author: GRANT, J.

text:
    CHATTEL AND SALARY LOANS
    [Montgomery (2nd) Court of Appeals,
    January, 1916]
    Meals, Grant and Carpenter, JJ., of Eighth District Sitting.

       Charles Houser v. State of Ohio.
    No conviction for Violation of Chattel Loan Act without Pledge of Chattel Shown.
    A conviction can not be had as for the violation of a statute which prohibits the business of “making loans upon chattels or personal property of any kind” without first obtaining a license as provided in the act, when the evidence of the loan consists only of a note of hand, unaccompanied by any enforceable security “upon chattels or personal property;” a paper writing, signed by the borrower, but not sworn to nor recorded nor filed for record, the only material parts of which are certain recitations to the effect that the signer is the owner of certain undescribed chattels and that these are unencumbered, the writing being delivered to the lender, is not the security contemplated by the act.
    Error.

       Reversing Houser v. State, 30 Dec. (17 N. S. 153.)

   GRANT, J.

Charles Houser, plaintiff here, was tried in the municipal court of the city of Dayton, as for a violation of certain provisions of Sec. 6346 G-. C.

The affidavit upon which his trial was there had, and which was the first step towards jurisdiction taken by the trial court, was in the following words and figures, as to its material and charging parts:

“Did unlawfully then and there carry on the business, of making loans upon personal property, by then and there loaning the sum of $20.00 to one Mary Brown upon certain personal property, without first having then and there obtained a license so to do from the secretary of the state of Ohio, the said Charles Houser, not then and there being engaged in business as a bank or building and loan association, contrary to the statute in such cases made and provided, and against the peace and dignity of the state of Ohio.”

The trial resulted in the conviction of the accused and he was sentenced to pay a fine of $-and the costs. A new trial having been denied and an exception saved, error proceedings to reverse this judgment of conviction were prosecuted in the court; of common pleas, where the judgment was, upon consideration, affirmed. We are now asked to reverse' both of these judgments.

Various formal assignments of error are made, but the one relied on as basic in the case is that the conviction had in the court of first instance can not be supported by the evidence and so is contrary to law.

The two sub-sections of the statute upon which the accused was prosecuted and convicted, and which alone are material here, read, respectively, as follows:

Section 6346-1. “No person, firm or corporation except banks and building and loan associations shall engage or continue in the business of making loans upon chattels or personal property of any kind whatsoever, or of purchasing or making loam upon salaries or wage earnings, without' first having obtained a license so to do from the secretary of state.”
Section 6346-6. “Any person, firm or corporation, or any agent, officer, or employe thereof, violating any provision of this act, or that carries on the business of making loans upon chattels or personal property of any kind whatsoever, or of purchasing or making loans upon salaries or wage earnings without first obtaining a license as provided in this act shall, for the first offense, be fined not less than fifty dollars ($50.) nor more than two hundred dollars ($200), and for a second offense not less than two hundred dollars ($200) nor more than five hundred ($500) dollars, and it shall thereupon become the duty of the secretary of state upon such second conviction to revoke any license heretofore issued to such person, firm or corporation. ”

The inhibition of these provisions, so far as it touches the accused in this case, is against loaning money “upon chattels or personal property,” without first having obtained a license to do so from the secretary of state.

We assume as fully proved that the accused had no such license.

. For the rest, the single kernel of grain in the case, when sifted clear of a good deal of chaff is to be found in the following and only material facts: A woman applied to the accused, or the concern for which he must be deemed responsible, for a loan of money. Finally, and after some .circumlocution, she got it. It v was evidenced by one, or perhaps two, promissory notes, in the ordinary cognovit form, and in no other way.

These notes were not secured in any way beyond the signature of the maker. At the time, the woman was asked to sign and did sign a paper, which was represented to her by the lender as being a mortgage upon her furniture, it was not a chattel mortgage, nor anything resembling a mortgage. It consisted of several statements or recitations, the most material of which were of the tenor and effect that certain undescribed property belonged to the applicant for the loan and was in no way incumbered. The paper was not sworn to, nor was it ever filed or recorded in any public office, so far as appears.

The ulterior purpose of the accused and his coadjutors in the enterprise, probably was to get the woman to believe she was giving a mortgage on her furniture, in the expectation that she would be sufficiently frightened by that thought not to part with her belongings till the debt was paid, so that the lender would in effect have all the security that a mortgage would give him, without any of the disadvantages of taking a mortgage, including the taking out of a license under the statute. Still, it was not a mortgage, nor anything like a mortgage.

These being the facts alone essential, in our estimation, to a determination of the question before us, we are now to inquire what that question is.

To our apprehension and in this case, it is whether the loan made by the accused, under the circumstances mentioned, was a loan “upon chattels or personal property of any kind,” as those words are used in the statute under consideration. For loans thus made are the loans denounced by the statute when made by an unlicensed person, and for making which punishment was visited upon the accused by the judgment complained of here.

“Loaning upon chattels,” we take it, means loaning on the faith of chattels,, on the security of chattels, on the pledge of chattels — the faith, the security, the pledge, in any case being made good and effectual by some legally recognized and binding form of sanction. Such we apprehend is the usual, the ordinary and plain significance of the words used by the lawmakers in framing the enactment. In the absence of any reason apparent for imputing to them a technical or other different meaning, no reason is perceived for a departure from this customary use of them now. To force another meaning into them would, in our judgment, amount to an assault on the English language, or would at least be taking improper liberties with it, if not doing outright violence to it.

Indeed, we do not know that another meaning is seriously contended for here. The contention, rather, seems to be, if it is understood, that what is called a liberal construction of a penal statute shall be allowed in order that some general or wholesale mischief to the community at large shall be — not exactly punished in the person of the particular offender, but to secure immunity against future like offenses — such seems to be the argument, in effect, although of course the example of punishment in the case in hand must be visited on the accused at the bar, who, lest others may offend, is to feel on his own back the legal rod" in pickle provided by the statute in question.

' Shifting momentarily from legal to medical nomenclature, the claim appears to be that this penal law is to be used as a prophylactic, or, in common parlance, as a deterrent, against future misdeeds of other evil-minded persons, the prisoner to suffer vicariously in that respect as well as properly for his own misdoings. Certainly, if his own crime is made out beyond a reasonable doubt, then he should suffer for that single reason* and it would not be difficult to separate his proper and real offending from that which is sought to be reached by way of example to others.

But that does not appear to be the drift of the argument made to us, if we rightly catch it. We are asked to affirm a conviction arising not so much from a plain infraction of the known letter of a penal statute, as from what the “Immortal J. N.” used to call “the attitude of the situation.” That is, a necessity springs from the notorious bad conduct of so-called “loan sharks” and their oppression of the needy, which can be met only by the condign punishment of some one, in order that the practices may be guarded against and stopped. And of course the “horrible example” must be at hand as equally necessary, in order that this remedy may be advanced. It looks like a variety of that “military necessity” under which Dayton, Ohio, groaned a half century and more ago, and of which its people hoped themselves well rid, and all the country said Amen. Even Mr. Lincoln was ashamed of it. A citizen, by a process unknown to the law’s letter, to sustain which, as here, “the spirit of the law” was invoked, was seized and sent into the military lines of an armed enemy. General Burnside, in his return to the writ of habeas corpus, said: ‘1 An emergency is upon us which requires the operations of some power that moves more quickly than the civil. ’ ’ And the federal judge who denied the writ, in his opinion, said:

“The occasion which calls for the exercise of this power exists only from the necessity of the case; and where the necessity exists, there is a clear justification of the act. * * * In the judg- - ment of the commanding general the emergency required it}' and whether he acted wisely or discreetly, is not properly a subject for judicial review.”

This is not far different in tone from the appeal put up before us to look with leniency on a conviction which may be upheld if the “spirit of the law” can only be brought to bear. The doctrine appears to us somewhat vagrant, not to say lawless. We should as soon look to see the court of star chamber and its practices resurrected and transplanted to Dayton, as to think the Burnside theory of what law is has been revived and brought back among you.

“In Adam’s fall we sin-ned all,” said the old catechism. It was all right to punish Adam, but the rest of the line has not gained a foothold in enlightened jurisprudence. We see nothing in, the reason of the thing why Charles Houser should not be condemned if he has broken the commandment of the statute. We see no reason why he should be condemned if he has not broken the law, even though an example may be needed to keep others from breaking it. The probably mythical English judge who is said to have said in sentencing a culprit — “We hang you, not for stealing horses, but that horses may not be stolen,” has not been thought to have spoken in the voice of a just or humane jurisprudence.

Of course the proposition is not put up to us in this precise form. We are not in so many words asked to wrest a statute from its import of language, not on the side of leniency, but of severity, to the end that an ultimate general public good may result. But the appeal to interpret the statute not so much according to its letter as in its “spirit” of tutelage over the common welfare, to the disadvantage of a prisoner — in substance and effect to resolve the doubt, if there is one, not in his favor, but against him — the purport, we say, of the exhortation can hardly be mistaken. We can not allow the force of it to coerce a judgment on our own part, which would be at variance with that commended by the facts of this ease and the law applied to them, stripped of the ulterior consequences which may be supposed to flow from our action here upon the community, aliunde.

Having regard to this consideration and following the example of the prudent mariner who has been swept from his course by a gale of wind, we may with propriety, we think, take our bearings according to the chart of the statute, the breach of which is by the judgment complained of imputed to the accused. We have already adverted to what it prohibits, and have shown, as we suppose, that what the accused did violated none of the things forbidden by it. In other words, it is too plain for dispute, as appears by the evidence, that he did not loan Mrs. Brown money upon the faith, or pledge or security of chattels, although he made her think that he was doing so. He is not charged with obtaining money under false pretenses. What he really is charged with is not having a license. Collecting license fees is not the end or purpose of the statute; that is but the taxing incident of the law, designed to raise the revenue necessary to its administration.

Failure to obtain a license is not the mischief aimed at and to be repressed by the statute. Before going far afield for vagrant authorities to justify stretching the letter of a law that it may be executed in what is vaguely called its “spirit,” we may observe one cannon of construction by going to the title of the act to find out what its framers were striking at when they put it in words. That title is this: “An act to regulate and license the loaning of money upon chattels or personal property of any kind and of purchasing or making loans upon salaries or wage earnings.” It appears to us too clear for controversy that the mere failure to obtain a license, of itself and without more, without the further fact of loaning money on chattel security, is not enough to call down on the head of one who fails to have a license the penal consequences of a broken law. That professional lenders are bad men — some or all of them — is quite beside the question, as we must think. The defendant below was not prosecuted for being an all-around bad citizen, nor can he be punished for that, however culpable in that respect he may be. Bad citizenship is not a crime in this commonwealth. If it were, the formula of the crier would indeed be appropriate: ‘ ‘ God save the state of Ohio, and —!”

Upon full consideration of Fenn v. State, 25 Dec. 312 (17 N. S. 474), lately reviewed by us in the eighth district, construing this same statute, we held (opinion not reported), affirming the common pleas, that the words of the title declaring the mischief to be remedied by the act and defining its repressive purpose, are to be distributed over all of its subsequent provisions. The supposed offense prosecuted in that case consisted in not giving the borrower a card, as required by sub-section 3 of the act. The difference between the two cases in point of law, is, we think, nil.

We adhere to that holding, finding nothing in the considerations brought forward here to shake our confidence in its correctness. To do otherwise, finding the facts where we do find them, would place us under the reproach of allowing a man to be punished because he did not pay for a license to do a thing he did not do. This would be a legal solecism and a contradiction and confusion of moral terms.

In reaching this conclusion we have paid but scant attention to the elaborate discussion of the supposed law of the case, on either side, backed as this is by numerous citations put before us with characteristic industry and zeal. But attention has been paid to them, and, in the view we have taken of the case, a particular discussion of them would not be useful or informing. They are largely addressed to the appeal — to construe the controlling statute as a drag-net, where a particular man is asked to be punished under it, or in the words of the contention to apply its spirit if its letter shall not be enough. We have said all that we care to say on this point. To work a conviction the statute must point its finger to this individual accused with that degree of inerrancy which the criminal law requires at the hands of the state, and be able then to say: “Thou art the man!” That requirement has not been met; that burden has not been borne, but the reverse, as the evidence without contradiction shows.

We have the utmost respect for the authorities brought forward in the briefs. In our opinion they are beside the question. We feel that we must keep within the known landmarks of the law, and not stray into the fields of speculation as to what might be if it were interpreted in what is called its “spirit” and intention, instead of declaring it as it says and in our estimation plainly is. That this offender, and likely other evil-minded persons, may go unwhipped of justice because we administer a statute according as we find it to be, and not according to what it might be or should be, is true. But really we must not concern ourselves with that or permit that consideration to control us in .any way. We are not the legislature. Our guide is “Est ita lex.”

We deem ourselves guilty of no impropriety in closing our opinion in speaking of a statement to be found in one of the briefs. It is this:

“The common pleas court, after having heard the arguments of counsel and considering briefs, handed down a very able opinion sustaining the conviction of the municipal court, and now the plaintiff in error seeks to have this opinion set aside. ’ ’

If our function in this case is to set aside opinions, then we have labored under a singular delusion as to what the one duty of any court is — namely, to declare the law. We disclaim the right or the wish to do more.

What the consequences flowing from that declaration may be, is matter of indifference. We might as well concern ourselves with our shadows on the wall.

Fortunately there is a court for the correction of our errors, and we have no ambition but to be right, even at the expense of being set right by the power whose duty it is to do that. The law is the ruler of us all, and it behooves us all to walk with John Milton, “as ever in his great Taskmaster’s eye.”

There is no evidence in this record to support either of the judgments complained of.

For that reason both are reversed and final judgment for the plaintiff in error, to recover his costs, expended, is rendered.

Meals and Carpenter, JJ., concur.


source: Caselaw Access Project

author: JONES (O. B.), J.

license: Public Domain

text:
    GOOD WILL — INJUNCTION
    [Hamilton (1st.) Court of Appeals,
    January 24, 1916.]
    Jones, Jones and Gorman, JJ.

      Levy Overall Mfg. Co. et al. v. Crown Overall Mfg. Co.
    Solicitation of Old Customers by Vendor of Good-Will.
    The vendor of the good-will of a business may be enjoined from soliciting the trade of known customers of the old firm, or from improperly using his knowledge of the old business for the purpose of attracting customers to his new business, notwithstanding he retained the right to engage in such new business.

      Lawrence Maxwell, Cohen, Mach & Hurtig and Joseph S. Graydon, for plaintiffs in error.

      Harmon, Colston, Goldsmith & Hoadly and Oscar Berman, for defendants in error.

      Cohen, Mack <& Hurtig, for Margaret Walker.

      Affirming Crown Overall Mfg. Co. v. Levy Overall Mfg. Co., 25 Dec. 439.

   JONES (O. B.), J.

Plaintiffs in error seek to reverse the judgment of the superior court of Cincinnati granting a permanent injunction against them and awarding $15,000 damages to defendant in error the Crown Overall Mfg. Co.

The parties agree that an extensive business in the manufacture and sale of overalls had been carried on by Oscar Berman and Samuel Levy as partners under the name of Berman and Levy and the Crown Overall Mfg. Co. That the partnership was dissolved by consent, Berman buying the entire interest of Levy including specifically the good will of said partnership, the value paid for Levy’s one-half interest in this good-will being $15,000. The good will thus sold and conveyed was the good will of the business with all that imports, not merely the right to use the partnership name, occupy the old quarters or advertise as its business successor.

The facts of the case are well and fully stated in the opinion of the court below, Crown Overall Mfg. Co. v. Levy Overall Mfg. Co. 25 Dec. 439 (16 N. S. 561).

Counsel for plaintiffs in error strenuously insist that the ruling of the court below in regard to soliciting the patronage of old customers is in direct conflict with the decision of the Supreme Court in Brass & Iron Works Co. v. Payne, 50 Ohio St. 115 [33 N. E. 88; 19 L. R. A. 82], They rely particularly upon the following language found in the opinion of Judge Spear, at page 118:

‘ ‘ He may carry on a like business in the immediate vicinity, and may solicit the patronage of old customers, both by advertisement and private solicitation, so long as he does not mislead customers into the belief that he is carrying on business as the successor of the old firm, but this does not involve an appropriation of anything which he once possessed, but has, for a valuable consideration sold.”

This language was held by the trial judge to be obiter dicta and not binding as an authority in this case. To throw all the light possible, therefore, upon that case counsel for plaintiff in error have secured from the Supreme Court files and furnished to this court a printed copy of the record and of the brief in behalf of plaintiff. A careful examination of these show that the object of that suit was to enjoin the use of the old firm name, by the retiring partner, and to enjoin him from representing himself in his new business as the successor of the old firm. As stated by Judge Spear in Brass & Iron Works Co. v. Payne, supra, at page 117:

“The single question of law presented by the record is whether or not, where a partnership is dissolved, one partner transferring to the others all his interest in the firm business and assets, with the understanding that the others are to succeed to the business of the old firm, and carry it on at the old stand, but not to use the old firm name beyond a specified time, the retiring member can lawfully use that name in a similar business thereafter carried on by him in that vicinity.”

The result of the decision in that ease was (p. 119):

“A perpetual injunction, restraining the defendant from using in his business at Fostoria, the name of Walter S. Payne & Co., and from holding himself out as the successor of said firm of Walter S. Payne & Go.”

The law of the case on this point is embodied in the second clause.of the syllabus:

‘ ‘ Of this good will is the firm name; and where the contract of sale reserves to the retiring partner no rights with respect to the firm name, he can not lawfully use it in a business of a like kind, carried on by him in the vicinity subsequent to such dissolution. ’ ’

The rules of the Supreme Court provide that the points decided shall appear in the syllabus. Statements made by a judge in his opinion by way of argument or illustration, not called for by the issues of the case to be decided, do not become authoritative. 11 Cyc., 755; Cohen v. Virginia, 19 U. S. (6 Wheat.) 264, 399 [5 L. Ed. 257] ; Carroll v. Carroll, 57 U. S. (16 How.) 275, 287 [14 L. Ed. 936]; Pollock v. Loan & Trust Co. 157 U. S. 429, 574 [15 Sup. Ct. 673, 39 L. Ed. 759] ; Love v. Miller, 53 Ind. 294, 299 [21 Am. Rep. 192],

In Pioneer Trust Co. v. Stick, 71 Ohio St. 459, 466 [73 N. E. 520]. Judge Spear himself in giving the opinion of the court said:

“The syllabus controls, even though the expression of the judge should be thought to indicate a state of mind favorable to the contention of counsel upon a question not before the court. ’ ’

The language used by Judge Spear in Brass & Iron Works Co. v. Payne, Supra, quoted and relied on by counsel for plaintiffs in error here, is no doubt based upon an interesting note written by the editor, found appended to the case of Bergamini v. Bastian, 35 La. Ann. 60 [48 Am. Rep. 216], This case was cited and relied upon in the brief of plaintiff in error there. This note commences at page 223 and discusses the leading English cases on the subject of good will, beginning with Labouchere v. Dawson, L. R. 13 Eq. 332 (1872), and ending with Pearson v. Pearson, L. R. 27 Ch. Div. 145 (1884), and summing up with three general rules found on page 232, which appear to be drawn from the last named case. The case of Pearson v. Pear son, which discredited Labouchere v. Dawson, has since been overruled by the House of Lords in the ease of Trego v. Sunt, L. R. Appeal Cas. (1896), 7.

While we agree with counsel for plaintiffs in error that if the rule of law in this state had been established by our Supreme Court based upon that found in Pearson v. Pearson there would be no justification in any inferior court to disregard that rule because Pearson v. Pearson, Supra, has been in turn overruled by Trego v. Sunt, yet we can not concede that the case of Brass & Iron Works Co. v. Payne, supra, established the rule of Pearson v. Pearson in Ohio. It certainly was not intended by it to overrule or weaken the authority of Burckhardt v. Burckhardt, 36 Ohio St. 261; Burckhardt v. Burckhardt, 42 Ohio St. 474 [51 Am. Rep. 842]; 7 Dec. Re. 258; (2 Bull. 22) 8 Dee. Re. 496; (8 Bull. 253) and 9 Dec. Re. 477 (14 Bull. 108). This case recognizes the rule of Ldbouchere v. Dawson, which was approved by Trego v. Hunt, in which the rule is thus stated:

“Where the good will of a business is sold (without further provision), the vendor may set up a rival business, but he is not entitled to canvass the customers of the old firm, and may be restrained by injunction from soliciting any person who was a customer of the old firm prior to the sale to continue to deal with the vendor, or not to deal with the purchaser.”

And we must still regard Burckhardt v. Burckhardt as authority.

Counsel for plaintiffs in.error discuss in detail the reasoning of the trial judge in his opinion as to the amount of damages. It would appear that some of the detailed items as there discussed may be too large, but taking the total as finally fixed, considering all of the evidence and especially the conduct of defendants below, under the rules laid down by Burckhardt v. Burckhardt, supra, the amount of the judgment can not be deemed excessive or as being manifestly against the weight of the evidence. The opinion of the trial judge is not to be treated as a finding of fact. Empire Transportation Co. v. Blanchard, 31 Ohio St. 650.

The order of injunction as framed is in all its essentials correct; in one particular, however, we deem it-as, inadvertently no doubt, going beyond what was intended or what should have been ordered; that is, wherein the individual defendants Samuel Levy, David Levy and Harry Hoemellee

“are restrained and enjoined from using- or disclosing any knowledge, information or trade secrets of said firm of Berman and Levy acquired by them while in its employ. ’ ’

“Knowledge” and “information” once acquired can not be taken away, and it is beyond the power of a court to prevent one from “using” either. Defendants, however, can be enjoined from “disclosing” such knowledge to others, and from improperly using it in their own business to secure the business of customers of the old firm that rightfully belongs to the plaintiff below. To such an extent the injunction may be modified.

A careful examination of the extended record in the case at bar, and full consideration of the able and elaborate arguments and briefs of counsel, bring this court to the conclusion that the case was rightfully decided in the court below, and the ground having been fully covered by the learned opinion of the trial court, further discussion becomes unnecessary here. With the modification of the injunction as suggested, the judgment will be affirmed.

Jones (E. H.) and Gorman, JJ., concur.


author: WINCH, J.

text:
    ELECTIONS — MUNICIPAL CORPORATIONS
    [Cuyahoga (8th) Circuit Court,
    February 8, 1904.]
    Hale, Marvin and Winch, JJ.'
    Henry Bach v. F. H. Goff.
    1. Finding in Election Contest Proceeding Final.
    A proceeding to contest an election, under Sec. 572-573 R. S. (Secs. 5162, 5163 G. C.), being a special proceeding before a special tribunal, the finding of that tribunal is final and not reviewable on error.
    2. Acceptance by Ordinance Pre-requisite to Annexation.
    The annexation by county commissioners of part of a village to an adjacent city, upon application of the city council and the written request of two-thirds of the voters of the territory to be annexed, is not completed until the city council has, by ordinance or resolution, accepted the annexation as provided in Sec. 1591 R. S. (Sec. 3553 G. C.)

      Finney & Warner, for plaintiff in error.

      ,F. 3. Goff, for defendant in error.
   WINCH, J.

Proceedings were begun in 1902 before the county commissioners of Cuyahoga county for the annexation of the second ward of the village of Glenville to the city of Cleveland. At the spring election in Glenville in 1903 the voters in said second ward voted for mayor of the village of Glenville.

If said voters of the second ward were entitled to vote in the village of Glenville, defendant in error was duly elected mayor of said village. If they were not entitled to vote in said village, CL C. Shellentrager was elected mayor.

To contest the election of Goff, plaintiff in error instituted proceedings provided by Sec. 572 E. S. (Sec. 5162 G. C.), and three respectable freeholders were appointed according to law, heard the evidence produced before them and decided in favor of the contestee, Goff. To reverse this decision, petition in error was filed in the common pleas court accompanied by a transcript of the proceedings in the probate court and what purports to be a bill of exceptions allowed by the probate ‘ ‘ court ’ ’ and signed by the probate judge as the “trial judge.” The common pleas court struck this bill of exceptions from the files, heard the case on the pleadings and the transcript and dismissed the petition in error.

Thereupon petition in error was filed in this court in which it is alleged that the common pleas court erred: (1) In striking the bill of exceptions from the files; (2) In dismissing the petition; (3) Other errors appearing of record.

To sustain the judgment of the common pleas court counsel for defendant in error has argued three propositions:

* 1. The proceedings to contest the election was a special proceeding before a special tribunal composed of the three freeholders and the bill of exceptions should have been allowed, if at all, and signed by said freeholders.

2. The proceedings before the tribunal were political rather than judicial, and its findings are final and not reviewable on error.

3. The decision of the tribunal was in accordance with the law and the facts.

An examination of the first and second propositions has left the court in doubt.

A majority of the court is of the opinion that by the wording of the statutes the three freeholders and the probate judge constitute a special tribunal for the trial of such contested election eases, and that the decision of said tribunal is final and not reviewable on error, but as such conclusion has been reached with much hesitancy, and is not unanimously concurred in, it would be profitless to discuss the matter at length, in view of the further fact that the court has examined the bill of exceptions and considered the merits of the finding by the freeholders.

It appears that May 21, 1902, the city of Cleveland filed with the county commissioners an application for the annexation to it of the second ward of Glenville. These proceedings were under Sec. 1615 R. S. (Sec. 3553 G. C.), and the statutes made part thereof by reference. The first part of said section reads as follows:

"When a city and village adjoin each other, and the inhabitants of any portion of the territory constituting a part of said village desire to be detached therefrom and annexed to such city, the commissioners of the proper county, on the application of the council of the city, and on the written request of two-thirds of the legal voters inhabiting the territory proposed to be so annexed, may cause such alterations to be made, and the boundaries of such city, and said village, respeetiyely, to be established in accordance with such application and request, and such territory shall thereafter constitute a part of such city, provided, that in all their proceedings in the premises, the county commissioners shall, as far as applicable, be governed by the provisions of this division, prescribing the manner of proceeding on applications for the annexation of adjacent unincorporated territory to villages and cities; and provided further, that the commissioners shall ascertain and apportion the amount of the existing indebtedness of the village, which shall be assumed and paid by the city on the annexation of the territory aforesaid. ’ ’

Sections 1589 to 1598 R. S. (Secs. 3548 to 3557 G. C.) inclusive are the provisions of "this division, prescribing the manner of proceeding on application for the annexation of adjacent unincorporated territory to villages and cities,” referred to above, and they provide that a final transcript of the proceedings of the commissioners being filed with the clerk of the city to which annexation is proposed (1590) at the next regular session of the council of such city after the expiration of sixty days from such filing, the clerk shall lay the transcript and accompanying map and petition before the council, and thereupon the council shall by resolution or ordinance, accept or reject the application for annexation (1591), an’d when the resolution or ordinance accepting such annexation has been adopted, the territory shall be deemed a part of the city or village (1597).

It appears that the final order of the county commissioners apportioning the indebtedness of the city and village was made February 21, 1903, and filed with the city clerk February 23, 1903.

Sixty days thereafter, the earliest time within which said transcript could be presented to the city council by the clerk (1591) would be April 24, 1903. The election contested was' held April 6, 1903, and before said annexation could be accepted and the territory deemed a part of the city of Cleveland and no longer a part of the village (now city) of Glenville, in accordance with Sec. 1597 E. S., if said section applies to this case.

It is contended by plaintiff in error that this section does not apply because it comes in as a part of Sec. 1515 E. S. (Sec. 3555 G-. C.) only under the language “provided, that in all their proceedings in the premises, the county commissioners shall be governed, ’ ’ etc. — that the action of the city council is no part of the proceedings of the commissioners, that the proviso affects the procedure of the commissioners alone and that if their procedure was regular, as it is admitted to be, then, under See. 1615, the commissioners having finished all they had to do in the premises by February 21, 1903, such territory thereafter constituted a part of the city of Cleveland.

¥e consider this contention one of those technical objections about which Judge Spear speaks in the annexation case of Shugars v. Williams, 50 Ohio St. 297 [34 N. E. 248], when he says:

“In the practical administration of justice mere technical objections have to give way to substance.”

We quote further from Judge Spear as to his views of the annexation statutes:

“It is manifest that one of the purposes of this legislation is to provide for the addition of territory by the joint action of the village council and the county commissioners, and it would seem that, giving effect to all these sections, a scheme has been mapped ont which, though not altogether coherent in its parts, will, nevertheless practically reach the end intended.”

This language is applicable to the ease at bar. In adjusting the indebtedness of the city and village, the county commissioners ordered the city to pay the village the sum of $19,543.22 and to assume a large floating indebtedness of the village. On account of this large charge the city council might have deemed the annexation inadvisable and for that reason, or for some other reason, have rejected the application for annexation.

Section 1592 R. S. provides that “If the resolution or ordinance is to reject such application, no further proceedings shall be had; but such rejection shall not be a bar to any application thereafter to the county commissioners on the same subject.”

The further proceedings referred to are the filing by the city clerk of two certificates of the annexation proceedings, one with the county recorder and the other with the secretary of state. We think that Sec. 1592 means that no further proceedings shall be had by the city council, the county commissioners or any one claiming under or by virtue of the action of either, so that citizens of the territory to be annexed, claiming that action of the county commissioners in favor of the annexation constituted such territory thereafter a part of the city, must of necessity abandon such claims upon the rejection of the ordinance of acceptance by the city council. So the plaintiff in this action, claiming to be an elector of (Renville, by Sec. 1591, upon rejection of the ordinance by the city council, would be barred from all further rights or privileges based upon the action of the county commissioners. Construing together all the statutes applicable to the annexation proceedings here in question we are of the opinion that the general scheme intends that the annexation by the county commissioners of part of a village to an adjacent city upon application of the city council and written request of two-thirds of the voters of the territory to be annexed, shall not be completed until the city council has, by ordinance or resolution, accepted the annexation as provided in Sec. 1591 R. S. It not appearing in this case that such ordinance or resolution was passed by the council of the city of Cleveland before the spring election for mayor of Glenville in 1903, on said .election day the second ■ ward of Glenville was still a part of Glenville and the voters of said second ward were entitled to vote for mayor of Glenville, and the contestee, F. H. Goff, defendant in error in this case, was duly elected mayor thereof as found by the freeholders.

The petition in error is therefore dismissed.

Hale and Marvin, JJ., concur.


author: MARVIN, J.

text:
    EVIDENCE
    [Cuyahoga (8th) Circuit Court,
    February 18, 1907.]
    Marvin, Winch and Henry, JJ.
    Sarah E. C. Beck v. Benjamin A. Gage et al.
    Declarations of Deceased Maker of Note as to Relations with Wife, Payee, not Admissible.
    In an action upon a promissory note brought by a widow against the administrator of her deceased husband’s estate, in which the only issues are as to the execution of, and consideration for, the note sued upon, declarations of the deceased husband made to third parties in the absence of the wife, as to the relations existing between himself and his wife at that time, are not competent evidence.

      Arnold Green, for plaintiff in error.

      Solders, Thayer <& Mansfield and Guerin & Gage, for defendants in error.
   MARVIN, J.

The parties here are as they were in the court below. Suit was brought by the plaintiff against the defendant, to have allowed as a valid claim against the estate of Fred’k T. Beck, deceased, an amount which she claimed was due to her upon a promissory note, copied in the petition, which reads:

“$500.00. September 20, 1899.
“On demand for value received I promise to pay Sarah E. C. Beck Five Hundred Dollars, with interest at six per cent.
“Frederick Thomas Beck.
“Seventy-six (76)' years of age. Born in London, March 22, 1823.”

Endorsement on back:

“November 13, 1902, $5.00 on interest.”

The petition sets out that Gage is the administrator of the estate of Frederick T. Beck, deceased; that in his lifetime the decedent executed the note and delivered it to plaintiff; that she presented the note for allowance to the administrator, who refused payment, and she prays that the note may be allowed as a valid claim against the estate.

The answer of the defendant admits his appointment as administrator, and the presentation and rejection of the claim, and then follows with a general denial.

It is manifest that the burden put upon the plaintiff was to show that she had the note copied in the petition, and that it was executed by the decedent and delivered by him to her, and that when she had shown these facts she had made a prima facie case. She introduced certain witnesses to testify as to the genuineness of the signature of the deceased to the note which she produced, and then she was placed upon the stand and testified that she was the widow of Frederick T. Beck, that she was familiar with his handwriting, and that the signature upon the note was the genuine signature of Frederick T. Beck; that the body of the note was written by himself, and she detailed (without objection) the circumstances under which the note was given, and that she gave him $500 in money for this note. She was then cross-examined very extensively, and among other things was asked as to the relation between herself and her husband, whether they were pleasant or otherwise.

One of the questions in this cross-examination was:

“At the time and prior to the 20th of September, 1899, your domestic relations with Frederick T. Beck, deceased, were not of a friendly nature were they?”

To which she answered:

“Just as much so as any married couple, they have their ups and downs. ’ ’

And a number of questions of this nature was asked.

She testified, too, upon cross-examination, that she had about $450 at home, which she could have given to her husband, and that she went to Michigan to get the balance, $50, to make out the $500, and that her husband wanted the money with which to build a barn.

The defendant then put upon the stand a number of witnesses for the purpose of showing that the relations between the plaintiff and her husband were unpleasant, and it is urged that such questions were proper, because if the relations were unpleasant between the parties she would not be likely to lend her husband $500, or any other sum.

We are not prepared to say that it was error to admit evidence of this sort, «though there seems to have been some confusion as to just what issue was on trial. The issue raised by the pleadings was whether Beck gave his wife this note for a valuable consideration, and except as bearing upon this issue in some way, it was incompetent.

Some of the evidence permitted over the objections of the plaintiff, we think, was wholly incompetent, but as to a considerable part of such incompetent testimony we think probably no prejudice was worked to the plaintiff, but that prejudice was worked to the plaintiff in the admission of the testimony of Austin, of George H. Beck, and Alfred F. Beck, we have no doubt, and that they were permitted to give incompetent testimony we have no doubt. Bach of these witnesses was permitted, over the objection of the plaintiff, to give conversations had with the deceased in the absence of the plaintiff, tending to show that he had ill-feeling against her; that he had no affection for her, and that their relations were not friendly.

Bearing in mind that the issue here was whether the note sued upon was the genuine note of Frederick T. Beck given for value, and that the only possible bearing that the relations between Beck and his wife could have upon it would be upon the probability of his borrowing money from her if their relations were unpleasant, the declarations of Beck, in his wife’s absence, that he did not love her, could not be used against her; Suppose he were living and this suit had been brought against him, could he introduce his own declarations made in the absence of his wife, that their relations were unpleasant, that he did not love her, nor she him, and so try to influence the judgment of the jury as to the probability of the loan having been made?

It has probably never been supposed that Antonio could have set up as a defense against the bond which Shyloek held, that he, Antonio, had spat upon his Jewish gaberdine, called him cut-throat and dog, upon the Bialto, and yet it would seem to be about as competent as the declarations of Beck, here permitted to be given in evidence. The question seems to answer' itself - The declarations of this man on this subject are. no more admissible in his favor than any other self-serving declarations made by him. It has never been the law that a man may make use of his own declarations made in the absence of his adversary, against such adversary. *

On the part of the defendant in error it is urged that such declarations are admissible for the same reason that if the suit were brought by a husband against some man for alienating his wife’s affections, declarations of the wife made in the absence of her husband that she had no affection for him, would be admissible; but clearly there is a reason for that rule which permits the admission of declarations said to have been made by her in the absence of her husband.

The husband who brings suit for the alienation of his wife’s affections, ás the ground of his action relies upon the fact that he was deprived of the affection of the woman to whose affections he was entitled, and if it can be shown by her declarations made before the alienation complained of that she had no affection for her husband, it would, of course, be admissible in mitigation of damages. The husband would be entitled to less for the alienation of the affections of a wife which were but very slight, or did not exist at all, than he would for the alienation of the affections of a wife, who prior to the wrongdoing of the-defendant, had a genuine and earnest affection for him, and her declarations made even without her husband’s knowledge before the wrong for which suit is brought, would have a direct bearing-upon the question of what kind of a wife tehe was, the loss of' whose affection the husband was suing for.

We are cited by counsel for defendant in error to 16 Cye. of Law and Procedure, at pages 1180 to 1183 on this question.. We find nothing in reference thereto which aids us in determining the question now being considered.

Complaint is made on the part of the plaintiff in error of the charge of the court, and especially because the court gave the eighth instructions requested by the defendant.

This instruction reads:

“The testimony is before you on behalf of the defendants as to the domestic relations between the plaintiff and her husband, Frederick T. Beck, at or about the time of the date of September 20, 1899; as to whether such relations were strained, unfriendly or otherwise; expert testimony as to the character of the note set forth in said petition has been placed before you, and testimony as to the funds that deceased had in bank at said date, his income, prospective income from the sale of grapes and produce of the farm, and his expenses at said dates, all of which is in the case and to be considered by you as bearing upon the ■execution and signing of said note, and whether there was any considerable consideration therefor.”

This ought not to have been given. It called especial attention to certain testimony, to-wit: the declarations of the deceased in the absence of his wife as to his feelings towards her. This testimony we hold to have been incompetent and hence the attention of the jury should not have been called to it.

The balance of this ought not to have been given, because it calls especial attention to certain parts of the evidence in such wise as to be likely to mislead the jury and induce them to regard it as of more importance than some of the other evidencie; whereas, though it may have been admissible, it had a most remote bearing, if any, upon the issues in the case.

Complaint is further made that the court refused to give in charge certain requests made by the plaintiff.

From what has been said in reference to the testimony of the witnesses, as to conversations of the deceased in the absence of his wife, it follows that the second, third and fourth of these requests should have been given. They relate entirely to the testimony of witnesses in regard to these conversations and ask that such testimony be disregarded.

The real error was committed in admitting the testimony, but it having been admitted, the plaintiff was entitled at least to have the court distinctly instruct the jury that no attention should be paid to it. The result of this reasoning is that there was error to the prejudice of the plaintiff, entitling her to a reversal of the judgment, and the judgment is reversed, and the case remanded for a new trial.

Winch and Henry, JJ., concur.

       Affirmed no opinion, Gage v. Beck, 76 O. S. 575.


author: JELEE, J.

text:
    STREET RAILWAYS
    [Clermont (1st) Circuit Court,
    May 1, 1905.]
    Jelke, Swing and Gif fen, J.T.
    State ex rel Davidson v. Cincinnati, M. & L. Trac. Co.
    Street Railway Compelled to Comply with Grant as to Grade.
    A street railway company may be compelled in a proper action to comply with the terms of its grant, notwithstanding there is an injunctoin in force against compliance with such terms, and the public interest does not require it.
    Quo Warranto.

      D. W. Murphy, for plaintiff.

      ('. W. Baker, for defendants.
   JELEE, J.

This is a proceeding in quo warranto in which it is sought to oust the defendant company of its franchise to maintain and operate an electric railway upon and over the streets of the village of Milford.

Eleven distinct specifications are made in which the corporation failed to comply with the terms of its franchise, whereby, it is alleged, the same has been forfeited.

We find that the corporation has substantially complied in every particular except the ninth, to-wit: “That the defendant fails and refuses to place its track in Montauk to the grade established by the village council of Milford. ’ ’ While there has been some delay in performance there was reasonable grounds therefor. The reasonableness of the grade established is left by the statute as well as Ordinance 116 to the discretion of council with which the court will not interfere except for gross abuse. The street at this point is a part of a turnpike owned by the Cincinnati, Columbus & Wooster Turnpike Company, at whose instance an injunction was obtained and is still in force restraining the village of Milford and the defendant company from lowering or changing the railroad track to the grade established by council. While this excuses performance now, there was abundance of time before in which to comply with the ordinance and make the change; but the defendant contends, and perhaps rightly, that it will not only impose an unnecessary hardship upon it, but will materially interfere with other travel upon the highway. The parties however have made their own terms in Ordinance No. 116, and unless they are complied with in a reasonable time by laying the track in Montauk at the grade established by council, the prayer of the petition must be granted although the public interests seem to not require it.

Swing and Giffen, JJ., concur.


author: Per Curiam.

text:
    DAMAGES — NEGLIGENCE
    [Hamilton (1st) Circuit Court,
    December 9, 1905.]
    Giffen, Jelke and Swing, JJ.
    Joseph Fettig v. Amanda Jacobs.
    Damages Recoverable by Trespasser for Wilful Injuries Causing Injury.
    Verdict assessing damages for injuries to a boy stealing a ride on a delivery wagon will not be set aside when it appears that the injuries resulted from fear induced by the driver’s striking him in the face with a whip.

      Heiker & Heilker, for plaintiff in error.

      A. W. Bruch and P. 8. Phillips, for defendant in error.
   Edward Jacobs, a boy nine years of age, was stealing a vide on a low truck belonging to the plaintiff in error, which was being driven by an employe along Eace street, this city. Upon discovering the boy, the driver struck him with his whip. The boy fell under a wheel in attempting to get off the moving wagon, and was permanently injured in one foot. The jury assessed his damages at $300.

Per Curiam.

The testimony in this ease tended to show that the driver on the wagon belonging to the plaintiff in error wilfully struck the defendant in error in the face, and although the latter was a trespasser, the court did not err in overruling the motion to arrest the case from the jury.

There was no error in giving the special instructions at the request of defendant in error, and while that part of the general charge pertaining to the conduct of the boy after he was struck is not as clear as it should be, yet it was -not prejudicial. •

What the court intended to say and what the jury evidently-understood was if the boy’s conduct, which was apparently careless and awkward, was the result of fear occasioned by the driver striking him, he would be entitled to recover.

Judgment affirmed.


author: JELKE, J.

text:
    BILLS OF EXCEPTION — MANDAMUS
    [Hamilton (1st) Circuit Court,
    July 7, 1906.]
    Jelke, Swing and Giffen, JJ.
    Jacob Weisberg v. New York Life Insurance Co.
    Bill of Exceptions may be Effected by Mandamus.
    Mandamus is the remedy to compel a trial court to function in settling and signing a bill of exceptions.
    Error.

      Herron, Gatch Herron & Janies for plaintiff in error.

      O. W. Kuhn, for defendant in error.
   JELKE, J.

We are of opinion that there is no bill of exceptions before this court exhibiting the errors complained of, and hence the judgment must be affirmed.

If the court below failed or neglected in the performance of its duty enjoined by statute in the matter of settling and signing the bill of exceptions, the remedy of the party aggrieved thereby was by mandamus. If mandamus could be maintained there would be a bill of exceptions duly signed. If mandamus can not be maintained, then for the same reason there is no bill before this court. There is an apparent hardship in this ruling but it is no harder upon the plaintiff in error to be deprived of his proceedings in error for want of a bill of exceptions, than to measure the rights of the defendant in error by a bill of exceptions prepared and tendered by the plaintiffs in error, to which the defendant in error objects and against which he protests as not being true, and which has no sanction or signature of the trial court. t

Judgment will be affirmed.

Swing and Giffin, JJ., concur.


text:
    DIVOECE AND ALIMONY
    [Cuyahoga (8th) Circuit Court,
    January 18, 1904.]
    Marvin, Winch and Hale, JJ.
    James Cullen v. Nellie Cullen.
    Decree on Application for Divorce and Alimony not Bar to Subsequent Action for Alimony.
    The dismissal of a petition for divorce and alimony based upon charges of extreme cruelty and gross neglect of duty is not a bar to an action for alimony and support of a child, even though based upon the same acts of cruelty and neglect set forth in the first petition, when there is a further allegation that those acts have resulted in a separation and that the plaintiff and the child are destitute and not in good health.
    Error.
   WINCH, J.

The only error complained of in this case is the granting of a motion made by defendant in error, who was plaintiff below, for an allowance to her of temporary alimony for her sustenance and the support of her minor child and for fees for her attorneys.

The bill of exceptions shows that the only evidence presented at the hearing of the motion was the petition in the case which was sworn to as an affidavit, the answer, which was likewise verified, the petition in a former action for a divorce between the parties and the decree rendered in the former action. From this evidence it appears that on March 31, 1902, Nellie Cullen filed her petition against James Cullen praying for a divorce and alimony and alleging as her grounds therefor gross neglect of duty and extreme cruelty. October 12, 1902, the case was heard and the court found that plaintiff was not entitled to the divorce and alimony prayed for, and dismissed her petition. Four days later she filed another petition praying for alimony alone, setting up the facts which may be said to amount to gross neglect of duty, extreme cruelty and that there was a separation in consequence of ill-treatment on the part of her husband. The answer, in addition to denying the allegations of the petition, pleads the former adjudication as a bax to the last suit.

Counsel for plaintiff in error, in support of the plea of former adjudication, cite the ease of Petersine v. Thomas, 28 Ohio St. 596, an alimony case wherein it was held:

“When a matter is finally determined in an action between the same parties, by a competent tribunal, it is to be considered at an end, not only as to what was determined, but also as to every other question which the parties might have litigated in the ease.”

Counsel for defendant in error urges that the case at bar does not come within the doctrine of Petersine v. Thomas; that the first action brought by Nellie Cullen was for divorce and alimony, alleging two of the grounds therefor mentioned in Sec. 5689 R. S. (Sec. 11979 6. C.), and the second action is for alimony only, under Sec. 5702 R. S. (Sec. 11997 G. C.), setting up a separation in consequence of ill-treatment on the part of the husband, which is not a ground for divorce and could not have been pleaded or proved under the first petition. On this point we do not agree with counsel for defendant in error. In the case of Graves v. Graves, 50 Ohio St. 196 [33 N. E. 720], the plaintiff ashed for divorce and alimony, alleging extreme cruelty as her grounds for divorce. The common pleas court found that she had not sustained the allegations of her petition, denied her divorce, but finding that she had sufficient cause to leave her husband, and was still living separate and apart, awarded her alimony. The Supreme Court held that this proceeding and judgment was fully authorized by the statutes of Ohio. So it appears that in Nellie Cullen’s first action for divorce and alimony she might have been awarded alimony because of the separation caused by ill-treatment of her husband, if the court had found her entitled to it.

It remains therefore to compare the two petitions to see if there are any allegations in the last of matters arising since the filing of the first petition, for if any new causes of action have arisen since the filing of the first petition, they would not be barred by the former judgment.

Such comparison shows clearly that all acts of the husband which might constitute gross neglect of duty, extreme cruelty or ill-treatment causing separation, occurred before the filing of the first petition, for in the second petition it is alleged that the separation occurred on March 27, 1902, four days before the first petition was filed.

But, we find the following allegations in the last petition that are not in the first:

“Plaintiff has no money or property whatever and is depending on the charity of her relatives for her support. Her health is not good and she is unable to earn support for her child and herself. The said boy, Edwin, has also poor health and frequently needs the service of a physician which plaintiff is unable to furnish.”

Non constat, but that all these conditions arose after termination of the former action. The verbs are in the present tense. If the wife’s ill-health and inability to support herself and child and the child’s health and need of special care developed after the first hearing they could not have been presented at the former trial. Such being the ease, she should now have opportunity to present these facts, as they bear upon the question as to whether she is entitled to alimony, and would at least entitle her to a hearing under Sec. 5703 R. S. (Secs. 11998, 11999 G. C.), which says:

“The court shall, upon satisfactory proof of any or all of the charges in the petition make such order for the maintenance of the children of such marriage, if there are any, as is just and reasonable. ’ ’

It does not appear that any order with respect to the child was asked for, granted or refused under the first petition.

Again, the merits of the ease were not before the trial judge on this application for alimony pendente lite and the order complained of includes an allowance for the support of the child. Section 5701 R. S. (Secs. 11994 G. C. et seq.), provides that the court may grant an allowance for the support of minor children dependent upon either party for support and not provided for by such party during the pendency of the action.

There was proof on the hearing of this motion that the boy, Edwin, is not being supported by his father, whose duty it is to support him. The order was that the defendant pay to plaintiff’s attorney $25 as attorney fee and to plaintiff $5 per week for support of herself and child. The attorney fee has been paid. There was no such error in the exercise of the discretion of the court in the weekly allowance to require this court to reverse said order.

Judgment affirmed.

Marvin and Hale, JJ., concur.


text:
    CORPORATIONS
    [Cuyahoga (8th) Circuit Court,
    February 8, 1904]
    Hale, Marvin and Winch, JJ.
    Sarah C. K. Robison v. Cleveland City Ry. Maria A. Robison v. Cleveland City Ry. Martin S. Robison v. Cleveland City Ry.
    Liability of Company for Defalcation of Its Transfer Agent.
    When a corporation has made it possible for its transfer agent to mix and confuse stock which he held as trustee for various parties with treasury stock of the company, and a large part of the stock entrusted to the transfer agent is lost through his defalcation, the company is liable to those for whom the transfer agent acted as trustee for such of the stock entrusted to the transfer agent as was returned to the treasury of the company.

      A. W. Lamson, Kline, Carr, Tolies & Goff and L. A. Bus-sell, for plaintiffs.

      Squire, Sanders & Dem/psey, for defendant.
   WINCH, J.

These three cases were heard on appeal from the common pleas court and involve the rights of the plaintiffs as stockholders in the Cleveland Cable Ry., to stock in the Cleveland City Ry., which they claim is due them by reason of the consolidation of the former company with the Woodland Avenue & West Side St. Ry., the consolidated company being known as the Cleveland City Ry.

It is admitted that the plaintiffs in the three cases were stockholders in the cable company and have not received stock in the consolidated company in exchange therefor. While the claims in the three cases vary as to the number of shares alleged to be due to each plaintiff, the three eases were heard together and are to be decided upon the same principles.

Litigation growing out of the consolidation of said street railway companies has been before the Supreme Court and it is proper in stating these eases to quote largely from the case of Cleveland City Ry. v. First Nat. Bank, 68 Ohio St. 582 [67 N. E. 1075].

May 10, 1893, stockholders of the constituent companies, owning more than two-thirds of the stock of each, and including plaintiffs in these cases, entered into a preliminary agreement for consolidation, providing, among other things, that both companies should pay their own floating indebtedness, the stockholders of the cable company appointing Frank Dell. Robison and John J. Shipherd their agents and proxies to carry out the agreement and perfect said consolidation, agreeing to deliver to said two persons or their chairman, all their stock to be exchanged for stock of the consolidated company, and the stockholders of the Woodland Avenue & W. S. St. Ry. in like manner appointing M. A. Hanna, Dan P. Eells and C. F. Emery, their agents and proxies, with like power.

May 11, 1893, the directors of the two companies entered into an agreement of consolidation in accordance with the stockholders’ agreement, fixing the capital stock of'the new company at 80,000 shares and providing that said stock should be distributed as follows: 51,750 shares to the Woodland avenue company to be distributed by it to its stockholders; 18,250 shares to the cable company, to be disposed of by it, so far as necessary, to liquidate its floating indebtedness, and the remainder to be distributed among the holders of the common and preferred stock of said company, in proportion to the then relative value of said stocks; 10,000 shares to remain in the treasury of the company, to be issued by the board of directors according to law.

The cable company determined that one share of its preferred stock should be equal to five shares of its common stock; and on this basis, exchanging one share of preferred stock in the cable company for one share in the consolidated company, of the 18,250 shares distributed to the cable company, there would be 16,000 shares to be distributed to its stockholders, leaving 2,250 shares, of the par value of $225,000, to be sold to liquidate its floating debt. It later appeared, however, that said floating debt amounted to upwards of $400,000.

June 16, 1893, the consolidated company issued stock certificate No. 1 for 51,750 shares to M. A. Hanna, Dan P. Eells and C. F. Emery, trustees, and certificate No. 2 for 18,250 shares to Frank Dell. Robison and John J. Shipherd, trustees.

The Supreme Court in the case already referred to, had held that it was lawful for the directors of the constituent companies to agree, as they did, that the constituent companies should come into the consolidated companies free from debt; that of the stock apportioned to the cable company enough should be sold to pay its floating debt, the remainder to be distributed to its preferred and common stockholders in proportion to the relative values of said stocks; that the stockholders’ agreement must be read into and made a part of the agreement of consolidation by the directors; and that the agreement that 18,250 shares of the capital stock of the consolidated company should be distributed to the cable company to be disposed of by that company so far as necessary to liquidate its floating indebtedness, the remainder to be distributed to its stockholders, was fully, performed by the consolidated company by the issue of certificate No. 2 for 18,250 shares of stock to Robison and Shipherd, trustees, as “agents and proxies” for the cable company and its stockholders.

In the disposition of the cases before us we shall carefully follow all these holdings of the Supreme Court, although it has been urgently contended by counsel for plaintiff that the last proposition, i. e., that the delivery of certificate No. 2 to Robison and Shipherd, trustees, was a complete performance of the consolidated company’s obligations to the stockholders of the cable company, was not necessarily involved in the decision of the bank ease.

This contention is founded upon the statement of Judge Davis, who decided Cleveland City Ry. v. First Nat. Bank, Supra, that only one of the assignments of error would be noticed in the case because, on the conceded facts, the Supreme Court was of the opinion that the court of common pleas should have directed a verdict and rendered a judgment in favor of the defendant. Then, determining the rights of a person who holds shares of stock in pledge, assigned in blank, but not registered in the name of the pledgee, and holding that such pledgee is not entitled to participate in, or be notified of, the consolidation proceedings, as set forth in the third paragraph of the syllabus, it is stated, on page 599 of the opinion:

“The jury specially found in this case that on June 29,1893, after the consolidation, Taintor & Holt (the pledgers), were still the owners of the stock and that on that date they received from the plaintiff in error all of the stock which they were entitled to receive by reason of their ownership of the cable company stock. It appears, therefore, the plaintiff in error having performed its agreement as to the registered and actual owners of the stock, that it is now sought to compel it to perform again, or account for the value of the stock, to a pledgee who has not shown that it was entitled to more than a mere lien upon the stock at the time of the consolidation.”

It is urged that these are the conceded facts, in view of the law enunciated regarding the rights of an unregistered pledgee of stock, which should have required the common pleas judge to direct a verdict for defendant.

But having reached this conclusion Judge Davis goes forward with a consideration of the effect of the delivery of certificate No. 2 and enunciates the proposition hereinbefore stated and that proposition is embodied in the fourth paragraph of the syllabus and is therefore part of the law of the ease, and hence to be followed by this court.

If the eases at bar are to be distinguished from the Supreme Court case it must be because of facts occurring and rights arising in favor of plaintiffs after the delivery of certificate No. 2.

In one salient feature these cases, of course, differ from the cases cited: in that case the registered owners of cable company stock received all of the stock in the consolidated company which they were entitled to receive.

In these cases such registered owners have not received the stock in the consolidated company which it is conceded they were entitled to receive. It is said that plaintiffs have not received their stock because John J. Shipherd, one of their own trustees, apropriated it and converted it to his own use.

What are the facts as tending to sustain such statement ?

The officers of the defendant company were M. A. Hanna, president; J. B. Hanna, secretary; F. DeH. Robison, vice-president; J. J. Shipherd, transfer agent, and the Savings & Trust Co., Registrar.

M. A. Hanna was one óf the trustees for the Woodland avenue company and its stockholders; he was “trustee for construction account” for the defendant company and as such held certain shares of its stock; he, with Charles A. Otis and J. H. Wade, held stock for the defendant company, issued to them by it to indemnify them for money borrowed by them for use of the defendant company.

M. A. Hanna, as president, signed most of the stock certificates for the defendant; F. DeH. Robison, as vice-president, signed some.

The secretary, J. B. Hanna, signed all stock certificates; by direction of the board, the stock books were not kept by him, but by the transfer agent and registrar.

J. J. Shipherd was transfer agent of the defendant company and as such had entire charge of the issue and transfer of its stock, his direction alone being the authority upon which the registrar registered stock and kept track of the transfers. Ship-herd was also one of the trustees for the cable road and its stockholders; he was chairman of said trustees; he was also “trustee for construction account” for the defendant company and as such had stock issued to him in the name of “J. J. Shipherd, Trustee. ’ ’

Certificates numbers one and two were issued to the trustees named in each, endorsed by them in blank, left with the transfer agent and by him lodged with the registrar.

Notices were sent to the stockholders of the Woodland avenue company and to the cable company to bring in their old stock to the transfer agent and get from him the new stock they were entitled to. If the defendant did not send the notices, it at least knew that they were sent. It thus appears that the transfer agent, whether as such, or as trustee for the cable company under written appointment, or as trustee for the trustees of the Woodland avenue company, by virtue of the delivery to him of certificate No. 1, endorsed in blank by said trustees, had entire control of the distribution of the entire 70,000 shares of stock going to both of the constituent companies, and in addition to this John J. Shipherd, trustee, held 5,000 shares of the treasury stock of the company duly issued and signed by the president of the company. These 7,500 shares of stock Mr. Shipherd, either as trustee for somebody, or as transfer agent, proceeded to mix up, and at least a majority of this court inclines to the opinion that the defendant company made it possible for Mr. Shipherd to produce the results he did and that it is responsible for such results.

However, such responsibility, under the pleadings in this case, does not determine the liability of the defendant company to these plaintiffs, unless it appears that when the stock books were finally straightened out there still remained in possession of the defendant company stock belonging to these plaintiffs and that when these suits were brought defendant had possession,' or should have had possession of said stock.

Counsel for defendant, in argument, stated that “there was a mixing of this stock by Mr. Shipherd that is most difficult to unravel, and which would involve one in hopeless confusion who attempts its solution. Mr. Shipherd mixed the stock held by Bobison and himself with the treasury stock of the company. ”

The matter is difficult and confusing, but the stock issued and transferred are all of record and have been patiently and tediously traced out by experts; so that we are satisfied from the evidence that Shipherd, out of certificate No. 2, which belonged to the cable company, distributed 3,100 shares to the Woodland avenue stockholders, and to M. A. Hanna, Charles A. Otis and J. H. Wade, officers and trustees of the defendant company, he distributed 3,674 shares.

The 3,100 shares distributed by Shipherd to Woodland avenue stockholders made good to them what he had appropriated and they were entitled to receive out of certificate No. 1, and relieved the defendant from that responsibility to them, under proper pleadings, which has been intimated above, arose out of its negligence in permitting Shipherd to confuse the stock.

The 3,674 shares out of certificate No. 2 which went to Hanna, Otis and Wade, they held as security for money borrowed by them for the company, and when the loan was paid, turned the stock back into the possession of the company; at least 2,000 shares, certificates Nos. 522 and 600, were assigned to the defendant company in proper form on the back of the certificate, and returned to the treasury of the company.

It hence appears from the evidence that after the delivery of certificate No. 2 to the trustees for plaintiffs and other stockholders of the cable company, part of the stock represented by that certificate came back into the possession of the defendant, and at least 2,000 shares of it was converted back into treasury stock. It also appears that at the beginning of these suits there were 4,000 shares of unissued stock in the treasury of the defendant company, all of which have been sold since by it.

It would seem that plaintiff’s claims,’which aggregate 513 shares, have been established and that they are severally entitled to recover the value of the stock claimed by them together with all dividends thereon, from which should be deducted, however, plaintiffs ’ pro rata share of the floating debt of the cable company.

Should it appear that there are other cable company stockholders not represented in these suits, who have not yet received stock they are entitled to, an accounting might be necessary, but no such facts have been presented to the court.

Decrees may be entered for plaintiffs in the three cases, the amount of recovery in each case to be computed as in the court below.

Hale and Marvin, JJ., concur.


text:
    APPEARANCE
    [Cuyahoga (8th) Circuit Court,
    February 9, 1904]
    Hale, Marvin and Winch, JJ.
    Henry H. Flandermeyer v. Hugo Fishel et al.
    1. Appearance not Effected by Informal Complaint of Attorney as to Appeal Bond.
    Complaint of defendant’s attorney made informally, that the amount of an appeal bond was insufficient to protect his client’s interest, does not constitute an entry of appearance, when the record does not disclose that any motion or application to increase the bond was ever filed.
    2. Appearance' for no other Purpose than to Strike Out Petition not Appearance Generally.
    When in a motion to strike a petition from the files, it is expressly provided that the defendant enters his appearance for the sole purpose of making that motion and for no other purpose, this proviso inheres in an application to amend the motion, filed at a later date, and such application to amend the motion does not amount to an entry of appearance generally.

      Alex II. Martin and W. C. Ong, for plaintiff in error.

      Hart & Canfield, for defendants in error.
   WINCH, J.

Plaintiff filed a petition in error in tbe common pleas court to reverse tbe judgment of a justice of tbe peace in a forcible detainer action, but neglected to serve defendants with process on said petition in error. Tbe common pleas court, because of tbe lack of service of summons on tbe petition in error, dismissed it. Thereupon plaintiff filed petition in error in tbis court to reverse tbe judgment of tbe common pleas court, and tbe sole question bere is whether or not an entry of appearance was in fact made by defendants in tbe court below.

There is some little discrepancy between tbe transcript from' the common pleas court and the bill of exceptions from that court, but we have considered all tbe facts shown by both.

1. It is claimed by plaintiff that defendants’ attorney appeared in tbe court below, objected to tbe size of tbe bond given by plaintiff, and because of tbe appearance and objection, tbe court increased tbe bond from $200 to $2,000.

The bill of exceptions, as to tbis matter, shows that a petition in error being filed in tbe common pleas court without its consent or notice to defendants, defendants’ attorney saw the judge presiding in Room 1 of said court and asked him if he thought it was right and legal to allow the petition to be filed without notice. The attorney says that he was a little mad and the judge said if he did not like what had been done he could file a motion to strike the petition from the files. The attorney says he made no application to have the bond increased but did complain about the insufficiency of the bond. The judge corroborates this statement and says that he did increase the bond from $200 to $2,000; explaining this action, he says:

“Either Mr. Hart or Mr. Canfield (plaintiff’s attorneys) came to me and objected rather vigorously to the action taken, and among other things., complained about the size of the bond.
“Q. What did he say? A. Well, he complained about its insufficiency, said it was not large enough to protect his clients, and I thereupon increased the bond.”

The increase was made by adding a cipher to the original entry of $200 on the docket. There was no new entry made. We do not consider this action of the attorney in talking to the judge in the general manner indicated, constituted an appearance for the defendants in the action. The record fails to show any application by said attorney for an increased bond. It fails to show any action by the court on any such application. What was done by the judge in increasing the bond was done upon his own motion.

2. It appears that defendant filed a motion to strike the petition in error from the files for the reason that said petition was not filed in said court within the time authorized by the statutes. The motion reads that the defendants “enter their appearance for the sole purpose of making this motion and for no other purpose. ’ ’ It was the proper manner in which to make the point without making a general appearance.

No authorities need be cited on this point.

This motion was overruled. Thereafter the entry overruling said motion was vacated and set aside and the transcript shows the following:

“November 16, 1903. To court. The defendants in error have leave on their own application to amend their motion to strike the petition in error from the files, by interlining tbe words ‘and action commenced within four months from time the judgment was rendered. ’ ’ ’

The interlineation was made and the motion as amended was granted.

It is claimed that the application to amend the motion constituted a general appearance in the case. We think not.

The application was solely regarding the motion and made under it. It affected no other proceeding in the case. The proviso in the motion inheres in the application to amend it and preserves to defendants all such exemptions as they were entitled under the original motion.

We find no error in the judgment of the common pleas court and it is affirmed.

Hale and Marvin, JJ., concur.


author: HALE, J.

text:
    CRIMINAL LAW
    [Cuyahoga (8th) Circuit Court,
    March 7, 1904.]
    Hale, Marvin and Winch, JJ.
    Tony Chicko v. State of Ohio.
    Error in Admission of Evidence Cured by Withdrawal of Evidence at Any Time.
    When in the trial of a criminal case, incompetent evidence offered by the state has been admitted over the objections of the defendant and exceptions noted, but such evidence is subsequently withdrawn and the jury clearly told to disregard it, the judgment should not be reversed for the admission of such evidence, unless it is manifest from the whole record that the jury disregarded the instructions of the court; hence, it is not important at what time the evidence is withdrawn from the consideration of the jury so long as it is clearly withdrawn before the case is finally submitted to them.
    Vessey, Davis & Manak, for plaintiff in error.

      Harvey B. Keeler, for defendant in error.
   HALE, J.

The plaintiff in error was indicted, tried and convicted of murder in the second degree. He was charged in the indictment with killing Andrew Crouch, a street car conductor. On the trial evidence was given by the state tending to show the transaction which occurred between the deceased, Crouch, and the plaintiff in error at the time Crouch was killed. Thereupon the state, to further maintain the issues on its part, called as a witness Otto C. Hansel, who testified as to the difficulty between the deceased and plaintiff in error and the pursuit of the plaintiff in error by various persons immediately following the transaction upon the car and his arrest at a point a half a mile from the scene of the shooting. Thereupon the prosecuting attorney put to the witness this question: “What was said at the time he was arrested by any person present ? ” to which question the defendant’s counsel objected, but the court overruled the objection and the witness answered “Some one said ‘lynch him and kill him.’ ” Counsel for plaintiff in error then said, “We ask that the jury be instructed to disregard the answer,” which request on the part of the counsel was overruled, and an exception noted.

The state also called one David Bertram as a witness, and after showing that he was one of the persons who pursued the plaintiff in error after the shooting and was present at his arrest, the prosecuting attorney put to him the following question, “Do you recall anything that was said by any one to any one at that time?” to which counsel for plaintiff in error objected, the objection was overruled and an exception noted. The witness answered, “Some one said ‘Lynch him.’ ” A request was made by counsel for plaintiff in error that this answer be withdrawn from the jury, which was overruled and exception noted.

The court in its charge to the jury, referring to this testimony, said:

“Another thing I want to say by way of caution. I want you jurymen to pay particular attention to it; that is, there was some testimony here admitted as to some things that were said by the crowd when they were in pursuit of the defendant. Somebody testified that somebody cried ‘Lynch him.’ I do not think that is competent testimony. Pay no attention to what was said by any witness on that subject; disregard it utterly; drive it out of your minds, because that testimony would not be competent and this man should not be prejudiced by it if it should in any way affect your minds. Everything of that sort should be entirely eliminated from your consideration.”

It is quite clear that the court was correct in holding that this testimony was clearly incompetent and prejudicial. The court erred in its admission, and unless that error is cured by the withdrawal of the testimony from the consideration of the jury, in the part of the charge above quoted, the case should be reversed. But we hold that, when in the trial of a criminal case incompetent evidence offered by the state has been admitted over the objection of the defendant and exception noted, but subsequently withdrawn and the jury clearly told to disregard it, the judgment should not be reversed for the admission of such testimony, unless it is manifest from the whole record that the jury disregarded the instructions of the court. This, we think, is in accordance with the rule which prevails in this state.

In Mimms v. State, 16 Ohio St. 222, it was held:

“Where the court improperly overruled the objection of the defendant to testimony offered on the trial by the state, the judgment against him will not be reversed for such erroneous ruling when the court on motion of the defendant excluded all the testimony so given from the consideration of the jury and instructed them that it must be wholly disregarded. ’ ’

It appears in this case that the testimony of which complaint is made was withdrawn from the consideration of the jury on motion of the defendant and that therefore he could not further complain of its introduction. This would seem to be a sufficient answer to the ruling made, but in this case, at the time the answer was given, counsel for the plaintiff in error asked in each instance that the answer given by the witness should be withdrawn from the jury. It is true that his request was overruled at the time, but subsequently, in the charge, in as emphatic and distinct an utterance as could be, the request was granted and the testimony withdrawn from the consideration of the jury. Many other eases might be cited giving some support to the holding we here make. I refer only to one other ease, Martin v. State, 9 Circ. Dec. 621 (17 R. 406).

It is said, however, that this withdrawal of the incompetent evidence came too late; that if the error in its admission could be . cured at all by its withdrawal, that withdrawal must be made ' before the close of the evidence, or at least before the argument of counsel to the jury; that its withdrawal in the charge of the court to the jury comes too late, and this is the holding of the Supreme Court of Pennsylvania in the case of Erie & W. V. Ry. v. Smith, 125 Pa. St., 259 [17 Atl. 443], in which it is said:

“Where evidence has been improperly received which tends to prejudice the minds of the jury, and motions made to strike it out at or before the close of the testimony are refused, a direction to the jury in the general charge to disregard the evidence and withdraw it from their consideration comes too late and does not cure the error of admitting it.”

We are not inclined to follow that holding. We think the tendency of the reported decisions in our own state is not in accord with it. In the case of Mimms v. State, supra, it does not appear whether the testimony was withdrawn from the consideration of the jury before the charge or in the charge. It would seem not to be of the utmost importance when the testimony was taken from the jury, whether before the charge or in the charge to the jury. If the testimony was clearly and distinctly taken from the consideration of the jury at any time before the submission of the issues to them, it would seem to be sufficient. It can not be doubted that if the jury followed the plain and distinct instructions of the court in this case and wholly disregarded this testimony, that its introduction was without any prejudice to the plaintiff in error. There is nothing in the record of the ease that gives any support to a claim that the instructions of the court were not followed by the jury. We are, therefore, of the opinion that there was no error upon the record of which the plaintiff in error can justly complain.

The judgment of the court of common pleas is affirmed.

Marvin and Winch, JJ., concur.


text:
    ATTORNEY AND CLIENT
    [Cuyahoga (8th) Circuit Court,
    March 7, 1904.]
    Hale, Marvin and Winch, JJ.
    John Mulholland v. George A. Groot.
    Attorneys may be Proceeded against Summarily for Refusing to Turn Over Papers of Client.
    An attorney may be proceeded against in a summary way, by motion, for refusing or neglecting to turn over papers and documents belonging to his client.
    W. C. Ong, for plaintiff in error.
   WINCH, J.

This action is in this court to review the ruling of the common pleas court in dismissing proceedings begun therein to require the defendant in error, who was defendant below, to turn over to plaintiff certain papers, notes, bonds and securities held by the defendant as an attorney at law and coming into his hands as attorney for plaintiff.

The proceedings were instituted in the court below by the filing of an application entitled by plaintiff a motion, in which it is alleged that John Mulholland, one of the plaintiffs, is a resident of Ohio, and the other plaintiff, Maud B. Darrow, is trustee for John Mulholland and a resident of Cleveland.

This motion is signed: ‘1 John Mulholland and Maud B. Darrow, trustee, by Walter C. Ong, their attorney, ’ ’ and is verified as follows:

“State oe Ohio, Cuyahoga County, sc.
“M. R. Hodgman, being first duly sworn, says that he is the duly authorized agent and manager for John Mulholland, the complainant in the foregoing motion, and as such manager he is familiar with all the facts pertaining to the foregoing application, and that all the facts, allegations and exhibits of said motion as herein set forth are, as he believes, true.
“M. R. Hodgman.
‘ ‘ Sworn to before me and subscribed in my presence by the said M. R. Hodgman this the 29th day of January, A. D. 1904.
“D. M. Bader, Notary Public. (Seal) ”

With the application was also filed an affidavit as to the truth of the matters set forth in the application.

It appears that upon the filing of this application the defendant appeared, waived citation and asked leave to answer and file a counter-affidavit. Thereafter he filed a motion to dismiss the proceedings for the reason that the motion was unsupported by any evidence and the court granted said motion, without receiving proof from plaintiff as to the truth of the matters complained of in the motion. In support of this ruling of the trial judge it is urged that the motion or application was not signed by either of the plaintiffs personally, was not sworn to by either of them, and the verification that does appear is only upon information and belief.

Section 564 R. S. (Sec. 1711 G. C.), provides that every attorney receiving money for his client and refusing or neglecting to pay the same when demanded, shall be proceeded against in a summary way, on motion.

It was held by the circuit court of the seventh circuit, in the case of Cotton v. Ashley, 5 Circ. Dec. 6 (11 R. 47), that under the common law an attorney might be proceeded against in the same manner for refusing or neglecting to turn over papers and documents to his client, and we follow that ruling in this case.

It appears that the proceedings were properly brought by filing a motion.

A motion is not strictly a pleading, not being enumerated as such under Sec. 5055 R. S. (Sec. 11303 G. C.)

Section 5102 R. S. (Sec. 11351 G. C.), provides that every pleading and motion must be subscribed by the party or his attorney, and every pleading must be verified by the affidavit of the party, his agent or attorney.

Section 5105 (11354) provides that the affidavit shall be sufficient if it is stated therein that the affiant believes the facts stated in the pleadings to be true.

Section 5109 (11358) says that the verification may be made by the agent of a party when the facts are within the agent’s personal knowledge.

From these statutes it appears that the application, whether considered as a motion or as a petition, was properly signed and verified. It was subscribed by the attorney of the plaintiffs and was verified by the agent of one of them who says that he is familiar with the facts he swears to. As one of several parties may verify a pleading Sec. 5104 (11353), so the affidavit of the agent of one of them is sufficient.

We find no statute requiring that such proceedings as were instituted in this case must be begun by a motion or pleading sworn to absolutely, but hold that the general statute Sec. 5105 (11354) authorizing a verification upon belief, applies.

It follows that the proceedings were regularly instituted and that the trial judge erred in granting the motion to dismiss them.

Judgment reversed.

Hale and Marvin, JJ., concur.