized the jury to compute interest on such amount of sick benefits as they should find John Zoulek was entitled to have received on September 1st, 1903. The amount of the verdict indicates that interest was figured on the amount of benefits to be recovered in the action.

It is claimed that there can not be a recovery for a greater amount than that sought to be recovered in the justice court. No objection, however, seems to have been made at any stage of the ease to the claim for interest. The amount sought to be recovered was within the original jurisdiction of the court of common pleas. It has been held that although the cause of action 'asserted in the court of common pleas is entirely different from that tried before the justice of the peace, yet, if it is within the original jurisdiction of the common pleas court, that court may acquire and exercise jurisdiction on the voluntary appearance and consent of thé defendant. Wilson v. Wilson, 30 O. S., 365.

This principle seems applicable to the case under consideration.

The petition in error contains other assignments of error, but no claim has been made with respect to any other errors than those which have already been considered, and it follows that the judgment of the court of common pleas must be affirmed.


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    IRREGULARITY IN OBTAINING A JUDGMENT OR. ORDER.
    Circuit Court of Cuyahoga County.
    The Sherwin-Williams Company v. The Globe Rutgers Fire Insurance Company.
    Decided, May 27, 1912.

      Motion to Vacate Order Overruling Motion for New Trial — Irregularity of Court — Judicial Notice of Judge’s Own Conduct — Finding of Facts — Affidavit of Good Defense Not Necessary, When.

    1. Where a trial judge, upon submission of a motion for a new trial promises to let the defendant’s attorneys know of the disposition of the motion, which he fails to do, hut overrules the motion without their knowledge, of which action they do not learn until after time for filing a hill of exceptions has passed, this constitutes such “irregularity in obtaining a judgment or order,” within the purview of Section 11631, General Code, as to authorize the court at a subsequent term to vacate the order overruling the motion for a new trial and set the same for hearing.
    2. On a motion to vacate an order overruling a motion for a new trial on the ground of irregularity in obtaining it, which irregularity is alleged to be an act or course of conduct of the judge, said judge in passing on the motion, may take into consideration, without other evidence, such facts as came within his own cognizance.
    3. When a journal entry embodies facts relating to the court’s own action on the subject before it, which disclose on their face that they were within the knowledge of the court, such journal entry should be treated as a finding of facts, and given the same effect as though the court had been specifically requested to make a finding of fact and of law.
    4. An affidavit that the defendant has a good defense need not be filed with a motion after term to vacate an order overruling a motion for a new trial.

      Squire, Sanders & Dempsey, for plaintiff in error.

      White, Johnson & Cannon, contra.
    Niman, J.; Winch, J., and Marvin, J., concur.
   The plaintiff in error in this proceeding seeks a reversal of the action of the court of common pleas in granting a motion to vacate and set aside a former order of the court whereby the motion of the defendant in error for a new trial was overruled.

The' action in the court below was for the recovery of money under -an insurance policy. The trial took place at the April, 1911, term of court, and resulted in a verdict for the plaintiff on the 14th day of June, 1911.

Within three days thereafter the defendant filed its motion for a new trial, which was held by the court until December 22,1911, in the September,. 1911, term, when it was overruled, and judgment entered on the verdict. Counsel for defendant did not learn of this until the time for filing a bill of exceptions had passed.

On February 12, 1912, in the January term of that year, the defendant filed a motion to set aside the order overruling its motion for a new trial. In the same term, on the 26th day of April, the court granted this motion and set aside “the order and decision of the court overruling the motion for a new trial and the judgment entered thereon,” and set the hearing on the motion for a new trial for the following day, at which time the motion for a new trial was overruled and judgment entered on the verdict.

The motion involved in this proceeding was founded on Section 11631, General Code, which among other things provides:

‘ ‘ The common pleas court or the circuit court may vacate or modify its own judgment or order after the term at which it was made:
“3. For mistake, neglect, or omission of the clerk or irregularity in obtaining a judgment or order. ’ ’

The irregularity relied upon by the defendant is stated in its motion in the following language:

“Said case was tried at the April term, A. D. 1911, of this court, and a verdict rendered. In due time thereafter, a motion for a new trial was filed by this defendant. Defendant endeavored to obtain a hearing on said motion at that time, but was unable-to do so, and no hearing was had thereon notwithstanding the efforts of this defendant. At the September term of this court, this defendant made repeated efforts to obtain a hearing on said motion, and the trial judge three times served notice on attorneys for plaintiff and defendant to appear and argue said motion. On each of said occasions, this defendant appeared by counsel ready to argue said motion, but counsel for plaintiff did not appear, being engaged in the trial of other cases. On request of the trial judge, this defendant had the testimony written out, of the witness in the course of whose examination the error occurred as to which the judge was uncertain, and also the entire charge of the court written out, showing his charge in relation to this testimony, and delivered the same to the judge on the 28th of November, being a day of the September term; and at that time, the trial judge was busy trying a case in the criminal branch of this court, and stated that he was busy and unable to give the matter attention at that time, but that he would look over the testimony and the charge, and call in the attorneys for the plaintiff and defendant, so that a hearing could be had on the 28th day of November, A. D. 1911, when the testimony and charge were delivered to the court.
“Thereafter, counsel for defendant held themselves in readiness to attend upon such call, but without calling in counsel, on the afternoon of the 22d of December, 1911, the trial judge made the entry overruling the motion for new trial.
“Of this action of the court, defendant had no knowledge until the 8th day of February, A. Ó. 1912, being after the expiration of the time at which a bill of exceptions could be filed. As soon as defendant’s counsel learned of this, they called upon the trial judge and learned the facts as aboye stated.”

It is contended on behalf of the plaintiff in error that the motion charges no such irregularity as is contemplated by the statute as ground for vacating a judgment or order after term.

In Guernsey Co. Commissioners v. Cambridge, 7 C. C., 72, an irregularity, within the intent of the statute, was defined to be “some act done, or step taken, by the court, either sui sponte, or upon request, or by an officer thereof, which is not according to the regular course of proceeding, and hy which'a party was deprived of the benefit of a defense, without fault on his part.”

The term “irregularity” is a very comprehensive one, and was intended by the Legislature no doubt to embrace all such acts of a party to the action, an officer of the court, or of the court itself, as constitute a departure from the due, orderly and established mode of proceeding therein, where a party, with no fault on his part, has been deprived of some right or benefit otherwise available to him. Such irregularity may consist of acts of commission or omission, constituting a want of adherence to some prescribed rule or method of procedure.

If the facts set forth in the motion as the grounds for obtaining the relief sought by said motion are established by sufficient proof, they, in our opinion, make a case of irregularity within the meaning of the statute. Counsel .for the defendant had a right to rely upon any statement of the court, and if through inadvertance or misunderstanding, or any other reason, they were not notified of the hearing on the motion for a new trial, and did not discover the entry overruling this motion, they have a right to invoke the benefit of the relief provided by Section 11631 of the General Code.

It is claimed, however, on behalf of the plaintiff in error, that there was a failui’e of proof of the irregularity complained of. The only evidence in support of the motion was the affidavit of one of the defendant’s attorneys,.which, it is insisted, does not contain sufficient facts to sustain the motion.

The motion itself, however, was sworn to and might property have been considered by the court as an affidavit, as well as a motion. In hearings in which affidavits are admissible, it is common practice to receive and consider the sworn pleadings and motions as evidence. Moreover, on the journal entry the court makes certain findings of fact which in their very nature must have rested within his own personal knowledge. These findings of fact by the court, based upon his knowledge of what took place with reference to the making of the entry overruling the defendant’s motion for a new trial, are sufficient to sustain the motion when considered with the affidavit offered in support of said motion and the sworn motion itself. The nature of the findings of fact based upon the court’s personal knuowledge is sufficiently indicated by the following language:

“In view of any promise to let the defendant’s attorneys know of the disposition of the motion, and in view of the further fact that, in spite of effort, the knowledge was not brought home to them, and they were misled by my promise, it is my opinion that the motion should be granted, and the judgment be set aside, and the motion set for hearing. ’ ’

That the court had the right to consider and take into account the facts that rested within his own personal, knowledge, we think, is clear. In contempt cases it is well settled that the court may determine without other evidence facts that occur in court and which are within the court’s knowledge. Thus, in Myers v. State, 46 O. S., 473, it was said:

‘ ‘ It was competent for the court to take judicial notice of pertinent facts connected with the transaction that came within the cognizance of his own senses.”

When irregularity, consisting of an act, or a course of conduct of the court, is asserted as the ground of relief sought by a motion, it is competent, in passing on the motion, for the court to consider without other evidence the facts involving his own act or conduct.

An affidavit by the court, or testimony by him, would be useless, and when the journal entry embodies facts relating to the court’s own action on the subject before him, which disclose on their face that they were within the knowledge of the court, such journal entry should be treated as findings of fact, and given the same effect as though the court had been specifically requested to make a finding of fact and of law.

Unless, therefore, the contention of the plaintiff in error, that an affidavit of merit must be filed with the motion to vacate the judgment or order, is to be sustained, the ruling of the court below on the motion under consideration must be affirmed.

We do not think the requirement that such affidavit be filed is applicable to the hearing of a motion of this kind. It was-intended to apply in those cases where a party has been prevented from making a defense on the merits, as in cases of default judgments.

The language of the Supreme Court in Knox Co. Bank v. Doty, 9 O. S., 506, is in accord with this view. It was there said:

‘‘ Section 538 of the code which provides that a judgment shall not be vacated on motion until it is adjudged that there is a valid defense to the action, was intended to apply to eases where the ground of the motion is that the party had a defense, which he, for some cause, was prevented from setting up, and not to eases where, as in the case at bar, there is confessedly no such cause of action, or where the court had no jurisdiction over the person of the defendants.”

It follows from the views here expressed that the judgment of the court of common pleas must be affirmed.


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    CONNECTION BY ABUTTING OWNER WITH A PRIVATE SEWER.
    Court of Appeals for Butler County.
    Robert A. Bradley v. Jacob Schwab.
    Decided, May, 1914.

      Sewers — Injunction Against Use by Abutting Owner of Private Sewer Does Not Lie, When.

    Connection with, a private sewer will not be enjoined on the claim that the sewer will be overloaded thereby, unsupported by evidence that plaintiff has suffered damage or that such a result as that complained of will follow.

      M. O. Burns, for plaintiff.

      Clinton Egbert, contra.
    Jones, O. B., J.; Swing, J., and Jones, E. H., J., concur.
   This case was brought in this court on appeal. It is an action by Robert A. Bradley seeking to enjoin Jacob Schwab from maintaining a sewer connection with a line of sewer pipe built' by plaintiff’s predecessor upon a ten foot strip of land in the rear of the lots of both parties, which connects with the pipe, sewer the premises of plaintiff and also the premises of defendant which lie north of plaintiff. Defendant owns property which lies north of plaintiff’s and also property south of plaintiff, which latter is a corner lot and abuts upon the alley in which is placed the public sewer to which the connection is- made.

The fee of this ten foot strip is vested in the defendant, but it is subject to an easement for ingress and egress appurtenant to the property of plaintiff. This five inch private sewer was built by plaintiff’s predecessor in title to drain his premises, and plaintiff is entitled to its use and to have it maintained in its present position. The sewer connection to the lot on the north has also existed for some time, and defendant is entitled to maintain it.

The question presented to the court arose at the time defendant undertook to connect a watercloset constructed in a shop in the rear part of his lot lying south of plaintiff. Plaintiff contends that such connection would overburden the private sewer and therefore interfere with his right of drainage, and, the connection having been made- in spite of his protest, he seeks to enjoin its further maintenance.

We are unable to find, from the testimony, that the tap which has been made by defendant has resulted in overburdening the pipe, or has in any way obstructed or interfered with plaintiff’s rights, and as the exercise of the right of injunction requires clear proof of the existence of the injury complained of, the court should not exercise its prerogative of interference so long as no injury has been suffered by plaintiff.

The petition will therefore be dismissed at plaintiff’s costs.


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    EFFECT OF REFUSAL OF JUDGE TO MAKE FINDINGS OF FACT AND LAW.
    Court of Appeals for Hamilton County.
    Aaron Strauss v. Nathan Friedman et al.
    Decided, March 15, 1913.

      Prejudicial Error — Statutory Right Denied by Refusal to Make Proper Findings — Sections 11469 and 11470.
    1. It is mandatory upon a trial judge to make, when so requested, a special finding of fact separately from the conclusions of law, and his refusal so to do constitutes prejudicial error.
    2. The statutory rights of a party to such a finding is in no way affected by the fact that his counsel sat silent at the opening of the trial, when the judge announced that he would consent to proceed with the trial of the case without a jury t only on condition that he should not be asked to prepare a finding of fact and conclusions of law.

      Louis P. Pink and W. A. Hicks, for plaintiff in error.

      Closs & Luebbert, contra.

      Jones, E. H., J.; Jones, O. B., J., concurs; Swing, P. J., dissents.
   The controversy between parties to this action arose over a building contract.

When the case was reached for trial in the common pleas court the parties consented to trial without a jury.

The judgment entry of May 29th, 1912, describes the action of the trial judge, of which plaintiff in error complains, as follows:

“Such parties requested the court to determine the issues raised by such pleadings without intervention of a jury. The court consented so to do, provided such parties asked for no separate findings of fact and conclusions of law. Neither party at such time asked for such separate findings, and the court upon the pleadings and upon the evidence offered on the 7th day of May, 1912, found for the plaintiff, and that there was due to said plaintiff from the defendant, Aaron Strauss, the sum of $651. Thereupon within three days the defendant filed his motion for a new trial, which was overruled; and thereupon the defendant having requested separate findings of fact and conclusions of law, which request the court refused. ’ ’

In another entry made May 29th, 1912, the court said:

“This cause coining on to be heard on the request of the defendant, Aaron Strauss, for a separate finding of fact and law filed herein, on consideration thereof the court overrules and refuses the same for the reason that at the beginning of the hearing of the action the court stated that it would try and determine the case as between plaintiff and defendant, Aaron Strauss, and render a verdict the same as a jury without any separate findings of fact or law and counsel for neither party made any objection thereto.”

It is urged, as the sole ground of reversal, that the refusal of the court to make a special finding of fact separately from conclusions of law was without authority in law and prejudicial to the rights of plaintiff in error.

It seems to us that the question thus presented must be determined from an examination of the Ohio statutes on the subject and rules of practice not inconsistent therewith.

Sections 11469 and 11470, General Code, provide as follows:

11469. “In actions arising on contract the trial by jury may be waived by the parties and in other actions with the assent of the court,” etc. * * *

11470. “When questions of fact are tried by the court, its finding may be general for the plaintiff or defendant, unless with a view of excepting to the_ court’s decision upon questions of law involved in the trial one of the parties so requests, in which case, the court shall state in writing the conclusions of fact found separately from the conclusions of law.”

The latter section fixes no time at which the request for a separate finding is to be made. It is mandatory upon the court and the right conferred upon the parties is an important and substantial one.

The trial judge was powerless to impose any condition upon the parties as, under Section 11469, his consent to try the case was not necessary. Such being the law we do not see that the silence of counsel when the proposition of the judge was made can weigh against the statutory right of the parties.

It is said that the decision of the court was indorsed on the petition, on May 7th. There is nothing on the appearance docket to show this fact. Motion for a new trial was filed on May 9th and on May 14th, five days after, the request for separate findings was made. This was fifteen days before the overruling of the motion for a new trial.

While it was not claimed by the lower court as a ground of refusal that the request was too late, we refer to these dates because it is claimed in argument here, that the request should have been made at the commencement of, or during the trial. This claim is not supported by law, by practice or by rules, in force at the time, of the court in which the cause was tried.

Decisions of courts in other states are cited which do not aid in the interpretation of our statutes and which, so far as we have examined them, are based upon different statutory provisions or established rules differing from those in vogue here.

It is argued by counsel for defendant in error that we can not reverse the judgment on the error assigned, there being no bill of exceptions containing the evidence from which to find that the plaintiff in error was prejudiced by the judgment.

In support of this contention the case of Oxford Twp. v. Columbia, 38 O. S., 87, is cited. In that case the court held that it was error to refuse the request for a finding of fact but affirmed the judgment nevertheless, on the ground that the bill of exceptions in the ease showed that the judgment was right, based upon the facts as therein disclosed.

But, there is no transcript of the evidence in this case. The chief purpose of a finding of fact is to avoid a long bill of exceptions. To say that when a party to a cause is denied a right given by statute to avoid a bill of exceptions, he must then prepare a bill in order to show prejudice by such denial, seems to us unreasonable if not absurd.

Were there a bill of exceptions in the case under consideration the case cited would require that we examine it to see if the error committed were prejudicial, but nothing in the opinion in that case can possibly be construed to hold or even intimate that before a party can be heard to complain of a court’s refusal of a substantial right he must cause a record of all the evidence in order to show prejudice.

As well might it be claimed that if the court had refused a request for a jury by a party to this action, such party would have to sit through the trial, produce his evidence and go to the expense of transcribing it in order to get redress in a reviewing court.

For the reason stated the judgment is reversed and cause remanded for a new trial.


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    BANKRUPTCY PROCEEDINGS BY DEBTOR. PENDING APPEAL IN ACTION AGAINST HIM.
    Circuit Court of Cuyahoga County.
    Mark Klein v. Abe Solomon et al, Partners as Abe Solomon & Brother.
    Decided, June 3, 1912.

      Bankruptcy Pending Appeal — Appealed Oase May Proceed to Judgment Against Bankrupt, Bui Execution Enjoined.

    Where, pending an appeal of a judgment against him, the judgment debtor becomes a bankrupt upon his own petition and is discharged from the payment of his debts, the appeal can still be prosecuted for the purpose of fixing the liability of the sureties on the appeal bond, but execution of judgment in the appellate court against the bankrupt should be perpetually enjoined.

      White, Johnson & Cannon, for plaintiff in error.

      Patterson & Austin, contra.
    Marvin, J.; Niman, J., concurs.
   Suit was brought by the Solomons against Klein before a justice of the peace, in which the Solomons recovered judgment. Thereupon Klein appealed to the court of common pleas, giving a bond therefor with surety, as provided in Section 10383 of the General Code, the condition being, as provided in section, “That appellant will prosecute his appeal to effect without unnecessary delay, and that if on the appeal judgment be renderede against him, he will satisfy it and the costs.”

While the ease was pending in the common pleas court on the appeal, Klein became a bankrupt on his own petition, and obtained his discharge in the bankruptcy court from the payment of his debts. He then filed a supplemental answer in the appealed case setting up such discharge.

Both the plaintiff and the defendant made motions to the several pleadings filed by the adverse party, on which the court passed, and the case finally went to trial before a jury. At the close of the evidence the court directed a verdict for the plaintiff.

There was no error in this, unless the discharge of the defendant in bankruptcy constituted a defense to the action, and precluded the plaintiff from any right of recovery.

Tn the schedule of debts filed in the bankruptcy proceedings the claim of Solomon was listed, due notice of the bankruptcy proceedings was given to Solomon, and his claim was one provable in bankruptcy and was not among such claims as are not relieved against by a discharge in bankruptcy.

The order of the court in the bankruptcy proceedings was that “Mark Klein be discharged from all debts and claims which are made provable by said acts” (the acts of Congress relating to bankruptcy), “against his estate which existed on the 31st day of May, 1911.” The claim of the Solomons existed at that time.

It is admitted that upon the judgment rendered in this case, no property of Klein could be taken in execution to satisfy such judgment, even though no order on that subject had been made in the ease, but to remove any doubt about it, the court said in its judgment: “It is ordered that execution against said defendant, Mark Klein, be and the same is perpetually enjoined.”

If this order had not been made, there would seem to be no doubt that if execution were issued and levied, Klein would have been entitled to an injunction to prevent its being carried into effect, because, by his discharge in bankruptcy, his property, except such as had been taken by the trustee in bankruptcy, was relieved from being taken to pay his debts.

Since, then, nothing could be taken from Klein to satisfy this judgment, it might be questioned whether he was prejudiced by it, and so whether the court should reverse it, even if it was found to be erroneous. However, it is not necessary to decide this question in order to reach a right conclusion in the case, as we view it.

The object of the Solomons in securing the judgment was, of course, to enable them to proceed against the surety on the appeal bond, for the bond, by its terms, only requires the surety to pay such judgment as shall be recovered against Klein. That the question presented in this case would be attended with grave difficulties, were it not settled by the courts of this state, can not be denied, but we regard it as so settled.

In the ease of Sigler v. Shelby, 15 Ohio, 471, it is said: “After the appellant has become a certified bankrupt, no decree or judgment can be rendered against him. ’ ’ If this were the last utterance of the court on the subject, it would seem to settle the present case in favor of the contention of counsel for Klein, but it is not the last holding of the court.

In the case of Farrell v. Fmdfr, 40 Ohio State, 337, it is said:

“Ruan in an action before a justice of the peace recovered a judgment against Clarkson, and Farrell -became surety for the appeal of the action to the court of common pleas.
“While the -case was pending in the common pleas coiurt, Clarkson obtained a discharge in bankruptcy; Held-. That while the discharge of Clarkson suspended all remedy against him for the collection of his debts, it did not release Farrell from liability on the undertaking for appeal.”

Little as is said in the report of this ease, for the foregoing quotation gives the entire report, so long as it remains undisturbed it settles the question that somehow this surety, in a case like the present, can be held on the bond, and this, taken in connection with the last head-note of Sigler v. Sheby, supra, would seem to settle the question that judgment could be entered against the bankrupt principal. That head-note reads:

“To charge the bail, a judgment or decree must be rendered against the appellant personally, ’and an execution against him have been returned nulla bona.”

In the case of The Sleepy Eye Milling Co. v. E. M. Walsh, 14 C.C.(N.S.), 509, it is held, in an opinion announced by Judge Henry, that for the purposes of that case a judgment might be taken against a discharged bankrupt debtor, for the purpose of fixing the liability of the sureties upon his bond given for release of attached property, and upon bond given in appeal.

It is urged here that the matter really under consideration in that case was whether such judgment could be taken for the purpose of fixing liability upon the sureties on an attachment bond.

We do not recognize a distinction between the two kinds of bonds, viz., appeal bonds and attachment bonds, which could affect the question here under consideration. If no judgment can be taken in any case against the bankrupt, then no surety on either kind of bond could be made to respond, where a discharge in bankruptcy had intervened. Not only so, but the conditions of the two bonds are too nearly akin to warrant any distinction in regard to the liability of the surety to respond.

The condition of the appeal bond is that “If on the appeal judgment be rendered against him” (the appellant) “he will satisfy it and the costs.” G. C., 10383. The condition of the bond in attachment is ‘ ‘ That the property or its appraised value in money will be forthcoming to answer the judgment of the court in the action.” G. C., 10258.

The judgment of this court in the last named case was affirmed without report on June 20, 1911, as appears by 84 Ohio State, 495.

We reach the conclusion in this case; therefore,- that the judgment should be and the same is affirmed.


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    COMPETENCY OF EVIDENCE IN A RAILWAY CROSSING ACCIDENT CASE.
    Circuit Court oí Cuyahoga County.
    Emily Davider v. The Wheeling & Lake Erie Railway Company.
    Decided, May 27, 1912.

      Railroad Grossing Accident — Obstruction of Vietv — Evidence—Ordinance Limiting Speed of Train,

    1. In a railroad crossing accident case, a witness who has made an inspection of certain premises for the purpose of discovering whether certain buildings obstructed the view from a given point along the line of a railroad track, may testify that they do or do not obstruct the view, but where an objection to such evidence is sustained and the court thereafter permits the exact situation, with location and dimensions of buildings with reference to the track to be given to the jury, from which it may readily conclude whether or not the view was obstructed as claimed, no prejudice results from the exclusion of the witness’ answer to the first question.

      2. So also with regard to the xslaintiH’s own statements that her view was obstructed by certain objects, at the time of the accident when she was about to cross the track.
    3. It is comxJetent on cross-examination of plaintiff in such case to ask her if she knew of a village ordinance limiting the sx>eed of trains at the place where she was injured.

      A. W. Lamson, for plaintiff in error.

      Squire, Sanders d? Dempsey, contra.
    Marvin, J.; Winch, J., and Niman, J., concur.
   The parties here are as they were in the court below. The plaintiff brought suit against the Pennsylvania’Company, and later by amendment of the petition, the present defendant in error was made a party defendant. The purpose of the action was to recover for injuries received by the plaintiff on the 31st day of May, 1907, when driving in a one-horse buggy across the track of the Pennsylvania Company on Grace street, in the village of Bedford, in this county.

At the close of the evidence introduced by the plaintiff, the court directed a verdict for the defendant, the Wheeling & Lake Erie Railway Company. Verdict was accordingly rendered and judgment entered on such verdict, dismissing the petition as against said last named defendant. By proper proceedings, the action of the court in that regard is here for review.

The tracks of the two railroad companies run nearly parallel to each other, and the direction is nearly south and north. Grace street, on which the plaintiff was driving, crosses the tracks of the two companies nearly at right angles. The locomotive on a train of the Pennsylvania Company, proceeding west, collided with the buggy in which the plaintiff was driving, resulting in injuries to her.

The distance between the track of the Wheeling & Lake Erie Railway Company and the track of the Pennsylvania Company, on which the plaintiff was injured, is something like 15 feet. The track of the Wheeling & Lake Erie Company is east of the track of the Pennsylvania Company on which the accident occurred. The plaintiff was driving toward the west and had to cross the track of the Wheeling & Lake Erie Company before reaching the Pennsylvania Company’s track where she was injured. As she approached the Wheeling & Lake Erie Company’s track, there was a freight train standing upon such track, and she was detained for a considerable time by reason of this train. She was finally able to drive across this track by the cutting of the train, leaving an opening sufficient between the ears to allow her to drive across the track, and she says that she was signalled by an employee of the Wheeling & Lake Erie Company to drive across.

On a side-track of the Pennsylvania Company, which was east of the track on which she wsa injured, there were cars standing, so that, she says, she was unable to see the train approaching on the Pennsylvania track.

The acts of negligence charged against the Wheeling & Lake Erie Company are that it failed to establish methods of warning other than by bell and whistle, at a crossing alleged to be more dangerous than the usual crossing, by reason of obstruction to view by a freight train on the Wheeling & Lake Erie passing same; freight cars on the Pennsylvania storage track, and buildings, fences and bushes erected and permitted on the rights of way of both companies. Further, that there was unnecessary blocking of the crossing by the train on the Wheeling & Lake Erie road. •

One of the errors alleged in the petition is that the verdict was against the weight of the evidence; in any event, that there was evidence tending to show negligence on the part of the Wheeling & Lake Erie Company, and that there being such evidence, the court was bound to have submitted the case as between the plaintiff and the last named defendant to the jury.

For reasons explained by the court on the hearing of this case, this question can not be considered by us, and it is not necessary to discuss it further here. The evidence is not all before us, and under rulings of this court, affirmed by the Supreme Court, we have no authority to examine into the question of the facts in this proceeding.

It is urged^, however, that there is error manifest in the record in the ruling which the court made upon the admission of evidence.

Attention is first called to an alleged error of this -sort appearing at page 7 of the record. Prank William Karber was a witness who had been called by the plaintiff, and testified as to the location of the tracks and his observations and experiments made at the place where the accident occurred. From the evidence it appears that there was a tool house situated on the right-of-way of the Wheeling & Lake Erie Company, and it was claimed that this tool house was so situated as to render it impossible for one driving on Grace street, as this plaintiff was, to see along the track of the Pennsylvania Company for a sufficient distance to avoid collision with trains coming on that road from that direction.

After the witness had told that he had made some experiments to determine the effect that the location of this tool house had upon the view of one from Grace street along the Pennsylvania track, he was asked this question:

“What did you do ? ’ ’

This was objected to by the defendant; the objection, however, was overruled by the court, and the witness answered:

‘ ‘ I stood on the south track of the Wheeling & Lake Erie, on the south rail of the main track, and observed that the tool house obstructed the view of the westbound track, beginning at a point about 1000 feet back and extending for quite a distance.
“Q. Back from where? A. Standing on the south rail of the main track.”

Then his attention is called to the fact that at that particular point although the general direction of the road is east and west, as it passes through this village, it runs practically north and south, and the track which is on the left hand side as trains are coming toward Cleveland, is spoken of among the railroad people as the southerly track, although at this particular point it is the westerly track.

The witness then says:

“Standing on the westerly rail I observed that the tool house obstructed the view of the west bound track, beginning at a point approximately 1000 feet back from the center line of Grace street.”

The defendant moved that this answer be taken from the jury and this motion was sustained.

It is said that there is error in this, because the point which the plaintiff was seeking to make was that the Wheeling & Lake Erie Road had erected á building on its right-of-way at such a point that it obstructed the view of the Pennsylvania Road, and that therefore this was negligence on the part of the Wheeling & Lake Erie Company.

Other questions were asked of a similar nature immediately following the questions to which attention has been called, and objection to some of them being answered was sustained, and answers to others were taken from the jury.

It is urged on the part of the defendant in error that the rulings were proper because, it is said, to say that a building obstructed one’s view is to state a conclusion.

We are not impressed with the soundness of this reasoning. It seems to us exceedingly technical to say that one may not testify that a building obstructed his view. However, we are unable to see that the plaintiff suffered from this ruling, by reason of what immediately followed.

The witness was asked to describe the tool hou,se, size and height. He had already given its location, and he answered to this question as follows:

“The tool house, the side parallel with the west bound track of the Pennsylvania line was 14 feet 9 inches wide; the side at right angles was 16 feet and 6 inches wide; and the height I .didn’t ascertain any more than from observation, but my memory is that it was about 12 feet high.”

Then he was asked to give the length of the switch of the Wheeling & Lake Erie, which he gave.

Following this he was asked this question:

“Did you make any observation to see what, if any, obstruction was created by the tool house which you described and located on this map, to a person standing at or near the Wheeling & Lake Erie tracks at Grace street?”

An objection to this was sustained, and it was stated by counsel for the plaintiff as follows:

“We expect to show that he took a position on the center line of Grace street in the easterly track of the Wheeling & Lake Erie Railroad Company, and looked south for the purpose of seeing what, if any, obstruction this tool house was to a view of the west bound track of the Pennsylvania Company, and found that the tool house cut off the view of a person, situated as he was, of the west bound track of the Pennsylvania Company, from a point about 900 feet south of Grace street in said track southerly as far as the track was in view, which was to the point where the track, by reason of the curve, passed out of the view of a person al Grace street.”

On cross-examination the witness was asked again as to the location of this tool house, and he gave it as in the direct examination.

We think that no prejudice came to the plaintiff by reason of sustaining objections to the question as to what effect the matter of the obstruction of the view of the witness this tool house had, because when the dimensions of the tool house were given, the point from which the witness looked and the situation of the track, the jury had full information that the tool house obstructed the view, so though we think that the witness should have been permitted to answer that the tool house obstructed the view, the ruling of the court in regard to it was' not to the prejudice of the plaintiff; hence there can be no reversal on account of this.

At page 35 of the record it was sought to show by the plaintiff, who was being examined as a witness, that her view of the Pennsylvania track on which the train was approaching which collided with her buggy, was obstructed by freight cars standing on a track of the Wheeling & Lake Erie Company, the claim being that there was negligence on the part of this company in allowing their cars to so stand as to obstruct the view of the Pennsylvania tracks.

This question was asked the plaintiff by her own counsel:

“What effect did the train or the other cars there have on your seeing the Pennsylvania line ? ’ ’

The court sustained an objection to this - question. The offer to show was that the cars of the Wheeling & Lake Erie standing on this track obstructed the view of the plaintiff.

We think that the court should have permitted this question to be answered, for the same reason that we think the court should have permitted answers to the questions in reference to the effect of the tool house upon the ability to see along the line of the Pennsylvania,track.

Immediately following this, this question was asked:

“When you were looking southerly along the line of the railroad tracks in front of you, were you able to see the line of the Pennsylvania Railroad ? ’ ’

The court sustained an objection to that question, and prQper exception was taken and an offer made to prove that she was not able to see along the line of the railroad.

However, immediately after this the following questions were asked of the plaintiff, and answered as indicated:

“ Q. I will ask you, did you, while sitting there in your carriage, did you look towards the Pennsylvania Railroad tracks southerly from Grace street? A. I couldn’t see the Pennsylvania track. The Wheeling & Lake Erie obstructed — -the cars of the Wheeling & Lake Erie obstructed my view.
‘ ‘ Q. My question was, did you look toward the Pennsylvania tracks in that direction while you were standing there?”

Whereupon the court said: “The answer may stand.”

.So that, the court left as an answer to go to the jury testimony of the witness that the ears spoken of obstructed her view. We think the court did right in this.

Then followed this question:

“Did you look in that direction?”

This question was objected to by the defendant, the objection was overruled, and she gave this answer:

“I looked in a northerly and southerly direction and could not see the Pennsylvania tracks.”

As all that was sought to be shown by the witness in reference to the interference with her view of the Pennsylvania track by these ears which were standing on the Wheeling & Lake Erie track got to the jury, we see no reversible error in the ruling of the court, though we are not able to see why the court ruled out the same thing earlier in the testimony of the same witness.

Later on a similar situation arose in reference to the claim on the part of the plaintiff that her view of the approaching train on the Pennsylvania road was obstructed by cars on the track of that road, but as answers to these questions could not have affected the right of the plaintiff one way or another to recover against the AVheeling & Lake Erie, we regard it as of no importance in this connection, although, upon reading the record, we find the same situation in reference to this, that practically all that the witness'undertook to say in answer to any questions was finally admitted by the court.

Again, at page '62 of the record, the plaintiff, being under cross-examination by counsel for the defendant railroad company, was asked as to her having seen the trains passing at this point frequently. She said she had, and she was asked: “About how fast an hour have you seen trains passing over that crossing on the Pennsylvania track ? ’ ’

She answered: “You mean freight or passenger?”

The counsel replied: “Freight and passenger trains, both?”

Objection to this was made by the plaintiff, and it was overruled, and she answered: Freight trains about twenty or thirty miles an hour, and that she had seen that frequently.

We think this was competent as tending to show that she might have anticipated that there would be a train along at that rate of speed crossing Grace street at the point where such street crossed the track.

At page 162 of the record it is shown that the plaintiff was recalled to the stand for further cross-examination. On her part evidence was introduced of the existence of an ordinance in the village of Bedford restricting the speed at which trains might run through the village to ten miles an hour, and when she was recalled, as already stated, she was asked by counsel for the railroad company if she knew anything about that ordinance, and she answered that she did not.

Objection was made by her counsel to this question and that objection was overruled.

This ruling was proper, upon the principle that she could not rely upon the provisions of an ordinance in relation to the speed of trains of which she had no knowledge.

No other questions are presented to us which affect the claim of the plaintiff against the Wheeling & Lake Erie Company. As to these, we find no error to her prejudice in the rulings of the court, and the result is that the judgment is affirmed. •


text:
    VESTING OF A LIFE ESTATE SUBJECT TO THE ACCUMULATION OF A FUND.
    Circuit Court of Cuyahoga County.
    Benj. F. Rice v. Minnie M. Rice.
    Decided, May 27, 1912.

      Will — Interpretation of — Life Estate — Attachment.

      A devise of real estate to testator’s son, •'to have and to hold and the use thereof during his natural life, and should his wife, Edith Rice, outlive him, then she shall have the use thereof during the remainder of her life, and at the decease of both, said property shall become and be the property of their • children and their heirs forever,” coupled with a direction that, “It is my will that my son, Benj. F. Rice, shall out of the income of aforesaid property, erect a monument upon the graves of myself and my nusband, Jos. P. Rice, within five years after my decease, at a value not less than five hundred dollars,” vests in the son a life estate in said real estate, charged with the payment or accumulation of a fund of $500 for the building of a monument, and the son’s interest in said real estate is subject to attachment.

      Green, Zmunt & Zmunt, for plaintiff in error.

      Sterling Parks, contra.
    Niman, J.; Winch, J., and Marvin, J., concur.
   The defendant in error, Minnie M. Rice, brought her .action in the court of common pleas to recover from the plaintiff in error, Benj. F. Rice, on a claim for the care and support of Phyllis Rice, the minor child of said parties.

The defendant below, at the time of the commencement of the action, was a resident of Pennsylvania. The plaintiff, on affidavit in the form required by law, obtained an order of attachment on the ground that the defendant was a non-resident of the state of Ohio, and certain real estate located in Dover township, Cuyahoga county, Ohio, was attached by the sheriff pursuant to the order.

Service by publication was then obtained upon the defendant. After the completion of the publication, the defendant filed his motion to quash service on the ground that the property attached was not subject -to attachment. This motion was overruled and the defendant, the plaintiff in error here, prosecutes this proceeding in error to secure a reversal of the judgment of the court of common pleas, overruling his motion to quash service.

The land attached in the action below, formerly belonged to Almeda Rice, who died in September, 1911, leaving a will which was duly probated, the second, third and fourth paragraphs of which are as follows:

“Second. I give, devise and bequeath to my adopted son, Benj. E. Rice, the mortgages which I hold against his property, to be his and his heirs’ forever and all my real estate and personal property, to have and to hold and the use thereof during his natural life, and should his wife, Edith Rice, outlive him, then she shall have the use thereof during the remainder of her life, and at the decease of both, said property shall become and be the property of their children and their heirs forever.
“Third. It is my will that my son, Benj. F. Rice, shall out of the income of aforesaid property, erect a monument upon the graves of myself and my husband, Jos. P. Rice, within five years after my decease, at a value not less than five hundred dollars.
“Fourth. I hereby appoint my son, Benj. F. Rice, executor of this my last will and testament.”

The decision of the question presented by the petition in error in this proceeding depends upon the proper interpretation of the provisions of the will of Almeda Rice, above quoted.

It is contended on behalf of the plaintiff in error that under these provisions of the will, Benj. F. Rice was to hold the property mentioned therein, which is the real estate attached, until the income for the monument shall have been accumulated; that until then Benj. F. Rice holds said real estate either as executor or testamentary trustee, and not as life tenant, and that property in the hands of an administrator or executor, as this is claimed to be, is not subject to attachment.

We think it clear, however, that the will gave a life estate to Benj. F. Rice in the real estate of the testatrix, and that such real estate was not taken by him as executor or testamentary trustee to be held in that capacity until a fund for the monument was accumulated. The real estate in question vested at once in Benj. F. Rice as life tenant, charged, however, with the payment or accumulation of the fund of $500 for the building of a monument.

This being the case, the authorities cited by counsel for the plaintiff in error, to effect that property or money held by an executor or administrator of an estate in a representative capacity can not be reached by attachment or garnishee process in an action against the heirs or legatees before an order of distribution has been made, have no application.

By virtue of the will of Almeda Rice, the plaintiff in error had a life estate in the lands attached, subject to the provision for the creation of a fund out of the income of the property for the erection of a monument, costing not less than $500. This life estate is subject to attachment, and service by publication upon the defendant below, following the attachment of the real estate, was authorized by law and regularly made. The court of common pleas committed no error in overruling the defendant’s motion to quash service.

Judgment affirmed.


text:
    CONSTRUCTION OF LEASE FOR. GAS AND OIL LANDS.
    Court of Appeals for Licking County.
    The Columbus Natural Gas Company v. J. W. Dunlap, Amanda Bline and Jacob F. Bline.
    Decided, 1914.

      Oil and Gas — Construction of Lease Providing Rental for Completed Wells and for the Land Prior to Such Completion — Words “Completed Well” Mean a Productive Well.

    In a lease of land for exploration for gas and oil, wherein it is stipulated that the lessee shall pay $200 each year in advance for the product of each well from the time of its completion, and in case no well is completed within a specified time the lessee shall pay a rental of $580 for each year such completion is delayed thereafter, and each completed well shall only reduce the land rental $200, the words “completed well” have reference to a productive well and not to a dry hole, and the lessee is not entitled to a reduction of $200 in his rental because of the completion of an unproductive well.

      Fitzgibbon, Montgomery & Black, for plaintiff in error.

      J. M. Swartz, contra.

    Powell, J.; Voorhees, J., and Shields, J., concur.
   On the 20th day of September, 1907, the plaintiff in error and the defendants in error entered into a contract in writing whereby the said defendants in error leased to plaintiff in error 256 acres of land in this county, and which is described in the petition, for the purpose of exploring the same for oil, gas or water, and for producing and marketing the same, if any oil or gas were found thereon.

The conditions of said lease so far as they relate to the present controversy, are as follows:

1. The lease was for the period of five (5) years “and as much longer as oil or gas is found in paying quantities. ’ ’

2. “If gas only is found, second party (plaintiff in error) agree to pay $200 each year in advance for the product of each well, from the time of the completion of same.”

3. “In case no well is completed on or before February 13, 1908, second party shall pay to the first party (defendants in error) five hundred and eighty dollars for each year thereafter such completion is delayed, payable annually in advance.”

4. “It is further provided that each well completed shall only reduce the land rental two hundred dollars.”

Plaintiff in error completed two wells, that produced gas, and by payment of well rentals of $200 each, it reduced the land rentals to $180. It then completed a third well which did not produce gas or oil, so that no well rentals were due from it, and then refused to pay the $180 land rental due February 13, 1913, all other rentals having been paid to that date. The defendants in error brought suit to recover said sum. The question is raised by demurrer to the answer which sets out the various payments of rentals, a,nd the refusal to pay the $180 land rental after the completion of the third well without finding gas or oil, and while continuing to occupy said lands under said lease.

There are two kinds of rentals provided for in the contract— $580 land rentals, and well rentals of $200 per year in advance for the product of each well, when gas only was found. Each well completed should only reduce the land rental $200. The completion of two wells reduced the land rentals to $180, and the completion of the third well is claimed to have reduced the land rental to nothing, although such third well is not productive of either gas or oil. But there being no product from such well, plaintiff in error claims it was not obliged to pay any well rental therefor.

What is the'true construction of the contract, and what is the reasonable construction of the same?

In the opinion of the court this is not what was intended by the parties when the contract was executed. We think that the parties had in contemplation two kinds of rental or source of income, one of which should never be less, while the lease was in force, than $580, while the other mi^ht go to any limit that the supply of gas would warrant. In the intendment of the parties, as it appears to the court, a “completed well” does not mean a dry hole in the ground, but a productive well as a source of income to the plaintiffs below. The expression “if gas only is found” contemplates that something of value must be found, otherwise it would be as reasonable for defendants in error to claim that plaintiff in error should pay $200 for the product of each completed well, even though that product was nothing but water. Neither position is tenable.

There was no error in the action of the court of common pleas, in sustaining said demurrer, and its judgment will be affirmed, and the cause will be remanded for execution.


text:
    LIABILITY OF HUSBAND FOR FUNERAL EXPENSES OF WIFE WITH WHOM HE WAS NOT LIVING.
    Court of Appeals for Delaware County.
    George H. Humphrey & Son v. Alanzo Huff.
    Decided, April Term, 1914.

      Husband and "Wife — Wife’s Funeral Expenses May be Made a Charge Against Husband — Notwithstanding They Were Living Apart Under an Agreement of Separation.

    1. A husband is not relieved from liability for the expense of the funeral and burial of his wife by the fact that they had entered into a written contract to live separate and apart during the remainder of their natural lives, notwithstanding for considerations satisfactory to herself the wife had stipulated in said contract that she thereby released the said husband from all claims she had on him by reason of their marriage relation.
    2. In such a case presentation of the claim to the administrator of the estate of the wife is not a condition precedent to the bringing of suit against the husband.

      Overturf, Hough & Jones, for plaintiff in error.

      Marriott, Freshwater & Wickham, contra.
    Shields, J.; Voorhees, J., and Powell, J., concur.
   The action below was brought by the plaintiffs in error, plaintiffs below, to' recover from the defendant in error, defendant below, upon an account for the funeral expenses and costs of burial of the wife of the defendant.

By answer the defendant set up as a defense that he and his wife, Alice Huff, during her lifetime entered into a written contract “to live separate and apart from each other during the remainder of their natural lives, and for the sum of $200 paid by the defendant to his said wife, and for other satisfactory and valuable considerations it was stipulated in said contract that said wife released the defendant from all and singular the claims she had on the defendant that may arise by reason of their marriage relations and that they should always live thereafter the same as if no marriage between them had ever taken place, and that the defendant was forever released from all claims his said wife may have against him for her support and maintenance.”

He further alleged that the terms of said contract were fair, reasonable and just to his said wife under the circumstances of the parties at the time it was made. That all the stipulations contained in said contract were fully complied with by the defendant and that by reason thereof he claims he is released from all claims which his marriage relation imposed on him.

To this answer the plaintiffs filed a general demurrer which was by said court overruled, to which the plaintiffs excepted, and not desiring to further plead, judgment for costs was thereupon entered in favor of the defendant, to all of which the plaintiffs excepted, and thereupon a petition in error was filed in this court for the review and reversal of said judgment.

That the plaintiffs in error rendered the services sued for is not disputed, nor is the reasonableness of the charge made for the same disputed, but the defendant in error denies his liaability therefor not because of his relation as husband, but because of the contract of separation set up in his said answer.

It is apparent that in such contract the defendant in error sought to relieve himself of the obligation for the support of his wife, and while the terms of such contract may have been “fair, reasonable and just,” do they extend to and cover the burial expenses of his wife? Counsel for the defendant in error argued that the action of the court below in overruling said demurrer was proper, first, because it does not appear that said claim was presented to, allowed or rejected by, the administrator of the estate of the deceased wife, and second, that said deceased wife’s estate is liable for said burial expenses and that the, defendant in error is not liable therefor.

First, the husband is primarily liable for his wife’s debts, and even though the separate estate of defendant in error's wife, if she had any, may have been liable for her debts, still one furnishing services and expenses for the wife’s burial has the election to proceed either against the surviving husband or the deceased wife’s estate to recover for such services and expenses. Here the pleadings fail to show whether or not the wife of defendant in error left a separate estate, but whether she did or not is immaterial, as we view the case, for plaintiff in error having elected to sue the surviving husband on said account rendered the appointment of an administrator of the estate of the deceased wife unnecessary, and therefore presentation of said account to the administrator of her estate, if one was appointed, was not a condition precedent to bringing suit on the same.

Secondly, did said contract of separation relieve the defendant in error from the payment of the account sued on? Under the common law it was clearly the duty of a husband to pay the burial expenses of his wife, and while the rights and powers of the wife have been materially changed and greatly enlarged by legislation in this state so that she may contract for, acquire and hold property in her own name and her separate estate may become bound for any obligation incurred for her benefit upon the faith of such separate estate, we know of no rule laid down in any adjudicated ease in this state that modifies the above rule of common .law liability or absolving the husband from the payment of his wife’s funeral debts. True it has been held in other jurisdictions that where the deceased wife left a separate estate and her estate was proceeded against, a recovery has been had against such estate.

Section 7997 of the General Code-provides that:

“The husband must support himself, his wife and his minor children out of his property or by his labor. If he is unable to do so the wife must assist him so far as she is able. ’ ’

As was said in Phillips v. Tollerton, Exr., 9 N.P.(N.S.), 565-568, 569, “this statute recognizes and is declaratory of the common law (Toledo v. Duffy, 13 C. C., 482; Chittenden v. Chittenden, 22 C. C., 498). The enactment of this statute seems to be a distinct recognition of common law duties and liabilities.” The support of the wife by the husband, under the terms of the foregoing statute, is made obligatory without reference to any separate estate of the wife. If this is so, what is there to exempt the husband from liability on the claim here sued on? The contract of separation? The contract referred to was undoubtedly a valid contract as between the defendant in error and the deceased wife of the defendant in error; but whether as such it extended to any and all claims that might arise or may have arisen in favor of third persons is not so clear, but this question is not before us at this time. After having investigated the Ohio authorities cited (Phillips v. Tollerton, Exr., 9 N.P.(N.S), 565; Eveland and Motzinger v. Sherman et al, 9 N.P.(N.S.), 559; Ritcher v. Ritcher, 11 Ohio Dec., 377), based as they seem to be upon sound reason and principle, we are of the opinion that the court below erred in overruling said demurrer, and said judgment of the said court of common pleas will therefore be reversed, and said cause remanded to said court with instructions to sustain said demurrer and for sueh other and further proceedings as are authorized by law. Exceptions may be noted.