author: Allread, J.

text:
    VALIDITY OF JUDGMENTS AGAINST EMPLOYERS NOT COMPLYING WITH THE COMPENSATION ACT.
    Court of Appeals for Franklin County.
    State of Ohio, ex rel, v. Percy Fassig.
    Decided, February 29, 1916.

      Workmen’s Compensation Act — Construction of Section 27 — Non-Complying Employers Properly Within Its Provisions — Quasi-Judicial Powers of the Administrative Board — Notice—Hearings—Bight of Trial by Jury — Conclusiveness of the Award — Provisions for Furnishing State’s Counsel for Enforcing Judgments and Penalties.

    1. The constitutional amendment relating to workmen’s compensation is an enabling provision, as distinguished from a limitation, and should be liberally construed. Its obvious intent is to transfer the subject of workmen’s compensation to an administrative board with summary powers, and the power to enact a compulsory law necessarily implies power to make it effective.
    2. The provisions of Section 27 of the workmen’s compensation act, authorizing an award against an employer who has failed to comply with the act and, in case of his refusal to pay, that an action be brought in the name of the state for the benefit of the person entitled thereto for recovery of the amount of the award with a .penalty of fifty per cent, added, is within 'the constitutional amendment relating to compensation acts.

      Edward C. Turner, Attorney-General, John G. Price and Eugene Carlin, Special Counsel, Robert P. Duncan, Prosecuting Attorney, and William J. Ford, Assistant Prosecuting Attorney, for plaintiff in error.

      Wilson & Rector, McGhee, Davis & Boulger, J. E. Rogers, T. J. Keating and G. M. Voorhees, contra.
   Allread, J.

This action involves the constitutionality of Section 27 of the workmen’s compensation act of 1913 (103 O. L., 72), authorizing the industrial commission in cases where the employer has failed to comply with the act upon said application and hearing under rules to be prescribed, to make an award of compensation in favor of an employee (or his dependents, in case of death) for an' injury not purposely self-inflicted, occurring in the course of his employment. It is further provided that the award shall constitute a liquidated claim for damages and that upon failure, neglect or refusal of the employer, after notice, to pay such award, an action may be brought against the employer in the name of the state for the benefit of the person entitled thereto for the amount of the award with an added penalty of fifty per centum.

. The defendant, Fassig, was an employer of five or more employees and had failed to comply with the provisions of the workmen’s compensation act.

■ Pond, for whose benefit the action was brought, was an employee, sustained an injury in the course of his employment, and made application to the industrial commission to fix the amouut of compensation for the injury. An award was accordingly made, and upon the refusal of the employer to pay, suit was brought for the amount of the award with penalty.

The court below, upon motion, rendered judgment upon the pleadings in favor of the defendant upon the ground that Section 27 of the workmen’s compensation act was unconstitutional.

The state prosecutes error.

The workmen’s compensation act rests upon the following constitutional amendment (Article II, Section 35) adopted in 1912:

“For the purpose of providing compensation to workmen and their dependents, for death, injuries, or occupational disease, occasioned in the course of such workmen’s employment, laws may be passed establishing a state fund to be created by compulsory contribution thereto by employers, and administered by the state determining the terms and conditions upon which payment shall be made therefrom, and taking away any or all rights of action or defenses from employees and employers; but no right of action shall be taken away from any employee when the injury, disease or death arises from failure of the employer to comply with any lawful requirement for the protection of lives, health and safety of employees. Laws may be passed establishing a board which may be empowered to classify all occupations, according to their degree of hazard, to fix rates of contribution to such fund according to such classification, and to. collect, administer and distribute such fund, and to determine all rights and claims thereto.”

The constitutional amendment is an enabling provision, as distinguished from a limitation, and should be liberally construed.

Workmen’s compensation acts in this and other jurisdictions resting upon the general police power, were found to be somewhat fettered and restricted by general limitations of the Constitution.

The amendment under consideration was obviously intended to transfer the subject of workmen’s compensation to an administrative board with summary powers.

The details of construction within the reasonable scope of the amendment was necessarily left to the discretion of the Legislature.

The following statement of Bradbury; C. J., in Hubbard v. Brush, 61 O. S., 265, in respect to another section of the Constitution, is appropriate here:

"From the nature of its objects, and the brevity required of these fundamental instruments, they can not deal in definitions, but can lay down only general rules and employ general terms, leaving questions of construction to the appropriate departments of the government.”

The purpose of the workmen’s compensation amendment as well as of the act adopted thereunder was to embrace a comprehensive scheme of relief for all occupational accidents, and not merely for those founded upon negligence. The amendment authorized a compulsory measure. The power to enact a- ‘ ‘ com: pulsory” law necessarily implies the power to make the act effective. This is the sum and substance of the great opinion of Chief Justice Marshall in McCollough v. Maryland, 4 Wheaton (U. S.), 316.

Section 26 of the compensation act authorizes the employee to bring an action against the employer for injuries sustained by the employer’s negligence or default, but does not provide a remedy for cases of purely accidental injuries.

. Section 27 of the workmen’s compensation act follows the general scheme and gives relief to employees for all accidental injuries arising in the course of employment.

The provisions of Section 27 are, therefore, reasonably necessary to make the act complete.

Section 27 of the workmen’s compensation act charges the noncomplying employer with the amount the employee would have been entitled to receive under the regular system of workmen’s compensation in case the law had been complied with. This liability is in the nature of a penalty and may be sustained as a liability created by statute.

It was the legal duty of the employer to protect his employees under the workmen’s compensation act. The liability of noncomplying employers prescribed in Section 27 is within the scope of the powers implied in the workmen’s compensation amendment and founded upon sound principles of justice.

This doctrine is well stated in Railroad Company v. Sullivan, 32 O. S., page 159, involving the statutory obligation of railroad companies to light their tracks within municipal corporations.

Judge Scott in the opinion says:

“And if such a duty can constitutionally be imposed on a railroad company, its performance may be secured by necessary sanctions. And, certainly, no milder sanction could be effective, to secure the performance of the duty imposed, than that which authorized the performance of the duty required, by the municipality, at.the expense of the delinquent railroad company.”

Statutes providing for double and even treble damages in favor of the injured party, and against the party in default have been upheld. Jansen v. Railway Company, 35 L. R. A. (N. S.), 1015, and cases cited.

It is urged that Section 27 does not seek to compel a contribution to the state fund, but amounts to a liquidation of darm ages between employer and employee. But a statute should not be held unconstitutional merely because of its form. A court should look as well to its substance and effect. It would seem reasonable that some relief be afforded the employee of the noncomplying employer, and that such relief could not with justice be paid out of funds contributed by other employers. It would be rational to require such non-complying employers to contribute the amount required. This is the effect of Section 27, although the process is more direct.

It is also urged that the board of awards by Section 27 exercises judicial power.

The creation of administrative boards having quasi-judicial duties is not unfamiliar. Commissioners of counties and. trustees of townships have jurisdiction in ditch and road cases, and county auditors in matters of taxation. The fact that actions in review or on appeal are provided, meet the constitutional requirements. Taylor v. Crawford, 72 O. S., 560.

But éven if it is necessary to make the award of the industrial commission valid, that there be a provision for notice to the employer and an opportunity to be heard, we think both notice and a hearing are fairly inferred, if not expressly provided, in Section 27. The employee is required to file an application which “the board shall hear and determine.” To “hear and determine” implies procedure according to the rules of courts of equity. “Words and Phrases” sub nom. “Hearing.” Where a proceeding of this character is prescribed by statute, the inference is that the hearing is inter partes and* not ex parte. To hear and determine the application of the employees would under Section 27 involve a hearing in which the interested employer is brought in and given an opportunity to be heard.

If there be any doubt in respect to the intention of the Legislature in this respect, it is dispelled by the following provisions in Section 27:

“And the state liability board of awards shall adopt and publish rules and regulations governing the procedure before the board provided in this section, and shall preserve forms of notices and the mode and manner of serving the same in all claims for compensation arising under this section.”

The fundamentals being provided for by statute, matters of form and detail may be delegated to the commission.

The pleadings are silent as to whether notice was given, but regularity is presumed, and in the absence of a showing to the contrary, we are bound to assume that notice was given and a hearing had in accordance with the statute.

The industrial commission, however, acts as an executive board rather than as a gwawi-judicial tribunal. Their powers are conferred under authority of Article II, Section 35, of the Constitution.

It was competent for the Legislature under constitutional authority to transfer the subject of workmen’s compensation to the administrative department. See Fairview v. Giffee, 73 O. S., 183; County of Miami v. City of Dayton, 92 O. S. (Ohio L. Rep., Feb. 7, 1916); State, ex rel, v. Creamer, 85 O. S., 349.

The constitutional amendment expressly authorizes and the workmen’s compensation act expressly confers upon the industrial commission power to determine all rights of claimants to the state fund, and to fix the rates of contribution thereto. There is no question as to the power over employers who comply with the act. As to such employers and their employees, the constitutional authority is ample and the act is admittedly valid.

It would be unreasonable and illogical to confine this power to the willing and let the unwilling go “scot free.”

It is true that the annual contribution to the state fund might be directly enforced by penalties. The Legislature is not, however, confined to that remedy, but has a wider discretion.

It is also contended that Section 27 is repugnant to the constitutional provision guaranteeing the right of trial by jury.

There is no denial in the act of the right of trial by jury. The proceeding against the employer is required to be brought in a.court of general jurisdiction in which a jury trial can be had as to every basic fact except the amount of the award. Reckner v. Warner, 22 O. S., 275.

The provision making the award in favor of the employee the measure of recovery in the action against the non-complying employer is not in conflict with the right tó a jury trial. The remedy prescribed in Section 27 is not a mere extension of the epnimon law action involving employer’s liability. The action is founded upon an entirely different basis. It is a statutory action and arises out of the workmen’s compensation amendment and act. The statute may properly prescribe the liability and the measure of recovery. Railroad Co. v. Cook, 39 O. S., 265; Commissioners v. Church, 62 O. S., 318.

The right of trial by jury is a favored right, but does not prevail over the workmen’s compensation provision expressly committing the subject-matter to an administrative board with power to make awards upon claims of injured workmen.

"We should not overlook the force and effect of the amendment and treat the subject merely under the police powers.

Our duty is to consider the old law, the mischief and the remedy, and interpret the Constitution broadly to accomplish the manifest purpose of the amendment.

. Amendments plainly remedial should not be held merely declaratory of existing laws.

• It is contended that the Attorney-General and the prosecuting attorneys are not authorized to bring suit or prosecute the claims of individual workmen against individual employers.

The duties of the Attorney-General and prosecuting attorneys are left largely to the discretion of the Legislature, and we can conceive of no constitutional reason why the Attorney-General and prosecuting attorney may not, in cases where the employers fail to comply with the provisions of the workmen’s compensation act, be authorized to prosecute action and thereby enforce the workmen’s compensation act.

The conelusiveness of the award, the added penalty and the furnishing of the state’s counsel, do not violate the equal protection provision of the Constitution, in view of the nature of the remedy and the purpose to be accomplished.

The workmen’s compensation amendment and act are based upon the general welfare, as are all the employers’ liability statutes.

For more than thirty years there has been progressive legislation regulating employer’s liability and the constitutional power to enact reasonable laws to better the condition of employees and to provide for their safety and welfare, has not been seriously doubted. The general police power has now been augmented by a constitutional amendment expressly providing for workmen’s compensation.

The cases holding that allowances of attorneys’ fees and penalties in favor of the plaintiff in civil eases are.in violation of the equal protection provision of the Constitution, involved no question of public policy behind the enforcement of the civil liability. See Jensen v. Railway Company, supra, and cases cited.

Counsel for the defendant have presented able and exhaustive briefs. Many cases have been cited and reviewed. The questions are new and not free from doubt.

Legislative acts are not however to be declared' void unless clearly repugnant to the Constitution. State, ex rel, v. Creamer, supra; Board of Health v. City of Greenville, 86 O. S., 1.

We have reached the conclusion that Section 27 of the workmen’s compensation act is not so clearly repugnant to the Constitution as to justify us in holding it invalid.

The judgment of the court of common pleas is, therefore, reversed and cause remanded with instructions to overrule the motion for judgment on the pleadings and for further proceedings.

Ferneding, J., and Kunkle, J., concur.


source: Caselaw Access Project

author: Jones (E. H.), P. J.

license: Public Domain

text:
    ADMINISTRATION OF PROPERTY IN THE NAME OF A BRANCH OF A FRATERNAL ORGANIZATION.
    Court of Appeals for Hamilton County.
    Della Parks v. The Grand Fountain of the United Order of True Reformers and The Reformers Mercantile & Industrial Association.
    Decided, April 24, 1916.

      Mutual Benefit Societies — Property in the Name of a Branch Organization Subject to Claims of Beneficiaries of the Parent Society, When.

    Where a subsidiary body is officered by the same officers as those who control and dominate the parent body, and has as its purpose the rendering of assistance to the parent body, and its purpose and character has always been so understood by all the members of the parent body and has always been so declared and those who became members of the parent organization did so in the belief that it embraced this subsidiary property in the hands of a receiver and standing in the name of- the subsidiary will be administered for the benefit of the parent body.

      William C. Lambert, for plaintiff.

      Chas. Broadwell and. Johnson & Levy, contra.
   Jones (E. H.), P. J.

The petition in this case avers that the Grand Fountain of the United Order of True Reformers is a corporation under the laws of Virginia, and that the other defendant, the Reformers Mercantile & Industrial Association, is also a corporation under the laws of Virginia and is an allied or subsidiary corporation, being under the control and management of the Grand Fountain of the United Order of True Reformers; that the latter is a fraternal beneficial association of colored people with members all over the United States, divided into divisions and lodges, and that in consideration of dues paid by its members at regular specified times it pays to them sick benefits and also issues death certificates providing for the payment of a stipulated sum upon the death of the member named therein.

Plaintiff, Della Parks, being the beneficiary named in one of these certificates issued to Rose Lee Parks, deceased, recovered a judgment before a justice of the peace against the Grand Fountain upon said certificate for the sum of $139 and costs. She says that said judgment is in full force and effect and is unpaid. She also says that within the jurisdiction of this court alone there are, .according to her information, a number of persons who are in the same situation as herself and who are beneficiaries named in certificates held by deceased members of the order; that some of these' have recovered judgments on their claims, all of which are unsatisfied and unpaid. She further avers that the said beneficial society is in the, hands of receivers; that its affairs are in a tangled condition and that some of its principal officers are under indictment on the charge of misapplying the funds of said defendant in the state of Virginia; that on February 20, 1902, the Grand Fountain purchased certain real estate in the city of Cincinnati; that the title of said real estate was fraudulently put in the name of the defendant, the Reformers Mercantile'& Industrial Association, and that in fact said real estate always was and now is the property of the Grand Fountain. Plaintiff, Della Parks, prays that said real estate be subjected to the payment of said judgment; that it be sold if necessary and out of the proceeds the judgment of the plaintiff be paid, and for such other and further rélief as she may be entitled to.

•. The case is here on appeal from the judgment of the common pleas court, and was heard by this court on the oral evidence and numerous exhibits, and was submitted on arguments and briefs.

We think the evidence fully supports the claim of the plaintiff set out in her petition that the Grand Fountain of the United Order of True Reformers is insolvent.

In support of the claim that the property described in the petition,' located in Cincinnati, was owned by the Grand Fountain of the United Order of True Reformers, and not by the defendant, the Reformers Mercantile & Industrial Association, a great number of books and records of the Grand Fountain were offered in evidence.- -' These' books consist of the minutes of the annual session of the Grand Fountain of the United Order of True Reformers, beginning with the year 1902, down to the year 1908; also, a history of twenty-five years of the order, guidebooks, pamphlets and other literature disseminated by the officers of the Grand Fountain. Throughout these books and reports it appears that the officers of the Grand Fountain were also the officers of the Reformers Mercantile & Industrial Association ; that the Reformers Mercantile & Industrial Association was promoted and organized by the officers and members of the Grand Fountain; that it was controlled and dominated entirely by the members and officers of the Grand Fountain and was advertised in their literature as a subsidiary organization of the Grand Fountain.

It further appears from these records that the officers of the Grand Fountain, also the officers of the Reformers Mercantile & Industrial Association, including the Grand Worthy Master, as president of the organization, made repeated statements to the local members of the Grand Fountain of Cincinnati that the property involved in the controversy in this cause was to constitute a home for them and all the order of the Grand Fountain, and that these representations were made as inducements to secure colored people in this city to become members of the Grand Fountain.

Without undertaking to set out the numerous statements and the evidence in this case, we have come to the conclusion that the property located in Cincinnati, the title of which appears tp be in the name of the Reformers Mercantile & Industrial Association, is really held in trust by that organization for the use and benefit Of the Grand Fountain and its members; that this subsidiary organization, the Reformers Mercantile & Industrial Assoeation, was incorporated and organized solely for the purpose of aiding and assisting the members of the Grand Fountain and to facilitate the transaction of its business and to divide up the work which was to be accomplished by the parent body. In the numerous pamphlets put out by the parent body and in the minutes of the annual session- it is shown that the parent organization consists of eight subdivisions ox branches, the first being subordinate Fountains, and other subordinate branches being the savings bank, the real estate department .and lastly the Reformers Mercantile & Industrial Association.

It further appears from the evidence in the case that other property which belonged to the parent body was bought and the title placed in the name of the subsidiary organization. For example, in 1903, the worthy grand master of this order, who was the chief executive and controlling spirit of the organization, reported that he had purchased fifty-four acres of land on the James river in Virginia, and that he had put the title of the property in the Reformers Mercantile & Industrial Association, and that the property belonged to the parent body of the Grand Fountain. The same year and in the same report he gave a detailed statement of how he had purchased the Cincinnati property, and, among other things, stated that there had been donated by the votes of the directors of the Grand Fountain $40,000 to put up a building in St. Louis, but that he had purchased the property in St. Louis for $22,500, and had taken the balance left from the $40,000 and purchased another piece of property in Louisville for $4,600,- and had purchased the property in Cincinnati for $7,000.

. We think the evidence is overwhelming tending to show that notwithstanding the fact that the title was taken in the name of the Reformers Mercantile & Industrial Association, it was nevertheless purchased for the parent body and it was so understood by all of the members of the organization. Such being the fact, we conclude that the members of the organization of the Grand Fountain who are residents of this city have a right to look to this property in Cincinnati to secure the payment of the claims which they have against this organization. The mere fact that the Reformers Mercantile & Industrial Association is a separate organization from that of the Grand Fountain will not prevent the application of equitable principles to the facts in this case. It has been held repeatedly by the courts that a corporation is a legal entity apart from the natural persons who compose it, but that this legal entity is a mere fiction introduced for convenience in the transaction of its business and of those who do business with it; but like every other fiction of the law, when urged to an intent and purpose not within its reason and policy, the fiction may be disregarded. State v. Standard Oil Co., 49 O. S., 137; Brundred v. Rice, 49 O. S., 640.

In Bank v. Trebein, 59 O. S., 316, on page 326, the Supreme Court, in speaking of the manner in which courts would look at the corporate entity of a corporation, says:

“The fiction by which an ideal legal entity is attributed to a duly formed incorporated company, existing separate and apart from the individuals composing it, is of such general utility and application as frequently to induce the belief that it must be universal, and be, in all cases, adhered to, although the greatest frauds may thereby be perpetrated under the fictions as a shield. But modern eases, sustained by the best text-writers, confine the fiction to the purposes for which it was adopted — convenience in the transaction, of business and in suing and being sued in its corporate name, and the continuance of its rights and liabilities, unaffected by changes in its corporate members; and have repudiated it in all cases where it has been insisted on as a protection to fraud or any other illegal transaction.”

It can not be doubted, from a perusal of the evidence in this case, that this subsidiary organization, the Reformers Mercantile & Industrial Association, was organized purely and simply as an aid to the parent body, officered by the same officers as those controlling and dominating the parent body and for the purpose of assisting the members of the parent-body. It was considered by all of the members of the organization and all of its officers, and so stated time and again in their utterance’s before the delegates in their annual session, that these organizations were all part and parcel of One Grand Fountain of the United Order of True Reformers. Those who became members of this organization in Cincinnati did so upon the belief and understanding that this great organization embraced all the subsidiary organizations and branches known as subsidiary branches. In truth and in substance the real company was the Grand Fountain of the United Order of True - Reformers and it dominated and controlled all the other branches and organizations.

In view of this conclusion we are of the opinion that a decree should be entered in this case in accordance with the prayer of the petition of the plaintiff, and that this property in Cincinnati, now in the hands of a receiver, should be held and administered for the benefit of the members of this Grand Fountain who are citizens and residents of Hamilton county, Ohio, who may have come in or may hereafter come in and ask to participate in the benefits which they claim in this property.

Jones (Oliver B.), J., and Gorman, J., concur.


author: Houck, J.

text:
    JURISDICTION IN AN ACTION FOR. INJURY BY A MOTOR VEHICLE.
    Court of Appeals for Fairfield County.
    Alonzo Murdock v. S. G. Saum.

    Decided, March Term, 1915.

      Justice of the Peace — Jurisdiction of, if Any Has Been Conferred — In Actions for Injuries Caused by Motor Vehicles■

    Section 6308, providing that actions for injury to a person or property, caused by the negligence of the owner of a motor vehicle, may be brought in the county wherein the injured person resides, does not confer jurisdiction on a justice of the peace in a township other than the one where the injury complained of occurred.

      J. H. Fultz, for plaintiff in error.

      J. E. Powell, contra.

      Motion to require the Court of Appeals to certify its record In this-ease overruled by the Supreme Court, June 4, 1915,

   Houck, J.

This is a proceeding in error to reverse a judgment of the common pleas court of this county in affirming a judgment of a justice of the peace.

Suit for $25 was brought before a justice of the peace of Richland township, Fairfield county, Ohio, wherein S. G. Saum sought to recover damages from the plaintiff in error, Alonzo Murdock, for injuries to said Saupi’s buggy, claimed to be the result of said Murdock driving his automobile against said buggy, thereby breaking and injuring same. The action was attempted to be brought under favor of Section 6308 of the General Code.

Murdock resides in Perry county, Ohio, and Saum in Richland township, Fairfield county, Ohio. -Summons for the defendant Murdock was issued by the justice of the péace to the sheriff of Perry county, Ohio, and Murdock filed a motion attacking the jurisdiction of the justice of the peace, claiming he was without jurisdiction of the subject-matter of the' suit. ■ The motion was overruled and exceptions taken. -A trial was had, and judgment rendered in favor of the plaintiff Saum for $25.

Error was prosecuted to the common pleas court, and the judgment was affirmed, and error is now prosecuted to this court to revérse the judgment of the common pleas court in affirming the judgment of the justice of the peace.'

' In Ohio the justice’s court is a tribunal with limited authority, and is to be strictly held within the limits of the prescribed jurisdiction, and its records must affirmatively show the facts establishing jurisdiction. ■

A justice of the peace has no power, authority or jurisdiction, except that given by statute, and the powers being purely statutory, therefore, before he can render a valid judgment he must have jurisdiction of the subject-matter of the action.

Section 10223 of the General Oode provides:

“Unless otherwise directed by law, the jurisdiction of justices of the peace, in civil cases, is limited to the township wherein they have been elected, and wherein they reside.”

"We have before us the bill of exceptions containing all the testimony taken before the justice, the bill of particulars and all the original papers in the case, and we have carefully examined them.

The bill of particulars does not allege that the injuries complained of occurred in Richland township, Fairfield county, Ohio, and the evidence, as presented by the record, does not establish that fact.

It can not properly be claimed that Section 6308 of the General Oode confers jurisdiction in a justice of the peace in a township of his county other than where the injuries complained of occurred. The injuries complained of in this case, so far as the record discloses, did not occur and were not made in the township wherein the justice of the peace resided, and for which he had been elected, as required by Section 10223 of the General Code; therefore the justice of the peace had no jurisdiction of the subject-matter of the action, and could not legally act in the premises.

In passing upon this case we do not deem it necessary for a proper determination of the question, involved herein to say what jurisdiction, if any, is .given a justice of the peace under Section 6308 of the General Code, and therefore do not attempt to do so.

We are of the opinion that the justice of the peace had no jurisdiction of the subject-matter of the suit, and the judgment of said justice is reversed, and the judgment of the common pleas court in affirming the said judgment of the justice of the peace is reversed, at the costs of defendant in error.

This cause is remanded to the common pleas court for further proceedings according to law.

Shields, J., and Powell, J., concur.


author: Gorman, J. Jones (Oliver B.), J.,

text:
    NO APPEAL IN ACTIONS TO ENFORCE MECHANICS’ LIENS.
    Court of Appeals for Butler County.
    Frances M. Hollowell v. John D. Schraden et al.
    Decided, July 14, 1916.

      Mechanics’ Liens' — Are Purely Statutory — -Both in the Bight Itself and in the Method of Enforcing it — Had, no Existence in Chancery, and Actions in foreclosure of Such Liens Are Not Appealable.

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

      Michael Minges and Andrews c& Andrews for plaintiff.

      Clinton Egbert and Edgar A. Belden, for defendant.
   Gorman, J.

Heard on appeal.

The plaintiff commenced this action in the court of Common Pleas of Butler County to foreclose a mechanic’s lien upon property of the defendant, John D. Schraden'. In his petition he set out that he had furnished materials for the erection of a dwelling house upon a lot of land described in the petition, belonging to John D. Schraden; that the materials were furnished to John Hoover, who was the principal contractor; that he had not been paid, and that he had taken the necessary steps to secure a lien upon the promises in accordance with the provisions of the statute in such case made and provided. He further averred that the defendant, the Campbell Brothers Manufacturing Company, claimed a mechanic’s lien upon the premises, and asked that they be required to set up their lien in the cause. He further averred that his was the first and best lien upon the premises for the payment of the amount due him, $1,190.97. He prayed that the amount due from said John Hoover to him may be. ascertained by the court, and that he be declared to have the .first lien upon the premises described in the petition, for the payment of said sum; that the priority of such lien may be ascertained together with the priority of the liens of the defendants, John Hoover and the Campbell Brothers Manufacturing Company; and that an order of sale of the premises may be made and that the premises be sold and the proceeds applied to the payment of the liens and other costs; and he prayed for such other relief as was proper. .

An answer to this petition was filed. The cause was heard in the court of common pleas and a judgment rendered in favor of the defendant,' John I). Schraden, and dismissing the plaintiff’s petition. '

Before the hearing of the cause in the common pleas court the Campbell Brothers Manufacturing Company dismissed its answer and cross-petition, disclaiming any lien upon the premises, thereby leaving the cause one between the plaintiff and John D. Schraden, as to whether or not plaintiff has a mechanic’s lien upon the premises.

Notice of appeal was given in the common pleas court and the cause was brought into this court on appeal. The defendant, John D. Schraden, has moved the court to dismiss the appeal on the ground that the action is not appealable.

The Constitution of the state as amended in September, 1913, provides that the court of appeals shall have jurisdiction on appeal in chancery cases. The Supreme Court in the- eases of Wagner v. Armstrong, Walker v. Burtscher, and James v. Vulgamore, decided February 15, 1916 (93 Ohio State), held in the second paragraph of the syllabus:

“All partition cases were originally cognizable in courts of chancery only and must still be regarded as chancery cases and therefore appealable under such terms and procedure as may be provided by law. ”

The right to a mechanic’s lien is one that is given by statute, 103 O. L., 369. This statute not only gives the method of obtaining a mechanic’s lien, but also provides the method of enforcing the same. Among other things, it provides that unless suit is begun within sixty days after a'notice is received from the owner of the premises to the owner of the lien, the lien shall be void. This statute also makes the lien valid for a period of six years from the date of the filing of the affidavit, and it provides for the priorities of the several liens that may be taken, whether liens of the head contractor, sub-contractor, material-men or laborers; and by provision of Section 14 of-the act the method of bringing an action and the kind of an action to be brought is provided.

The majority of the court are of the opinion that this action is not appealable because it was not cognizable in chancery and is not a chancery case.

Section 27 Cyc., page 17, in defining a mechanic’s lien, says:

“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 materials 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.

' In the same volume Cyc., on pages 317 and 318, under.the title of “Nature and Form of Remedy,” this language is employed : • •

“The right to a mechanic’s lien being entirely statutory, not only the right itself, but the method of enforcing it must depend upon the statute, and must be pursued in strict eompliánce with the’ terms of the statutes. Sometimes the statute does not assume to prescribe any special rules of practice or procedure, but leaves such matters' to be regulated by .the general rules governing other actions of a similar nature, and in this case the proceeding is an ordinary civil action and not a special proceeding.”

Again on page 321 of the same volume we find this language:

“Under some statutes the remedy for the enforcement of a mechanic’s lien has been prescribed by an ordinary action at law, or a proceeding in a court of law, not governed by equitable principles, Such a repiedy has been held to be exclusive of the jurisdiction of a court of equity in the absence of special circumstances demanding equitable interference, but a bill will lie when such peculiar circumstances exist as to render the interposition of a court of equity proper.”

Jones on Liens, Third Edition, Volume 2, Chapter XXX, Section 1184, lays down this proposition:

“A mechanic’s lien upon real property is wholly a creature of statute.- At common law a mechanic has. no lien upon a building for labor done upon it. Equity raises no lien upon it other than the grantor’s lien for purchase money. There is no common law lien of any kind upon real property.”

And in-the same volume,,Section 1559, the.author says:

“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 a lien to the equitable action to foreclose a mortgage, and under such statutes the proceeding is essentially a suit in equity.”

And in Section 1561 of the same volume, the author says:

“A court of equity can not assume jurisdiction to enforce a mechanic’s lien without the aid of a statute, in the absence of a special cause for equitable interposition. This lien is a statutory right, and the remedy for its enforcement is provided by statute, and can be pursued only before the tribunals and in the mode the statute provides. ’ ’
Again, in Section 1587, the author employs this language:
“In drafting the pleadings, the pleader should have the statute before him, with the view ,to seeing that all the essential requirements are met in the allegations of the petition or complaint. The statute which gives a mechanic a lien is in'derogation of the common law, and a lien can be established only by a clear compliance with the requirements of the statute. The petition must allege everything essential to making out a case under the statute,”

. The Supreme Court in the case of Dunn & Witt v. Kanmacher & Stark, 26 O. S., 497, in passing upon the question of the appealability of an action arising under the mechanic’s lien statute, which was a statute existing prior to the adoption of the act in 103 O. L., at pages 503 and 504, employs this language in speaking of the nature of the claim of the right of action under the mechanic’s lien:

“What was the nature of that right of action and upon what was it founded? It was their right to have the money in the hands of the board of trustees applied to the payment of their claim against Kanmacher and Stark; and that right was founded solely on the statute entitled ‘An act to create a lien in favor of mechanics, and others, in certain eases,’ passed March 11, 1843, and the act amendatory of and supplementary thereto, passed May 1, 1871. Without statutory aid, the claim of plaintiffs against the board of trustees would be wholly destitute of merit either at law or in equity; but under the statute, upon the filing with the board of trustees an attested account of the plaintiff’s demand against Kanmacher & Stark, it became the duty of the board of trustees to retain out of subsequent payments due, or to become due, to Kanmacher & Stark, the amount of plaintiffs’ account and for their benefit. ’ ’

And, further along, the court says, page 504:

“Where a statute gives a new right, and also'prescribes the remedy for its violation, the remedy so prescribed must be taken as exclusive, unless it appears from the statute that the Legislature intended otherwise.”

And the conclusion of the court is:

“Hence, in an action between the plaintiffs and the board of trustees, neither party was entitled to an appeal from the final judgment therein.”

There is no doubt that the mechanic’s lien had no existence in chancery, and has no existence whatsoever outside of the statute which created the right and also furnished the remedy for the enforcement of the right.

Chief Justice Nichols, in a very elaborate and well considered •pinion in th« ease* above cited, Wagner v. Armstrong, etc., has made some very lucid and pertinent statements with reference to the case at hand. In discussing the question of whether or not an action is a chancery case, he employs this language:

“Appealable eases, 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.”

And again, he says:

“The older authorities really throw more light on the subject than the more modern ones, and quite naturally, for before the consolidation of all remedial actions into the so-called civil actions, the line of demarcation between cases in chancery and those at law was more clearly drawn and was under consideration by the courts much more frequently than at present.”

And after quoting many authorities:

“From these authorities the doctrine may be safely laid down that a ease concededly chancery in its nature and calling for an equitable remedy will continue so in spite of the fact that the law may have • formally adopted the offspring of chancery. In short, once a chancery case, always a chancery ease, at least for jurisdictional purposes.”

Chief Justice Nichols in giving the court’s conclusion as to the nature of chancery cases, says:

“We will not attempt to categorically and finally answer the much mooted question: What is a chancery case? It would be a difficult if not a dangerous thing to do, and of doubtful benefit. It ought, however, to be approached, generally speaking, not from the modern viewpoint, but rather from the old-time conception. Especially would this be so with reference to well-recognized equitable remedies known to the.courts prior to the adoption of the code of civil procedure.
‘ ‘ This much, however, may safely be said: Á chancery ease is one in which, according to the usages and practices in courts of chancery prior to and at the time of the adoption of the Code of Civil Procedure, remedies were awarded in. accordance with the principles of equity and not in accordance with the rules of law. And the proper definition of the-term in our new Constitution can not be regarded as affected by the provisions of statutes relating to appeals, nor by the introduction bodily of equitable remedies into our statutes.”

We think it sufficient to have quoted this much from the opinion of Chief Justice Nichols, to support the conclusion which the majority of this court has reached.

A mechanic's lien being purely a creature of the statute, and the method of enforcing the lien being provided also by statute, such action to enforce it is not a chancery case. Such a right and such a claim were unknown both in chancery and at common law, and unknown before the adoption of our code. This being true, we think it inevitably follows as a correct conclusion that under the present Constitution as amended September, 1913, the action before us is not a chancery case, and is not appealable.

The motion of the defendant Schraden to dismiss the appeal for want of jurisdiction in this court to entertain the cause must therefore be granted.

Jones (E. H.), P. J., concurs; Jones (Oliver B.), J., dissents.

Jones (Oliver B.), J.,

dissenting.

In effect, the majority judges of this court hold that no case can be considered a “chancery case” where it is based upon a right secured by statute, unless that right or its equivalent was in existence in the time of courts of chancery.

. While they admit the equitable character of this action, because the right to a mechanic's lien and its enforcement is given by statute and can not be traced back to the hoary annals of a court of chancery, they hold that the action below, which was an action to declare a lien, marshal priorities of- liens and sell real estate for their payment, is not subject to trial on appeal under the appellate jurisdiction given to court of appeals by Section 6, Article IV, of the Constitution as amended September, 1912.

With this finding I am unable to agree.

There is no question that the right to a mechanic’s lien is a creature of statute. It is based upon the equitable doctrine that he who helps create a building upon real estate by furnishing either labor or material should be entitled to a lien upon it for payment, and the statute has therefore so provided. The character of the proceedings for the enforcement of such a lien is dependent upon the terms of the statute providing the remedy. Jones on Liens, Section 1559.

In Ohio, the lien is similar to that of a mortgage, which is also a creature of statute, and it is enforced in a similar manner by foreclosure and sale-. This proceeding is essentially equitable in its nature, although it, too, is provided by statute, as are all other actions (except prohibition) since the code of civil procedure.

Mechanic’s liens are specially favored by the Constitution as amended. Section 33, Article II, provides:

‘ ‘ Laws may be passed to secure to mechanics, artisans, laborers, sub-contractors and material-men, their just dues by direct lien upon the property, upon which they have bestowed labor or for which they have furnished material. No other provision of the Constitution shall impair or limit this power.”

To limit the right of a mechanic or material-man, secured under this 'provision, to a trial before a single judge without a jury and without an opportunity for a review of the facts by appeal, would certainly not in this important matter be a compliance with the desire of the people in amending the Constitution.

The proceeding for the enforcement of a mechanic’s lien is provided by 8323, General Code, as found in 103 O. L., 377 (Section 14).

“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, either as lien-holders or otherwise, in any * * * house * * * and the land on which it stands * * * and obtain such judgment therein' for the rent or sale thereof a* justice and equity require.”

It differs materially from the lien law under consideration in the ease of Dunn & Witt v. Kanmacher, 26 O. S., 497, where, as stated in the syllabus, the remedy was by “an action of money had and received” as prescribed by Section 5 of the mechanics’ lien act (S. & C., 834), and the holding that there was no right of appeal in that case has no weight here, because it was for trial by a jury and involved no equitable questions.

The proceeding given by Section 8323 is equitable in its nature, and if we now had separate courts of law and courts of chancery it would be brought before a court of chancery. Or if the action were in the federal court with its separate jurisdictions, it would be docketed and heard as an action in equity and not as a case at law.

In Gilchrist v. Railway Co., 58 Fed., 708, at page 710 the court uses the following language in commenting upon the jurisdiction of courts of equity in the enforcement of statutory laws:

“It is claimed by the plaintiff in the cross-bill that the lien of the judgment creditors in the ease at bar is a legal lien given by law, and hence can not be enforced in a court of chancery, and hence this court can have no jurisdiction of the matters set forth in the original bill. No doubt this point can be presented at any time in this court. It is true that the lien given in this case is a statutory lien. But that is no reason why it may not be enforced in equity. Pomeroy in his Equity Jurisprudence (Volume 1, Section 167) classes statutory liens as coming exclusively within the jurisdiction of a court of equity, and adds:
“ ‘In addition to the liens above mentioned which belong to the general equitable jurisdiction, 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.’ ”

The able opinion of Chief Justice Nichols in the ease of Wagner v. Armstrong supports my view. While it concedes the difficulty and undesirability of giving an exact statement or definition of a chancery ease, it states that “the terms ‘equity’ and ‘ehancery’ are interchangeable terms and are constantly used jem synonyms in all our states as well las in England.”

That the term "chancery cases” is not limited to old rights known only to the antiquities of the law, but is applicable to new rights and remedies such as those seeking enforcement in this proceeding, authorized and provided by statutes and constitutional provisions just enacted, it is only necessary to quote the following words of the Chief Justice in Wagner v. Armstrong:

"It would not do, however, to lay down a hard and fast rule, that only such chancery cases as were known to that period of our legal history could have been intended by our Constitution makers as being the cases subject to appeal. The changing condition of the times, development along new lines, the springing up of new problems, progress in many of the avenues of life — ■ these things beget new rights and obligations that call for new and equitable remedies.
"Equity is not only elastic as to its remedies, but it is progressive.
"Its principles are indeed immutable, founded as they are on exact justice and equality before the law, but equitable remedies are constantly subject to enlargement.
"These considerations make it manifest, therefore, that an all-embracing and satisfactory definition of a chancery case would be most difficult to obtain, and if obtainable might well promote injustice rather than justice. ’ ’


text:
    MENTAL CAPACITY OF A TESTATOR..
    Court of Appeals for Muskingum County.
    Ella Shuey et al v. Dellard Fink.
    Decided, November Term, 1915,

      Wills — Contest of — Error in Admitting Opinion of Witness as to the Mental Capacity of the Testator.

    In an action to set aside a will, the question of the mental capacity of the testator is for the jury, and it is error to permit a question to be answered which calls for the opinion of the witness as to whether the testator was capable of making a will.

      J. H. Wharten-by and 2?. JS. Buker, for plaintiffs in error.
    P. B. Tawnehill, contra.
   Houck, J.

The defendant in error brought suit in the Common Pleas Court of Muskingum County, Ohio, alleging in his petition that a certain paper writing, which had been admitted to probate in said county as the last will and testament of Jacob Fink, deceased, was not his valid last will and testament, because at the time of the signing of the same the said Jacob Fink was not of sound mind and competent to make a will.

The cause was submitted to a jury, and a verdict rendered finding that 'the paper writing was not the last will and testament of said Jacob Fink, and a judgment was entered on the verdict. The plaintiffs in error, the defendants' below, have prosecuted error to this court, seeking a reversal of the judgment below, and setting forth in their, petition in error several grounds of alleged error; but we think, for a proper determination of this case, it is only necessary to refer to but one of the alleged errors, to-wit, did the court err in admitting certain testimony offered by plaintiff below oyer the objection of the defendants below, and if so, was it prejudicial to the rights of said plaintiffs in error?

The testimony complained of is that of Laura Fink, who in part testified as follows:

“Q. Now, Sirs. Fink, basing your opinion upon what you saw there daily of the old man, and particularly from the time of his sick spell in the spring or summer of 1912, and before 'the time the will was signed, December 12, 1912, basing your opinion upon the matters you have heretofore testified about, what is the opinion that you have formed as to whether or not Mr. Fink was capable of planning and executing such a paper as was here offered as his will?
“(Objection by counsel for defendant; sustained.)
“Q. I will change the question. Whether or not he was competent to execute a will?
“(Objection by counsel for defendant.)
“ Q. I insist. To execute or make a will.
“(Objection sustained.)
“Q. Basing your opinion upon what you have testified to, and from your knowledge and daily observations of the old gentleman at the time this will was made, what would you say as to whether or not his mind was clear?
“ (Objection by counsel for defendant; overruled;,exceptions.)
“ Q. I will change the question. Keeping in mind what you observed as to the old gentleman there, in your observation of him daily, as you have already detailed and testified about here, have you an opinion as to whether or not he was competent to make a will?
“(Objection by counsel for defendant; sustained.)
‘ ‘ Q. Mrs. Fink, I want to put this question to you: Basing your opinion upon what you observed as to the condition of the oíd man and upon what you have already testified to, do you think that Mr. Fink had the mental capacity to comprehend the nature of the act he was performing, the extent of his property of which he was disposing, a realization of the relation which he held to those who had claims upon him, and an ability to make a rational selection among them?

This was objected to by counsel for the defendant, and the objection was sustained by the court, but after some preliminary questions in explanation of this question counsel renewed the question, and the witness was permitted to answer, and her answer to the last question quoted above was, “I don’t think he knowed. ’ ’

Keeping in view the questions that precede the last one and the answers sought to be obtained by them, and the question to be determined by the jury under the issue raised- in the case at bar, we think the court erred in permitting the answer to the last question quoted above to go- to the jury. It was a question for the jury to determine, under proper evidence, as to whether or not Jacob Fink was of sound mind and memory and possessed mental capacity sufficient to make a will, and not for the witness to determine that he was or was not so qualified. We think this question was not a proper one, and that the answer thereto should have been excluded from the jury. The question referred to inquired for the witness’s knowledge of the mentality required to make a will. The jury was impaneled to try and determine as to whether or not Jacob Fink was of sound mind, or whether or not he possessed mental capacity, at the time the alleged paper writing was executed, sufficient to make a will; and that question was . not to be determined by the opinion of the witnesn. •

The question referred to contains this language: “Do you think that Mr. Fink had the mental capacity to comprehend the nature of the act he was performing ? ’ ’ This certainly referred to the act of making a will, and that was the question to be submitted to the jury, and it was the duty of the jury to determine this fact, and not for the witness. The question called upon the witness (not in so many words, but in the plain meaning and import of the words used iñ the question) to state what her opinion was' as to the capacity of the testator to make a will. This branch of the inquiry involved a question of law 'and. fact, and, to the extent that capacity was involved in the issue, the-very question to bei determined by the jury. It furthermore assumed that the witness knew the degree of capacity' which the law required for the performance of the act of executing a will.

Taking this view of the ease, and finding error in the record, as hereinbefore indicated, prejudicial to the rights of the plaintiffs in error, we think the judgment of the common pleas court should be reversed, and therefore the judgment is reversed and the cause remanded to the common pleas court for a new trial.

Shields, J., and Powell, J., concur.


text:
    AS TO WHETHER. APPEARANCE WAS ENTERED BY THE DEFENDANT.
    Court of Appeals for Muskingum County.
    H. L. Dillon v. The Carlisle Garment Company.
    Decided, May Term, 1915.

      Defendant Foreign Corporation — Challenges the- Jurisdiction of the Court — Defective Affidavit in Attachment

    1. A reviewing court is bound by tke record, and wkere so far as is disclosed by the record the defendant appeared for the sole purpose of challenging the jurisdiction of the court, an entry of appearance can not be claimed, notwithstanding the statements by counsel that other motions were also filed by the defendant.
    2. An affidavit for attachment is clearly defective, which does not negative the exceptions found in the statute. ■ " •

      A. A. George and A. J. Andrews, for plaintiff in error.
    O. T. Marshall, contra.
   Houck, J.

This is a proceeding in error from the Common Pleas Court of Muskingum County, Ohio.

The plaintiff in error prosecutes error to this court to reverse the judgment .of the court below in dismissing the proceedings of' plaintiff in error, the plaintiff below, and holding that the affidavit in attachment was insufficient in law. The affidavit in attachment is as follows:

“In the Court op Common Pleas op Muskingum County, Ohio.
“H. L. Dillon, plaintiff, vs The Carlisle Garment Company, a corporation, defendant.
‘ ‘ State, of Ohio, Muskingum County, ss.
“H. L. Dillon upon his oath says that'the defendant, the Carlisle Garment Company, is a foreign corporation, and nonresident of the state of Ohio;
= “That he has filed simultaneously herewith, his petition praying for judgment in the sum of $500 for breach of contract, for personal services rendered the defendant company, and for money due and owing to plaintiff; that said sum of money is just; that affiant believes plaintiff ought to recover thereon the sum of $500; that there are no offsets or counter-claims to or against the same; ■
“H. L. Dillon.
‘ ‘ Subscribed in my presence and sworn to before me this 23d day of April, A. D. 1914.
“Leroy H. Talley, “Clerk of Courts

The plaintiff in error maintains that the affidavit is not only sufficient in law, but insists that the defendant has submitted itself to the jurisdiction of the court by appearing therein by counsel, and thereby has waived any defect in the affidavit, and has submitted itself to the jurisdiction of the court.

A reviewing court must rely wholly and entirely upon the record as presented in each ease in all proceedings in error. We find nowhere in the record any appearance of the defendant save and except to file a motion to set aside service by a pretended publication, and tbe motion contained tbe following:

“Now comes the defendant and appearing for tbe purpose of tbis motion only, and disclaiming any intention to enter its appearance in this cause, moves tbe court to set aside tbe pretended service of summons by publication in tbis cause, and that tbe same be held .for naught for tbe following reasons: * $ $ ,

Tbe motion simply^ challenged tbe jurisdiction of tbe court over the person of tbe defendant, and in no' way entered its appearance in said action. Tbe defendant bad a right to do tbis, and in so doing it did not enter its appearance in- said action, because tbe motion was filed for tbe sole and only purpose of questioning tbe jurisdiction of the court over' its person, and by so doing tbe defendant in no way entered its appearance in said action. - ■

Tbis doctrine is well established in tbe case of Long v. Newhouse et al, 57 O. S., pages 368 and 369, wherein Judge Minshal] says:

“If a party may at the same time invoke the jurisdiction of a court on tbe merits of an action, and deny its jurisdiction over his person, it would work great injustice. He could, under such practice, if tbe judgment on the merits is in his favor, avail himself of it as a bar to another action, but if it should be against him be could set it aside for want of jurisdiction of bis person. ■ Hence it is said that, ‘ If a party wishes to insist upon tbe objection that be is not in court, he must keep out for all purposes except to make that objection.’ ”

It will be noticed that in tbe case at bar tbe defendant availed itself of tbe first opportunity to question tbe jurisdiction of tbe court over its person, and thereby in no way entered its appearance in tbe case.

So far as disclosed by tbe record, this-is tbe only time that tbe defendant appeared in court in the case at bar, and therefore we do not think it can be justly claimed that tbe defendant submitted itself to tbe jurisdiction of tbe court. If the statements with reference to what bad occurred in tbe court below, as suggested by counsel for plaintiff in error (as to the defendant filing other motions, or otherwise appearing in the case), appeared in the record, then the conclusion of this court might be otherwise; but as we have already said, this court is bound by the record, and can not go outside of it in passing upon the questions involved in this action. We are bound by the record and must adhere thereto.

Is the affidavit defective? We think it is. We are of the opinion that the claim of counsel for plaintiff in error, that there are two grounds set forth in the affidavit for-attachment, is.not well taken, for the reason that the plain language of the affidavit discloses there is but one ground, to-wit, a foreign corporation.

Counsel for plaintiff in error seem to rely upon the case of Rosenbaum v. Cohen, reported in 13 C.C.(N.S.), 102, and 22 O. C. D., page 637, but we do not see how this is applicable to the ease at bar, because it relates to eases in attachment before justices of the peace, and certainly has no bearing on the ease at bar.

We are of the opinion that the affidavit for attachment in the present case is clearly defective, and is not sufficient in law, because it does not negative the exceptions provided in the statute, and we need but cite the case of Leavitt & Milroy Company v. Rosenberg Brothers & Company, 83 O. S., page 230 , in support of same.

. We find no error in the record prejudicial to the rights of plaintiff in error, and therefore the judgment of the common pleas, court should be affirmed, and said judgment hereby is affirmed.

Shields, J., and Powell, J., concur.


author: Gorman, J.

text:
    VOID TRANSACTION BY A SALES ACENT.
    Court of Appeals for Hamilton County.
    William F. Pagel v. Edwin K. Creasy et al.
    Decided, February 14, 1916.

      Agency — One Employed to Sell — Can Have no Interest in the Subject-Matter of the Sale or Earn a Profit Thereby — Unless Hone with the Full Knowledge and Consent of Both Principals — No Relief in Law to Either Party to Such a Transaction — Revision of Interlocutory Orders in a Common Pleas Court Composed of Several Judges.

    1. In counties in which the common pleas court is composed of two or more judges, a ruling by any one of the judges on an interlocutory matter is the ruling of the court, and the judge who has the case on final hearing is at liberty to correct errors of law previously made, whether made by himself or by another judge.
    2. A contract entered into by a sales agent of a sugar refining company, whereby he was to sell to the parties of the other part one thousand barrels of sugar at the then market price, the sugar to be resold by said parties upon delivery, which was to be delayed as long as possible, and the profits or losses from the purchase and sale to be then equally divided between the sales agent and the parties of the other part, is void as against public policy, and demurrer lies against an action by the sales agent to recover the share claimed by him of said profits.
    3. A contract entered into by P with one of two partners in business, whereby without the assent of the other partner, P was to be permitted to share in the profits of. the said partnership, is not en-forcible;

      Sherman T. McPherson, for plaintiff in error. .

      Mackoy & Mackoy, contra.
   Gorman, J.

The plaintiff in error brought an action to recover from defendant in error the sum of $822.62, with interest from the 1st day of November, 1913, being the amount of one-half the profits which the plaintiff claimed resulted to the defendants upon the purchase and sale of one thousand barrels of sugar.

In his petition the plaintiff claimed that he entered into a contract with the defendants whereby he sold to them one thousand barrels of sugar from the Warner Sugar Refining Company, at the then market price of $4.20 a hundred pounds, New York basis, the delivery of the sugar to be held off as long as possible, and that the defendants agreed with ■ him to sell the sugar bought as aforesaid, and that, the profits or losses derived from the purchase and sale of said sugar as aforesaid should be equally divided between said defendants and' the plaintiff, William F. Pagel. He further says that in pursuance of the agreement there was shipped to said defendants one thousand barrels of sugar at various .times during the summer of • 1913, and that said sugar was sold by the defendants at. a total profit of $1,645.24, one-half of which, $822.62, he claims under the contract belonging to him.

Defendant by answer set up that the plaintiff, Pagel, was the selling agent of the Warner Sugar Refining Company at the time the sale of the thousand barrels of sugar was made to them; that they did buy from the Warner Sugar Refining Company through the plaintiff a thousand barrels of sugar at the then market price of $4.20 per hundred pounds, deliveries to be delayed as long as possible; that said sugar was sold •to them in- the usual course of business. The defendants deny that the profits on the said thousand barrels, of sugar was $1,-645.24. ' And further answering the defendants state that if they entered into an agreement on May 2, 1913, with the plaintiff for the purchase by plaintiff and defendants of the said thousand barrels of sugar from said Warner Sugar Refining Company, or agreed or had'agreed on or about that date with the plaintiff that the defendants should sell the said sugar so purchased from the said company and that the profits and loses derived from the. sale thereof should be equally divided between the plaintiff and defendants as set forth in the petition, ‘said agreement and each' and every part thereof was and would have been contrary to public policy, illegal, void and of no binding force or effect, because on said date and for some time previous thereto and thereafter ..plaintiff was. a sales agent in the city, of Cincinnati and state of Ohio for said Warner Sugar Refining Company, selling sugar for his said principal on a commission basis for each barrel sold; and representing himself to be the sales agent of the said company, and the defendants believing him to be such, plaintiff had solicited an- order for and on behalf of said principal for said sugar and defenlants bought the said sugar from the said company through the plaintiff acting as its said sales agent, but said purchase was made solely for the 'account of defendants, and plaintiff had.no interest whatever therein as purchaser or otherwise with defendants, but that plaintiff as said sales agent was paid and received the usual ’ commission-from his said principal, the Warner Sugar Refining Company; that plaintiff was not authorized, empowered or permitted to become a purchaser in whole or in part of said sugar, and if said plaintiff had acquired or had any interest in the purchase or sale of said sugar except as sales agent of the Warner Sugar Refining Company it was without the knowledge or consent of his principal or these defendants. Defendants therefore asked to be dismissed with their costs.

■ A demurrer was filed to the second defense, which set up the agency of the plaintiff and that he was not authorized to acquire an interest in the purchase of said sugar. This demurrer coming on to be heard was sustained by one of the judges -of the common pleas court, upon the theory that there was no double agency in the case.

Thereafter an amended answer "was filed in substance setting up the same defense.

When the case was called for trial' plaintiff obtained leave to file an amended petition, setting out practically the same state of facts as in the petition, but alleging that the agreement as to profits was as follows:

Plaintiff alleged “that the said defendants, Edwin K. Creasy and Llewellyn V. Creasy, and plaintiff should divide equally the profits to be made by the advance in the price of sugar 'in the market, or if the same declined the losses should be divided equally between them, the gain or loss to be based on the- price of said sugar on the date of delivery of the same to the said defendants.”'

This part of the amended petition differed from the petition in that in the petition it was claimed that the plaintiff and the defendants were to divide the losses or profits which might result from the resale of the sugar without reference to.the market price.

A second amended answer was filed to this amended petition, which in substance set up .the facts set out: in the original answer.

It appears from the statements of counsel that when, this case was called for trial, the trial judge was of the opinion that the demurrer.filed to the.second defense of the answer should have been overruled, and after a' conference with the- judge who sustained the demurrer the trial court overruled the demurrer. The record fails to show that any demurrer was filed, to the. second amended answer or to the amended answer, and the record also fails to disclose that an entry was made on the day that it is claimed that the demurrer was overruled by the trial.court. .

The cause was heard on March 25, 1915, and upon that day it is claimed that the trial judge overruled plaintiff’s demurrer to the second defense of the answer. Long after, the case was heard and the verdict and judgment rendered in favor of the defendants, to-wit, on May 11, 1915, an entry appears upon the journal setting forth that the demurrer of the plaintiff to- the second'defense of defendants’ amended answer was argued and overruled, to which ruling of the court the plaintiff by his counsel excepted. The minutes state, 619, “Entry nunc pro tunc,” but the record fails to show on what day this entry should have been made. It was made on May 11, but as “nunc pro tunc” and there is an absence in the record of the date when the ruling was really made by the court.

The plaintiff in error complains that the trial judge should not have overruled the demurrer to the amended petition, but should have abided by the ruling of the former judge who sustained the demurrer to the second defense of the answer.

"We are of the opinion that the plaintiff in error was not prejudiced by the ruling of the trial judge in this matter. When it is considered that' the Court of Common Pleas of Hamilton County is one court, notwithstanding the different individuals who sit upon the bench of that court, and when it is further considered that it is not material what particular judge rules upon an interlocutory matter, it is a ruling of the common pleas court, we are of the opinion that the individual judge who tries a case has a right at the time the final judgment is rendered to correct any errors of law that may have been made in any interlocutory orders or rulings, whether they have been made by himself or by any other judge of the common pleas court.

The right so to rule seems to have been established in several cases heard in the common pleas court, affirmed by the circuit court and by the Supreme Court.

The main question however, is whether or not the plaintiff had a right to recover under the faets shown in this case. He was an agent of the Warner Sugar Refining Company. The evidence shows that he was the sole selling agent in Cincinnati for that company; that no other broker or agent could place an order with the Warner Sugar Refining Company for the sale of any-sugar in the Cincinnati territory except the plaintiff. The evidence further discloses that his principal, the Warner Sugar Refining Company, had no knowledge of the alleged agreement made by the plaintiff with the defendants to divide the profits and losses arising from the purchase and sale of the thousand barrels of sugar. The record further discloses that the plaintiff received his regular commission from his principal for the sale of the thousand barrels of sugar to the defendants.

We think the law is well settled in the state that an agent employed to sell, can not purchase for himself either directly or indirectly, nor can he have any interest in the subject-matter of the sale without his principal’s consent. The law does not suffer one who is an agent of a vendor to have any interest in a contract of sale, or to earn any profit thereby outside of his regular compensation, unless it is done with the knowledge and consent of both principals. This rule of law we think is clearly stated in the ease of Bell v. McConnell, 37 O. S., 396; and Peckham Iron Co. v. Harper, 41 O. S., 100.

Mr. Pagel was a sales agent in Cincinnati of the Warner Sugar Refining Company. 'Whether he was, or whether he was not, he was a broker and undertook to sell the sugar of the Warner Sugar Refining Company. He could not enter into any engagements which would subject him to a temptation to fail to serve his principal to his utmost capacity.

In the case above cited, Bell v. McConnell, the court, among other things, said:

“This case presents the single question. Can a real estate broker, who assumed to aid both contracting parties in making an exchange of* real estate, recover compensation for his services from either, upon an express promise to pay, in a case where each principal had full knowledge of and assented to the double emlpoyment?”

The court proceeds to say:

“It has been decided (Rupp v. Sampson, 16 Gray, 398, and Siegel v. Gould, 7 Lans., 177), and is not doubted, that such broker may recover from both or either where his employment was merely to bring the parties together; and it is equally clear, both upon principle and authority, that in case of such double employment he can recover from neither, where his employment by either is concealed from or not assented to by the other. Several reasons may be given for this rule. In law, as in morals, it may be stated that, as a principle, no servant can serve two masters, for either he will hate the one and love the other, or else he will hold to the one and.despise the other. Luke 16, 13. Unless the principal contracts for less, the agent is bound to serve him with all his skill, judgment and discretion,” etc.

Indeed, it may be stated that the rule does not depend upon whether or not the principal is injured by the conduct of the agent. The wholesome rule is that, the agent shall not put himself in a position where he may be tempted to betray his principal or to serve himself at the expense of his principal.

In Peckham Iron Co. v. Harper, supra, the court on page 108 says:

“It is a fundamental rule that an agent employed to sell can not be a purchaser, unless he is known to his principal to be such; nor is the rule inapplicable or relaxed when the employment is to sell at a fixed price. Ruchman v. Bergholz, 37 N. J. L., 437. The law will not suffer one to earn a profit, or expose him to the temptation of a dereliction of his duty, by allowing him to act, at the same time, in the double capacity of agent and purchaser. Church v. Marine Ins. Co., 1 Mason, 341.”

Many authorities might be cited to support the rule above laid down. -Suffice it to say that Pagel was a sales agent of the Warner. Sugar Refining Company, and as such it was his duty to serve his principal alone, and 'he could not enter into a contract with the defendants or other proposed purchaser whereby he, Pagel, would-make a profit upon the sale or resale of the sugar, without a full and fair disclosure to his principal, the Warner Sugar Refining Company. The law does not aid either of the parties who enter into such a contract as this. It leaves them where it finds them. Neither the plaintiff nor the defendants could enforce such a contract as is claimed by the plaintiff to have been entered into in this case. The law is not partial in favor of the defendants who refuse to pay after the profits are made, but, as has been stated, on the grounds of public policy the law refuses to give assistance to either of the parties who make a contract which is utterly void on the grounds of public policy.

In this view of the case it is immaterial whether the trial court reversed the judgment which had been passed upon the. demurrer prior to the trial, or -not; the sole question is whether or not the demurrer to the second defense of the answer should have been sustained or overruled, and we are clearly of the opinion that the demurrer should have been overruled.

Furthermore, it appears in this ease that plaintiff’s contract was made with one of the defendants, who were partners, whereby he claims to have made an agreement under which he was to share in the profits of the business of the defendants.' There is no evidence that the other partner consented to this agreement, and surely a partnership even for a single transaction could not be entered into between the plaintiff and one of the defendants without the consent of the partner of the defendant who made the agreement.

Without considering the other questions involved in the case, we think that, for the reasons stated, the judgment of the trial court in instructing the jury to return a verdict in favor of the defendants was correct, and the judgment will be affirmed.

Jones (E. H.), P. J., and Jones (Oliver B.), J., concur.


author: Grant, J.

text:
    PAINTER INJURED BY THE BREAKING OF A LADDER.
    Court of Appeals for Cuyahoga County.
    George L. Westropp v. William F. Schuck.
    Decided, January 25, 1915.

      Negligence — Employer Not Liable to Employee for Injury — Where the Employee Deliberately Elects “to Tahe the Chance” — Proximate Cause — Admissibility in Evidence of a Conversation by Telephone.

    Two painters, who had protested that one of the ladders furnished them was unsafe, received a telephone message from their employer in which he said he could not afford to buy new ladders, and telling them, according to one witness, to “come in,” and according to another witness to “go ahead and do the best you can.” Fearing that if they heeded a call to “come in” they would either be laid off or . given less desirable work, they agreed between themselves that they would stay and “take a chance.” The ladder broke and one of the men fell and was injured. Held:

    That the going to work, under the circumstances presented, constituted the original act of negligence and was the proximate cause of the injury.

      Patterson & Neiding, for plaintiff in error.

      Spear, Mills, Knight & Godfrey, contra.
   Grant, J.

Error to the court of common pleas.

For the purposes of clearness and brevity, the parties to this proceeding will be designated here as they were in the court below, that being in the inverse order of their present standing.

It is not disputed that at the time the plaintiff came to his injuries the defendant employed, regularly, more than five men and that he was not a contributor to the state liability insurance fund; so that, the plaintiff being in his service as a workman, the former allowable defenses of assumption of risk by the plaintiff, the contributory negligence of the plaintiff and the culpable acts or omissions of a fellow-servant in the same employment, if any of these was the fact, were not open to him.

The negligence alleged in the petition upon which the cause was tried below, and from which a liability was sought to be fastened upon the defendant, consisted, as was said, proximately to the injury, in providing appliances which, within the actual or putative knowledge of the latter were defective, unsafe and dangerous to be used in the service which the plaintiff was set to do by the master. Specifically, it was charged that within such knowledge the ladders upon which the plaintiff was ordered to work at the time, were not of equal size and were of insufficient strength.

It appears that the plaintiff was engaged, under the direction of the defendant’s foreman, in painting a house. Two ladders were provided which were set parallel to each other against the house. They were of unequal lengths, one being thirty-five feet and the other forty feet long. The mode of working was to suspend a scaffold or staging, consisting of a plank upon which the plaintiff was to stand, from the two ladders by means of hooks swung over the top rung of each. This method produced, it is said, an unequal strain upon-the rungs of the ladders, giving a tortious or rotary bearing at the points of contact of the hooks with the rungs.

The top rung of the shorter ladder was defective as to strength, so it is said, being in fact rotten, and it broke when the unequal strain was brought to bear upon it, precipitating the plaintiff from his place on the plank and so causing his hurts.

It appears that the plaintiff, before mounting the ladder, had misgivings as to the strength of the one that finally broke, and so stated to his fellow-workman, one Goldsmith. They then consulted their foreman, who directed them to call up Mr. Westropp, the defendant, at his shop, by telephone. Goldsmith did this, calling his attention to the. feared infirmity in the ladder and asking his direction in the matter. His purported answer was reported by Goldsmith to the plaintiff. As to this answer, two versions are given — one by Goldsmith to the effect that Westropp said when notified of the condition of the ladder, “Well, you boys come in.”

The reason they did not “come in,” as narrated by Goldsmith, was — in the language he then used to the plaintiff— “That means either an inside job or a lay-off.” To which the plaintiff responded, according to Goldsmith, that it was pretty warm and so he did not care for inside work. Goldsmith replied to this by saying, “Suppose we take a chance on them ladders.” And the plaintiff said, so Goldsmith says, “All right.”

And they went to work, with the result mentioned.

The plaintiff does not deny this proposition by Goldsmith that they should “take a chance” on the ladder in its then known or suspected defective condition. His testimony in this respect is as follows:

“Q. Didn’t Goldsmith then say, suppose we take a chance on them ladders and you both went up the ladder? You remember Goldsmith saying that? A. I don’t remember.
“Q. Will you say he didn’t say it? A. I couldn’t say whether he did or not. Something I don’t know, I won’t dispute.”

That the infirm or defective condition was known, or at least suspected by the plaintiff at the time, seems clear from what he says:

“Q. As a matter of fact you knew when you went up that ladder then that the ladder was liable to break if you went up on top of it, is that so? A. Well, at least I thought so.
“Q. So when you went up on that platform on the plank between those two ladders you knew it was liable to break and have an injury? A. Not as long as I see Gorman up there.
“Q. You thought so, didn’t you? A. I thought so, yes.”

The plaintiff’s account of what Goldsmith reported to him as coming from Westropp when the latter was called up for instructions by telephone, was this:

“Gorman came out and told me in the presence of the foreman that Mr. Westropp says that it is the best he can do. He can’t afford to get any new ladders, ‘So do the best you can with what you have got.’ ”

It should be said here that Goldsmith appears to have gone, indifferently, by the name of Goldsmith and the name of Gorman — it evidently being a case of idem sonans to the Teutonic apprehension.

It is not quite clear, we think, whether the words “So do the best you can with what you have got, ’ ’ are intended as the language of Westropp or the advice of Goldsmith, alias Gorman. But we infer the former.

In the plaintiff’s brief before us, the following appears:

“Plaintiff testified that when Goldsmith, at the foreman’s request, phoned to Westropp, Goldsmith reported that Westjopp said he could not afford to get other ladders and that they would have to use the ones they had, and that thereupon the foreman directed plaintiff and Goldsmith to proceed with the work.”

This does manifest violence to the language that the- plaintiff did use and which we have quoted from the record. Allowing it to be true, it would amount to a direction to the plaintiff to use the ladders he had, and would come fairly within the rule in Coal & Car Co. v. Norman, 49 O. S., 598, a promise to repair being implied from the language of the employer. At least the question of whether there was not an implication of such promise would be for the jury.

But what the plaintiff in fact testified in this respect falls far short of that. He was told to do the best he could with the appliances at hand. Surely it was not doing the best he could to mount to work on a ladder having a rotten rung, and he knowing it. We have, then, these things in the record: the plaintiff’s own statement to the effect that his employer told him to do the best he could with the ladders he had, and not a direction to use a ladder known or thought by him to be unsafe. His own statement is that he thought the ladder was liable to break and the testimony of his co-laborer — uneontradicted by him— is to the effect that he consented to the proposition of the latter to “take a chance” with the defective ladder, rather than to take a chance of losing his job or being put to work inside in hot weather.

His going to work under these circumstances was an original act of negligence, apart from and independent of anything that the master set him to do, and constituted the proximate cause of the injuries of which he complains. The record does not, in our opinion, present the question of assumed risk. That doctrine has to do with work at which the servant has been set by the master, and not with a method of work at which he has set himself upon his own initiative, the only direction of the employer being to do the best he could — presumably, as far as the master’s words go, the best for himself and for his own personal safety, and which by no reasonable intendment could be made to mean an instruction to expose himself to the perils of using an instrumentality thought bjr himself to be dangerous. If there was a risk he took it, not as an incident of a direction to work, but as one appertaining to a course of action which he saw fit to substitute in place of the course advised by his employer. It would be a novel proposition for a servant to disregard his master’s instructions and then hold the master responsible for whatever the former might see fit to do in place of them. And when it is not denied that the servant, instead of doing what he was advised to do by the master, consented to “take a chance” upon the very implement of the defective condition of which he was at the time complaining, then he put himself in the wrong, clearly so, as we must think, and should take the consequences flowing from that fact.

There is other testimony in the record, especially that of the foreman, Donalek, which strengthens the conclusion we have so far reached, but we can with safety rest on what the plaintiff says and on that which he does not dispute.

If this conclusion is sound, then the case should have been taken from the jury at the close of the plaintiff’s evidence, as was asked, or, certainly, at the conclusion of all the evidence, as was again requested. For the same reason the motion of the defendant for a new trial should have been allowed instead of denied, as the fact was.

The admission of testimony as to the talk had with Westropp over the telephone, was not an error, as we view it. At most, it was not to the prejudice of the party who complains of it.

The answers of the jury to several of the interrogatories propounded to them on the trial show clearly, in our estimation, that they did not consider the evidence in the case. In endeavoring to sustain the answers necessary, as they thought, to uphold the verdict, their attempted explanations proved that they ■had disregarded and paid no attention to,evidence without which the conclusion they reached could not find support. And this is an additional reason why the motion for a new trial should have prevailed.

Because of the errors found, the judgment complained of in this petition is reversed and the cause is remanded to the court of common pleas for such further proceedings there as may be in accordance with law.

Winch, J., and Meals, J., concur.


text:
    ACTION TO RESTRAIN PAYMENT OF SCHOOL CLAIMS.
    Court of Appeals for Holmes County.
    Albert E. Cline v. Oath Martin et al.
    Decided, December 27, 1915.

      Injunction — Sought Against Payment of Claims ly a School Boards Equity — Parties.
    An action does not lie to enjoin payment of claims which have not been liquidated or are not yet due, the owners of which have not been made parties.

      Carl Schuler, Prosecuting Attorney, Weygandt & Boss and W. F. Garver, for plaintiff.

      O. H. Workman, George W. Sharp and C. J. Fisher, contra.
   Houck, J.

This cause is here on appeal from the common pleas court of this county.

The plaintiff in his petition says that he is an elector and taxpayer of Knox township, in Holmes county, Ohio, and resides in the territory alleged to be in the Nashville village school district; that the defendants, Martin, Elder, Glasgow, Jones and Ligget claim to be the members of said board of education; that prior to the establishment of the said pretended Nashville village school district the same territory was included in what was then known as the Nashville special school district, which had been declared null and void by a decree of court; that the above named persons were also the members of the Nashville special school district; that while acting as members of said pretended Nashville special school district they incurred an indebtedness for wagons, hall rent, and hauling pupils, in the sum of about $2,200; that the defendants, as members of said village board of education, have assumed and agreed to pay said obligation of said former pretended board of education, and will do so unless restrained by order of court from so doing, and prays for injunction, etc.

The cause coming on to be tried, no answer being on file, it was agreed by all parties hereto that the defendants would file an answer in the nature of a general denial, and the cause was submitted on said pleadings, the petition and answer, and the evidence.

The evidence disclosed that all of the claims which plaintiff alleges had been assumed by the defendants, and for which he seeks to enjoin payment, have been paid, save and except two or three claims, amounting to about two hundred dollars, for hauling pupils, and the testimony as to them is so conflicting that the find that these claims, as they now stand, are unliquidated claims, actual sum due, if any, was not made clear to the court. We The evidence further discloses that a $1,200 note given by the former board of education to the Citizens Banking Company of Loudonville, Ohio, has not been paid, and plaintiff seeks to enjoin the present board from paying the same.

It will be' observed that the unpaid claims of those who conveyed the pupils to the schools are in dispute, and the exact amount due, if any, has not been ascertained and determined. It will further be observed that this is a suit in equity seeking to invoke the remedy of injunction against claims that have not been reduced to judgment, and in fact no testimony was offered proving or even tending to prove that the owners or holders of said claims had ever demanded or requested payment of the present board of education. And what is said here with reference to there being no demand or presentation of the claims for hauling pupils, and the same not being reduced to judgment, is applicable to the note held by the bank.

■ Prom what has been said it is apparent that the petitioner comes into a court of equity basing his action, so far as the first claim is concerned, upon unliquidated claims, seeking to have the amount du,e determined, and at the same time invoke the equitable remedy of injunction thereto, all of which is to be done through the medium of a proceeding in and relief obtained from a court of equity. Certainly this can not be done.

The suit at bar is not one at law, but in equity. The relief sought is not to determine as to the amount of or the legal liability as to the recovery on the claims and note in question, but the relief sought and prayed for is injunction.

The owner of .the $1,200 note, the Citizens Banking Company, is not made a party to the present action, and yet plaintiff • seeks to enjoin defendants from paying said note, in face of the fact that the evidence does not show that it at any time attempted to eolléct the same of the defendants,' and the further fact that no evidence was offered to show or tending to show that it had ever demanded payment of them. In view of these facts, how could plaintiff properly be entitled to a restraining order against the defendants preventing them from paying said note, without one of the real parties in interest, the Citizens Banking Company, being made a party defendant and given an opportunity to set up its defense if it desired to do so ? The banking company is not only a proper, but a necessary party to this suit, and is entitled to its day in court, and without such opportunity being given it is certain a court of equity would not be warranted in granting to plaintiff tbe relief he seeks.

Guided by the facts in this ease, and the law applicable to the same, we know of no reason why the plaintiff should be permitted by means of the equitable remedy of injunction to obtain the relief which he asks. Furthermore,- equity never seeks to act in contravention of law, nor does it seek to confer jurisdiction upon itself when it appears by the pleadings .or evidence, or both, that there is some remedy at law which has not been fully invoked, or where there is an ample remedy at law.

Taking this view of the case, we are of the opinion that a decree should be entered in favor of the defendants. The petition of plaintiff is dismissed, at his costs. Decree and judgment is entered accordingly.

Shields, J., and Powell, J., concur.