author: Shauck, J.

text:
    (Second Circuit — Clarke Co., O., Circuit Court
    June Term, 1885.)
    Before Chief Justice Williams, and Judges Stewart and Shauck.
    Samuel A. Bowman, Trustee, v. The Springfield, Jackson & Pomeroy R. R. Co.

      Mechanic’s Lien on Railroad Bridge— When attaches — Priority between Mechanic’s Lien, Solder, Mortgagee, Bondholder — When Contract is entire, Pleading — New Matter in a Reply — Subject to Motion to strike out.

   Shauck, J.

The history of this case is somewhat important, since in its progress some questions have been settled which counsel have ably argued here.

Mr. Bowman, as the trustee of the first mortgage bondholders of the Springfield, Jackson & Pomeroy R. R. Co., brought suit in the common pleas court of this county to foreclose his mortgage. The Smith Bridge Co., not originally a party to the suit in the common pleas court, was made a party on its own motion, and filed a cross-petition asserting a mechanic’s lien on the railroad for the unpaid balance of the contract price for the construction of six bridges, in Ross county, that being one of the counties through which the road ran. An issue was joined upon the answer and cross-petition, and tried in the common pleas of this county, and determined in favor of the bridge company. The case was then appealed to the district court, where all other pleadings were withdrawn, so that it could be heard on a demurrer to the cross-petition. While pending there, the case of Rutherford v. R. R. Co., 35 O. S., was decided by the supreme court, and it was there held that a railroad was not subject to the general mechanic’s lien law, but the court left undecided whether a mechanic’s lien may be taken upon a railroad bridge. On the hearing in the district court, that court answered this question in the negative and sustained the demurrer to the cross-petition of the Smith Bridge Co.

A petition having been filed in the supreme court, the case was transferred to the commission, and the decision of the district court was reversed, the commission holding that while it was decided in the Rutherford case that a mechanic’s lien could not be taken upon a railroad, such lien could be taken on a railroad bridge, and the case was remanded to the district court (now this court) for further proceedings.

Thereupon Mr. Bowman, as trustee, answered this cross-petition, setting up four defenses. The first is not brought to our attention. The second defense alleges in substancé that this mortgage became a lien upon the whole road by its execution, being filed prior to the — day of April, 1878, and that until after that date the Smith Bridge Co. delivered no material upon the line of the road in any of the counties through which it passes, or in Ross county, and had performed no work upon the line of the road toward the construction of these bridges, or any of them, so as to make his lien prior to that of the Smith Bridge Company. To this answer the bridge company filed a demurrer, and it has been argued here very ably upon one side and the other as to whether a mechanic’s lien can attach until there is a visible occupation of the premises against which it is asserted. And it might cause us some difficulty to answer this question, if an answer were not furnished by the two cases I have cited. The proposition that a mechanic’s lien cannot attach to a railroad, was decided in the Rutherford case. And in this case, when it was before the commission, it was decided that a mechanic’s lien could be taken upon a railroad bridge. Starting then with these two propositions, a third is unavoidable, namely a railroad bridge does not become an accession to the railroad so as to become a part of the road, in such sense as to be inseparable from it.

Now whenever this lien of the bridge company attached, it at least attached before the bridges were placed in position on the line of the road ; and as the bridges passed under the mortgage of the trustee by virtue of the provisions of the mortgage that bridges and other property which might be subsequently acquired were to pass under the mortgage of the trustee, it is a contest between two equities, and the older must prevail.

The demurrer to the second defense must be sustained.

The third defense alleges that six bridges were to be erected by the terms of the contract, which required that they should be completed in a certain specified order; and it is alleged in the defense that they were so completed; and by the terms of the contract it was required that they were to be paid for immediately on their completion in the following payments: One-fourth cash; one-fourth in three months; one-fourth in six months; one-fourth in nine months; and it further alleges that three of the bridges first completed were settled and paid for.

The question raised by this demurrer is whether the Smith Bridge Company has a lien upon the six bridges for the unpaid balance of the contract price, or whether its lien is limited to the three bridges last constructed. The answer of the trustee precludes the theory that the payments already made were made upon account of the six bridges, for it alleges that the three bridges first constructed have been fully settled and paid for; and in view of the decisions of the supreme court and commission already referred to, this lien is not upon the road or upon any property whatever except the bridges. The bridges which are the subject of this lien are in no wise connected with each other so far as the lien of the bridge company is concerned.

The words in the mechanic’s lien law are all distributive, and none of them are collective.

The provision of the law is, as applicable to this case, that any person performing labor, or furnishing material for the construction of any bridge, shall have a lien on such bridge. It was obviously the intention of the legislature that each structure mentioned in this connection, and the land upon which it is situated, should be charged with the lien for its own structure. We conclude that the bridge company’s claim, in view of the averments of this defense, must be regarded as limited to the three bridges last constructed.

Some language used by Judge Nash in the decision of this case, when it was before the commission, as to the contract upon which these bridges were constructed, has been quoted as supporting the theory that the bridge company has a lien upon the six bridges for the money yet due it; but that language ought to be considered with reference to the question then before the court. That question was whether there could be a lien upon railroad bridges, and whether such lien had been properly taken by the filing of a single, affidavit with the copy of the contract and the statement of the bridge company’s account. The language of the syllabus in this case is to be regarded as the more careful statement of the point decided by the court, and it shows clearly that while the court regarded the contract as an entirety for the purpose of taking a lien, it also shows that in the opinion of the court there were purposes for which it ought not to be so regarded.

The demurrer to this defense will be overruled.

To the fourth defense there is a motion to strike out a portion, as being a departure from the petition and not properly pleaded by way of answer or reply. That portion is :

“ And the plaintiff further answering, and for his fourth reply to the amended answer and cross-petition of said Smith Bridge Company, defendant, says, that on the 30th day of September, 1878, the mortgage to E. Kinney .mentioned in the petition in this cause, was in full force, and that the same secured $219,600 of the bonds of said railroad, which had been issued and negotiated thereunder long prior to the making of said contract with the Smith Bridge Company, and the same was the first and best lien upon the line of said railroad, including said bridges, and that the said plaintiff, without knowledge of the pretended lien by the said Smith Bridge Company, or of any claim of lien by said bridge company, or of any claim of any other person for, or on account of the erection of any bridges on the line of said railroad, and solely for the protection of the beneficiaries under his said trust, and for the protection of their lien upon said road, caused the said bonds to be purchased and delivered to him, the said plaintiff, and he delivered the same to the said Kinriey, trustee, and procured him to cancel the said deed of trust of record. The plaintiff caused a large amount of money to be paid to take up said bonds in order that said mortgage might be cancelled, the exact amount of which he cannot now state, but will show on the trial hereof; but the amount paid therefor was far in excess of the value of said bridges, and he procured said trust deed to be cancelled by mistake and without notice of the said defendant’s claim.”

8. A. Bowman, for plaintiff.

Harrison, Olds & March, E. W. Tolerton and O. T. Martin, for Smith Bridge Co.

It is admitted, or at least it is not now controverted, that these facts entitled the trustee to the benefit of the mortgage to Kinney.

But in support of the motion it is argued that the rules of pleading required that these facts should be. made to appear in the petition or in the amendment thereto. This view we think is correct. These ayerments are not responsive to the petition of the Smith Bridge Company, or any pleading in the case. They constitute a distinct and substantive ground for relief.

The motion will be sustained.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    (First Circuit — Clinton Co., O., Circuit Court
    May Term, 1885.)
    Before Judges Cox, Smith and Swing.
    Bosworth v. Pittsburgh, Cincinnati & St. Louis R’y Co.
    Railroad company — Right-of-way—When agreement to build and maintain fences by grantor not a covenant running with the land — Right-of-way passing by mortgage and sale of railroad company to lessee of purchaser — Provisions of section 3329, R. S., do not prevent a recovery for failure of company to erect fences, when compensation for the building of it was not taken into consideration and estimated as a part of the consideration paid for the right-of-way.
    Error to the Court of Common Pleas of Clinton County.
   Smith, J.

On the 17th day of June, 1852, Miller, being the owner of a tract of land in Clinton county, executed and delivered to the Cincinnati, Wilmington & Zanesville Railroad Company an agreement, signed and sealed by him, but not acknowledged, by which, in consideration of one dollar paid him, he granted and released to said company the right to enter on his lands and select a strip thereof not exceeding one hundred feet in width, and hold and use the same for the purposes of a railroad so long as might be necessary, and also granted other privileges to said company. And by said writing he required said company to construct certain crossings and cattle-guards, and to pay him $450 in the stock of said company; and he further stipulated as follows: I also agree to build and sustain all fences on each side of said roadway, and to pay all taxes on said land, during the occupancy by said company of the same.”

The railroad company thereupon took possession of said strip of ground, built and constructed its railroad thereon, and used the same for several' years. It also built the crossings and cattle-guards stipulated for, and paid to Miller the $450 in stock. Afterwards it mortgaged its road, rights-of-way, etc., as fully as it could do, and this mortgage was thereafter foreclosed, and the property so mortgaged sold at judicial sale to the Cincinnati & Muskingum Valley Railway Co., which after some years, leased the same for 99 years to the defendant, which term has not yet expired, and which last named company has for many years back used and occupied the same as a railroad. And the said Cincinnati, Wilming. ton & Zanesville Railroad Company has long since ceased to exist as a corporation.

Miller owned the land until March 27, 1865, when he conveyed all his interest therein to Bosworth, the plaintiff. At the time of the contract of Miller with the railroad company, there was no fence standing along the line of the right-of-way, and none was ever erected by him or anyone else while he was the owner of the land. Bosworth had no actual notice of the contract of Miller with the company, the only notice he had being the occupation of the right-of-way by the railroad companies.

There being no fence on either side of the right-of-way, on the 1st day of September, 1882, Bosworth, the owner of the land, duly notified the defendant company to erect fences as required by sections 3324 and 3325, revised statutes, which the company failed to do. The plaintiff then proceeded to build such fences, and duly presented to its agent, as required by section 3325, revised statutes, an itemized account of the expenses thereof, and the company having for more than thirty days neglected to pay the same, this suit was prosecuted to recover the amount.

Held: 1. That the covenant of Miller with the Cincinnati, Wilmington & Zanesville Railroad Company, to build and sustain fences along the right-of-way granted, was a personal one; that the fences which he agreed to erect and sustain, not being then in esse, and there being nothing in the agreement which purported to make it binding on the heirs or assigns of Miller, the grantor, his covenant did not run with the land, and even if it is now binding on Miller himself, it is not upon Bosworth, his grantee. Spencer’s Case — Smith’s Leading Cases — 90.

2. That the contract of Miller operated ,to give to the Cincinnati, Wilmington & Zanesville Railroad Company, and to its assignee, a right to the ground so appropriated for railroad purposes, so long as the same should be necessary for such purpose; and that this right did not cease when the Cincinnati, Wilmington & Zanesville Railroad Company ceased to use it, but passed by the mortgage and sale thereunder to the Cincinnati & Muskingum Valley Railway Company, and by the lease from the latter to the defendant company, said right-of-way having been used ever since said contract by said companies, and being necessary therefor.

3. That under the agreement of Miller with the railroad company, that he would build and sustain all fences on each side of said roadway, and pay all taxes on said land during the occupancy of the same by said company, he was not bound to build or maintain the same, after the said Cincinnati, Wilmington & Zanesville Railroad Company ceased to occupy the premises.

4. The provisions of section 3329, revised statutes, do not operate to prevent a recovery by the plaintiff in this case. No compensation for the building of the fences in question was taken into consideration, and estimated as a part of the consideration paid for the right-of-way. Nor was there any agreement between the railroad company and Miller for the construction of these fences. The only agreement between him and the company was for the building and maintenance of fences, so long as the right-of-way granted by him was occupied by that company; and the fences for which the plaintiff claims to recover the costs, were built by him after that occupation Ceased, and -when the defendant company was bound by law to build them. The case of Warner v. B. & O. Railroad Company, 31 O. S., 265, was one, where the owner of land released to a railroad company a right-of-way over his lands, without any limitation as to time, and therefore so long as it might be used for that purpose ; and stipulated and agreed to build and sustain all fences on both sides of said roadway, the effect of whicfy was to oblige him to do so during the continuance of the grant. And the fence, for the building of which the plaintiff in that case sought to recover, was one which had been paid for by the railroad company when it acquired the right-of-way, and was thus brought directly within the provisions of section 3329, R. S., and the plaintiff could not recover therefor. Such is not the case here, and the plaintiff is entitled to recover.

W. B. Telfair, M. Hayes and Judge J. B. Foraher, for plaintiff.

J. S. Brasee, and West & Clevenger, for defendant.

Judgment for the plaintiff on the agreed statement of facts for the amount claimed in his petition.

Cox and Swing, JJ., concurred.


text:
    (First Circuit — Butler Co., O., Circuit Court
    April Term, 1885.)
    Before Judges Cox, Smith and Swing.
    August Carr v. Beckett.

      Judgment against one of two Defendants on a joint Obligation, and Continuance of the Case for Trial as to the other — Judgment as to him at a future Term — Merger.
    Error to the Circuit Court of Butler County.
   Smith, J.

Beckett sued Israel Carr before a justice of the peace on a joint note purporting to be signed by him and Augustus Carr, and recovered a judgment. Israel Carr appealed to the common pleas, where, without objection, Augustus Carr was also made a defendant, and the two jointly filed an answer denying the execution of the note. Trial was had and a verdict rendered against both of the defendants. On a motion for a new trial by both, the verdict was set aside as to Augustus and a new trial granted as to him, and overruled as to Israel and judgment rendered against him on the verdict, and the case continued for trial as to Augustus. At a subsequent term the issue as to Augustus Carr was tried, and.a verdict rendered in favor of the plaintiff. Carr moved for a new trial, and in arrest of judgment, on the ground that the judgment at the prior term against Israel Carr was a inergerof the claim on the note against both makers. The court overruled the motions and rendered judgment on the verdict against Augustus Carr, and he prosecuted his proceeding in error against Beckett alone to reverse that judgment.

Held: That there was error in the judgment against both of the defendants — in this: 1. That on the setting aside of the verdict and the granting of the new trial to one of two makers of a joint note, it should have been done as to the ■ other also, for the reason, that he was entitled to have the ca^e tried as to both at the same time, and that in such case a judgment can not properly be taken as to one defendant, leaving the action to proceed as to the other. Acker v. Adams & Ford, 23 O. S., 543. But Israel Carr not complaining of such error, the judgment against him stands.

F. Vanderveer, for plaintiff in error.

Israel Williams, for defendant in error.-

2. That a judgment having been rendered against Israel Carr on the joint note of the two defendants, no subsequent recovery can be had against Augustus Carr. The claim against both on the note was merged into the judgment, and Augustus Carr might afterwards have set up this fact as a defense. But not having done so, and the facts appearing on the record, his motion in arrest of judgment was proper, and it was error in the court to overrule his motion and to render a judgment against him. Avery v. Vansickle, 35 O. S., 274.

Judgment reversed as to Augustus Carr.


author: Beer, J.

text:
    (Third Circuit — Crawford Co., O., Circuit Court
    April Term, 1885.)
    Befóse Judges Bees, Moose and Sbney.
    Jacob Deuyer v. Christian H. Shonert, Treasurer.

      Township Hitch — Action to enjoin Collection of Costs and Mcpenses of construction— Under a Petition to clean out a Hitch, Trustees have no Power to make an Order for a new Hitch, or to deepen one already constructed.

    Error to the Court of Common Pleas of Crawford County.
    Plaintiff, on the 11th day óf July, 1879, brought suit against C. H. Shonert, as treasurer of Crawford county, Ohio, to enjoin the collection of $96.50, the costs and expenses of surveying and constructing a township ditch, which stood as a tax charged against his land on the treasurer’s duplicate, to be collected like other taxes, and which, he alleged, was there without authority of law.
    The ditch proceedings were conducted under the laws in force January 26th, 1875. Yol. 72, O. L., 20, 21. Sayler’s Statutes, 3379.
    The petition alleges that the plaintiff’s legitimate tax on his land was $31.17, which the treasurer refused to take unless he paid the ditch tax, and the $31.17 was brought into court by-plaintiff as a tender.
    The petition further alleges that Jacob Kinsey, who is made a party defendant, on the 14th day of April, 1877, filed with the township trustees a petition representing that the ditch in question, which had previously been established and constructed, was obstructed at a point above plaintiff’s land, and needed cleaning out, and requested the trustees to have the same done according to law; that acting on said petition alone, the trustees, on the 5th day of November, 1877, ordered the said ditch to be made deeper and wider than the original ditch, to the extent that its capacity would be more than double; and that a new survey and specifications were made by an engineer, and recorded, to deepen and widen the ditch. accordingly.
    The petition also made the allegation that plaintiff’s grantor had, shortly before his purchase, and a short time before Kinsey’s petition, been notified by the township trustees to clean out said ditch so far as it ran on plaintiff’s land; that in obedience to said notice, he had cleaned it out to its original capacity, and that, at the time of the order, made by the trustees under Kinsey’s petition, the ditch was clean and open to its original capacity; that plaintiff’s land was high and dry, needing no drainage, and that the enlargement of the ditch was no benefit to him, or his land ; but, on the contrary, had taken a valuable portion of his land, and otherwise damaged him, for which no provisions had or could be made under said proceedings for his compensation or damages, and that he had received no notice of any movement or order to deepen or widen said ditch. The trustees were also made parties defendant. A general demurrer was interposed to the petition by the treasurer and trustees.
    The court of common pleas, at its November term, 1882, sustained the demurrer, dissolved the temporary injunction which had been allowed, and dismissed plaintiff’s petition; plaintiff excepted and the case comes into this court by petition in error.
    S. R. Harris, for plaintifí,
    contended that the petition of
    Kinsey made no complaint of any obstruction in the ditch on plaintiff’s premises; that under said petition the jurisdiction of the trustees was limited to the removal of obstructions in the ditch, and that their order to deepen and widen the same was void for want of jurisdiction. That the proceeding was governed by the law of January 26, 1874, 72 O. L., 20,21, then in force, which related exclusively to cleaning out the ditch “ to its original capacity; ” that 30 days notice was required to land owners, giving a “ verbatim copy ” of the “ depth, width and flare” of the old ditch, as shown by the record, so that each person might know the original capacity of the ditch and clean it out accordingly. He contended, also, that the curative statute of 1874, Dec. 29, 71 O. L., 135; Sayler’s Statutes, page 3316, re-enacted and modified by revised statutes, § 4559-60, by its express terms referred to injunctions against the collection of taxes for the “ location and construction” of ditches; but does not mention unauthorized taxes for the cleaning out of ditches already located or constructed; nor' especially did it apply to a case like this, where plaintiff had no opportunity to apply for damages or compensation for the appropriation of his land.
    As was said by the court in Teegarden v. Davis, 36 O. S., 604: “ To compel plaintiff to pay for an improvement on his land, taken without authority of law, and without an opportunity of asserting his right to compensation, would not be in the interest of justice.”
    Finley & Eaton, for demurrants,
    cited 15 O. S., 64.
   Beer, J.

The allegations of the petition show that the tax in question was assessed against plaintiff, and certified to the treasurer by the township trustees, and entered on the tax duplicate under an order of the trustees, founded on the petition of Jacob Kinsey to clean out a ditch, a portion of which ran through plaintiff’s premises; that the ditch so far as it ran on plaintiff’s premises had recently been cleaned out by plaintiff’s grantor, and was, at the time the tax was levied and certified, open to its original capacity, and free of obstructions.

It is claimed by counsel for defendant, that plaintiff’s objection to the tax comes too late after the work has been done, and cites Kellogg v. Ely, 15 O. S., 64.

In the opinion of the court that decision does not reach this case.

Under a petition to clean out a ditch, the trustees had no power to make an order for a new ditch, or to deepen and widen one already constructed.

The court below, therefore, erred in sustaining the demurrer.

Judgment reversed and cause remanded.

Moore and Seney, JJ., concur.


author: Laubie, J.

text:
    (Seventh Circuit — Trumbull Co. O., Circuit Court
    May Term, 1885.)
    Before Judges Laubie, Frazier and Woodbury.
    The Union Rolling Mill Co. v. Warren Packard et al.

      Opening and Closing of Argument in Trials to the Court — Improper Question, Objection to be made before Answer — Fraud, constructive and intentional — Attachment for Fraud, intentional Fraud must be proven— Forming Corporation and transferring Property to the same as Fraud.

   Laubie, J.

Petition in error to reverse an order of the court below in discharging and dissolving attachments.

The first error claimed is the action of the court in allowing defendant’s counsel to open and close the argument.

The case was heard on a motion to discharge the attachments. Evidence was introduced in the ordinary method, the burden falling on the attaching creditors, and they having the opening and closing. The court allowed the defendants’ counsel to open and close the argument. This was a hearing to the court and not to a jury, and. it can hardly be assumed that the order in which the arguments were presented was an error prejudicial to the plaintiff. The argument does not consist in having the last word. The strongest is the best, and the court can appreciate and weigh it. It is matter of discretion for the judge to determine when he will hear counsel, and he can say, as is frequently done, that he does not wish to hear from one until the argument of the other has raised a doubt in his mind.

It is alleged that the court erred in allowing evidence to be introduced relative to a report, made to the Bradstreet Commercial Agency, as to the existence of the corporation of W. Packard & Co. The report of the new corporation was signed by the president and witnessed by the secretary, and the evidence was introduced for the purpose of showing that Mr. Packard was giving publicity to the organization. The questions were asked the witness on cross-examination. The court holds that the question at the direct examination made the matter a proper subject of inquiry on cross-examination, and no error exists.

It is also alleged that there was error in allowing Mr. Packard to testify as to his intention in forming the corporation and conveying his property to it. It appears that plaintiff’s counsel allowed several questions to be asked and answered, and then objected after an answer had been given to the third question. Counsel can not sit by and allow improper questions to be asked and answered, and then object when he finds the answer was not what he expected. The objection came too late. No objection was made to the form of the question) but to the subject matter, and to the competency of the witness. The supreme court has decided that certain forms of questions may not be put, but the witness can testify as to his intention. The evidence was competent.

It is also held that there was no error in allowing Mr. Packard to testify that he had letter-heads^printed giving the name of the corporation, and containing also the words : “ Established 1851. Incorporated 1884.”

The important point urged is that the court below erred in discharging the attachments on the evidence. The orders of attachment were issued on the ground of fraudulent disposition and concealment of property. The question arises, may an attachment be maintained on constructive, fraudulent disposition of property ? Constructive frauds are such as are assumed by the court to have been committed by acts without regard to motive. In some cases the law assumes that the act is fraudulent, because it deprives creditors of rights. In actual results the act may produce fraud to creditors, although such an intention may not exist in the mind of the debtor. Constructive fraud should be carefully distinguished from intentional fraud. Can an attachment be maintained on a constructive fraud ? It is not claimed that there was an intentional fraud in this case, or if there was such a claim, the court did not so find. The statute specifies particularly that there must be an intent to defraud. The doctrine of courts of equity is urged by counsel for plaintiff. Courts of equity will hold acts to be fraudulent although there is no intention to defraud, and it is urged that this is sufficient to hold an attachment. There is a marked difference in the two remedies. Setting aside a conveyance is the final remedy a creditor may have. That is the place to determine about a consideration. The remedy by attachment is provided before judgment, and it is resorted to when it is presumed the creditor cannot satisfy his claim in the ordinary way of judgment. Attachment is an extraordinary remedy, and the creditor must bring his case within the letter of the law to get the strong arm of the court to take from the debtor his property before judgment. The court is satisfied that the extraordinary remedy of attachment cannot be exerted unless the intention to defraud appears. Evidently such was the intention of the legislature.

The same is true in regard to the arrest of a debtor. There was no intention to confer power to arrest, where the debtor does not manifest desire or intention to defraud.

The evidence discloses no corrupt design in the formation of the corporation and transfer of the property. The testimony of Packard showed he had enough to pay his debts if let alone. The mere formation of a corporation and transfer of property to it, cannot be regarded as fraudulent unless a fraudulent design is shown. The liability of Warren Packard as a member of the corporation of W. Packard & Co. is different from his liability as a partner in the firm of W. Packard & Co., but an existing creditor cannot claim that he was misled by the name of the corporation, though a future creditor who relied upon the individual credit of W. Packard, might be misled.

The judgment of the lower court is affirmed.


text:
    (Seventh Circuit — Trumbull Co., O., Circuit Court
    May Term, 1885.)
    Beeobe Judges Laubie, Feazieb and Woodbuby.
    The Insurance Co. of North America and The Phœnix Insurance Co. of Brooklyn v. Rowland K. Lewis.

      Fire Insurance — Proviso against Change of Ownership — Sale of Stock during Fife of Policy, and Be-sale to original Owner before Loss by Fire does not forfeit a Policy.

   These cases came up on error from the common pleas court, where they had been tried together upon an agreed statement of facts, in substance as follows: September 9, 1880, Samuel A. Hall, of Coalburg, the owner of a stock of goods, procured insurance in the above companies. April 18, 1881, while the policies were in force, Hall sold and assigned a one-half interest in the stock of goods covered by the policies to J. M. Kuntz. Kuntz continued to hold the one-half interest thus acquired until June 1,1881, when he sold his interest to Miller for Hall, and on the same day Miller transferred that interest to Hall, and Hall again became the owner of the entire stock. July 19,1881, a fire occurred, the goods were destroyed and the loss sustained. Since the loss, the interest of Hall in the policies has been assigned to Rowland K. Lewis, who sues to recover for the loss.

It is claimed by the companies, that the provisions of the policies stipulated for a forfeiture in case of a transfer of the property, or a portion thereof. By the agreed statement of facts it appears that there had been an assignment of the goods 'during the life of the policies, and it is urged that the policies became void. There is no material difference in the conditions of the two policies. That of the North American provides that if the goods are assigned, sold or encumbered, the insurance shall terminate. The Phoenix policy provides that the goods may be disposed of and the policy assigned, provided the consent of the company by endorsement in writing is obtained; otherwise the insurance shall cease from date of change in ownership. There was no consent given by either company, nor was there an assignment of policies.

There is no doubt that when Hall sold to Kuntz there was an entire change of ownership. Neither was owner of any distinct part, but they were joint owners, and during the time of joint ownership neither company would have been liable in case of loss. The question is, when Hall transfers a part of his interest, and the policies are suspended, what is the effect upon the policies when the insured again becomes the owner-and acquires the same interest he held at first ?

No case cited directly and squarely makes the question here presented. One in the 12th Maine is similar. The assured sold all his goods and leased the store, and then took them back. It was held that it was not alienation within the meaning of the policy, and the assured was allowed to recover. In Wood on Insurance, the doctrine is laid down that a sale of part of the goods insured only invalidates the policy as to the the part sold, and a re-conveyance re-instates the assuréd as to all rights under the policy, although the policy was suspended during the alienation.

The Maine case and those cited in Wood, seem to sustain the claim of Lewis. The stock would be constantly changing. New purchases would be made to keep up the stock. Such changes are contemplated by the parties to the policies, and the companies would be liable for the goods destroyed at the time of the loss. At the time of the loss, Hall had become the owner of all the goods, and the policies had again become binding between the parties. The parties to the contract recognized Hall’s right to sell to strangers, and to replenish his stock with new goods by purchases from others. Suppose he had sold his goods to five others, and then made purchases from a sixth person, and replaced the old goods with a new stock. There would be no question as to the validity of the policies in such a case.

A life-insurance case, cited in the 5th Rhode Island, is not analagous to the case at bar. It is the opinion of this court that the industrious counsel have presented all authorities which bear on this case, and after a careful examination of them, the action of the court below in giving judgment to Lewis is affirmed.


text:
    (Fifth Circuit — Knox Co., O., Circuit Court
    May Term, 1885.)
    Before Judges Adbaugh, Jenneb and Follett.
    The Baltimore & Ohio Railroad Co. v. Kent.

      Railroad and Passenger — Duty of Passenger obtaining Ticket at reduced Rate, under Contract to comply with Conditions of the Contract.

    Error to the Court of Common Pleas of Knox County.
   Kent brought suit in the common pleas court to recover $5,000 damages, caused, as alleged in his petition, by reason of being wrongfully ejected from a passenger train of the Straitsville Division of the Baltimore & Ohio Railroad.

The testimony showed that Kent purchased of the general ticket agent of the defendant company a one-thousand mile commercial traveller’s ticket. The ticket he purchased provided that it was good only when properly stamped,.and the contract on the last page was signed by the purchaser, and one of the express provisions of the ticket was that conductors would not honor it unless the contract was signed by the owner of the ticket. When Kent presented the ticket to the conductor, the latter called his attention to the terms of the ticket, and informed him that the ticket would not be honored unless he signed the contract, and that he must either sign it or pay his fare. He refused to do either, and was ejected from the train.

In the court of common pleas a verdict and judgment for $765 was rendered, and this proceeding was instituted to reverse that judgment.

Kent contended that he was not bound to sign the contract, because it was not called to his attention when he purchased the ticket, and also because the contract exempted the company from liability for the negligence of its agents and servants, and was therefore invalid.

Held, by the court, that Kent had the right to ride upon defendant’s cars, first, by paying the usual fare and assuming the rights and liabilities of an ordinary passenger, while the defendant assumed those of a common carrier of passengers; and second, by making a special contract for a reduced rate of fare, such as provided for by this ticket. If the plaintiff below relied on a special contract, it was incumbent on him to show compliance on his part with all the terms upon which the reduced rate was obtained, and the question as to whether the contract, which he refused to sign, was or was not valid,' does not arise in this case, and can only arise in an action on the part of Kent to recover damages for some act of negligence on the part of the servants of the company, against which this contract protects it.

W. C. Cooper, of Mt. Vernon, and J. H. Collins, of Columbus, for plaintiff in error.

J. D. Critchfield and General Devin, of Mt. Vernon, for defendant in error.

Judgment reversed'and cause remanded.

All judges concur.


author: Cox, J.

text:
    (Second Circuit — Franklin Co., O., Circuit Court
    Sept. Term, 1885.)
    Befobe Williams, C. J., and Judges Shauob: and Cox. (Judge Cox, of the First Circuit, taking tbe place of Judge Stewart.)
    Elizabeth Moriarity v. John J. Devine.
    1. A recital in the transcript of a magistrate, “that the constable has demanded his fees in advance, and' refuses to serve a summons for a jury because not paid,” is not a return of the constable, and will be disregarded by a court on error. .
    2. A constable has no right to demand in advance of service his fees for summoning a jury under section 6551, revised statutes.
    8. When a jury is properly demanded and selected in a trial before a magistrate, the refusal of a constable to serve the summons on the persons so selected as jurors, gives no authority to the magistrate to try the case without a jury.
    Error to the Court of Common Pleas of Franklin County.
   Cox, J.

The plaintiff presents this petition in error, to reverse the judgment of the court of common pleas affirming the judgment of a justice of the peace in replevin.

In the case before the justice on the day set for trial, the defendant appeared and demanded a trial by jury. The jury was selected and summons issued therefor to the constable, and the trial adjourned for three days. The transcript of the justice recites that the constable demanded his fees for serving the jury, of which defendant had notice. On the day fixed for trial, both parties appeared, and the entry of the justice is, “ the defendant having failed to pay the constable his fees for serving the jury, at defendant’s request cause continued to 21st.” A like entry is made on the 21st, and on March 1st and 15th. So that it appears that defendant appeared at four different days demanding a trial by jury, and on each day was met by the answer: jury not served because constable’s fees not paid.

On the fifth day appointed for trial, defendant did not appear, and then the plaintiff waived a trial by jury and the justice heard the case without a jury, and rendered a judgment in favor of the plaintiff.

That the defendant was entitled to trial hy jury is absolutely provided by section 6547, revised statutes, and it is also clear by section 6545 that the justice had no right to try the action himself and render judgment, after the defendant had demanded a jury. Three questions arise for determination.

First — Does the record legally show, that the constable refused to summon the jury because his fees were not paid in advance ?

Second — Had he a right to refuse to serve the summons until his fees were paid in advance ?

Third — Could the justice, under this state of case, try the case without a jury ? As to the first points, the only evidence we have as to the demand by the constable for fees, or his refusal to serve the summons for the jury, is in the recital by the justice in his transcripts, as follows: “ the constable demanded his fees, in advance, for serving said jury, of which defendant had notice; ” and again, “ the defendant having failed to pay the constable his fees for serving the jury, the jury was not served,” “ said constable’s fees were not paid, and jury not served.”

This does not appear as the return of the constable. It was the duty of the constable to make a return on his writ of his proceeding, and whether the parties were or were not served; and if served, how ; if not, the reason therefor; and what that return was, should appear in form as the official act of the constable. But while the transcript shows that the summons was issued, it nowhere appears that it was ever returned, or any reason endorsed on the writ by the constable for its non-service.

While this writ was, therefore, in the hands of the constable for service and return, the justice could not proceed further in the case.

Admitting that the constable had made the return on the writ; that he had demanded the fee for service from the defendant, and he had refused to pay them, and that therefore he returned the summons “not served,” was he authorized by law so to do ? ,

Section 6551, R. S., provides that the constable shall serve the summons for the jury by a personal service, and return the same endorsed with the names of the persons served.

Section 622 provides the amount of fees for services rendered which he shall be entitled to receive. The inference would seem naturally to follow that until he rendered the service he would not be entitled to fees, in the absence of statutory provision that he could require payment before he rendered the service.

There are some cases where the statute expressly provides that the officer may exact his fees in advance, and these provisions would seem to be a strong argument that he could not demand in advance except where it is so provided. This view is further sustained by sec. 1322, revised statutes, which provides, that no sheriff, coroner or constable shall be entitled to receive, either on mesne or final process, any fees, unless he return upon the process, upon which any charge shall have been made, the particular item of such charge.”

Now, one of the items for which the constable can charge by section 622, is for mileage, twenty cents for the first mile, and five cents for each additional mile; and as by the statute* he is obliged to serve the jurors by a personal service, how can he in advance fix the amount of mileage fees ! It may be in the service he will be compelled to go one mile or twenty, and, therefor, his fees cannot be ascertained until after service. We hold, therefore, that the constable was not authorized to demand his fees in advance of service of the summons.

W. H. Dunnich, for plaintiff in error; no counsel appeared for defendant.

The failure of the constable to perform his duty in summoning the jury would not authorize the justice to ’try the case without a jury. He should have compelled the constable to make a return, or, as he might under the statute, appoint some suitable person to serve it.

The judgment of the court of common pleas and of the justice will therefore be reversed, and the case remanded to that court for further proceedings.


author: Williams, C. J.

text:
    (Second Circuit — Franklin Co., O., Circuit Court
    Sept. Term, 1885.)
    Before Williams, C. J., and Cox and Shattok, Judges. (Judge Cox, of the First Circuit, taking the place of Judge Stewart.)
    Margaret Bruder & John B. Bruder v. Ida Biehl, Adm’x.
    1. It is not proper practice to file a demurrer to a biF of particulars before a justice of the peace.
    2. It is not error f or a j ustice of the peace to overrule a motion to dismiss, the hearing of which involves the merits of the case, and proceed to a trial of the action as if no such motion was filed.
    3. Before the act of 1884, the husband was liable for the antenuptial debts of his wife, and a joint judgment might properly be rendered against husband and wife on such indebtedness. The act of 1884 qualifies this liability.
    4. A defendant properly summoned, and appearing and making defence before a justice of the peace, and against whom a judgment is rendered, and who does not appeal, cannot on petition in error to reverse such judgment have a re-trial of the case on the facts, andan amendment to his petion in error, assigning such errors of fact, may be disregarded.
    Error to the Court of Common Pleas of Franklin County.
   Williams, C. J.

On the 24th of November, 1882, Henry Biehl brought suit against Margaret Bruder and John Bruder before a magistrate to recover $114.75, due on settlement from Margaret before she married John. The action was a joint one against both husband and wife.

It appears the parties were duly summoned, and Margaret made defense. She first filed a demurrer, which was overruled, and then a motion to dismiss on the ground that the liability was not upon any contract which she, as a married woman, was authorized to make. This motion was overruled. A trial was then regularly had, Biehl and Margaret both examined as witnesses, and judgment rendered for the plaintiff.

The Bruders then prosecuted a petition in error to the common pleas court to reverse judgment, and afterward filed an amendment to the petition in error, alleging certain errors of fact, among them that Margaret was a married woman when the debt was contracted, and that it was not her debt but that of her former husband.

A demurrer was filed to this amendment, which was sustained, and the magistrate’s judgment was affirmed. This petition in error is to reverse the common pleas.

1. It was not error for the justice to overrule the demurrer to the plaintiff’s bill of particulars. There is no authority for filing a demurrer before a justice of the peace. A bill of particulars is not required to state a cause of action with the accuracy of a petition, but simply to state the nature of the claim in general terms, which the plaintiff’s bill of particulars sufficiently did.

2. There was no error in overruling the motion to dismiss. The motion called for an examination of the facts relating to Margaret’s liability which could only be properly1 made on the trial — and a hearing of the motion on the evidence would be a trial of the action.

3. No bill of exceptions was taken, the transcript on its face shows that the proceedings of the justice of the peace were regular. Every presumption will be made in favor of the judgment. It will therefore be presumed that every fact necessary to establish the liability of the defendants was properly proven before the magistrate' — and upon a proper state of facts a joint action may be maintained against husband and wife on the antenuptial contract of the. wife. The statute then in force recognized such right of action. Sec. 3110 Swans New Treat., 593; 31 O. S. R., 546; 25 O. S. R., 500.

Byrne, Peters & Ewing, for plaintiffs in error.

It is true the statute was changed in 1884 so as to make the husband liable for the antenuptial contracts of his wife, to the extent only that he received her separate estate.

But the law in force at the time the debt was contracted must govern the wife’s liability, and the law in force at the time of the marriage fixes that of the husband, both of which were before the act of 1884.

The justice did not err, therefore, in rendering a joint judgment against the husband and wife.

4. The sustaining of the demurrer to the amended petition in error by the common pleas court was immaterial and not prejudicial. The question still remained whether the common pleas court erred in affirming the judgment upon the whole case made by the original and the amended petition in error. The purpose of the amendment was to have a re-trial in the common pleas of the facts relating to the liability of the defendants upon the evidence as upon an appeal.

No such right exists under a petition in error in any form.

Under our present system of legislation, which specifically provides for appeals to the common pleas where pleadings of fact are to be filed and a re-trial had upon the facts, as if it had original jurisdiction, and also provides for excepting to any ruling of the justice and to take bills of exceptions before him, so as to preserve every error properly on his record, and for proceedings by petition in error, to review his record in such cases, it can not be allowed that after the party has had and exercised his election not to appeal, but to prosecute error, he shall convert his petition in error to a pleading of fact to retry the same matter on the evidence which he tried before the magistrate, and from which he took no appeal.

Judgment affirmed with costs — no penalty.


text:
    (Second Circuit — Franklin Co., O., Circuit Court.,
    September Term, 1885.)
    Before Williams, C. J., and Clark and Sbcauok, Judges. (Judge Clark, of the Fourth Circuit, taking the place of Judge Stewart.)
    The South End Bank v. John G. McGuffey et al.
    Tbe Act of April 16, 1885, authorizing the circuit court to grant further time to file additional bond in cases appealed from the court of common pleas, is valid.
   Shauck, J.

This cause was appealed from the court of common pleas to the district court of Franklin county prior to the ninth day of February, 1885, when this court became the successor of the district court. The original appeal bond was conditioned upon the judgment of the district court. No additional bond has been filed. No motion to dismiss the appeal was filed until after April 16, 1885.

The appellant now moves for leave to file such additional bond. The appellee resists that motion, and moves that the appeal be dismissed for want of such bond.

In section 454d, of the act of April 14, 1884, to provide for the organization of circuit courts, it was provided that a party who, in a case like this, had given bond conditioned upon the judgment of the district court, should, within thirty days after the ninth day of February, 1885, give an additional bond conditioned upon the judgment of the circuit court. The rights of the parties, and the duty of this court upon failure to give such bond within' the time designated, were defined in the following portion of the section referred to :

“ On failure' to give such bond, undertaking or recognizance, as required, upon motion filed and notice given, the circuit court may proceed in such action or proceeding as if no bond, undertaking or recognizance had ever been given.”

Under this section, prior to its amendment by the Act of April 16, 1885, for reasons with which counsel are familiar, we held that, upon filing a motion for that purpose, and giving notice thereof, the appellee’s right to a dismissal of the appeal was absolute in all cases where such additional bond had not been given within the time prescribed. The same conclusion was reached in all the circuits of the state except one, and we do not doubt its correctness.

In view of the decisions in the circuits upon this question, and for the purpose of vesting the court with power to allow additional bonds to be filed after the time designated in the original section, the amendatory Act of April 16, 1885, was passed. It is conceded that the application made on behalf of the appellants is within the purpose and the language of the amendatory act; but on behalf of the appellees it is asserted, that before the passage of this amendatory act, they had acquired vested rights with respect to the judgment from which the appeal was taken, and that such rights cannot be affected by subsequent legislation.

To the validity of the amendatory act, three objections are urged:

1. That, in effect, it gives this court jurisdiction, by the exercise of legislative power, in cases where no jurisdiction previously existed.

2. It disturbs rights that have become vested.

8. It is retrospective in its operation.

It will not be denied that the appeal bond is essential to the jurisdiction of the appellate court, nor that the act in question involves the power to confer jurisdiction upon the circuit court. But remembering that the jurisdiction here sought to be conferred or saved is appellate and not original, section six of the fourth article of the constitution as amended, offers a conclusive answer to the first objection. For while that section specifically defines and limits the original jurisdiction of the circuit court, it vests in the general assembly unrestricted authority to' confer upon it appellate jurisdiction. Original jurisdiction is the power to hear and determine in the first instance. The jurisdiction sought to be saved here does not change its character by reason of the conceded right, which the appellee once had, to an order dismissing the appeal, if he had filed the required motion for that purpose and invoked the action of the court thereon.

Whatever rights the appellees had in the judgment of the common pleas court, they must be regarded as subject to such legislation of a remedial character as may be enacted. Of that character is the legislation here questioned. It does not in any way affect the rights, of the parties, as they were considered in the court below and are to be considered here. It provides only for further judicial inquiry into those rights as they previously existed. “ It creates no new obligation, imposes no new duty, and attaches no new disability.”

J. T. Holmes, for appellant.

W. J. Gilmore, contra.

That legislation of this character is not repugnant to section twenty-eight of article two of the constitution of this state, must be accepted as settled by authoritative decisions.

Rairden et al. v. Holden, 15 O. S., 207; Templeton v. Kraner, 24 O. S., 554; Hays v. Armstrong, 7 Ohio, 1st part, 248.

Leave to file additional bond granted.


text:
    (Second Circuit — Franklin Co., O., Circuit Court
    Sept. Term, 1885.)
    Befoke Williams, C. J., and Judges Shauok and Clask. (Judge Clark, of the Fourth Circuit, taking the place of Judge Stewart.)
    Joseph Jessing v. The City of Columbus et al.
    1. Un dor section 2264, revised statutes, municipal corporations have the authority to improve streets therein by grading and bouldering, and assess the expense upon the abutting lots and lands.
    2. Under said section, if two-thirds of the members elected to the council concur in the resolution, etc., and proceedings, no petition of the abutting property holders is necessary.
    3. A petition to enforce an assessment for such improvement, which avers that the city council duly, passed and published the ordinance, and that written notice thereof was caused by the city to be duly served, etc., contains, in the absence of a motion to make more definite, and as against a general demurrer, a sufficient averment of the valid passage and publication of the resolution, etc., and the proper service of a valid notice.
    Error to the Court of Common Pleas of Franklin County.
   Williams, C. J.

The defendants in error commenced an action in the common pleas court to enforce an assessment against the real estate of plaintiff in error, for the improvement of Friend street, in the city of Columbus, by grading and bouldering.

The defendant below demurred to the petition of the plaintiff below, and the demurrer was overruled which was excepted to.

An answer was filed which denies each and every allegation of the petition.

The case was tried to the court, and a decree rendered in favor of plaintiff. No bill of exceptions was taken.

The only questions presented by the petition in error relate to the sufficiency of the plaintiff’s petition.

That petition states that the city of Columbus is a city of the first grade of second class, and that defendant owns certain real estate therein described, situate in said city, and abutting on the proposed improvement, and alleges in substance :

1. That the city council, on the 30th of January, 1882, duly passed and published a resolution declaring the necessity of the improvement.

2. That on the 6th of February, 1882, the civil engineer duly reported to said city council a detailed estimate of the costs and expenses, etc.

3. That on the 23rd of February, 1882, written notice of the adoption of the resolution was duly served on the property holders.

4. That on the 27th of March, 1882, the city council duly passed, adopted, and thereafter caused to be duly published an ordinance, to provide for the construction of said improvement, and providing that the expense should be assessed on the abutting property according to the front feet.

5. That afterward, on the 22d of May, 1882, the council* duly advertised for sealed proposals for the construction of said improvement; and that said publication was made in accordance with the statute in such case made and provided.

6. That the Columbus Paving Co. duly and regularly filed its sealed proposals, and such' proceedings were thereunder regularly and properly had, that the contract for the construction of the improvement was entered into, under which the work was properly done and completed, and the expense, by ordinance duly passed and published, assessed on the abutting property, of which defendant’s is part. Said assessments were transferred to the company. That defendant failed and refused to pay on demand. That the amount is due the company, which sues in the name of the city to enforce the lien, etc.

Three questions are made on this petition:

1. That no power is conferred on the city by sections 2262-3-4, revised statutes, to make such improvement and assess the expense on the abutting property.

2. That the city council had no power to make such improvement, except on petition of two-thirds of the owners of the abutting property, and

3. That the averments of fact in the petition do not show that notice was given to the property holders of the passage of the resolution, as required.by section 2305.

I. The first is no longer an open, question.

Section 2262 specifies certain improvements, the costs of which may be assessed upon all the taxable property of the municipal corporation.

Sections 2263 and 2264 provide that when the corporation appropriates or acquires real estate to lay off, open, etc., streets, etc., or is possessed of property which it "desires to so improve, the council may assess the costs, etc., of such acquisition, and of the improvement, or either, or any part of either, upon the general tax list, or on the abutting property, according to the benefits, or by the front feet.

These sections are somewhat uncertain, but .seem to confer power to improve streets, etc., generally. It is true, they do not in terms confer power to improve by grading andbouldering. Unless, however, the city has power so to improve, it has no power to improve in any way. Such power has been exercised, and upheld by the courts, and generally acted upon in municipal corporations.

In the case of Lima v. Cemetery Association, 42 O. S., (Bul. July 21, 1884), the supreme court recognize the general principle claimed by counsel for plaintiff in error, viz., “ that a municipal corporation insisting on the right to impose an assessment should be able to show that such power, has been clearly given to it by statute; ” in the same case, that court sustained an assessment, made by the city of Lima, on abutting property for the improvement of an alley by “ grading and paving.” In that case the court say: “ The authority to levy the assessment is clearly granted in general terms by section 2264, revised statutes.”

If that section confers power to improve an alley, it does a street; if it confers power to improve by grading and paving, it does by grading and bouldering.

The one power is no more conferred by the statute than the other.

II. As to the necessity of a petition of two-thirds of the property holders in order to make the improvement: Section 2267 provides that no public improvement, the cost of which is in whole or part to be assessed on the adjacent property, etc., shall be made without the concurrence of two-thirds of the members elected to the council, unless two-thirds of the abutting property holders petition in writing therefor.

This section plainly provides two modes, either of which may be pursued : 1. By a petition of two-thirds of the abutting property owners; in which case two-thirds of the council need not concur; or, 2nd, upon the concurrence of two-thirds of the council — in which event no petition of the property holders is necessary. In this case the plaintiff claims the council pursued the latter mode.

Sections 2304 and 2305 provide specifically for the proceedings in each of these two classes of cases.

If the latter mode prescribed by the statute has been followed according to its terms, then the assessment is valid ,• and this brings us to the only remaining question, viz.:

III. Do the averments of the petition show such compliance with the statute ? It is claimed by the plaintiff in error that they do not in this, that they do not show that notice was given to the property owners.

■The petition does not set out in detail the various steps in the proceeding. It avers in general terms as before shown:

1. That the city council duly passed and published the resolution and ordinance, and that written notice thereof was caused by the city to be duly served, etc.

The question made here is, that this is not a sufficient averment of fact, but a conclusion of law merely.

“ When the question is not one of power, but of the manner of its exercise, the presumption is in favor of the officer having performed his duty in a legal and sufficient manner.” Reynolds v. Schweinefus, 27 O. S., 311-820, 1.

In The Trustees v. Odlin, 8 O. S., 293, the petition averred “ that in pursuance of said written lease, and according to the statute in such case made and provided, the leased lands were duly and legally re-valued,” etc.

The answer denied that the appraisement was “ duly and legally made,” etc., without specifying wherein the defect was.

It was insisted in that case that this made no issue of fact.

The court say, p. 298: “ There may be mere abstract propositions or conclusions of law which contain no fact whatever. It is enough, however, for the present case, to say that the deduction or conclusion of law in the pleading, construed as ordinary language, does in an indefinite manner, which the other party did not object to (by motion), put in issue the fact whether there was any valid appraisement made.” This mode of pleading in such cases seems to be recognized in the case of Reynolds v. Schweinefus, 27 O. S., 311. Indeed, to require the plaintiff to set out in detail all the various steps, would make a voluminous pleading to no good end. If the defendant relies on any defect as a defense, it should be set up in the answer.

Following the ruling and reasoning of the court in the 8 O. S. case, we think the court below committed no error in holding in this case, where no motion was made to make the petition more definite, that upon general demurrer the averments of the plaintiff’s petition that the resolution and ordinance were duly passed and published, embody by implication all the necesssary facts to make a valid passage and publication of the resolution and ordinance, and that the averment that notice was duly 'given to the property holders, is in the same way a sufficient averment that a valid notice was served in the time and manner required by law upon the defendant. '

It follows that the judgment must be affirmed, with costs.


author: By the Court:

text:
    (Fourth Circuit — Pickaway Co., O., Circuit Court
    June Term, 1885.)
    Before Judges. Cheerington, Clark and Bradbury.
    Jonathan Taylor v. Samuel J. and Wm. K. Bennett.
    1. The devisees and legatees under a will, which after the decease of the testator has been wrongfully spoliated, may maintain proceedings in the prohate court to have the will admitted to prohate and record.
    2. Such devisees and legatees, after the will has been admitted to pro-. bate and record, may maintain an action for damages against the person who spoliated the will, and may recover, as part of the damages, the reasonable fees paid attorneys for their services in having the will admitted to record.
    On the 6th of May, 1880, Samuel J. Bennett and Wm. K. Bennett filed their petition in the court of common pleas of Pickaway county against Jonathan Taylor, which petition was as follows:
    “ The plaintiffs allege the following facts as their cause of action : They say that on or about the 8th day of April, 1879, Samuel J. Bennett, the father of the plaintiffs, made and published his last will and testament; that afterwards he departed this life at Pickaway county, where he resided, on the 1st of July, 1879; that afterwards, on the 20th of September, 1879, the said will was admitted to probate and record in the probate court of Pickaway county, Ohio; that by the terms of said will, the said testator devised and bequeathed all of his property, real and personal, to his wife during her life-time, and after her decease he devised the farm on which he resided, containing about 90 acres of land, and also about 80 acres lying and running with the Robinson land, to the plaintiff W m. K. Bennett, in fee-simple; and the testator devised to the plaintiff Samuel J. Bennett, in fee-simple, all the remainder of his real estate; the said devises to the plaintiffs were subject to the following legacies : to Rhoda and Anna Bennett, each the sum of $500; to Sarah Ann Bennett, $200; to Mary Ann Bennett, $200; to Jane Bennett, $200; to Frances Bennett, $230; to Mahala Bennett, $225; to Nancy Bennett, $275.
    The plaintiffs further allege, that on or about the 30th day of June, 1879, the defendant, said Jonathan Taylor, wrongfully procured the possession of said will from one S. P. Thomas, who had the custody of it, and proceeded to spoliate the said will, by cutting out the names of the witnesses thereto and other material parts of it. The said spoliation of the said will was done after the decease of the said testator. Plaintiffs further say, that at the time of the said spoliation the said will was unrevoked; and the said acts were done wrongfully and without authority. The plaintiffs further say, that in consequence of the said wrongful acts, the plaintiffs were compelled to employ counsel and institute legal proceedings in the probate court of the said county, for the purpose of having the said will proved and admitted to record by said court, and plaintiffs were compelled to expend their time and money in and about the probate of the said will. And the plaintiffs did cause the said will to be admitted to probate and record in the said court, at the date above mentioned, as a spoliated will.
    And the plaintiffs further say, that they incurred expenses for counsel fees, amounting to the sum of $100, and their loss of time and trouble in the said matter, amounting to $50.
    Prayer for judgment, etc.
    The defendant, Taylor, filed a demurrer to the said petition, on the ground that the same did not state any cause of action. This demurrer was argued in said court, at the 'June term, 1880, before the Hon. Geo. Lincoln, Judge, and the demurrer was sustained, and the petition dismissed with costs.
    The plaintiffs below filed a petition in error in the district court, and the same was argued before Judges Cowen, Huggins and Louden at the September term, 1882, of the said district court of Pickaway county. Upon consideration, the judges delivered an opinion, reversing the judgment of the court of common pleas; and the said cause was remanded to the court of common pleas for further proceedings.
    In the court of common pleas, October term, 1882, the defendant had leave to answer, and at the January term of said court, 1883, the case was tried by a jury, and a verdict rendered in favor of the plaintiffs. The defendant, Taylor, filed a motion for a new trial, took a bill of exceptions, and filed a petition in error in the district court of said county.
    This petition in error came on for hearing before the judges of the circuit court.

      P. C. Smith appeared for the plaintiff in error, and contended :
    1. That the defendants in error had no right to prosecute the said action.
    2. That it was error to allow the attorneys’ fees in the probate court as part of the damages.
    Page, Abernethy & Folsom, attorneys for plaintiffs below, contended:
    1. Any person interested under the will may enforce the production of it. 2 Rev. Stats., sec. 5921.
    2. Any person interested in having the will admitted to probate may produce witnesses in a proceeding to admit to probate a spoliated will. See. 5945, Rev. Stats.
    8. The plaintiffs had a right to institute proceedings to have the said will admitted to probate and record. How could an administrator, who had never been appointed, or how could an executor, who had not accepted the trust, prosecute such proceedings ?
    4. The plaintiffs had a right to recover the fees they paid the attorneys for services rendered in the probate court. The prosecution of that suit was rendered necessary, naturally and proximately, by the wrongful act of the defendant. Lane v. Fury, 31 O. S., 574; 14 Cin. Law Bull., 48; Sunderland on Damages, 142.
   By the Court:

We are of the opinion that the petition states a good cause of action against the defendant below, and the judgment of the court of common pleas at the January term, 1882, ought to be affirmed. We have no doubt as to the right of the plaintiffs below to recover the attorneys’ fees reasonably expended for setting up the spoliated will in the probate court; and we see no reason to doubt the correctness of the decision in the district court upon the other proposition of the counsel for Taylor. We are of the opinion that both these questions were properly and necessarily decided by the district court; and this court cannot review their decision. If any error was committed, the proper remedy would have been to prosecute a writ of error to the supreme court.


text:
    (Second Circuit — Franklin Co., O., Circuit Court
    Sept. Term, 1885.)
    Before Williams, C. J., and Cox and Shatjok, Judges. (Judge Cox, of the First Circuit, taking the place of Judge Stewart.)
    Austin K. Whims v. George W. Grove.
    In an action against the maker by the holder of a non-negotiable note, received by endorsement from the payee in good faith, for value, and before maturity, the maker is not entitled to set off an independent past due claim, purchased by him against the payee of such nonnegotiable note after the same had been so transferred to such holder, and before the maturity thereof.
    Error to the Court of Common Pleas of Franklin County.
   Williams, C. J.

In the common pleas court Grove brought his suit against Whims, on a note for $100, dated February 24, 1880, and payable to J. B. McCracken on or before August 1,1880. Plaintiff alleges that the payee, on the 8th of March, 1880, assigned and endorsed the note to him, and he asks judgment for .the amount of the note and interest..

The defendant's answer, in substance, denies that the note was endorsed to plaintiff at the time named, and sets up, by way of set-off, a note for $50.00, made by said J. B. McCracken to A. C. McCracken, April 16th, 1878, due one day after date, which the defendant claims was endorsed to him on the 27th of March, 1880, and before the note sued on was assigned to plaintiff.

The reply of the plaintiff,' 1. Denies that defendant received his $50.00 note before the plaintiff’s note was assigned to him.

2. Alleges that defendant received the $50.00 note after its maturity, and after a payment of $6.00 had been made on it; and

3. That defendant did not obtain the $50.00 note until after plaintiff received the $100.00 note, nor did he receive it in due course of business, nor before maturity, nor for full value.

To the third paragraph of the reply the plaintiff demurred, which demurrer was overruled by the court, to which defendant excepted, and this is assigned for error. The case was tried to a jury.

The court was requested to charge the jury, “ that if defendant received the $50.00 note at any time before he had notice of the assignment of the $100.00 note to plaintiff, he was entitled to set-off the $50.00 note, although the plaintiff had purchased and taken an assignment of the $100.00 note before its maturity, and before defendant had purchased or received the $50.00 note.”

The court refused so to charge, and on the contrary charged the jury that “ if plaintiff purchased and received the assignment of the note sued on before maturity, and before defendant purchased the $50.00 note, the right of set-off did not exist, although defendant at the time he so obtained said $50.00 note, had no notice that plaintiff had become the owner of the note sued on.”

To the refusal to charge as requested, and to the charge as given, defendant excepted.

The question presented by the overruling of the demurrer to the reply, and by the charges refused and given, is the same, viz: whether defendant, after the transfer of the $100.00 note to plaintiff before due, for value, but before notice to defendant of such transfer, could purchase an independent claim against plaintiff’s assignor, and set it off against the note sued on.

The case of Fuller v. Steiglitz, assignee, 27 O. S., 355, decides that: “ The assignment of a non-negotiable demand, arising on contract, before due, defeats a set-off of an independent cross-demand, on which no right of action has accrued at the time of its assignment. In that case the court say:

“ In each case the test of whether the debtor preserves his set-off, depends on whether he could have set it up before assignment ; that is, while the contract belonged to the assignor.”

Applying that test here, it is manifest that the defendant could not have set up the $50 note before the assignment — that is, while the note sued on belonged to plaintiff’s assignor, 1. Because at that time defendant had no such claim — he bought it afterward. 2. The claim then assigned to plaintiff was not due.

The practical result of the case in 27 O. S. is, that if a debtor has a cross-demand not yet due against a creditor, who holds one against the debtor that is past due, the creditor may defeat the set-off by assignment before his debtor’s cross-demand against him becomes due — and if the creditor has a demand not due, and the debtor buys up a cross-demand against him before the maturity of the creditor’s claim against him, the debtor takes the chances of its remaining in the hands of the creditor till maturity.

T. J. Duncan, for plaintiff in error.

F. F. D. & H. B. Albery, for defendant in error.

In other words, there is a right of set-off only when a cross-demand exists between the same parties at the same time in the same right, and on which either could, at the time, maintain an action against the other.

This is the law as applied substantially by the court below and it follows there was no error in overruling the demurrer, or refusing the charge requested, or in the charge given.

I am aware that there are authorities to the contrary, and some dicta in Ohio seem to support such contrary doctrine.

The law as applied by the court below is, however, distinctly and fully recognized in Pomeroy’s Remedies, cited with approval by the supreme court is 27 O. S.

Exceptions were taken during the progress of the trial, to the exclusion of certain evidence offered by the defendant. It is sufficient to say that the testimony excluded was neither material or relevant to the issues.

The judgment of the common pleas is affirmed with costs —no penalty.


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    (Second Circuit — Franklin Co., O., Circuit Court,
    September Term 1885.)
    Befobe Williams, C. J., and Judges Suauck and Clabb:.
    The Baltimore & Ohio R. R. Co. v. The Pittsburgh, Cincinnati & St. Louis R. R. Co., et al.

      Injunction — Rule as to when it should be granted — Acquiescence for ten Years in Act complained of, without ISvplanation, to be taken as Admission that Case does not fall within that Rule.'

   Williams, C. J.

This case is here on appeal from the common pleas court. It is submitted to the court under an agreement of the parties, through their counsel, that the same decree shall be entered as was rendered in the common pleas court, unless this court shall find from the evidence given here that the plaintiff is entitled to the further relief of an injunction to restrain the defendant from carrying local freights over what is known as the Newark Division, between Columbus and Newark, under section 18 of the contract of January, 1865. That section reads as follows:

Sec, 18. The local freight business from and to Newark and Columbus, with stations on the line of said road between these points, to be done by the Central Ohio Railroad Company.”

It appears in this case that this road originally belonged to the Central Ohio Railroad Company, and that afterwards, by a judicial sale, an undivided interest was sold and conveyed to the Steubenville and Indiana Railroad Company, and that the plaintiff, the Baltimore and Ohio Railroad Company, is the successor by way of lease to the undivided interest of the Central Ohio Railroad Company, and the defendant is the successor of the Steubenville and Indiana Railroad Company, and the plaintiff and defendant, as such successors add lessees, are and have been in the joint use and occupancy of said road.

It is claimed by the plaintiff that such joint use and occupancy, so far as this question is concerned, is governed by said section 13 of the contract of 1865, made between the predecessors of these roads, and that under said section the plaintiff has the exclusive right to carry freight over said road and receive pay therefor. The plaintiff claims that this right not only exists by virtue of original section 13 of that contract, but that the defendant is estopped from controverting that right by reason of a decree which was entered in the circuit court of the United States, in a case between these same parties, in which it is claimed that it was judicially determined that this section 13 was in full force and a binding contract between these two parties.

The defendant, on the other hand, claims that section 13 is not the contract which controls the rights of the parties, but that it has been modified repeatedly as between these two parties, so as to authorize the defendant to carry its local freight and receive its share of the proceeds of the traffic, at least the proceeds of whatever freight is carried by the defend'ant’s company.

An examination of the record in this case, in the United States circuit court, shows that:

As to all questions touching said local freight traffic or matter, and the rights and liabilities of the parties,or either of them, in relation thereto, no determination or judgment is entered in this action; but the same remain without prejudice for adjustment in any other action, or other disposition by the parties.” We are therefore satisfied that there is no estoppel by reason of that judgment. It is as much within the power of a court to reserve and save the rights of parties with reference to a subject matter, and in that case the decree expressly reserves and saves whatever rights each of these companies may have with reference to this question of local freights, and abstains from any judicial determination of what their rights and liabilities are; and the effect and operation cannot be given to the whole of this decree without giving effect to that rerervation. The rights of the parties then remain unaffected, so far as the local freight traffic is concerned, by this decree of the Circuit Court of the United States.

The defendant claims that the 13th section of the contract was so modified in 1872 as to authorize each of said companies to carry local freight, and for each to receive the proceeds of such traffic done by it. The defendant also claims that the original contract in that respect is void for want of corporate power in the contracting parties to make the same, and because it is against public policy.

The disposition of the case, in the view taken of it by the court, does not make it necessary to finally decide either of these questions.

We have no doubt of the power of the court, upon a proper showing to restrain and control the conduct of these two corporations as. intimated in the 38 O. S.

In the case of Stewart against the Little Miami Railroad Company, 14 Ohio, 353, the supreme court furnish a rule which we think we are safe in adopting as a guide in this case. In that case they say : “ The power to grant writs of injunction is one of the extraordinary powers of a court of chancery, and should only be exercised in cases like this, to prevent injuries which would otherwise be irreparable, or where the magnitude of the injury to be dreaded is so great, and the risk so. imminent, that no prudent person would think of incurring it. When the complainant’s right is doubtful, or an action at law or in chancery prosecuted in the ordinary mode will afford adequate redress, an injunction should be refused.” Indeed, this is substantially embodied in our legislation.

Now, no evidence has been given in this case to show that the defendant is irresponsible, or unable to respond in any amount due or that became due the plaintiff for carrying such unauthorized traffic; or to respond to a proper accounting in that behalf. Nor is any evidence given which shows that any difficulties exist in ai’riving at what would be a just account, or a fair compensation for any violation of the contract. Nor is there any evidence to show that any obstruction or interference is likely to result in the legitimate use of the road by the plaintiff that will cause great or irreparable injury to it. Nor that the public interests, in the speedy, prompt and cheap transportation of freight, are liable to suffer or be injuriously affected. It is submitted solely on the evidence relating to the terms and validity of the contract, and that defendant has been transporting local freight as well as plaintiff. It does not sufficiently appear from this evidence, even admitting the contract to be as claimed by the plaintiff, that such irreparaable injury is imminent, or the danger and risk so great that no prudent person would think of incurring it. Indeed, looking to the past conduct of the parties, quite the contrary appears. It is admitted that for ten years before and up to the commencement of this suit, namely, from 1872 to 1882, the defendant has, with the acquiescence at least of the plaintiff, been carrying local freight, and is now doing no more than it has been during that period. For ten years the plaintiff has not regarded such joint use an irreparable injury. The plaintiff, we may assume, is and has been a prudently managed corporation, with prudent officials, watchful of its interests; for ten years it has not regarded the carrying of local freight by the defendant an injury of such magnitude, or a risk so imminent, that no prudent person would think of incurring it. The conduct of the plaintiff stands to us in the light of an admission to the contrary. Such joint use and operation of the road, whereby each company was, during all this period, permitted to carry local freight and collect the proceeds of said traffic, must have resulted from one of three causes : either :

J. H. Collins, for plaintiff in error.

O. H. Olds and L. J. Critchfield, for defendant 'in error.

1. There must have been a modification of the contract for a sufficient consideration, as claimed by the defendant, in which case plaintiff would not be entitled to an injunction; or,

2. That the plaintiff considered such joint use of the road unimportant to it, and in such case the remedy by injunction is not proper; or,

3. It must have considered section 13 of the contract inequitable and unjust to the defendant, as the evidence tends to show, and if such it be, the plaintiff should not ask a court of equity now to interfere by injunction.

The court the more readily comes to the conclusion it has reached that the injunction asked for should be denied, from the fact that the absence of proof showing such threatened injury as brings the case within the rule, is supplemented by the tacit admission of the plaintiff that it is not, by its course of conduct, which does not admit of any other satisfactory interpretation.

The same decree will, therefore, be entered in this case as was entered in the court of common pleas.

An inquiry being made by counsel as to the disposition of the costs, the court said:

The defendant appeals in this case, and I suppose the same judgment as to costs ought to be entered here as was entered in the lower court. I see no reason why it should not be.


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    (Second Circuit — Franklin Co., O., Circuit Court.,
    September Term, 1885.)
    Before Williams, C. J., and Clark and Shauok, Judges. (Judge Clark, of the Fourth Circuit, taking tho place of Judge Stewart.)
    Charles V. Wanz v. The Park Hotel Company et al.
    To maintain a suit to enforce the statutory liability of a deceased holder of stock in an insolvent corporation, it is not essential that a claim on account of such liability he first exhibited to his personal representative.
    Error to the Court of Common Pleas of Franklin County.
   Shauck, J.

The plaintiff brought suit in the court of common pleas on behalf of himself and all other creditors of the Park Hotel Company, an insolvent corporation, against all the stockholders of said corporation, for the purpose of enforcing the liability imposed upon them by the statute. To this suit nurherous defenses were interposed by J. G. Gilmore, who was sued as the executor of the last will and testament of'John C. English, a deceased stockholder.

By agreement, there was a finding against the defendant upon all the allegations of his answer, except the following, viz.: That within eighteen months prior to the commencement of the suit, the defendant was appointed and qualified as such executor; that he gave due notice of his appointment, and that no claim on account of the liability here sought to be enforced was ever exhibited to him. Upon these allegations the finding was in favor of the defendant.

The question for determination is, whether a suit to enforce the statutory liability of a deceased bolder of stock in an insolvent corporation can be maintained against bis personal representative, without the prior presentation of a claim on account of such liability.

Counsel for the defendant insists that the plaintiff is within the inhibition of section six thousand one hundred and eight, of the revised statutes, which provides, that no executor shall be liable to the suit of a creditor of the deceased until after the expiration of eighteen months from the date of bis administration bond; and that, in view of the facts found, the case is not within any of the exceptions contained in that section.

That this suit is not within any of the exceptions referred to is obvious. Whether it is within the inhibtion of this section, must be determined from a consideration of the object of the statute, the language employed, the nature of the liability asserted, and other provisions of law relating to the subject of the suit.

The assets.of the corporation are the primary resource for the payment of the demands of his creditors. The statutory liability of the stockholders is a secondary resource, available in equity to all creditors alike. In a suit brought'to enforce such liability, it is the duty of the court also to ascertain and enforce the equities arising among the stockholders inter sese. No mode has been suggested, and none occurs to us, by which the plaintiff could ascertain the true amount of his claim for which the defendant was liable.

That would involve a knowledge of the entire liabilities of the corporation, of the assets of the corporation, and of the amount of the capital stock held by persons who are solvent.

These are essential factors in the computation, and the ascertainment of some of them, at least, is within the purposes of this suit.

It is, perhaps, in view of the practical impossibility of ascertaining the amount actually owing to one about to institute s.uch a suit from any stockholder or his personal representative, that counsel for the defendant insists that it was incumbent upon the plaintiff as dominus litis to exhibit to the defendant a claim on account of the deceased stockholder’s liability»' to all the creditors of the corporation, and for an amount equal to the amount of the stock which he held. Unless the presentation of claims is a meaningless ceremony, this view of the plaintiff’s duty must be rejected. If it required him to exhibit a claim for the true amount of the deceased stockholder’s indebtedness to all the creditors, it would relieve him from none of the difficulties already suggested. To say that the claim presented should be for the amount of the stock held by the deceasd, involves an inaccurate statement of the law relating to the liability of a stockholder. While, in such case, there may be a judgment against the stockholder for a sum equal to the amount of the stock held by him, if that amount be necessary for the payment of all the creditors of the corporation, his liability may in other cases be discharged by the payment of a less sum.

The correctness of this view may be further tested by a consideration of some of the consequences to which it leads. If the plaintiff may act for all the creditors in the presentatation of a claim in such a case, he may prejudice them by stating the liability to be less than it really is. And he may, also, if the claim be rejected, by failure to bring suit within six months, cause the claims of other creditors of the corporation to be defeated by the limitation provided in section six thousand and ninety-seven.

While the plaintiff might have executed to the defendant a valid release as to his own demand, it is obvious that he could not discharge him from his statutory liability to the other creditors, or from his equitable obligations to other stockholders. Certainly the relation of debtor and creditor cannot be said to exist between the parties to an obligation, in respect to which one cannot execute to the other a valid acquittance.

Nor could the presentation of a claim on account of this liability have accomplished the object of these provisions of the administrator’s act. That object is to afford the administrator an opportunity to allow all valid claims against the estate, and thereby avoid litigation and expense. It was designed to protect estates from unnecessary costs and vexation where the administrator is satisfied that the claim is just and valid.” Boynton, C. J., in Pepper v. Sidwell. 26 O. S., 457. To attain that object, -it is necessary that the claim exhibited be of such a character that it can be adjusted by the claimant and the administrator. If a claim on this account had been exhibited to the executor, he could have taken no action with respect to it which would have avoided the necessity for joining him in this suit. The amount necessary to discharge the liability could not have been ascertained, and by the express provision of section three thousand two hundred and sixty, the defendant would, at all events, be a necessary party to this suit.

Artz & Mooney for plain tiff.

M. A. Daugherty for defendant.

Without attempting to give a general definition to the term “ creditor,” as used in these sections of the administrator’s act, we conclude that it can have no proper application to one who asserts a demand of this nature.

Since the full liability of all the stockholders will be insufficient to pay the debts of the corporation, the defendant is liable for an amount equal to the stock held by the deceased, with interest thereon from the beginning of this suit.

Judgment accordingly.