text:
    Rider, Jr., v. Repass, Mayor.

      Intoxicating liquors — Residence local option — Sufficiency of petitions— Attaching maps—Description of territory — Township lands and exempted blocks — Qualifications of signers—Registered electors.

    1. The provisions of the local option law, that maps shall be attached to petitions for establishment of a district in which the sale of intoxicating liquor is prohibited, have been complied with where a second blank form is attached for additional names, instead of placing them on a blank piece of paper and attaching that to the petition, no showing having been made of fraud or .that any resident of the proposed district was misled thereby.
    2. The requirement that the territory included in such a district be within the corporate limits is not satisfied where - a railway track is made one of the boundary lines, and a strip of land forty feet in width, forming part of the railway right of way and lying between the track and the municipal boundary line, is thus included in the proposed district; but the inclusion of such a strip may be treated by a court as a mistake and the description ordered modified by striking out the territory thus wrongly embraced in the district as described in the petition.
    3. A showing that those signing the petition are registered electors sufficiently establishes their qualification in that behalf.
    (Decided October 31, 1917.)
    Error: Court of Appeals for Fairfield county.

      Mr. C. W. McCleery, for plaintiff in error.

      Mr. J. A. White; Mr. J. W. Deffenbaugh and Mr. Ben R. Dolson, for defendant in error.
   Houck, J.

The proceeding before us' for. review is one in error in which it is sought to reverse a judgment entered by Hon. John G. Reeves, Judge of the common pleas court of Fairfield county, Ohio, in which the court on a petition filed under favor of what is known as the “Jones residence local option law” ordered and directed that the prayer of the petitioners be granted, prohibiting the sale of intoxicating liquors as a beverage in the residence district described in said petition, in the city of Lancaster, Ohio.

The errors relied upon by counsel for plaintiff in error are: first, that maps were not attached to the petitions, as required by law; second, that there is a defect in the description of the territory sought to be made dry, because it includes a strip of land about forty feet wide and eleven hundred feet in length on the southern boundary line of the proposed dry district or territory that is without the corporate limits of the city of Lancaster; third, that the district contains an exempted business block; fourth, tfiat the required number of qualified electors did not sign the petitions.

Counsel for plaintiff in error urges that there were nine petitions, executed in the usual form, and but five maps, and that therefore Section 6146, General Code, was not complied with. Said section reads:

“All petitions for signatures under the next six preceding sections shall have a map or drawing attached showing the outlines of the district and location of all saloons within the district proposed.”

Upon an éxamination of the petitions and maps we find that all of the petitions are in the usual printed form, that four of the maps have attached to them two petitions each, and that one of the maps has one petition. All are securely fastened by hooks or fasteners.

No complaint is made as to the one petition and one map, but it is insisted upon that because one map is attached to two petitions, in four instances, such are not in compliance with the above statute. The same names do not appear on the second blank form of petition as on the first, and we do not see how anyone could be prejudiced by the fact that for convenience a second blank form petition was used instead of inserting a blank piece of paper for signatures. The second blank form was no doubt used for convenience, and in the absence of a showing of fraud, or that any qualified elector or resident of the district was misled thereby, or in some way prejudiced, we do not think that the plaintiff in error has any just cause of complaint in this regard.

Plaintiff in error insists that the petitions and maps upon their face show that there is an entire failure to properly and legally describe a municipal district. It is claimed that the description includes a part of Berne township, without the corporate limits of Lancaster; that the south boundary line of the district is the north line of the C., A. & C. railway, which includes a strip of land eleven hundred feet in length and forty feet in width, outside of the south boundary line of the corporation limits pf the city of Lancaster. Section 6068, General Code, reads:

“The phrase ‘residence district/ as used in this chapter and in the penal statutes of this state means a clearly described, contiguous, compact section or territory in a municipal corporation bounded by street, corporation or other well recognized lines or boundaries and containing not less than three hundred qualified electors, nor more than five thousand qualified electors.”

An examination of the language used in the above statute can lead us to but one termination, and that is that a “residence district” must be clearly described, and that the territory therein must be a compact section or part of a municipal corporation, etc. The territory can not legally embrace any territory outside of the corporate limits.

The territory in dispute is conceded to be the right of way of the C., A. & C. railway company; it is conceded that no one lives upon it; that no one residing therein signed the petitions, or either of them, and that no one having any interest in said disputed territory is claiming to be prejudiced by this proceeding.

How could any one be prejudiced thereby, whether he lived within the boundaries of the parcel of land in question or in the corporate limits of Lancaster ?

The only power and authority given to the residents of a municipality under the Jones law for local option residence districts is contained in Section 6140, General Code. This statute applies to municipalities alone, and no jurisdiction is given them outside of such municipal corporations.

How can it with any force be urged that when the petitions and maps now under consideration were drawn that it was intended that the disputed territory should be included? To us it seems clear that it was included by mistake, because an examination of the Jones law plainly indicates that no territory can be legally included outside of the municipality. We hold the rule to be, as applied to the facts in this case, where outside territory is included, that all such territory so included in the description of the district lying outside of the corporate limits of the city of Lancaster, Ohio, should be excluded, but that fact does not within itself invalidate the district lying and being within the corporate limits.

Then, let us inquire, who can be prejudiced if the territory which has been included by mistake, and over which the municipality of Lancaster has no jurisdiction, is excluded ? We are of the opinion that no one will suffer injury or prejudice thereby, and that the purpose and intent of all parties in interest will be fully carried out, and, further, that the legislative intent of the provisions of Section 6068 will in no wise be violated. We believe that any other or different application of the provisions of this statute to the conceded facts in this case would be a strained one, and entirely out of tune with the well-known rule having regard to the construction of and application of statutory law.

Coming now to the next ground of alleged error: Does the district contain an exempted block? An examination of the bill of exceptions discloses that the block in question is a vacant tract of land, and if it is used for any purpose at this time it is for farming, which fact was conceded by counsel for plaintiff in error in oral argument. With this fact before us, we are inclined to believe that it will not now be urged that this alleged error is well taken.

The fourth and last error relied upon is as to whether or not the required number of qualified electors signed said petitions; and whether or not the evidence offered establishes the fact that they were qualified as required by Section 6067, General Code.

Learned counsel for the plaintiff in error maintains :

“Proving a petitioner was registered in a certain precinct does not show that he is a citizen or entitled to vote. If it did, all that a man would have to do would be to get registered, and thereby prove his qualification or right to vote. The adjective ‘registered’ does not take away any of the qualifications necessary to be shown to prove that he is a voter; it only adds another and further requisite to be proven; he must still be a voter, whether registered or not, and this can not be done without showing that he is a citizen of the United States, in addition to the other qualifications mentioned.”

We are not in accord with this claim of counsel, and can not and do not subscribe to it, because it is too narrow a construction placed upon Section 6067, General Code. The legislature, in enacting this section, saw fit to define therein “qualified elector;” and, in order to make it clear, definite and certain as to meaning, and make a definition for the phrase “qualified elector,” as used in said statute with reference to petitions in a residence district of a municipal corporation, defined the same to be “a registered male voter in a municipal corporation which has registration, or a male voter entitled to register therein, or a male voter of a municipal corporation which does not have registration, provided that in each case such qualified elector has been a bona fide resident of such residence district for four months before the filing of the petition upon which his name appears.”

It therefore must be conceded that in the enactment of this statute the legislature has settled some things which might otherwise be difficult of proof. This section clearly and specifically defines who is a qualified elector. The statute is in no wise ambiguous. It was the purpose and intent of the legislature to so define “qualified elector,” which it did by language clear, plain and definite, and which needs no interpretation.

The record in this case shows that more than the requisite number of petitioners were obtained, and that they were qualified electors of the district, as required by law.

It is not our purpose or intention to discuss the questions involved in this case at further length, except to say that it is not within the domain nor is it the duty of a reviewing court to reverse a judgment of a lower court for mere technical reasons, but a reversal must be based upon errors which are apparent upon an examination of the record and found to be clearly prejudicial to the right or rights of those complaining; and after a careful examination of the evidence in this case, as presented in the bill of exceptions, and from the entire record before us, a majority of the court hold that there are not such errors in the record affecting the substantial rights of the plaintiff in error as would warrant a reviewing court in reversing the judgment of the common pleas court in this case. But we do find, however, on the conceded facts in the case as disclosed by the record, that the judgment entered below should be modified by striking out of or amending the description of the territory described in the petitions by excluding therefrom all that part of the territory included therein lying and being outside of the corporate limits of the city of Lancaster.

Judgment affirmed as modified.

Powell, J., concurs.

Shields, J., dissents.


source: Caselaw Access Project

author: By the Court,,

license: Public Domain

text:
    The State, ex rel. Cutler et al., v. Miles, Clerk of Courts.

      Constitutional law—Contributing members Ohio National Guard— Exemption from jury service—Section 5211, General Code.

    Section 5211, General Code, providing that contributing members to the Ohio National Guard shall be exempt from' service as jurors, is constitutional and valid.
    (Decided May 17, 1917.)
    In Mandam:us: Court of Appeals for Franklin county.

      Messrs. Turney, Olds & Sipe and Mr. Simeon Nash, for plaintiff.

      Mr. Robert P. Duncan, prosecuting attorney, foi defendant.
   By the Court,,

This case is submitted to this court upon a demurrer to the petition of plaintiff.

The action involves the constitutionality of the provisions of Section 5211, General Code, providing that contributing members to the Ohio National Guard shall be exempt from service as jurors.

We have carefully considered the authorities cited in the very exhaustive briefs which have been filed by counsel.

We shall not undertake to discuss in detail the authorities so cited, but will merely announce the conclusion at which we have arrived after a consideration of such authorities. • We shall adopt this course for the reason that this case can, and doubtless will, be taken to the supreme court, where it can be authoritatively reported.

A former act embodying some of the features of the act under consideration was before our supreme court in the case of Hamann, Sheriff, v. Heekin, 88 Ohio St., 207, wherein such former act was held unconstitutional.

We have carefully examined the present act in connection with the case above referred to and are of opinion that the present act does not come within any of the objections made by the supreme court to the former act, nor do we think it conflicts with any provision or limitation of the constitution.

We appreciate the suggestion of counsel for defendant as to the wisdom of the exemptions from jury duty provided in this act, but that is a question for consideration by the legislature rather than by ' the courts.

Demurrer overruled.

Kunkle, Allread and Ferneding, JJ., concur


author: Gorman, J.

text:
    Herrmann, etc., v. Rohn et al.

      Partnership—Elements—Test of partnership — Stipulations of parties do not control—Existence of partnership depends on conduct and agreement of parties.

    1. Notwithstanding the fact that parties stipulate that they are not to be partners, the question as to the existence of a partnership is to be determined by the acts and conduct and the agreements of the parties.
    2. A partnership can be implied in law by the acts and conduct of the parties, and the agreements entered into by them, notwithstanding the fact that they have stipulated they were not to be partners.
    3. It is possible for parties to intend no partnership and yet to form one. If they agree upon an arrangement which is a partnership in fact, it is of no importance that they call it something else, or that they even expressly declare that they are not to be partners.
    (Decided April 30, 1917.)
    Error: Court of Appeals for Hamilton county.

      Messrs. Cogcm, Williams & Ragland, for plaintiff in error.

      Mr. Victor Heints; Mr. Geoffrey Goldsmith; Mr. Froome Morris; Mr. Little ford Hunemeyer and Messrs. Bayly, Simmons & DeWitt, for defendants in error.

      Mr. Charles Case and Mr. Carl Lehmann, contra.

   Gorman, J.

In the superior court of Cincinnati the defendants in error, E. Bruce Rohn and Charles S. Geisinger, who were partners in Allentown, Pennsylvania, brought an action against August Herrmann, Louis Werk and Charles E. Bultman, to recover money on four causes of action set out in their petition. The first three causes of action were upon checks issued by C. E. Bultman as trustee, and the fourth cause of action was for moneys advanced to Charles E. Bultman, trustee, to protect said Bultman’s account as a broker. The total amount claimed was $13,703.43.

Upon the trial of the cause below to a jury a verdict was returned in favor of plaintiffs, and against all the defendants, in the sum of $10,425.32.

Thereupon August Herrmann prosecuted error to this court and has filed his petition in error herein, and the defendant Louis Werk has filed a cross-petition in error, each seeking to reverse and set aside the verdict and judgment entered thereon in the superior court. The defendant Charles E. Bultman has not prosecuted error to the judgment.

The claim of plaintiffs was that these three defendants, August Herrmann, Louis Werk and C. E. Bultman, were partners doing business as brokers under the name of C. E. Bultman. A great mass of evidence was heard in the court below, and the cause having been fully considered by the court a motion to set aside the verdict was overruled and judgment entered thereon against all of the defendants.

It is claimed by plaintiff in error Herrmann, first, that there is not sufficient evidence in the record to show that he was a partner of Bultman; second, that the verdict is against the weight of the evidence; and, third, that there was error in the admission of evidence and in the charge of the court and the failure to give certain special charges.

An examination of the record satisfies us that there was sufficient evidence to submit this case to the jury so far as Herrmann is concerned. As to the defendant in error Louis Werk, we think that it is established by a preponderance of the evidence that Werk was a partner of Bultman.

It . appeared upon the trial that Louis Werk had entered into a written agreement with Charles E. Bultman on or about the 10th day of June, 1914, and we think the evidence warranted the jury in finding that Herrmann had entered into a similar contract at the same time with Bultman, although the evidence fails to show that Herrmann’s contract was in writing. The contract with Werk in substance provided that Werk was to loan $10,000 to Bultman. There was no time stipulated when this money was to be repaid or returned; no evidence of indebtedness taken; no interest to be paid upon the loan; nor was there any promise whatsoever to repay the money. In the agreement the parties stipulated that they were not to be partners. It was further agreed that Werk was not to be liable for any of the debts of the business, but that the business should be conducted by Bultman and that he should have absolute control of the management thereof and be liable for all the debts. It was further stipulated that Bultman was not to transfer his business to anyone without first obtaining the consent of Werk; and that Werk should have the first privilege of purchasing the business. It was further stipulated that Werk was to receive fifteen per cent, out of the profits of the business. After the business was opened up both Werk and Herrmann took an active part in securing credit for Bultman, and in advising persons who had dealings with Bultman that they were financially interested. Bultman at their request employed a friend of Herrmann and Werk, who remained in the office of Bultman and was paid by Bultman, but who, as Bultman expressed it, was the most expensive piece of bric-a-brac he ever had about the office. This man made reports to Herrmann and to Werk as to the manner in which the business was conducted by Bultman. While the evidence does not disclose that Herrmann ever signed any written agreement such as did Werk, it is in evidence that Herrmann agreed orally to sign a similar agreement. Both Herrmann and Werk advanced the amount of money which each agreed to advance, and it cannot be doubted, we think, that the evidence adduced was sufficient to warrant the jury in returning a verdict against both Herrmann and Werk, as well as against Bultman.

However this may be, we cannot say that the verdict is so manifestly against the weight of the evidence as to require us to set aside the judgment and return the cause to the superior court for a new trial. The trial court heard the evidence, saw the witnesses face to face, and observed their demeanor and their conduct. The jury also had the same opportunity as the trial court. They returned this verdict, and the trial court refused to set it aside upon the ground that it was manifestly against the weight of the evidence or upon the ground that there was insufficient evidence. A reviewing eourt under such circumstances should hesitate to set aside a verdict and judgment on the ground that the same is against the weight of the evidence.

Notwithstanding the fact that both Herrmann and Werk testified that they did not intend to be partners, and notwithstanding the fact that in Werk’s agreement and in the agreement which Herrmann was to sign, if he did not sign, was the stipulation that they were not to be partners, the question as to the partnership was not to be determined by their declarations.

It was held in Wood & Oliver v. Vallette et al., 7 Ohio St., 172, that notwithstanding the fact that the parties stipulated they were not to be partners, the question as to the partnership was to be determined by the acts and conduct and the agreements of the parties.

The case of Wood v. Vallette, supra, was under consideration in the later case of Harvey v. Childs et al., 28 Ohio St., 319, and in that case the court distinguished the case of Wood v. Vallette from the case that was under consideration. The case of Harvey v. Childs was a single transaction and did not involve a series of transactions or a business enterprise. But the case of Wood v. Vallette was approved in Harvey v. Childs.

It was also held in the case of Cox v. Hickman, 99 E. C. L., 47, decided by the house of lords, that a partnership could be implied in law by the acts and conduct of the parties, and the agreements entered into by them, notwithstanding the fact that they had stipulated they were not to be partners.

In the cáse at bar there is no question but that Bultman was authorized to act for Werk and Herrmann. Their agreement was that they were to participate in the profits. The ádvancement of the money which each was to make to Bultman does not bear any of the earmarks of a loan, but has the characteristic indicia of advancements in the business.

As was well said in the case of Beecher v. Bush, 45 Mich., 189, 193:

“It is nevertheless possible for parties to intend no partnership and yet to form one. If they agree upon an arrangement which is a partnership in fact, it is of no importance that they call it something else, or that they even expressly declare that they are not to be partners.”

This statement of the law is in line with the rule laid down in Wood v. Vallette, supra.

It is objected by counsel for Herrmann that a certain agreement entered into between Werk and Herrmann three days before the case was tried in the court below was improperly admitted in evidence. This agreement was in writing, signed by Herrmann and Werk, and in substance it provided that in the litigation that was pending against Herrmann and Werk in the superior court of Cincinnati, if a judgment should be rendered against either or both, or it should be necessary to pay any claims in those actions, Herrmann would pay all sums up to $10,000 with interest, that being the amount which Werk had contributed as a loan to Bultman; and, for all sums above $10,000 and interest, each of the parties, Herrmann and Werk, would be liable and pay in equal proportions, or fifty per cent, thereof. The parties further agreed not to settle or compromise any suits or claims involved in said litigation, without the consent of the other. Each of the parties agreed to furnish his own attorney to defend the actions and the claims, and to pay one-half of the costs and expenses, if any.

We think this paper was admissible in evidence against both Herrmann and Werk, as admissions against interest and as circumstances tending to show that they both felt equally bound, each for one-half of any judgment that might be rendered against either.

Upon a careful consideration of the entire case and the record, we have come to the conclusion that there is no error in the record prejudicial to either plaintiff in error or the cross-petitioner in error, Louis Werk. It appears to us that substantial justice was done by the court and jury in the trial below, and the judgment is therefore affirmed.

Judgment affirmed.

Jones, P. J., and Hamilton, J., concur.


author: Kunkle, J.

text:
    Witters v. Browne, Sheriff.

      Criminal law—Suspension of sentence—Motion for new trial—Nunc pro tunc order—Effect of refusal to enter—Such refusal not subject to collateral attack—Suspension after period of sen- ■ tence.

    1. When an application is made to enter nunc pro tunc an order of suspension of a sentence in a criminal action, and such application is refused, the result of such refusal is to adjudicate conclusively that no such order of suspension was made.
    2. If such adjudication is erroneous, the remedy is to prosecute error therefrom, and such adjudication can not be impeached collaterally.
    8. The filing of a motion for.a new trial after such application for a wane pro tunc order is refused, and the failure of the court to pass upon the same, do not operate to annul the finding and judgment upon such application.
    4. The rule that under Section 13714, General Code, a trial court can not revoke a suspended sentence and proceed to execute it, after the expiration of the longest period for which the defendant could have been sentenced, does not apply in a case where the sentence contains no fixed term of imprisonment, but merely provides for imprisonment as a means of enforcing the collection of a fine and costs.
    (Decided January 7, 1918.)
    Error: Court of Appeals for Darke county.

      Mr. John F. Maher, for plaintiff in error.

      Mr. George F. Crawford, for defendant in error.
   Kunkle, J.

This action was brought by plaintiff in error, Percy Witters, to enjoin defendant in error, Lynn Browne, as sheriff of Darke county, Ohio, from proceeding under an execution issued by the probate court of Darke county in a criminal action wherein plaintiff in error was adjudged to pay a certain fine and costs.

Plaintiff in error claims that the probate court, at the time sentence was imposed, ordered the sentence suspended, but neglected to enter it of record.

It further appears from the petition that a motion to enter such order of suspension nunc pro tunc was overruled by the probate court, and that a motion for a new trial filed within three days after such refusal is still pending.

A demurrer was filed and sustained to the petition, and, the plaintiff not desiring to amend, a final judgment was entered dismissing the petition.

From said judgment, plaintiff in error prosecutes error to this court.

The only question for consideration relates to the sufficiency of the petition.

Two questions were presented:

1. As to the alleged suspension of the sentence.

2. As to the delay in the enforcement of the sentence.

As to the first proposition, it is conceded that an application was made to the probate court to enter such order of suspension nunc pro tunc, and that such application was refused.

The effect of such refusal was to adjudicate conclusively that no such order of suspension was made.

If such adjudication was erroneous, the remedy of plaintiff in error was to prosecute error therefrom.

Such adjudication can not be impeached collaterally. The filing of the motion for a new trial and the failure of the court to pass upon the same do not operate to annul the finding and judgment upon the application for a nunc pro tunc order.

Plaintiff’s remedy in case the probate court refused to pass upon such motion for a new trial was to compel action thereon by a writ of mandamus.

As to the second proposition, we have carefully examined the authorities presented and after a careful examination thereof are of opinion that in Ohio the mere failure to issue an execution upon the judgment in question, under such circumstances as set forth in the petition, is not a bar to an execution now issued thereon and in the hands of defendant in error as sheriff.

Considerable stress is laid upon a recent case of In re Pontius, 6 Ohio App., 249, decided by the fifth appellate district. We have carefully considered that decision and are of opinion that the case at bar is clearly distinguishable from the one decided by the fifth appellate district.

The fifth appellate decision involved a sentence of imprisonment for a fixed term, and the court merely held that under Section 13714, General Code, the trial court could not revoke a suspended sentence and proceed to execute it after the expiration of the longest period for which the defendant could have been sentenced. The case at bar contains no fixed sentence of imprisonment, but merely provides for imprisonment as a means of enforcing the collection of the fine and costs, and there is no special statute limiting the time for executing the sentence under consideration. The demurrer having been properly sustained, the judgment should be affirmed.

Execution of sentence may be suspended for thirty days if counsel desire to secure the judgment of the supreme court upon this case.

Judgment affirmed.

Allread and Ferneding, JJ., concur.


author: Farr, J.

text:
    Eggar et al. v. Corwin et al.

      Mechanic’s lien — Action to foreclose — Right of appeal.

    An action to foreclose a mechanic’s lien is equitable in character and therefore appealable.
    (Decided November 15, 1917.)
    Appeal: Court of Appeals for Guernsey county.
    On Motion to dismiss appeal;

      Mr. Charles S. Sheppard, for the motion.

      Mr. Fred L. Rosemond, contra.
   Farr, J.

On the 10th day of August, 1915, H. E. Eggar and H. B. Pierce, partners doing business under the firm name of Eggar & Pierce, brought an action in the court of common pleas of this county against the defendants, H. C. Cor-win, Edward Foreman, W. E. Laughlin, Estella Laughlin, Lauer True & Company and The Eastern Ohio Railway Company, seeking to recover the sum of $611.34 from H. C. Corwin and Edward Foreman, and to foreclose a mechanic’s lien against the property of the Laughlins, described in the petition. It is alleged in the petition that Cor-win and Foreman, as principal contractors, contracted with the Laughlins for the construction of a building upon said premises, and that plaintiffs, under contract with Corwin and Foreman, furnished material used in the construction of said building, for which payment was not made, and to secure which they perfected a materialman’s lien under the statute. Other parties were made defendants, who filed answers and cross-petitions, likewise claiming liens. W. E. Laughlin filed - an amended answer to the petition, containing a number of grounds of defense, to which a reply was filed; and so the issues were made up, trial had, judgment entered, appeal to this court and a motion filed to dismiss the appeal upon the ground that there is no right of appeal in such case. If the right exists, it is under favor of Section 6, Article IV of the Constitution of Ohio, as amended September 3, 1912, effective January 1, 1913, which reads in part as follows: “The courts of appeals shall have * * * appellate jurisdiction in the trial of chancery cases.” Therefore the issue here is whether or not an action to foreclose a lien is a “chancery case.”

A mechanic’s lien is purely a creature of statute (27 Cyc., 17, 317, 318, 321, and 2 Jones on Liens [3 ed.], Section 1184) and was unknown at common law or in equity; however the right thereto is favored by Section 33, Article II of the present Constitution of Ohio, which provides that laws may be passed to secure to mechanics, artisans, laborers, subcontractors and materialmen, their just dues by direct lien upon the property, upon which they bestow, labor or for which they have furnished material, and that no other constitutional provision shall limit this, power. The foregoing has been amplified in Ohio by the present lien law for the benefit of contractors, subcontractors, laborers and materialmen, as found in 103 Ohio Laws, 369-379, and amended in 106 Ohio Laws, 522-534 (Sections 8310 to 8323-10, General Code).

It must be conceded that this right, though statutory, is based upon the equitable doctrine that one who contributes labor or furnishes material used in the construction of a building, and for which-payment is not made, may perfect and have a direct lien upon such building and the real property on which it is located, and the procedure to subject such property to the satisfaction of the claim is regulated by statute in most jurisdictions. (2 Jones on Liens [3 ed.], Section 1559.) It rests within the reasonable theory that the lien must obtain against the land as well as the building because the building enhances the value of the land.

The first mechanic’s, lien law was passed in Ohio January 1, 1823 (21 O. L., 8; 3 Chase, 2160), and was effective within the corporation of Cincinnati only. Section 3 of said act provides that every person or persons holding such lien might proceed to obtain a judgment thereon according to the course of legal proceedings in like cases; this original act provided that the judgment should be obtained by “legal proceedings in like- cases.” It doubtless was the legislative intent to make the procedure statutory, and likewise the remedy, but the basic principle of the statute was, beyond all question, equitable in character, as indicated by Section 1, especially, and as well by other parts of the act. By subsequent legislation (February 5, 1833; 31 O. L., 88) the provisions of said law were extended to Hamilton county, and later amplified and made of general application (March 11, 1843; 41 O. L., 66; 1 S. & C, 833); nevertheless the equitable principle upon which the original act rested was not changed, although Section 8 provides as did Section 3 of the former law that judgment might be obtained for the amount due, according to the course of “legal proceedings in like cases.” However if any doubt existed as to the remedy, it was set at rest by the enactment of a remedial amendment to the foregoing, passed March 25, 1851 (49 O. L., 108; 1 S. & C, 837), entitled “Remedy of lien holder in chancery,” and reading in part as follows:

“(18) Sec. 1. Be it enacted by the General Assembly of the State of Ohio, That any person or persons, who now hold or shall hereafter hold a lien, under the above recited act, may, in addition to the remedy therein provided for, proceed by petition in chancery, as in other cases of liens, against the owner or owners of and all other persons interested, * * * in any such * * * house, mill, manufactory, or other building * * * * and the lot or lots of land on which the same shall stand, and obtain such final decree therein for the rent or sale thereof, as justice and equity may require.”

It is of more than passing interest to note that the language of Section 8323, General Code, which is a part of the Ohio lien law now in force is almost verbatim with the above, excluding some matters later included to meet new conditions. It reads, in part, as follows:

“Sec. 8323. Any person holding a mechanic’s lien, in addition to the remedies herein provided for, may proceed by petition, as in other cases of liens, against the owner and all other persons interested * * * in any such * * * house, mill, manufactory, or other building * * * and the lot or land on which it stands * * * and obtain such judgment therein for the rent or sale thereof as justice and equity may require.”

It might be urged, however, that the foregoing omits “in chancery” after the word petition, and uses the word “judgment” instead of the words “final decree” near the conclusion. It was not necessary to continue the words “in chancery,” because by the adoption of a code of civil procedure by an act passed March 11, 1853, effective July 1, 1853 (51 O. L., 57), the distinction between actions at law and suits in equity, and the forms of all such actions and suits theretofore existing, were abolished in Ohio, and in their stead it was provided that there should be but one form of action to be called a civil action, which, it is provided in Section 55, must be commenced by filing a petition. That it was not the legislative intent to eliminate the chancery or equitable feature is clearly disclosed by the following part of said Section 8323:

“Any person holding a mechanic’s lien, in addition to the remedies herein provided for, may proceed by petition, as in other cases of liens.”

Therefore, “in addition to the remedies herein provided” must be construed ' to mean that the statutory remedies are merely cumulative, and “may proceed as in other cases of liens,” only strengthens the contention that it was not the intent to alter the equitable character of the remedy; especially is this true in the light of the further provision that the lienholder may “obtain such judgment * * * as justice and equity may require.” Equitable relief can only be granted in a proceeding at least partially equitable in character. The word “judgment” is substituted in said Section 8323 for “final decree” in the former law; however, this, too, was. changed by the adoption of the Code, of which Section 370 (51 O. L., 118) provides that “a judgment is the final determination of the rights of the parties in an action.” Therefore “judgment” is the proper word, although there may be a permissive use of it interchangeably with “final decree.”

Obviously it was not the legislative intent, by the adoption of the Code of 1853, to deny the right to an action, legal or equitable, where it had formerly existed by statute and the mode of procedure prescribed, at least until the legislature should otherwise provide, and so it is indicated in Chapter VI of said Code, Section 605 (51 O. L., 161), which reads in part as follows:

“Where, by statute, a civil action, legal or equitable, is given, and the mode of proceeding therein is prescribed, this code shall not affect the proceedings under such s.tatute, until the legislature shall otherwise provide.”

The foregoing was a saving provision of said Code within the purview of which the former mechanic’s lien law 41 S. & G, 837) comes easily, and so it is observed by Mr. Seney in his Ohio Code of Civil Procedure, at page 736, as follows:

“An action under the mechanics’ lien law, by a mechanic, to recover from the owner a sum due him for services rendered to a contractor, is one of the cases in which a right of recovery by action is given by a statute anterior to the Code, prescribing the form of the action, but not fixing the proceedings in the action given. Chapman v. Rannels, 2 Western Law Monthly, 142.”

The above case of Chapman v. Rannels was decided June 1859, after the adoption of the Code. No legislative change has ever been made in said former lien law (1 S. & G, 837) so far as its equitable character is concerned. Again, it is provided in said Section 8323 that a lienholder may proceed “as in other cases of liens.” A mortgage is a creature of statute, but creates and is a lien, and its foreclosure is purely equitable.

In harmony with the foregoing, it is observed in 2 Jones on Liens (3 ed.), Section 1559, that:

“Whether the proceedings to enforce a mechanic’s lien are legal or equitable depends, of course, upon- the terms of the statutes providing the remedy. The statutes of several states assimilate the proceedings to enforce such lien to the equitable action to foreclose a mortgage, and under such statutes the proceeding is essentially a suit in equity.”

The author might well include Ohio among said states, because the above provision, “as in other cases of liens,” clearly assimilates the proceeding to enforce a mechanic’s lien to the forclosure of a mortgage, which is one of the “other liens” contemplated in said section. Bearing upon the issue under discussion here is the case of Wagner v. Armstrong et al., 93 Ohio St., 443, in which Nichols, C. J., in an able opinion discusses among other things “jurisdiction on appeal,” and at page 450 pertinently observes as follows:

“Appealable cases, therefore, must be such cases as are now recognized as equitable in their nature, and perhaps the better way to express it would be, cases that were recognized as equitable actions before the adoption of the code of civil procedure, for, while our code established under one grand division all actions, whether of an equitable or a legal nature, and called them civil actions, yet there was. no attempt to change the nature of the remedy.”

An action to foreclose a mechanic’s lien was recognized as equitable before the adoption of the Code, because it was specially provided (49 O. L., 108; 1 S. & C, 837) that a lienholder might proceed by petition in chancery. It is further urged that being of statutory origin it cannot at the same time be equitable in character; however, it is observed in 27 Cyc., at page 17, as follows:

“A mechanic’s lien is a species, of lien created by statute in most of the states, which exists in favor of persons who have performed work or furnished material in and for the erection of a building. It is not a general, but a particular, lien, and is in its nature peculiar and of an equitable character, and has been said to be somewhat analogous, in its aims to the equitable lien of a vendor for unpaid purchase-money of lands sold.”

While statutory, its equitable character is recognized, and it is further observed at page 321 that under some statutes the remedy for enforcement has been prescribed as an ordinary action at law, and such remedy has been held to be exclusive of the jurisdiction of a court of equity, but such was not the law of this state prior to the adoption of the Code, for it was especially provided, as above stated, that the proceeding might be by petition in chancery; moreover the jurisdiction of courts, of equity has been remodeled in England by statute, and in most of the states of the United States, as well as in the federal courts, it depends upon special statutory enactments. 6 Am. & Eng. Ency. Law (1 ed.), 692.

In line with the foregoing is the above case of Wagner v. Armstrong, 93 Ohio St., 443, in which Nichols, C. J., observes, at page 450, as follows:

“The question yet remains, however, does the fact that there has been provided a statutory proceeding in partition operate to exclude partition from the category of chancery cases?
“The authorities on this subject are not all one way; but it can be ascertained by an independent examination of the authorities that the great weight favors the doctrine that the statutory remedy is cumulative and does not supersede the original jurisdiction in equity.”

The learned judge then cites in support of the foregoing, 1 Story’s Equity (13 ed.), paragraph 658, and Freeman on Cotenancy and Partition (2 ed.), 559, where it is stated in the latter:

“The remedy thus created by statute is, we think, generally, but not universally, considered as cumulative, and as in no way divesting courts of equity of their jurisdiction over the same subject matter.”

The chief justice also cites Wright v. Marsh, 2 G. Greene (Iowa), 104; Cram et al. v. Green et al., 6 Ohio, 429; 1 Pomeroy, Equity Jurisprudence, Section 62; Feuchter v. Keyl et al., 48 Ohio St., 357, and City of Zanesville v. Fannan, 53 Ohio St., 605.

Following, however, the observation of Nichols, C. J., in Wagner v. Armstrong, supra, at page 456, there will be no attempt here to categorically declare what constitutes a chancery case. However, there can be no question but that liens primarily originated in equitable principles, and so it is observed in 1 Pomeroy’s Equity Jurisprudence (3 ed.), at page 119, as follows:

“Secondly, those cases in which the relief is not a general pecuniary judgment, but is a decree of money to be obtained and paid out of some particular fund or funds. The equitable remedies of this specie are many in number and various in their external forms and incidents. They assume that the creditor has, either by operation of the law, or from contract, or from some acts or omissions of the debtor, a lien, charge, or incumbrance upon some fund or funds belonging to the latter, either land, chattels, things in action, or even money; and the form of the remedy requires that this lien or charge should be established, and then enforced, and the amount due obtained by a sale total or partial of the fund, or by a sequestration of its rents, profits and proceeds.”'

And at page 196 the author discusses equitable remedies and states, in part as follows:

“These exclusive remedies may be granted in order to protect, maintain, or enforce primary rights, estates, or interests which are legal as well * * * as equitable.”

And, again, at page 199, it is said:

“It is one of the distinctive and central principles of the equity remedial system that it deals with property rights, * * * liens rather than with mere personal rights.”

And, again, at page 202, the same author observes :

“A fourth class embraces those remedies which establish and enforce liens and charges on property, rather than rights and interests in property, either by means of a judicial sale of the property itself which is affected by th'e lien and a distribution of its proceeds, or by means of a sequestration of the property, and an appropriation of its rent, * * * until they satisfy the claim secured by the lien.”

And as a sort of summary of the foregoing it is observed at Section 167 as. follows:

“In addition to the liens above mentioned, which belong to the general equitable jurisprudence, the legislation of many states has created or allowed other liens, which often come within the equity jurisdiction, in respect, at least, to their means of enforcement. The so-called ‘mechanics’ liens’ may be taken as the type and illustration of this class.”

In full accord with the foregoing is Gilchrist v. Helena, H. S. & S. Rd. Co., 58 Fed. Rep., 708, 710.

It is quite clear, therefore, that while a mechanic’s lien is regulated by statute in Ohio its equitable character is not thereby destroyed. A legislature may at will create what might be termed “statutory proceedings,” some of which have properly been held not appealable, but a legislature carinot by such special or statutory proceeding destroy the right of appeal in a chancery case, and so it is indicated in the very recent case of Manning v. The Village of Lakewood et al., 94 Ohio St., 85. This was a proceeding brought in the court of common pleas of Cuyahoga county to enjoin the collection of certain special assessments alleged to have been levied by the village of Lakewood. Issue was joined, trial had, judgment entered, and an appeal taken to the court of appeals, where, on motion, the appeal was dismissed because not appealable under the present constitution of Ohio,. and for the reason that the remedy is statutory. The supreme court reversed the court of appeals, and among other things held:

“The jurisdiction conferred by the statute to restrain the collection of illegally assessed taxes and assessments being an equitable jurisdiction, to be exercised by the chancellor upon equitable principles, it follows that courts of appeals have appellate jurisdiction in the trial of such cases.”

A case quite similar to the instant case.

Still another, in full accord with the foregoing, is Wilson Improvement Co. v. Malone, 78 Ohio St., 232, 239.

Attention is called to Dunn & Witt v. Kanmacher & Stark, 26 Ohio St., 497, which was a proceeding under Section 5 of the former mechanics’ lien law (1 S. & C., 834), which provided that the remedy should be “an action of money had and received,” and which made an issue triable by jury and is therefore not applicable in the instant case, especially because said statute is no longer in force. It is however interesting to note that prior to the amendment of the Constitution of Ohio in 1912 it was twice held in this jurisdiction, under favor of Section 5226, Revised Statutes, now Section 12224, General Code, that the right of appeal existed in an action to foreclose a mechanic’s lien.' It was so held November 26, 1906, in Jesionowski v. Wismiewski, 21 C. C., N. S., 413, and on May 17, 1909, in Thompson v. Rosenberg et al., 16 C. C., N. S., 341. These cases are interesting principally for the reason that they primarily recognize the equitable character of a proceeding to foreclose a lien, even where personal judgment is sought also,5 and yet in the case at bar no personal judgment is sought, nor could it in any event be sought by Eggar & Pierce against the Laughlins, but only the foreclosure of the lien, making the issue as against said Laughlins purely an equitable one, though regulated by statute. It would not be urged for a moment that a personal judgment could have been taken against the Laúghlins. It is contended, however, that the case of Hollowell v. Schraden et al., 26 C. C., N. S., 97, is decisive here. This case was decided July 14, 1916, and the syllabus reads as follows:

“An action to foreclose a mechanic’s lien is not cognizable in equity and therefore not appealable.”

This was by a divided court, and on the 27th day of June, 1917, was reversed by the supreme court of Ohio, without opinion, 96 Ohio St., 599, and since the only issue raised was the right of appeal in an action to foreclose a mechanic’s lien the reversal of the cause determines that right.

The conclusion, therefore, is irresistible, that, while in Ohio a mechanic’s lien is wholly a creature of statute, the remedy is not exclusively legal, but is equitable as well. In view of all the foregoing it follows that the motion to dismiss the appeal must be overruled, which is accordingly done.

Motion overruled.

Pollock and Metcalfe, JJ., concur.


author: Hughes, J.

text:
    McFarland et al. v. Clark et al.

      Will contest — Scintilla rule applies — Jury to weigh evidence — Opening statement by counsel — Evidence not limited thereby, when—Hypothetical questions— Competency.

    1. In a will contest the jury, and not the trial judge, is required to weigh the evidence and determine whether or not the contestant has offered sufficient evidence to overcome the prima facie case made by evidence of the original will and record of its probate. Hence, evidence having been offered on the part of contestant tending to prove each material fact in issue, of which the testimony of two physicians, having no personal acquaintance with testator, testifying in answer to hypothetical questions based on facts previously in evidence that testator lacked sufficient mental capacity, it is exercising the province of the jury for the court to ignore the testimony of the physicians and direct a verdict for defendants,
    2. A party is not required to state, nor is he limited by what he does state as to what the evidence in the case will be; hence, failing to make reference in a trial statement in a will contest, to a fact expected to be proved, does not justify the rejection of evidence that is competent, material and relevant.

      3. A hypothetical question should not be excluded because it is not framed upon the best evidence; it is proper and should be permitted to be answered if supported by evidence tending to prove the facts therein enumerated.
    (Decided March 14, 1918.)
    Error: Court of Appeals for Union county.

      Messrs. Cameron & Cameron, for plaintiffs in error.

      Messrs. Brucker, Voegele & Henkel and Messrs. Robinson & Hoopes, for defendants in error.
   Hughes, J.

This is an action commonly known as a will-contest under the statutes.

The record discloses that there was no evidence offered by the contestants tending to prove a lack of mental capacity on the part of the testator to make the will, nor tending to prove undue influence, except the evidence of two physicians. No other issues were suggested throughout the record. These two physicians had no personal acquaintance with the testator, but, in answer to a hypothetical question based upon facts that had been testified to with more or less clearness by other witnesses, each stated that in his opinion the testator had not sufficient mental capacity to make a will.

At the close of the evidence, the court, upon the motion of the defendants, directed the jury to return a verdict in favor of the defendants, declaring the paper writing- to be the last will and testament of testator.

This was done by the trial court, as he then stated, “leaving out the question of the hypothetical question to the two physicians because their answers were based upon statements that were made to them and not upon the facts in the case; they had no personal knowledge or acquaintance with the party,” upon the theory that in a will case the trial court is not bound by the scintilla rule, but is required to first weigh the evidence and determine whether or not the contestant has offered sufficient evidence to overcome the prima facie case made by the defendants by the introduction in evidence of the original will and the record of its probate.

Authority for this proposition is to be found in such cases as Gomien, Exrx., v. Weidemier, 27 C. C., N. S., 177, and Kammann v. Kammann, 6 Ohio App., 455, and the cases commented upon in the above-named authorities.

In a will-contest case the issues are to be first made up and then tried by a jury, and we can see no reason for making an exception to these cases and permitting the court at any stage of the proceedings to weigh the evidence. The contestant has as much right to have the issues of fact determined by the jury in these cases as he has in any other case in which he is entitled to a jury trial.

It is argued, in the instant case, that had the verdict of the jury been in favor of the contestants, the court would have been required to set aside the same as against the weight of the evidence, and he therefore was obliged to direct a verdict because of this fact, in conjunction with the fact that the defendants started with a prima facie case under the statute, which they claim it was the province of the court to say had not been overcome.

Defendants had, it is true, made a prima facie case by the introduction of the will and the probate record, yet it was the right of the contestants to have the facts in the case determined by a jury, and when the contestants had offered evidence tending to prove each material fact involved in the issues, the matter became just as much a question of fact for the jury in this case as in any other, and there can be no reason why the trial court should be authorized to weigh the evidence to the extent of determining whether or not it was sufficient to overcome this prima facie case, and, if in his opinion it was not, to direct a verdict.

It can as well be said in cases of this kind as in the trial of any other jury case, to quote Judge Ranney:

“Aside from the fact that such a practice involves an assumption of power by the court which the constitution and the laws have committed to the jury, in the very case supposed, the plaintiff would have good cause to complain of injury. A nonsuit puts him out of court, and charges him with the costs; a new trial leaves him in court, and, ordinarily, exacts the costs from the other side. It would also have deprived the plaintiff of the benefit of Section 98 of the practice act of 1831, limiting the power of the court, in granting new trials, to not more than two to the same party." Ellis & Morton v. The Ohio Life Ins. & Trust Co., 4 Ohio St., 628, 646.

If the rule be otherwise, what is there to prevent the court from weighing all the evidence that has been offered in any will case and passing judgment upon it by saying that it is not sufficient to overcome the prima facie case? Why could not the court in any case say, that, because the witnesses who have testified against the will would profit by setting it aside, they are prejudiced, and their evidence could not be considered as overcoming the prima facie case ? Or, why could not the court say that those numerous witnesses, who are but business acquaintances, who have testified to the mental incapacity of a testator, are not to be considered competent to overcome such a prima facie case, because'they lack an intimate daily acquaintance sufficient to pass reliable judgment?

There is no reason suggesting itself to us why a jury trial in a will case is any other than a common-law trial by jury. This we believe is recognized by our supreme court in the language used in Wagner v. Ziegler, 44 Ohio St., 59, at page 67 of the opinion.

At any rate, the statute provides for trial of the issues by a jury, and this means issues of fact, and, when it is a question of fact, the jury, and not the court, must determine it.

“If this was a case for the jury, under the issues pleaded and the evidence offered, then the plaintiff had the constitutional right to a .verdict by the jury.” Nyiry v. Modern Brotherhood of America, 92 Ohio St., 387, 389.

Upon a motion to direct a verdict in these cases, as in any other, the court must review the evidence, concede the truth of every fact tended to be proven by the. evidence, find, when he has found some evidence tending to prove each essential fact, his duty is discharged, and the case must then be submitted to the jury.

The reasoning of Judge Donahue in The Chicago Ornamental Iron Co. v. Rook, Admr., 93 Ohio St., 152, page 155, while not a will case, can be applied to this case with much soundness.

The only difference in the burden of proof resting upon a contestant in a will case and the burden resting upon an affirmative side in other civil case is that in a will case he must furnish evidence sufficient to preponderate not only against the evidence offered for the will, but also to preponderate against the presumption arising from the order of probate and from the will itself. When he has offered evidence tending to meet these requirements, there seems no good reason why he should not be entitled to have his case weighed and considered by the jury.

In the case at bar the trial court left out of consideration the testimony of the two doctors, yet by moving to direct a verdict, the truth of the fact testified to by them was conceded by the defendants; that is, that- the testator had not the testamentary capacity to make a will. This being conceded as true, the paper writing could not be the last will and testament.

It was, then, the province of the jury to weigh this evidence and to determine whether it was of probative value sufficient to overcome the prima facie case and the other evidence in favor of the will. If it had been found sufficient, and the court had then set aside the verdict as against the evidence, it would have been the right of the contestant to resubmit his case upon the same evidence, and, if successful on the second trial, to be held secure against .a second setting aside on the same ground. The court' therefore was in error in directing a verdict.

The record discloses other errors, in themselves not of sufficient importance to reverse, to which attention is called:

First. The court rejected evidence of intemperance because no reference was made to such proof in the trial statement. This was error. A party is not required to state, nor is he limited by what he does state, as to what the evidence will be. Evidence that is competent, material, or relevant, should be admitted whether reference is made thereto in the trial statement or not.

Second. The first hypothetical question was not permitted to be answered, because it was not framed upon the best evidence, as the court said. This is not a correct rule. A hypothetical question is proper and should be permitted to be answered if it is supported by evidence tending to prove the facts therein enumerated. What may be termed the best evidence in a case is not required to be sifted out and embodied in the question.

Judgment reversed.

Kinder and Crow, JJ., concur.


author: Middleton, J.

text:
    Norfolk & Western Railway Co. v. Dresbach et al.

      Carriers — Initial and connecting-—Loss in transitu — Remedy of shipper — Federal and state laws — Parties defendant.

    1. In an action against an initial and a connecting carrier for the loss of goods in transit, such action being based upon their common-law liability, and sounding in tort, no recovery may be had against the initial carrier by reason of the provisions of the Carmack Amendment of Section 20 of the Federal Act to Regulate Commerce.
    2. The remedy against the initial carrier provided by this section and Section 8994-1, General Code, may be prosecuted only against the initial carrier; and in such action a connecting carrier, or carriers, is neither a necessary or proper party.
    3. While this section is intended to provide the shipper with a special remedy against the initial carrier, thereby relieving him from the necessity of actually locating the carrier or carriers by whose negligence he sustained his loss, yet it also saves to him all his common-law rights and remedies against all carriers; but he may not prosecute both remedies under one cause of action.
    (Decided April 4, 1917.)
    Error : Court of Appeals for Ross county.

      Messrs. Bannon & Bannon and Mr. Lyle S. Evans, for plaintiff in error.

      Mr. J. D. Withgott, for Nelson Dresbach.

      Mr. Fred C. Rector, for The Cleveland, Cincinnati, Chicago &‘St. Louis Railway Company.
   Middleton, J.

This action was instituted by Nelson Dresbach against the Norfolk & Western Railway Company and The Cleveland, Cincinnati, Chicago & St. Louis Railway Company, which will hereinafter be designated as The Big Four Company, to recpver damages alleged to have been sustained by reason of the negligence of the defendants in not properly carrying and. handling two carloads of hogs shipped by the plaintiff over the lines of said defendants.

The petition alleges that plaintiff delivered said hogs to the defendant Norfolk & Western Railway Company at the village of Kingston, Ohio, to be transported to Buffalo, New York, and that said defendant company thereupon delivered to plaintiff its written agreement to so carry said hogs to said destination. It alleges further that the defendant The Big Four Company received said hogs at Columbus, Ohio, subject to the agreement entered into by the defendant Norfolk & Western Railway Company. It alleges further that said defendants did not carry said hogs safely, and were negligent and careless, and permitted said cars of hogs at points along the lines of said companies to stand without attention or water for several hours and to be unnecessarily delayed in transportation, etc.

It is apparent from this petition that the plaintiff below, Nelson Dresbach, launched his case against' the defendant companies upon the theory that they were joint tort-feasors and that the combined negligence of both was the proximate cause of the injury sustained by him. A careful review of the facts set up in the petition admits of no other inference or conclusion. Manifestly, the action was not brought against the initial carrier under its liability as defined by what is known as the Carmack Amendment of Section 20 of the Act to Regulate Commerce, because in an action against the initial carrier under said amendment the connecting carrier is neither a necessary or proper party, and if joined with the initial carrier would subject the petition to a special demurrer, upon the ground of misjoinder of parties defendant. So that the action as originally instituted must be treated as an action to enforce the common-law liability of both carriers, which liability may be joint or several, as the evidence may disclose.

Both defendant companies filed answers setting up substantially the same defenses, with the exception that The Big Four Company in an amendment to its answer pleads a failure of the Norfolk & Western Railway Company to notify it of the shipment of said hogs, so that it could promptly transport them from Columbus, and, if necessary, hold a train for that purpose.

After the jury was impaneled and the case had proceeded to trial the court sustained a motion to dismiss The Big Four Company, upon the ground that it had not been notified of the claim of plaintiff, within thirty days, as required by the terms of the contract with the initial carrier or Norfolk & Western Railway Company. The dismissal of The Big Four Company is one of the grounds of error now urged by the Norfolk & Western Railway Company. After the dismissal of said defendant company the case proceeded against the one defendant, Norfolk & Western Railway Company, and resulted in a ve'rdict in favor of plaintiff. The jury also returned a special verdict, in which it found that the loss and damage complained of in the petition were sustained upon the line of The Big Four Company.

Various errors are assigned for the reversal of this judgment, to which, for the purposes of this decision, it will not be necessary to refer in detail.

Coming direct to what we consider to be the controlling question as shown by the record, it becomes necessary to examine Section 20 of the Commerce Act aforesaid to determine whether said section has any application to or connection with this action under the pleadings. That "section as amended is the same as Section 8994-1, General Code of Ohio, and provides as follows:

“That any common carrier, railroad, or transportation company receiving property for transportation from a point in one state to a point in another state shall issue a receipt or bill of lading therefor and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or any common carrier, railroad, or transportation company to which such property may be delivered or over whose line or lines such property may pass, and no contract, receipt, rule, .or regulation shall exempt such common carrier, railroad, or transportation company from the liability hereby imposed: Provided, That nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law.
“That the common carrier, railroad, or transportation company issuing such receipt or bill of lading shall be entitled to recover from the common carrier, railroad, or transportation company on whose line the loss, damage, or injury shall have been sustained, the amount of such loss, damage, or injury as it may be required to pay to the owners of such property, as may be evidenced by any receipt, judgment, or transcript thereof.”

Plaintiff in error contends that the dismissal of its codefendant, The Big Four Company, is in effect an adjudication of the latter’s liability, and that such dismissal deprives plaintiff in error of its right of action to recover from its codefendant the loss or damage it has sustained by reason of this judgment, because the jury has found that the loss to the shipper occurred on the line of said Big Four Company. It contends, further that the court erred in dismissing said Big Four Company from the case, because while the contract between the Norfolk & Western Railway Company and the shipper provides that no common carrier shall be liable for any loss sustained upon its lines unless such carrier is notified as required by the terms of said contract, in respect to the notification of the initial carrier, yet, inasmuch as the initial carrier was notified of such claim, that notice to it is notice to the connecting carrier, because the latter was the agent for the former in the transportation of said hogs. In support of this contention the court is cited to the case of Northern Pac. Co. v. Wall, 241 U. S., 87, in which it is held that notice to the connecting carrier is notice to the initial carrier.

We are not impressed with either of the foregoing contentions of the plaintiff in error. We do not think that the dismissal of The Big Four Company, for the reasons named in the entry of said dismissal, is a final adjudication of its liability to the initial carrier, if such liability exists; and as to the second contention, while notice to the initial carrier may be notice to the connecting carrier, in all matters within the scope of the latter’s agency, yet when the liability of the connecting carrier is a several liability, and depends upon facts wholly independent of its agency and its relation to the initial carrier, such a rule may not obtain, and that is precisely the situation here. The initial carrier has written this provision into its contract. It has placed it there for the protection of the connecting carrier, not as a protection to the connecting carrier as its agent, but as a protection to the connecting carrier against the latter’s separate and independent liability to the shipper growing out of acts wholly disconnected with its responsibility to the initial carrier. It would seem that such a provision in the contract was wholly unnecessary, and in reality one against the interests of the initial carrier, but it is there by the act of the initial carrier alone, who ought not complain of results that may not be as favorable to it as it anticipated when it placed this condition in the contract.

We have, however, in this connection, another question of much more serious import as regards the interests of plaintiff in error.

When the court dismissed The Big Four Company such dismissal did not thereby change the nature of the action. It still remained a suit to enforce the common-law liability of the Norfolk & Western Railway Company. The dismissal of The Big Four Company, under the circumstances, could not and did not change in any respect the character of the suit. The only effect of this dismissal was to relieve The Big Four Company from any liability, and to confine the plaintiff entirely to his right of action against the Norfolk & Western Railway Company under its common-law liability as fixed and determined by its contract with the plaintiff.

While there has been much confusion and some conflict in the construction placed on Section 20 of the commerce act aforesaid, it now appears to be the settled law that the provision of this section, whereby the shipper or holder of any receipt or bill of lading shall not be deprived of any remedy or right of action which he has under existing law, authorizes him to sue any one or all of the carriers whose negligence, joint or several, resulted in any loss of goods in transit on their respective lines. While this section is intended to provide the shipper with a right of action against the initial carrier, thereby relieving him from the task of actually locating the carrier whose negligence caused the loss, yet if he does not desire to pursue this remedy, which, as before observed, is one against the initial carrier alone, and knows which carrier or carriers caused the injury, he may sue it or them. Bichlmier v. M., St. P. & S. S. M. Ry. Co., 159 Wis., 404, 150 N. W. Rep., 508, and Elliott v. C., M. & St. P. Ry. Co., 35 S. D., 57, 150 N. W. Rep., 777.

When a statute gives a remedy where one already exists at common law, the statutory remedy is considered merely cumulative, and a party may sue at common law as well as upon the statute. (20 Ency. Pl. & Pr., 603.) But both remedies may not be prosecuted together under one cause of action. 1 Comyn’s Digest, Action upon Statutes, C.

So in this case, as. before observed, the defendant in error, Nelson Dresbach, having elected to pursue his common-law remedies against said defendant companies, must be held to the law applying to the cause of action so selected by him.

The learned court in its general charge to the jury, after quoting Section 20, aforesaid, proceeded to instruct the jury to the effect that if they found the loss was caused by the negligence of The Big Four Company they could nevertheless return a verdict against the Norfolk & Western Railway Company, under its liability as an initial carrier as fixed by this section. We think this instruction was erroneous and not applicable to the case under plaintiff’s petition. When The Big Four Company was dismissed, jt did not change the character of the action. The plaintiff shipper could not then be heard to say that the Norfolk & Western Railway Company was liable to him as an initial carrier, because no cause of action against it as an initial carrier was pleaded in his petition. After the dismissal of The Big Four Company the plaintiff was compelled to establish the fact that the Norfolk & Western Railway Company by its negligence, or its negligence combined with that of the other company, caused his loss. If the evidence did not disclose either one or the other state of facts, he could have no recovery under his petition against the Norfolk & Western Railway Company. If the negligence of The Big Four Company alone was the proximate cause of the injury, under plaintiff’s petition the Norfolk & Western Railway Company could not be held liable for his loss.. We are, therefore, of the opinion that the instruction of the court aforesaid was highly prejudicial to plaintiff in error, and for this reason alone the judgment of that court must be reversed.

Judgment reversed, and cause remanded for new trial.

Sayre and Walters, JJ-., concur.


author: Jones, P. J.

text:
    The Bruce-MacBeth Engine Co. v. J. P. Eustis Manufacturing Co.

      Error — Jury trial—Waiver of jury — Merger of corporations — Dismissal of defendants — Statutory consolidation of corporations— Judgment entry, what constitutes — Effect of proceedings in error — Petition in error, time of filing — Liability for debts of merged companies — Election as to parties and remedy.

    1. Where two journal entries are shown by a transcript, the first being in form merely a finding in favor of the plaintiff and a fixing of the amount of damages and the second disposing of a motion for a new trial and in its terms a formal judgment entry in all respects except that it does not contain the amount to be recovered, the second entry is the judgment entry from which the filing of the petition in error must date.
    2. Where the prayer of a petition is for a money judgment only as against one defendant with an. alternative prayer for equitable relief against the other defendants and the defendant against whom a money judgment is sought waives a jury, such defendant cannot thereafter withdraw the waiver of a jury and insist upon a jury trial merely because the court dismisses the other defendants from the case.
    3. Where the undoubted purpose of a contract between two corporations is to merge the two corporations into one, practically making as complete a merger as an actual statutory consolidation would have done, the new company is liable for the payment of a debt of one of the merged companies, although the contract in some of its terms savors of a sale and does not comply in all respects with the requirements of a statutory consolidation.
    4. A party is required to elect only when two or more inconsistent remedial rights are given by law upon the same state of facts.
    5. A review by a proceeding in error of the action of a court in dismissing certain defendants from a case does not. serve to delay or prevent either the continuance of the trial and a judgment against a defendant not dismissed or a review of such judgment by error proceedings.
    (Decided June 28, 1917.)
    Error : Court of Appeals for Cuyahoga county.

      Messrs. Gage, Day, Wilkin & Wachner; Messrs. Tolies, Hogsett, Ginn & Morley and Messrs. White, Johnson, Cannon & Neff, for plaintiff in error.

      Messrs. Hoyt, Dustin, Kelley, McKeehan & Andrews; Mr. I. - L. Evans and Mr. Frank O. White, for defendant in error.
   Jones, P. J.

The foundation of this action is based upon a contract dated September 11, 1905, by the terms of which the J. P. Eustis Manufacturing Company, hereinafter called plaintiff, was given the right to sell in certain territory engines manufactured by The Bruce-Meriam-Abbott Company, hereinafter called the engine company.

Under this contract plaintiff sold an engine to the Saco Brick Company, which.was warranted to develop a certain guaranteed horsepower. In January, 1907, the Saco Brick Company sued plaintiff in the courts of Massachusetts for damages by reason of the failure of the engine sold to it to deliver the guaranteed horsepower. Notice of this suit was given to the engine company, which company assisted in securing testimony for the defense, and was advised of the progress of the case, which was hotly contested. After a considerable time judgment was obtained against the J. P. Eustis Manufacturing Company by the Saco Brick Company, and execution was issued upon said judgment in May, 1911, and plaintiff was compelled to and did pay the judgment.

In December, 1913, plaintiff brought an action against the engine company in the court of common pleas of Cuyahoga county, Ohio, to reimburse it for the damages sustained by the payment of the judgment of the Saco Brick Company. This action resulted in a judgment, on November 14, 1914, in favor of plaintiff, which was carried to the court of appeals and was there affirmed. Execution was issued upon said judgment, and October 13, 1915, a return of nulla bona was made thereon.

The action now before the court was then commenced in December, 1915, to recover the amount of said judgment against the engine company which it had failed to collect on execution. In this case were joined as parties defendant The BruceMeriam-Abbott Company, called the engine company, and its directors and stockholders, together with the personal representatives of the deceased stockholders of said compan)'-, and The Bruce-Mac-Beth Company, hereinafter called “the new company.6”

The case was tried- on the amended petition, in which it is alleged that on or about April 29, 1909, the engine company and The MacBeth Iron Company, called “the iron company,” with the consent and approval of the directors and stockholders of each of said companies, entered into a contract “for the purpose among other things of combining the business and property of said two companies;” that all the property, assets and effects of the two companies were to be appraised and the values fixed; that the engine company was to transfer and assign to the iron company all its assets of every kind and description whatsoever, except the leasehold of a small building thereon; that the engine company was to list all of its debts and liabilities, and that all of the debts and liabilities so listed were to be paid by the iron company; and that the directors of the engine company guaranteed that the liabilities of said company would not exceed the sum so listed, and that they would hold harmless the iron company from any liabilities in addition to those listed. Said agreement further provided that the engine company should be dissolved; that the iron company should change its name to The Bruce-MacBeth Engine Company and if necessary increase its capital stock; and that both companies would list their assets and liabilities and would issue stock to the stockholders of the engine company pro rata to represent the net assets of the engine company. The amended petition alleges. that this transfer of property was carried out and that the new company thus obtained net assets of said engine company to the value of $68,326; that certificates for three hundred and forty one shares of stock were issued to the stockholders of the engine company to represent said amount, and the cash balance of $126 was distributed among the stockholders in lieu of fractional shares; and that the engine company was left without any assets with which to pay its debts and particularly the debt of plaintiff. Then the following allegations were made:

“Plaintiff further alleges that by reason of the acts, transactions and proceedings of the defendants (except Walter S. Bowler), as herein set forth, said The Bruce-MacBeth Engine Company became, and is legally obligated and bound to pay all the debts, obligations and liabilities of said The Bruce-Meriam-Abbott Company, including the aforesaid claim of this plaintiff.
“If, however, it should be found by the Court that said The Bruce-MacBeth Engine Company did not become so obligated and bound to pay the aforesaid claim of this plaintiff, by reason of the premises, then plaintiff alleges that said acts, transactions and proceedings have hindered, delayed and defrauded it in the collection of its aforesaid claim against said The Bruce-Meriam-Abbott Company, and that by reason thereof, it has been prevented from collecting the same. That the aforesaid transfer and conveyance of its property was made by The Bruce-Meriam-Abbott Company with the Intention of hindering, delaying and defrauding its creditors, and particularly this plaintiff, in the collection of their claims, debts, obligations and liabilities against it.”

The amended petition prayed for a judgment against defendant, The Bruce MacBeth Engine Company, in the sum of $4845.12, with interest; and, in the event the court should refuse this judgment, prayed in the alternative for a judgment against the other defendants, and that the transfer of the assets of said company be declared null and void and that they be taken over and administered for the benefit of the creditors of said company; and for general relief.

The case was tried to the court, and in the progress of the trial the court being called upon to construe the contract found that the terms of the contract would require the payment of the debts of the engine company by the new company, and thereupon dismissed the individual directors and stockholders and their personal representatives from the case, and allowed plaintiff to proceed as against the new company, which company was then permitted to file an amended answer in which it set up as an additional defense that the plaintiff, having .elected to pursue the engine company and secure a judgment against it, was conclusively barred from proceeding against the new company. The new company at that stage filed a motion for a jury trial, which was refused by the court because a jury had been waived by the new company at the commencement of the trial.

The case proceeded, and judgment was finally rendered against the new company in the amount claimed.

Error proceedings are prosecuted here to reverse that judgment.

A preliminary question is raised by the defendant in error by a motion to dismiss the petition in error on the ground that it was not filed within the time provided by law. It is contended by defendant in error upon this motion that the judgment of the court below was entered September 22, 1916, while plaintiff in error contends that the judgment to which error is'prosecuted was entered October 19, 1916.

The journal entries shown by the transcript in this case are as follows:

“September 22, 1916. The parties by their attorneys come, waive a jury and submit this cause to the court on the pleadings and evidence; on consideration whereof the court finds for the plaintiff against the defendant, The Bruce-MacBeth Engine Company, and assesses its damages in the sum of $5426.53. To which the defendant excepts.”

Motion for new trial was filed September 25, 1916, by defendant and on the same day a motion was filed by the defendant to set aside judgment. These motions were overruled, and the following entry was placed on the journal October 19, 1916:

“The motion by the defendant The Bruce-Mac-Beth Engine Company for a new trial of this case, is heard and overruled, to which the said defendant excepts. It is therefore considered that the said plaintiff recover of the said defendant its said damages and also its costs of this suit. Judgment is rendered against the said defendant for the costs herein. Record waived.”

On November 2, 1916, the following entry was made upon the journal:

“The motion by the defendants for a new trial of this cause, is heard and overruled. To which ruling the defendants except. It is therefore considered that said plaintiff recover of said defendant its said damages and also its costs of this suit. Judgment is rendered against the defendants for the costs herein.”

It is apparent to the court that the entry of November 2, 1916, which is practically the same as that of October 19, was made by inadvertence and need not be further considered, as the entry of October 19 had disposed of the motion for a new trial, and in its terms is a formal judgment entry in all respects except that it does not contain the amount to be recovered, as is customary in such entries. By reference, however, to the previous entry of September 22 this amount is made certain. In its form the entry of September 22 is merely a finding in favor of the plaintiff and a fixing of the amount of damages.

Upon consideration of these entries of both September 22 and October 19, we hold that the first is not the judgment entry from which the filing of the petition in error must date, but that the entry of October 19 is such judgment entry, and that the petition in error- was therefore filed within the statutory time and the motion to dismiss must be overruled.

The first and second points relied upon by plaintiff in error in seeking a reversal of the judgment below are: first, this action as it was originally instituted was one in equity and the court of common pleas had no authority or jurisdiction to transform it upon the court’s own motion into an action at law against the new company alone; and, second, the new company was entitled to a trial by jury after the other defendants were dismissed from the case. We will treat these two points together.

There is no question, from the form of the petition, but that the áction was primarily one for a money judgment against the new company, and, failing to secure that, in the alternative to hold the directors and stockholders of the engine company and reach its assets as a trust fund in the hands of the new company for the purpose of paying plaintiff’s judgment. The action of the court in dismissing from the case the directors and stockholders of the engine company over the objection and exception of the plaintiff did not in any wise change the character of the action from one in equity to an action at law; it merely dropped out the equitable feature of the action, requiring plaintiff to stand alone upon his claim for a money judgment, which had been in the case from the commencement of the action.

By Section 11238, General Code, it is provided that there shall be but one form of action in this state, to be known as a civil action; and under Section 11305, General Code, plaintiff is required to set forth in his petition a statement of the facts constituting his cause of action, in ordinary and concise language, with a demand for the relief to which he claims to be entitled.

A distinction between actions at law and suits in equity has been abolished by the code, so far as relates to form or name, and what is called “a civil action” has been substituted. When the facts entitle the party to relief the mere form of 'the action is disregarded. Chapman v. Lee, 45 Ohio St., 356, 367, and Raymond v. T., St. L. & K. C. Ry. Co., 57 Ohio St., 271.

The part of the amended petition above quoted shows that so far as this plaintiff in error, the new company, is concerned, the demand was for money only, both by the language of the allegations of the amended petition and by the form of prayer which demanded a money judgment. In this state of the pleadings, which was in no way modified by the later stages of the trial, at the commencement of the trial, counsel for the new company in answer to inquiiy from the court said the case was for trial by the court and not by a jury. We regard this as a clear waiver of a jury, in accordance with the terms of Section 11379, General Code. And there was nothing in the further progress of the trial, after the court had come to construe the contract and in a measure to pass upon the liability of the new company, to authorize or permit the new company to change its position and to withdraw the waiver of a jury and to insist upon a jury trial.

The third ground of error argued by plaintiff in error is that the court erred in its conclusion that by the terms of the contract between the engine company and the new company the new company assumed and agreed to pay the claim of the plaintiff against the engine company.

It is urged that the union or merger between the engine company and the iron company was not a statutory consolidation. If it were, there is no question but that the new company would be liable for the payment of plaintiff’s judgment as a debt of the engine company. Boehmke v. Northern Ohio Trac. Co., 88 Ohio St., 156, 162.

The trial court in its opinion discusses the question of classification of this contract, and seems to be justified in its conclusion that it must be classed as a sort of nondescript. While in some of its terms it savors of a sale, and while it does .not comply in all respects with the requirements of a statutory consolidation, still its undoubted purpose was to merge the two companies into one, continuing, it is true, the corporate existence of the iron company under a new name, but practically making as complete a merger a§ an actual statutory consolidation would have done. If this claim had been listed, no question whatever could have been made as to the liability of the new company. The contract required that all debts, obligations and liabilr ities should be listed, and that when so listed the new company should become liable for them and pay them. It recognized the fact that in some manner these assets could be reached to pay any obligation which through inadvertence or mistake was not included in the list of liabilities so prepared and guaranteed to be included in the contract, and made the directors and stockholders personally liable for any claim not so listed which the new company was required to pay.

Plaintiff in error, the new company, cannot sustain its position that the transfer and conveyance of the assets of the engine company to it was a sale, carrying with it no obligations except those clearly expressed in the contract, for the reason that no consideration whatever was given by the new company to the engine company. The issue of stock in the new company, to the stockholders, was for no consideration to the company. The stockholders are not the corporation, nor do they represent it in its relation to its creditors. Compton v. Railway Co., 45 Ohio St., 592, 615, and McIver v. Young Hardware Co., 144 N. C., 478, 119 Am. St., 970.

“The assets of a corporation, including unpaid subscriptions to its capital stock, constitute a trust fund for the benefit of its creditors, which cannot be disposed of by. it, without consideration, or fraudulently, to the injury of such creditors.” Niles, Assignee, v. Olszak, 87 Ohio St., 229.

The record clearly shows that the conduct of the parties, including their catalogues and trade literature, as.well as their correspondence and dealings, showed a recognition that the two companies had actually become merged into a new company.

In the case of Andres v. Morgan, Trustee, 62 Ohio St., 236, where the members of a partnership had incorporated for the purpose of continuing the business as a corporation, and had taken capital stock to correspond with the interests theretofore held in the partnership, transferring all the partnership property to the corporation, it was held that the debts of the partnership became the debts of the corporation, which was liable therefor. The opinion of the court in this case is instructive as illustrating how the law brushes aside the fiction of the legal entity, when no real change has taken place, and refuses to construe a transaction as a purchase where such construction would operate as a fraud upon the rights of creditors.

It is suggested in the brief of counsel for plaintiff in error that there could be no liability on the part of the new company to plaintiff, because plaintiff was not a creditor of the engine company at the time its property was transferred to the new company. The obligation of the plaintiff to the Saco Brick Company arose at the time of the sale of the engine to it, and the obligation of the engine company arose at the same time by reason of its contract with plaintiff. Boies v. Johnson, 1 C. C., N. S., 451; Jones v. Leeds, 10 Ohio Dec., 173, and Herrick v. Wardwell, 58 Ohio St., 294, 309.

The fourth point claimed by plaintiff in error is that plaintiff made a conclusive election to hold the engine company alone for its debts, by proceeding against it, and that the action against the new company was therefore barred.

The party is required to elect only when two or more inconsistent remedial rights are given by the law upon the same state of facts. In Becker v. Walworth, 45 Ohio St., 169, the court, at page 173, used the following language:

“It may be said, as a deduction from the authorities on the subject, that an election is the making of a choice between two or more benefits or rights which estops the party from afterwards denying that an election has been made, and from demanding some benefit or right other than the one chosen. Except in cases where his conduct has been such as to mislead another party to his prejudice, the party having a right to elect must have proceeded upon the idea that he was bound to elect; he must have had knowledge of his obligation to elect as matter of law; there must have been a purpose to elect, and an actual election. And where the election is as to one of two or more remedies, in order to make a selection of one a bar to a pursuit of the other, it must appear that they are inconsistent, and that the one last sought is not merely cumulative.”

There is no claim whatever in this case that the new. company has been misled to its prejudice by the conduct of plaintiff, which seems to have been the basis of the decision in Bohanan v. Pope, 42 Me., 93, relied upon by plaintiff in error.

An election may be either as to the parties or as to the remedy. There can be no claim in this case that any election of parties has been had to the prejudice of the new company. Possibly such a question might have arisen as between the engine company and the plaintiff, the Saco Brick Company having an election as to which it might pursue — one being principal and the other agent —'but that certainly does not obtain as between plaintiff and the new company.

Plaintiff in error urges that it may claim a benefit because of an election as to remedy, in that the plaintiff undertook to reach the assets of the engine company for the purpose of securing satisfaction of its judgment. Clearly such claim cannot be made where, as in this case, the parties were brought into one suit and the prayer was in the alternative, and the court granting relief by way of money judgment dismissed out the parties by means of whom it was undertaken to reach the assets.

But it is useless here to discuss further the question of election, as the trial judge has gone fully into that question in the very able opinion rendered in this case, which meets, with the approval of this court, and to which' it is not necessary to make any addition.

As a fifth ground of error plaintiff in error challenges the jurisdiction of this court in this proceeding in error, because plaintiff has seen fit by petition in error to undertake a review of the action of the trial court in dismissing the stockholders and directors.

So far as that proceeding in error is concerned, which is found as case No. 1515 on the dockets of this court, it was a final judgment, and it was clearly within the right of plaintiff in error to obtain a review of the action of the court in that matter, and so far as any claims plaintiff might have against the stockholders and directors are concerned it was necessary to proceed without allowing lapse of time to prevent a review of that portion of its case; but such review could not in any way delay or prevent the continuance of the trial and a judgment against the new company. And the pendency of the error proceedings does not in any way interfere with the jurisdiction of this court in this case.

The judgment of the court below is therefore affirmed.

Judgment affirmed,

Gorman and Hamilton, JJ., concur

Judges of the First Appellate District, sitting in place of Judges Grant, Carpenter and Lieghley, of the Eighth Appellate District.