author: Per Curiam.

text:
    JUSTICE OF THE PEACE.
    [Circuit Court of Hamilton County.]
    Louise Meyers v. Josiah Dwight.
    Decided, January 13, 1903.

      Jurisdiction — Of Justice of the Peace — To Talce Appeal Bond in Case Begun Before Another Justice.

    Where a justice of the peace hears and determines a case filed before another justice who is temporarily disabled, the appeal bond must be perfected before the justice originally having jurisdiction.
   Per Curiam.

This cause was originally brought before R. J. Stauverman, justice of the peace in and for Springfield township, and summons was, on December 30, 1901, issued by him.

On January 29, 1902, the following entry was made on Justice Stauverman’s docket:

“1902, January 29. This cause was called, R. J. Stauverman, issuing magistrate, being unable on account of sickness to try the ease, D. J. Smith, one of the justices of the peace of Springfield township, tried the action in his stead. Plaintiff being sworn, testified. And defendant, Mrs. Josiah Dwight, and her daughter, Miss Dwight, also being sworn and testified. And after hearing the testimony, judgment is for defendant and the cost taxed against plaintiff amounting to $5.50.
“D. J. Smith,
“Acting Justice of the Peace.”

On February 4, 1902, Harry W. Morten signed plaintiff’s appeal bond, to which this certificate appears:

“Approved by and signed before me this fourth day of February, A. D. 1902.
“Richard J. Stauverman,
“Justice of the Peace.”

The common pleas court dismissed the appeal, on the ground that it was not perfected in the manner required by Section 6583, Revised Statutes, in that the appeal bond was not approved by the justice of the peace who rendered the judgment:

“In all cases not otherwise specially provided for by law, either party may appeal from the final judgment of any justice of the peace, to the court of common pleas of the county where the judgment was rendered.”

And Section 6584, Revised Statutes:

“The party appealing shall, within ten days from the rendition of the judgment, enter into an undertaking to the adverse party with at least one good and sufficient surety to be approved of by such justice, in a sum not less than fifty dollars in any case, nor less than double the amount of the judgment and costs. ’ ’

Section 601, Revised Statutes, provides:

“In case of the sickness or other disability, or necessary absence of a justice at the time appointed for trial, another justice of the same township may, at his request, attend in his behalf, and shall thereupon become vested with the power, for the time being, of the justice before whom the summons was returnable; in that case the proper entry of the proceeding before the attending justice, subscribed by him, must be made in the docket of the justice before whom the writ was returnable; if the cause is adjourned, the.justice before whom the summons was returnable must resume jurisdiction.”

We are of opinion that in sitting in the place of Justice Stauverman, in the trial of this case, Justice Smith was exercising the power of Justice Stauverman, with which Justice Smith was “for the time being,” “vested.”

The judgment was, for all ministerial purposes — that is, for all purposes not immediately part of the hearing — the judgment of Justice Stauverman. Of course, this could not be for purposes of a motion for a new trial or signing a bill of exceptions. Justice Smith’s assumption of power only lasted for the time being, and did not continue for ten days within which the appeal bond might be given.

We are of opinion that the appeal was perfected according to law, and that the court below erred in dismissing the cause.

Judgment reversed.


source: Caselaw Access Project

license: Public Domain

text:
    LAWS RECOGNIZING MORAL CLAIMS.
    [Circuit Court of Hamilton County.]
    State of Ohio, on the Relation of F. C. Ampt et al, v. John H. Gibson, Treasurer of Hamilton County et al.

    Decided, July 30, 1904.

      Constitutional Law — Legislative and Judicial Poioer — Retroactive Legislation — Moral Claims.

    The act of April, 1904, for the relief of county treasurers and county commissioners, is not a legislative interference with the judgment of a court.
    Giffen P. J.; Jelke, J., and Swing, J., concur.

       Affirming State, ex rel, v. Gibson et al, 2 N. P.—N. S., 221.

   We are of opinion that the act of April, 1904, entitled an “Act for the relief of County Treasurers and County Commissioners” does not contravene Section 16 of the Bill of Rights; Section 32, of Article II; or Section 1, Article IV of the Constitution, as being legislative interference with the judgment of a court.

This act is passed in recognition of the binding force and effect of the judgment of the Supreme Court in cause No. 8737, in deference to said judgment and because of it.

Neither is said act opposed to Section 28, Article II of the Constitution as being retroactive. The power to make laws recognizing the moral claim involved in past transactions has always been recognized by the highest tribunals and never held to be retroactive in the sense provided against this and similar constitutional sections.

The Legislature was fully informed as to all facts with which it was dealing, and no mistake of fact appearing, no matter what we may think of the wisdom or moral purpose of this act, the conscience of the Legislature is not to be measured by the conscience of this court.

The courts will not review this phase of an act of the Legislature. We approve the opinion of the court below and its judgment will be affirmed.

Ampt, Ireton, Collins & Schoenle, for plaintiffs in error.

Frank F. Dinsmore, contra.


text:
    INTERFERENCE WITH WATER PIPE BY GRANTOR.
    [Circuit Court of Lorain County.]
    A. J. Turner v. Clinton DeWitt.
    Decided, October 8, 1903.

      Deed — In the Ordinary Warranty Form — Granting All the Appurtenances Thereto Belonging — Garries the Right to Use Waterpipe Leading to Douse on the Lot Sold — Notwithstanding Along Part of Its Course It Lies Withing a Lot Not Conveyed — Pleading.
    1. Where a lot is conveyed by an ordinary deed of warranty, granting the premises with all appurtenances thereto belonging, the warranty covers the right to the use of the grantee of • a waterpipe leading to a dwelling on the lot conveyed; and reasonable damages may be recovered by the grantee on account of the cutting of the pipe by the grantor, notwithstanding along a part of its course the pipe lies over the line and on a lot still owned by the grantor.
    2. In drawing a petition in such a case it is the better practice to make the deed an exhibit, and not make it a part of the petition.
    Marvin, J.; Hale, J., and Winch, J., concur.
   The case of A. J. Turner against Clinton DeWitt is a proceeding in error to reverse the judgment of the court of common pleas of this county. In that court suit was brought by DeWitt against Turner upon this state of facts: Turner was the owner of real estate at the corner of Forest and Livingston streets in the city of Lorain, and this real estate thus owned, whether divided into lots or not I do not know, I believe it was; but in any event, the property fronting on Forest, the part of this real estate fronting on Forest and not abutting upon Livingston was sold by Turner to DeWitt; on the property thus sold to DeWitt was a dwelling house. Water was supplied to the lot sold to DeWitt by a pipe running from the main waterpipe across the other part of this real estate of Turner’s, and extending clear into and upon the lot of DeWitt. This was so at the time DeWitt received his deed from Turner. The deed was an ordinary warranty deed, and granted the premises with all the appurtenances thereunto belonging, practically that is the reading. And by the way, I think it would be well enough to criticise the petition in this case to this extent — the deed is not only made an exhibit, but a part of the petition. It would be a good deal better to follow the statute and make it an exhibit, and not make it a part of the petition. But it is admitted that the copy attached is a true copy of the deed.

So when DeWitt owned the property, he held it by a deed from Turner, which conveyed to him the property by metes and bounds, together with all the appurtenances thereunto belonging. As already stated, the pipe passing along of course under the surface of the other land of Turner, conveyed water to DeWitt’s property. After DeWitt purchased the property he had connections made with the hydrant which was already upon the lot and to which water was conveyed by the pipe already spoken of, so that water was conveyed into his house.

Some time after the purchase by DeWitt, Turner cut the waterpipe near the line, or close to the line, between his own property, which he still retained, and that of DeWitt, and thereby cut off the supply of water to DeWitt. In his answer he says that DeWitt was in arrears for water rent, and under some rule of the water company the water would be cut off from them both, but that is not sustained by the evidence.

The claim on the part of Turner is, that he had a right to cut that water off; that he sold by metes and bounds to DeWitt the lot; that DeWitt still has the lot; he never has interfered with his having the lot, but that he did not sell him any water-pipe or any rights in any waterpipe. Of course, if he did convey to him any rights, it is because either to the necessary enjoyment of the property which he did sell this pipe was an appurtenance, or because the deed conveyed the land with the appurtenances.

The evidence shows that to the proper enjoyment of this property purchased from Turner by DeWitt it was necessary to have the water upon the lot, and the cutting off by Turner of the waterpipe necessitated DeWitt making a connection from Forest street to his premises, and that connection the evidence shows was an expense of $23.80. That is to say, that amount was paid to the man who put in the connection; then he had to pay the water company $5 for something, I do not exactly know what, and he says his land was injured by the earth being thrown up to make the ditch, and it was a good deal of injury to his lawn.

The case was tried to the court without a jury. The court rendered judgment for DeWitt for $25. Neither in the motion for a new trial nor in the petition in error is any complaint made that the amount allowed was excessive; if that were made, we should hold against it.

We understand that by this deed DeWitt had an interest as an appurtenance to his property in this waterpipe, and that it was an interference with the appurtenance, which Turner had warranted to DeWitt, when he cut it.

In Second Metcalf, the case of Johnson v. Jordan, beginning on page 234, certain propositions are announced by the court, and pretty well recognized by the profession, and are well expressed. On page 240:

“There are some general and well settled rules of construction of conveyances, which tend in some degree to settle the question. The language of the deed is the language of the grantor; he selects the terms, and it being supposed that he will insert all that has been agreed upon beneficial to himself, and will be less careful to state fully all which is beneficial to the grantee, the language is to be construed most strongly against the grantor. Another well settled rule of construction is, that a grant of any principal thing shall be taken to carry with it all which is necessary to the beneficial enjoyment of the thing granted, and which is in the power of the grantor to convey. When therefore a party has erected a mill on his own land, and then sells the mill, without the land through which such artificial raceway passes, the right to use such raceway through the grantor’s land shall pass as a privilege annexed de fado to the mill and necessary to its beneficial use. (Citing authorities).

D. H. Aiken and G. E. Hall, for plaintiff in error.

C. F. Adams and C. Chapman, for defendant in error.

“Under these rules, it might perhaps be held, that if a man, owning two tenements, has built a house on one, and annexed thereto a drain, passing through the other, if he sell and convey the house with the appurtenances, such a drain may be construed to be de facto annexed as an appurtenance, and pass with it; and because such construction would be most beneficial to the grantee.”

Without reading further we think that authority is in point, that when that deed was made granting this property and appurtenances, it carried with it the right to have water through this waterpipe; when that was cut off a damage was done to the plaintiff below, DeWitt, which under his deed Turner was bound to warrant against, and he was therefore liable in damages, and the judgment of the court of common pleas is affirmed.


text:
    RIGHTS OF NON-RESIDENT ALIENS.
    [Circuit Court of Jefferson County.]
    J. Oscar Naylor, Administrator, v. The Pittsburgh, Cincinnati & St. Louis Railway Company.
    Decided, May Term, 1904.

      Non-resident Aliens — May Enforce Claims for Property Bights — And a Claim for Negligently Causing Death is a Property Bight — Sections 6134 and 6135 Construed — Treaty with Italy.

    1. Non-resident aliens are entitled to the benefits conferred by Sections 6134 and 6135 of the Revised Statutes, and an action may be maintained for their benefit, for negligently causing death in this state.
    2. Under the treaty between the United States and the Kingdom of Italy, ratified November 18, 1871, citizens of that kingdom have the same right to enforce a claim in this country respecting property as our own citizens, and a claim in favor of next of kin for negligently causing death in this state is a property right.

      Cook, J.; Laubie, J.; and Burrows, J., concur.
    Error to the Court of Common Pleas of Jefferson County.
   The action below was to recover damages for negligently causing the death of Bassillo Marino. The deceased was a native of the Kingdom of Italy, and had been but a short time in the state of Ohio, working for defendant in error, but a few days. At the time of his death he had a wife and two children residing in Italy, and who still reside there. Defendant in error in the court below set up as a second defense in its answer that the beneficiaries on whose behalf the action was prosecuted were non-resident aliens, being residents of the Kingdom of Italy. To this defense a general demurrer was filed, which the court overruled, holding that it was a complete defense to the action, and the petition of the plaintiff was dismissed.

The question and the only question made upon error is: Can an action be maintained for negligently causing the death of a person in this state, where the beneficiaries are non-resident aliens ?

This question has been determined differently in the different states, and from the decisions it would seem that it has been differently determined in England, where liability for negligently causing death was first created by statute, and that this question is not yet settled there.

The authorities being antagonistic, it becomes necessary to determine the question largely on principle, giving to the decisions of the different states that consideration to which they seem to us to be entitled, and following those that we consider most in consonance with reason and correct principle.

Most of the difficulty arises from the difference of opinion existing as to the manner of construing the acts of the different states, fashioned after Lord Campbell’s Act. Some eminent-courts have held that such statutes, being in derogation of the common law, should be strictly construed; while others, particularly the Supreme Court of the United States, have held that they are remedial in their'nature, and therefore should be liberally construed.

This court follows the holding of the Supreme Court of the United States in the case of Alvida Schell et al v. The Youngs town Iron & Steel Company, 4 C. C.—N. S., 172, where the authorities are referred to.

Keeping in view that the purpose to be accomplished by these statutes is primarily to get rid of a maxim of the common law regarding the survival of personal actions and the comprehensiveness of our own statute, it would seem that there ought not to be a difference of opinion upon the question; and yet the courts of some of the states, with statutes as broad as our own, have held that non-resident aliens can derive no benefit from this statute.

Section 6134 is very general:

“Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the corporation which, or the person who would have been liable if death had not ensued, * * * shall be liable to an action for damages notwithstanding the death of the person injured.”

That is to say, the corporation or person shall be liable in damages in the same manner as if death had not ensued, and if the person or corporation is to be liable in the same manner as if death had not ensued, how can it be said that this language is not sufficiently comprehensive to include non-resident aliens as beneficiaries?

Section 6135:

“Every such action shall be for the exclusive benefit of the wife, or husband, and children, or if there be neither of them, then of the parents and next of kin of the person whose death shall be so caused. ’ ’

There is no question as to the liability of the person or corporation if death had not ensued, and the same liability by express language of the statute attaches in case of death, the manner of proceeding and the parties to be benefited being fully provided for. To hold that such actions can not be maintained for the benefit of non-resident aliens, it seems to us, would be a partial nullification of the statute.

The case of Deni v. Penna. R. R. Co., 181 Pennsylvania State, 525, is the initial case holding to the restrictive rule and is the case generally relied upon in all the states that hold that an action can not be maintained for the benefit of non-resident aliens.

The syllabus of that case is:

“Under the act of April 26, 1855, P. L., 309, which gives a right to recover damages for an injury causing death, a nonresident alien mother has no standing to maintain an action against a citizen of the state of Pennsylvania to recover damages for the death of her son.”

It must be conceded that the statute of Pennsylvania is, in - all essential particulars, the same as the statute of our own state. In that state the action is prosecuted directly in the name of the beneficiaries, while in our own an 'administrator is appointed who prosecutes the suit for the benefit of the beneficiaries; but these distinctions are unimportant.

We are not impressed with the reasoning of the learned judge who delivered the opinion of the court in that case. In it he says:

“Our statute was not intended to confer upon non-resident aliens rights of action not conceded to them or to us by their own country, or to put burdens on our own citizens to be discharged for their benefit. It has no extra-territorial force, and the plaintiff is not within the purview of it. While it is possible that the language of the statute may admit of a construction which would include non-resident alien husbands, widows, children and parents of the deceased, it is a construction so obviously opposed to the spirit and policy of the statute that we can not adopt it. A non-resident defendant is not entitled to the benefit of our exemption laws, although the language of those laws may admit of a construction which would include him. It has been so held in a number of our cases. In this connection the language of Mr. Justice Sterrett in Collum’s Appeal, 2 Pennypacker, 130, is pertinent. In delivering the opinion of the court he-said: ‘While non-resident debtors may perhaps be within the letter of the act, we do not think they are within the spirit. As was said by Mr. Justice Woodward, in Yelverton v. Burton, 2. Casey, 351, and afterwards quoted approvingly by the present Chief-Justice in McCarthy’s Appeal, 18 P. F. Smith, 217, we do not legislate for men beyond our jurisdiction.’ In one respect, at least, our act of 1855 resembles our exemption laws. It ie intended, primarily, for the benefit of the family of which the deceased was a member.”

This would seem to be a very close and narrow construction of the statute; and the statement of the learned judge is in some respects inaccurate. His reasoning would seem to make the ease apply to all non-residents, whether residents of the other states of the Union or of foreign nations. He says: £ ‘ The statute has no extra-territorial force.” That is in direct conflict with the holding of the courts in nearly all the states and of the Supreme Court of the United States. See cases cited in Schell v. Iron & Steel Company, supra. Indeed, the courts of Pennsylvania enforce the statutes of the different states upon this subject (Knight v. West Jersey Railroad Co., 108 Penn. St., 250). Again he says: “We do not legislate for men beyond our jurisdiction. ’ ’ That is not in accord with the generally accepted doctrine. As was said by Mr. Chief-Justice Holmes, now of the Supreme Court of the United States, in Mulhall v. Fallon, 176 Mass., 268:

“It is true that legislative power is territorial and that no duties can be imposed by statute upon persons who are within the limits of another state. But rights can be offered to such persons, and if, as is usually the ease — the power that governs them makes no objection — there is nothing to hinder their accepting what is offered. ’ ’

Our Supreme Court has repudiated the doctrine of the Pennsylvania ease, on the reasoning therein contained — that nonresident debtors are not entitled to the benefit of our exemption laws under the general terms contained in the statute where there are no express words extending their benefit to non-resident debtors. In Sproul v. McCoy, 26 O. S., 577, it was held:

“The exemptions from execution or sale” allowed to every person who has a family, “under the provisions of the act of April 16, 1873 (70th Ohio Laws, 132), may be claimed by any debtor against whom an action is pending in the courts of this state, whether such debtor be or be not a resident of this state.”

In Mulhall v. Fallon, already referred to, Mr. Chief-Justice Holmes, after referring to the different cases on the subject, further says:

‘ ‘ The question then becomes one of construction, and of construction upon a point upon which it is probable that the Legislature never thought when they passed the act. In view of the decisions to which we have referred, we lay on one side, as too absolute, some expressions which are to be found in the English cases, some of which are cited in Adam v. British & Foreign Steamship Company, 79 L. T. (N. S.), 3. Our different relations to our neighbors, politically and territorially, is a sufficient ground for a more liberal rule.
“One or two cases may be found where a general grant of a right of action for wrongfully causing death has been held to confer no rights upon non-resident aliens (Deni v. Pennsylvania Railroad, 181 Penn. St., 525; Branning v. Union Gold Mining Company, 93 Fed. Rep., 164). But compare Knight v. West Jersey Railroad, 108 Penn St., 250. On the other hand, in several states the right of the non-resident to sue is treated as too clear to need extended argument. Philpot v. Missouri Pacific, Railroad, 85 Mo., 164, 167; Chesapeake, Ohio & Southwestern Railroad v. Higgins, 85 Tenn., 620, 622; Augusta Railway v. Glover, 92 Ga., 132, 142, 143; Luke v. Calhoun County, 52 Ala., 115, 118, 120.
“Under the statute, the action for death without conscious suffering takes the place of an action that could have been brought by the employe himself if the harm had been less, and by his representative if it had been equally great, but the death had been attended with pain (St. 1887, C. 270, Section 1, cl. 3). In the latter case there would be no exception to the right of recovery if the next of kin were non-resident aliens. It would be strange to read an exception into the general words when the wrong is so near identical,. and when the different provisions are part of one scheme.”

The first paragraph of the syllabus of this case is:

“A statute can not impose duties upon a non-resident alien, but it may confer rights upon him. The St. 1887, C. 270, Section 2, confers a right to -sue upon the next of kin, who is a nonresident alien.”

From the foregoing considerations we are of opinion that non-resident aliens are entitled to the benefit of our statute. Our relations with foreign countries, like the relation between the states, are now too close to put a construction upon a statute of such character, not necessarily required by settled rules of construction. We should also take into consideration, in arriving at the intention of the Legislature when it enacted this law and the various amendments, the condition of business and the population of our state. Large numbers of foreign citizens were employed upon our railroads, in our manufactories and industries, who had dependent relatives in foreign lands. Can it be supposed that it was the purpose and intention of the Legislature to discriminate against these foreign dependents? If so, it would be an act not not only unjust and unconscionable, but would be placing a premium upon the employment of foreign labor to the exclusion of our own citizens. It would be saying to employers of labor, “Employ a foreigner, and, in the event of his death by negligence, you are not responsible; employ a citizen, and, upon his death under the same circumstances, you will be responsible.” To so hold would be imputing to the General Assembly an intent to make a narrow and unjust discrimination.

There is another reason why the sustaining of the demurrer to the second defense was clearly wrong. The widow and children of the decedent were subjects of the Kingdom of Italy. With that country and the United States there are treaty obligations, and the Federal Constitution provides, in Section 2, Article VI:

“This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding.”

The treaty, in Article III, provides as follows:

“The citizens of each of the high contracting parties shall receive, in the states and territories of the other, the most constant protection and security for their persons and property, and shall enjoy in this respect the same rights and privileges as are, or shall be, granted to the natives, on their submitting themselves to the conditions imposed by the natives.”

A. C. Lewis, D. M. Gruber, Goldzier, Rogers & Krochlich, for plaintiff in error.

Dunbar & Sweeney, for defendant in error.

The widow and children of Bassillo Marino have submitted themselves to the conditions imposed upon the natives of this country and state. They have had an administrator appointed upon the estate of their deceased husband and father; they have come regularly into our courts, meeting all requirements of our practice, and asking that they have the same rights and privileges as our own citizens. Can we say, in the light of this treaty, that they shall not have and receive the same consideration and rights' as any person within the state? We think not. It is very doubtful if a statute could be enacted by our Legislature discriminating against the residents of the Kingdom of Italy as to property, and it is unnecessary to cite eases to show that such a claim as these next of kin assert, in this action, is property. If the Legislature did make such discrimination, the courts could not enforce it, for the reason that it would be against the supreme law of the land. However tha-t may be, this treaty was ratified November 18, 1871; and our statute has been amended several times since that date, and it is hardly to be supposed that the General Asembly would continue to legislate in direct antagonism to this treaty. But, on the contrary, the presumption is that the intention was that the broad language used in Sections 6134 and 6135 should include non-resident aliens as well as residents of our own state. ,

The judgment of the court of comon pleas will be reversed, with instructions to sustain the demurrer to the second defense and for further proceedings.


text:
    SET-OFF AGAINST BALANCE DUE FOR WORK ON PUBLIC BUILDINGS.
    [Circuit Court of Lorain County.]
    Robert A. McClure v. Lorain County Commissioners.
    Decided, October 12, 1902.

      Contract■ — Damages for Injury to Steam Heating System — Becomes a Valid Set-Off — Where due to Negligence of Contractor for Work, on Public Buildings.

    An admitted liability by a contractor for injury to steam heating system, while at work on a public building in which the system is located, becomes a valid set-off against balance due the contractor on account of the work.
    Hale, J. (orally); Caldwell, J., and Marvin, J., concur.
    Heard on error.
   The case of McClure v. Lorain County Commissioners, in error to the court of common pleas. The commissioners of Lo-rain county were erecting a building in Oberlin to be used as a children’s home. The first contractor who undertook to do the work defaulted before completing the building, and the commissioners entered into three separate contracts with McClure for the completion of the building. He brought his action to enforce payment upon these contracts of the balance claimed to be due him. While there are a number of'issues made in the case, it is agreed by the parties that the amount unpaid to McClure at the time the action was brought was $431.01, and that he was entitled to judgment for that amount, unless the set-off pleaded by the commissioners was to be allowed, and that whatever was to be allowed upon that set-off should be deducted from the $431.01. The only issue submitted to the court was, whether that set-off should be allowed in whole or in part, and if so allowed, deducted from this amount, and judgment rendered for the balance.

The substance of that set-off is this: Prior to making these contracts with McClure the commissioners had placed in that building a steam heating system complete, and that while McClure was in possession of the building completing the building under his contracts he so negligently and carelessly operated and used this steam heating system as to cause it great injury; that he allowed the pipes to fill with water, freeze and burst, rendering the system useless without repairs; that after this was done McClure and the commissioners entered into a contract by which McClure recognized his liability for the loss and injury to the heating system, and agreed with the commissioners that they should employ a plumber to make the necessary repairs, and deduct from the amount due him the sum that it should cost to make those repairs.

A jury was waived and the case submitted to the court. Testimony was given by each side, the one tending to support and the other tending to disprove the contract, but that testimony is of such a nature and of such a character, that this court would not be authorized to disturb the finding of the trial court, because not supported by sufficient evidence.

It is said, however, that there was no consideration for this contract; that McClure was not in any way responsible for this loss. lie did this work by a subcontractor, who, he alleges, was an independent contractor, and if the independent contractor meddled with this steam heating system in any way, causing the injury, he was not responsible for it. But it is sufficient to say a claim was made by the commissioners that he was so responsible. And if, in settlement of that claim, he agreed with them, as they allege he did agree, it would be a sufficient consideration.

Again, if he was in fact responsible for the loss of this steam heating system, there would be no question about his liability to the commissioners for the loss sustained thereby. There is only one view of the case in which his claim for a want of consideration could possibly be sustained. If the commissioners, for the purpose of preserving the building, bought the coal to heat the building, not for the purposes of the contractor, but for their own purposes, and the sub-contractor was really keeping up the fires because the commissioners desired him to do it to preserve the building, it might well be said the principal contractor was not responsible; but that case is hardly made in the proof.

If, as I have stated, the commissioners made the claim of McClure that he was responsible for this loss, which he conceded and made a promise to pay, or if McClure was in fact responsible for the loss, there was a sufficient consideration to support the claim.

The result of our investigation is that the record presents no cause for reversal of the judgment. The judgment of the court of common pleas is affirmed.


text:
    EXEMPTION IN LIEU OF HOMESTEAD.
    [Circuit Court of Lorain County.]
    C. E. Campbell v. Thomas Bennington.
    Decided, April 29, 1904.

      Attachment — Non-resident not Entitled to Exemption in Lieu of Homestead — Sections 5438 and 5441.
    The benefits of the exemption in lieu of homestead, provided by Section 5441, are limited to residents of this state.
    Hale, J.; Winch, J., and Marvin, J., concur.
   The ease of Campbell v. Bennington, error, is prosecuted here to reverse a judgment of the court of common pleas. The action was commenced before a justice of the peace and appealed to the court of common pleas, and the only question made in the ease is whether a motion to discharge and dissolve an attachment which had been issued in the case, was wrongfully overruled by the trial court, for the reason that the property attached was exempt from execution.

The facts upon which the motion was submitted were agreed to, from which it appears that the defendant was a non-resident of the state. The question made is, whether there was exempt to him in lieu of a homestead $500.

Section 5438 provides for the exemption of a homestead to the execution debtor in the sum of $1,000. That can only mean a homestead, situated within the state, to be occupied by the person living in the state.

Fritz Rudin, for plaintiff in error.

Metcalf & Cinniger, for defendant in error.

Section 5441 exempts from execution property of the value of $500 in lieu of a homestead. The judgment debtor having no homestead there is exempt to him in lieu of such homestead property of the value of $500, and under that clause this non-resident claims this exemption. The. court below ruled that he was not entitled to it. It ruled correctly. The exemption provided for by Section 5441 in lieu of a homestead has no application to controversies with non-residents. Its benefits are limited to residents of this state, and the judgment of the court of common pleas is affirmed.


text:
    LIMITATION OF ACTIONS.
    [Circuit Court of Columbiana County.]
    Amanda Hoiles v. Lodge Riddle, Administrator.
    Decided, March Term, 1904.

      Limitation of Actions — When the Statute Begins to Bun — As to a Claim Becoming Due at the Death of the Debtor.

    When a debt becomes due at the death of a debtor, upon failure of next of kin to have administration taken out upon the estate, it is the duty of the creditor, in order to save his claim from the bar of the statute, to have letters issued in a reasonable time from the decedent’s death, as the statute begins to run from the time the creditor should have had the administrator appointed, and not from the time he did have letters issued. What is a reasonable time depends upon the circumstances of each particular case.
    Cook, J.; Laubie, J., concurs; Burrows, J., dissents.
    Error to the Court of Common Pleas of Columbiana County.
   The action below was to recover damages for a breach of contract. A demurrer was sustained to the petition, for the reason that the cause of action was barred by the statute of limitations, the petition dismissed and judgment against plaintiff below for costs. Error is now prosecuted in this court to reverse the judgment of the court below.

The petition sets forth:

‘ ‘ That on or about the 28th day of January, 1863, said Robert Watson, the decedent, entered into a verbal contract or agreement with Samuel Klingaman, the father of plaintiff, her mother being dead at the time, by the terms of which contract, upon the consideration that he, the said Samuel Klingaman, would relinquish and surrender the person of his said child, Amanda K1inga.ma.nj plaintiff herein, and her services, society, care and control, to him, the said Robert Watson and Mary Watson, his wife, they, the said Robert Watson and Mary Watson would receive said child into their home, keep, clothe and provide for her, have her services, society, care, custody and control, and adopt her, give her their own name and thereafter treat her as their own child.
“The said Robert Watson further agreed, upon the consideration aforesaid, that he would make said child his heir and give her all the personal property which he owned or possessed at the time of his death. He agreed that she was to have and receive the possession of said personal property at his death, if he survived his wife, Mary Watson, but if his wife, Mary Watson, survived him, then she was to receive possession of said personal property at the death of his wife, Mary Watson. Yet notwithstanding the facts hereinbefore' set forth and pleaded, and in disregard and violation of the terms of the contract made by Samuel Klingaman and Robert Watson for the benefit of said plaintiff, said Robert Watson failed and neglected to make any provision for plaintiff at the time of his death, and to give plaintiff the personal property of which he might die possessed, either at his own or the death of his wife, but, on the contrary, some time before his death, made and executed his last will and testament, by the terms of which he gave all his property, both personal and real, to his wife, Mary Watson, without any devise, bequest or gift over to plaintiff, or any part of the same.”

The petition further avers that the said Robert Wfetson did not adopt the plaintiff; neither did he make her his heir at law; but the principal ground of complaint in the petition is, as herein set forth, that he failed to give her the personal property as he had agreed to do, and damages are sought to be recovered for this breach.

As appears from the petition, Robert Watson died April 26, 1885, and Mary Watson, his wife, died September 12, 1899.

The plaintiff caused letters of administration to be issued to the defendant in error, Lodge Riddle, April 6, 1903, and on August 25, 1903, she commenced the action below.

The only question made is: Hid the court err in sustaining the demurrer to the petition and dismissing the same, for the reason that the action was barred by the statute of limitations?

What is required of a creditor who 'seeks to enforce a claim under a contract made in this state, which accrued at the death of the debtor? Can the creditor remain idle for an indefinite period, although no administration be taken out upon the estate by the next of kin, or is it the duty of the creditor to be diligent in having an administrator appointed in order to save the claim from the bar of the statute?

In this case, plaintiff in error took no steps whatever to save her claim until April 6, 1903, a period of nearly eighteen years from the death of Robert Watson, and her claim came within the six year bar of the statute.

This question has not been directly decided by our Supreme Court. The questions involved in the cases of Taylor v. Thorn, 29 O. S., 569, and Treas. of Brown County v. Martin, 50 O. S., 197, are not the same as the question made in this case. It was not considered by the court in either of those cases, and of course they are not decisive of the point.

We are aware that in the case of Tobias v. Richardson, 26 C. C. R., 81, decided in the third circuit and published since the rendering of the decision in this ease, it is held:

“A cause of action accrues, within the meaning of the statute of limitations, when there co-exists a demand capable of present enforcement; a suable party against whom the demand may be then enforced, and a party in being who has a present right to enforce it. Hence, when a note becomes due after the death of the payee, the title thereto and the right to enforce payment vest in the administrator, and the fifteen year limitation (Section 4980, Revised Statutes) begins to run from the date of the administrator ’s appointment. ’ ’

This holding seems to be too broad. If it was the rule that absolutely the statute did not begin to run until an administrator was appointed, then claims of this character would never become stale, as in suits at law the statute of limitations alone controls as to whether a claim is stale or not. How unjust and impracticable this would be. A party might wait, as in the case under consideration, until all the witnesses to the contract but one, who was interested as a father, were dead, and then have an administrator appointed and commence action.

In the nineteenth volume of the American & English Encyclopædia of Law, 211, it is said:

“Independently of special provisions for such cases, the plaintiff can not defer, by his own laches, the time at which the running of the statute shall begin. The statute runs from the time when he might have perfected his right, irrespective of the time at which he actually perfects it. In some jurisdictions this rule is declared by special provision.”

In support of the text the author refers, among others, to the case of Rauserman v. Blunt, 147 U. S., 647, and in that ease Mr. Justice Gray says:

“In the absence of express statute or controlling adjudication to the contrary, two general rules are well settled. First. When the statute of limitations has once begun to run its operation is not suspended by subsequent disability to sue (Walden v. Gratz, 1 Wheat., 292; Mercer v. Selden, 1 How., 37; Harris v. McGavern, 99 U. S., 161; McDonald v. Hovey, 1102 U. S., 619). Second. The bar of the statute can not be postponed by the failure of the creditor to avail himself of any means within his power to prosecute or preserve his claim. Richards v. Maryland Ins. Co., 8 Crouch, 84; Braum v. Saurewein, 10 Wall., 218; United States v. Wilby, 508, 513, 514; Kirby v. Lake Shore & Mich. Southern R. R., 120 U. S., 130, 140; Amy v. Waterton, 130 U. S., 320, 325.

Did not plaintiff in error fail to avail herself of a means within her power to preserve and prosecute her claim? Section 6005, Revised Statutes, provides:

“If the persons so entitled to administer are incompetent or evidently unsuitable for the discharge of the trust, or if they neglect, without any sufficient cause, to take administration of the estate, the court shall commit it to one or more of the principal creditors, if there be any competent and willing to undertake the trust. If there be no such creditor, the court shall commit administration to such other person as it shall think fit. ’ ’

If the next of kin failed to take out letters of administration, it was her privilege to have had such letters issued to any suitable person, and if she wished to preserve her claim, it was her duty to have an administrator appointed and commence her action before the time elapsed to bar her claim. This is the rule, at least, laid down by the Supreme Court of the United States.

Upon page 211 of the 19th volume of the American & English Encyclopædia of Law, it is again said:

“In many jurisdictions, however, the foregoing rule is modified to the extent that a reasonable time is allowed to the plaintiff within which to perfect his right of action, and the statute does not begin to run until after the elapse of this reasonable time.”

Many cases are cited by the author in support of this statement. Among others, cases from the state of Kansas, and it was under the statute of that state that the case of Bauserman v. Blunt, supra, was decided, and the court held that it was controlled by the decisions of that state, and therefore a reasonable time must be allowed to take out letters of administration, the last paragraph of the syllabus being as follows:

“The statute of limitations, as construed by the Supreme Court of the state, stops running at the death of the debtor but for such reasonable time only as will enable the creditor to have an administrator appointed.”

Again, in the same volume, on page 219, it is said:

“Where there is no person in existence capable of suing or being sued, no fault can be imputed to a claimant for failure to bring his action, and the rule is therefore well settled that the statute does not begin to run in such case until there is in existence some one capable of suing and some one who may be sued. This rule is subject to the qualification that if it is in the power of the claimant to remove the incapacity, the exemption continues only for a reasonable time after he might have brought about a condition which would enable him to sue.”

Again, on page 221, same volume:

“Where, as in practically all the jurisdictions of the United States, a claimant has it in his power to procure the appointment of a personal representative by or against whom the suit may be begun and prosecuted, a reasonable time only in which to procure such appointment is allowed to such claimant, after-the expiration of which the statute will run in any event. In many of the states the time of the suspension of the statutes in such eases is fixed by statute.”

We have quoted largely from the Encyclopaedia of Law,, for the reason that it contains a reference to all the recent cases upon the question, and we have been unable to find any authority justifying the theory that a creditor can permit time to run indefinitely where, as in this state, it is in his power to have a personal representative appointed. The Supreme Court of the state of Kansas probably so held at one time, but it has repudiated the doctrine, if it ever existed in that state, and now holds that the creditor must have an administrator appointed in a reasonable time.

In Bauserman v. Charlotte, 46 Kansas R., 480; 26 Pacific R., 1051, the court of that state finally held:

W. H. Spence, for plaintiff in error.

David Fording and Craine & Snyder, for defendant in error.

“Under the provisions of the statutes of Kansas, a creditor of a decedent having a claim which he wishes to establish against the estate may, if the widow or next of kin refuse to take out letters of administration, obtain letters for himself, or some other person, after fifty days from the death of the decedent; and he can not, without any good cause or reason therefor, defer making such application until the statute of limitations has run, and then claim that all of the time, from the death of the debtor to the appointment of the administrator, the statute of limitations is suspended on account of such administrator. If the creditor would save his claim against the estate of the decedent from the bar of the statute, he must exercise reasonable diligence, if the widow or next of kin refuse to take out letters of administration, to obtain administration for himself or some other person. ’ ’

The statute of the state of Kansas is almost the same as the statute of this state. The facts of the case are identical with the facts in this case, the cause of action having accrued at the death of the debtor. The opinion of Mr. Chief-Justice Horton is exhaustive and convincing, and, it would seem, should be decisive of the question.

What is a reasonable time in which to have a personal representative appointed must, of necessity, depend upon the circumstances of each particular case.

In Bauserman v. Blunt, supra, it was held that five months and twenty days was not a reasonable time, where there was no suggestion in the petition that the creditor was ignorant of the debtor’s death.

In the case under consideration, plaintiff in error, with full knowledge of debtor’s death, delayed for nearly eighteen years before having letters of administration issued and the commencement of her action, and if we deduct the period of limitations, six years, there still remains nearly twelve years, which is certainly unreasonable.

The judgment of the court below will be affirmed.


text:
    ADDITIONS BY BOARDS OF EQUALIZATION.
    [Circuit Court of Lucas County.]
    Birchard A. Hayes v. Joseph L. Yost, Treasurer of Lucas Co.
    Decided, January Term, 1902.

      Taxes — Duties of Boards of Equalization — What the Record Must Show Where Additions are Made to Tax Returns — Personal Notice to Owner of Property Required.

    1. The provisions of Section 2807, relating to the equalizing of assessments and making of additions to tax lists, is mandatory and must be strictly complied with. 4 C. C., 502, followed.
    2. Where additions are made, the facts relating to each separate item, which have been established by satisfactory evidence, should be entered upon the record with sufficient fullness and clearness to show whether or not the addition made by the board was justified.
    3. The notice required under Section 2807 must be served upon the property owner personally and proof made to that effect.
    Haynes, J.; Parker, J., concurs.
    Heard on error.
   In this case a petition in error was filed for the purpose of reversing the judgment of the court of common pleas. The original action was brought by Yost, treasurer, against Hayes, setting up that there was assessed against him certain personal taxes for certain years, to-wit, the years 1895, 1896, 1897 and 1898, and in certain amounts, and praying for a judgment aggregating $257.93. To this an answer was filed, setting up the fact that these taxes for these respective years were made up in part of certain penalties — and he proceeds to state that he made returns for these years of his personal taxes under Sections 7, 8, 9, and made oath to them, and delivered them to the assessor. He states that these returns made by him were just, correct and true, and states the amount of the valuations that the return showed for each year respectively; and he says that the board of equalization for these years subsequently increased the valuation of the property without any evidence before them, without any proof that the original return that the defendant made was not correct, or that the defendant had any personal property, moneys or credit which were not included in said returns for taxation, and that said additions, and each of them, were made by said board without any statement of facts entered on the journal, upon which the additions were based or authorized. lie makes further allegations as to the penalty on these returns, because they were incorrect and unjust. He further says that he had no knowledge of said several additions, or either of them, until long after the final adjournment of said board in each of said years respectively. He asserts that he tendered to the plaintiff before the commencement of this action the sum of $173.12 in payment of the claims set up in the petition. The case was tried in the court below upon an agreed statement of facts, or rather, I should say, that court was asked to separately state the facts and the conclusions of law, and the court found from the testimony as facts in this case as follows:

“First. The defendant was, during the whole of each of the years 1895, 1896, 1897 and 1898, a resident of the seventh ward in the city of Toledo, county of Lucas and state of Ohio, and in the month of April in each of said years listed personal property for taxation and made return thereof under oath to the assessor of said ward; that the total valuation of said personal property, as returned by said defendant, was, in 1894, $1,930; in 1895, $1,450; in 1896, $1,440; in 1897, $1,140; in 1898, $1,310, and that in each of said years said personal property was returned upon the following items and no others, as appeared on said returns and in Section 2737, Revised Statutes of Ohio, to-wit, the sixth (including bicycles), the seventh, the eighth and the ninth.
“Second. That in each of the years 1895, 1896, 1897 and 1898, the said board of equalization caused to be deposited in the post office at Toledo, postage prepaid, a notice addressed to the defendant, at his residence, to appear before said board and show cause why his return of personal property should not be increased.
“Third. That the defendant, because of temporary absence from Toledo, received each of said respective notices, so mailed in each of said years, after the said board had adjourned sine die for the year; but no other notice was ever given by the said board or received by said defendant.
“Fourth. That in the year 1895, said board of equalization added to the return so made by the defendant the sum of $520; and that the statement of facts entered on the journal of the board, as to its reasons for such addition was as follows, and not otherwise.
“The board having been in session daily since May 27, 1895, and after hearing and investigating all complaints made to them, ordered the following changes to be made, viz.:
“Ward. Name. Increased Dollars.
“7th. Hayes, B. A. $520.”

The findings and orders for the years 1896, 1897 and 1898 are set out fully hereinafter:

“Eighth. That the defendant never brought any action under Section 5848, Revised Statutes of Ohio, against the plaintiff or any of his predecessors in office.
“Ninth. That before this cause was commenced, the defendant tendered to the plaintiff the sum of $173.12 in full payment of the claim set up in the petition, but that the plaintiff refused to receive the same.”

The court finds as conclusions of law:

“First. That the respective statements of fact entered on the journal of said board of equalization were in full compliance with the statutes.
‘ ‘ Second. That the respective notices mailed to the defendant were each in full compliance with the statute.
“The court therefore finds that there is now legally due the plaintiff, Joseph L. Tost, the treasurer of Lucas county, Ohio, for the years 1895, 1896, 1897 and 1898 for personal taxes from the defendant the sum of $233.68, with interest at six per cent, from the date of this decree.
“The court further orders said defendant to pay said sum to said treasurer within ten days from date and upon failure thereof that execution may issue according to law.”

We are unable to agree with the court of common pleas in his findings in that respect. We find a case that has been decided by the Supreme Court of Ohio, Fratz v. Mueller, 35 Ohio St., 397, the first syllabus of which is as follows:

“The board of equalization added to a sworn return of personal property for taxation, which included the monthly average value of goods and merchandise during the preceding year, an additional valuation to such monthly average, and entered upon its journal a statement, as the reason for such increase, that in view of the facts, the return was insufficient and below the actual value of the property. Held: That this was a sufficient compliance with the statute which requires a statement of the facts to be entered upon the journal of the board.”

It will be noticed in regard to the return in that action, that the plaintiff was a merchant and he made returns upon the list that was furnished to him, and that the list in regard to merchandise requires that he should give the average monthly value of goods, and that was the only question that was before the board of equalization so far as appears by the record; and the only question that was before the Supreme Court in the decision made by it, and the statement of facts entered upon the journal in that ease, as was already stated, was as follows, page 398:

“On motion, the amount set opposite the names of the following persons was added to their personal returns for the reason that the amount returned by the parties respectively was, in view of the facts, considered insufficient and below the actual value of the property owned or held by the parties:
“Ward 19, John M. Mueller, 425 Front street, Item 10, $1,000.”

Now the board had a single question before it, and that was the average value of property under Item 10, and the board held that-the return was insufficient and below the actual monthly average of the property held by said Mueller.

Well, that was the ultimate fact proved in that particular ease, the only fact. There was no question in regard to the other items. The board was not required to set out the evidence, but the ultimate fact; and the ultimate fact found was that the value was too low. Under Item 10 the merchant was required to return the average of all goods, etc. The board found that the actual monthly value was too low. It was said by the Circuit Court of Hamilton County in an opinion that the Supreme Court had gone to the utmost verge of the statute in that particular case. However that may be, tested by the rule as to the finding of facts, the entries made by the board on the journal of statement of facts in all except the last of these cases is wholly insufficient.

Now in the above statement for 1895 the board say they heard and investigated complaints made to them and ordered changes to be made; no finding of facts whatever are stated. The change seems to have been entirely arbitrary upon the part of the board.

In the nest year the finding is:

“On July 25 the board commenced to hear the statements of all parties interested appearing before the board and taking into consideration other testimony produced, ordered the following changes to be made in the returns made by the assessors of the different wards and by incorporated companies to the county auditor. ’ ’

There is no finding of any fact, either in that year or the following, as to the items under either of these respective heads that he was ordered to and attempted to make return upon.

“In the year 1897 said board of equalization added to the return so made by the defendant the sum of $400, and the statement of facts entered on the journal of the board, as its reasons for such addition, was as follows, and not otherwise: ‘Resolved, That in view of said statement and upon other evidence satisfactory to this board, the following changes are hereby ordered made in the returns made by the assessors of the different wards of the city of Toledo of the personal property of the parties named below as set opposite their respective names.’
“In 1896 said board of equalization added to the return so made by the defendant the sum of $530, and the statement of facts entered on the journal of the board, as its reasons for such addition, was as follows, and not otherwise: ‘On motion the amount set opposite the names of the following persons was added to their personal returns, for the reason that the amount returned by the parties respectively was in view of the fact established by the evidence presented to this board in regular session considered insufficient and below the actual value of the property owned or held by the parties.’ ”

Evidently they attempted to follow the last statement in the ease decided in Fratz v. Mueller, supra, the only difference in the two cases being, in the one there was a single item; in the other they made an addition to four different items, not to the items themselves, but to the aggregate amount of all the items. They did not find, for instance, that the return of the one item was too low, or the second item or the third or the fourth, or that there were any articles of property or items omitted; they only took the aggregate of the items and added to it a certain sum. The criticism made by counsel for plaintiff is that the parties should have stated whether the amount of the finding was on account of the low valuation or upon failure to return, certain items that should have been returned under the statute, so that the party would have knowledge of the basis on which the board acted.

Now there is a reason in this thing. There is some sound sense in it. The party is required by the statute to make return under oath or affirmation that when he" makes that return, he has made it correctly; the county auditor is to place that amount on the tax duplicate and the party is to pay his taxes upon it. A board of revision is appointed — the board of revision attempts to add to his returns on the ground that they are incorrect in some form; they attempt to impose upon him additional burdens, which, in many eases, require a greater amount of taxes to be paid; in others, a less amount. We suppose the object and purpose of making the statement against whom changes are made is to enable parties to have an opportunity to rectify the change by such method as the law permits him to have and exercise for the correction of matters of that kind, by injunction Or error or any other manner of defense in a case of that kind. He being absent when the findings are made and when the questionable matters were added, if the board undertake to make changes, it would seem just and right and proper that they should state the facts under which they act, so that the party may challenge their action if he desires to do so.

In Cooley Taxation (1st Ed.), 256, the matter is discussed:

“That is as to the right of a party to a hearing, the justice and equity of it is set forth there. The statute requires that the party shall have reasonable notice so that he may be present. It really amounts to a trial, and the issue is whether the party has returned his property for the full amount; it ought to have some semblance of form and action that is required in an ordinary court of justice that rules against a man, for this really amounts to a judgment that he shall pay additional taxes.”

It is barely possible that the last statement of facts may be within the decision of the Supreme Court; we are, however, rather inclined against that view; we think the board should have set forth the facts, whether the value was too low on any one of the four items, or whether the party had omitted from those items any particular article or thing that ought to have been returned.

This matter has been up more than once in the Circuit Court of Hamilton County, and that court has apparently given the matter a great deal of attention and have made several decisions. I cite one decision, Ratterman v. Niehaus, 4 C. C., 502; there are half a dozen cases consolidated. The syllabus is:

“1. Section 2807, Revised Statutes, governing the equalizing of assessments, which provides that ‘when any addition shall be ordered to be made to any list returned under oath, a statement of the facts on which such addition was made shall be entered on the journal of the board’ is mandatory and must be strictly complied with.
“2. It is not sufficient merely to state that an addition was made; the facts which have been proved to them by satisfactory evidence and upon which the addition was made should be stated clearly, so that the officer or court before whom may come the reviewing of the acts of the board of equalization, shall be able, on inspection of the record, to see whether the facts therein stated are such as to justify the action of the board.”

There is quite a long decision upon the question and citation of authorities in regard to what constitutes a finding of facts under the decisions of the Supreme Court of this state. In the above ease the judgment of the circuit court was affirmed by the Supreme Court. It was a judgment for the enjoining of the collection of the additional taxes.

Now in regard to the question of notice. These additions were made, as we understand, under Section 2807, Revised Statutes. There are several statutes in regard to equalizing boards in different cities, and the provisions in regard to some matters in each are the same. I speak of this because I see there is a citation from a Cincinnati case which was under another statute in regard to an increased amount on real estate.

Section 2807, Revised Statutes, is as follows:

“The said boards shall hear complaints and equalize the assessments of all personal property, moneys and credits, new entries and new structures returned for the current year by the township assessors and county auditors; and they shall have power to add to or deduct from the valuation of personal property, or moneys or credits, of any person returned by the assessor or county auditor, or which may have been omitted by them, or to add other items upon such evidence as shall be sitisfactory to the said boards, whether said return be made upon oath of each person or upon the valuation of the assessor or county auditor, but when any addition shall be ordered to be made to any list returned under oath, a statement of facts upon which such addition was made shall be entered upon the journal of the boards. Provided, that no such addition shall be made to such list returned under oath without the board having first given reasonable notice to the person or persons (if their residence be within the county) whose personal property is sought to be added to or the valuation thereof increased, to appear before said board at a time and place to be fixed by said board, and show cause why such addition should not be piade, or why such valuation should not be increased.”

It will be noticed that notice is to be given those who make returns under oath who are residents of the county. Now it appears by the agreed statement of facts in the case that the written notice was deposited in the post office at some time, it is not stated when, directed to Mr. ITayes at his residence; that he was temporarily absent from the city, so he did not receive it, in each year, until after the board had adjourned. How long a time before adjournment that notice was put in the post office is not stated, nor perhaps is it very material; sufficient to know that by the ordinary course of business the letter reached his house, but did not reach him until after the board had adjourned —until after his rights in the matters were foreclosed, so far as the board was concerned.

Now the question is as to the character of the service that is to be had on this notice. The statute provides that the party shall be given reasonable notice. He is to have a notice that is reasonable, notice as to the time and place so he may have an opportunity to appear. Notice is to be given to him. The court below found that a notice put in the post office directed to him was sufficient. We are unable to agree with the court in that respect, because we find decisions of the Supreme Court of this state and other courts that lead us to an opposite conclusion. And because, in reason, if he is to have notice, it should be given to him in person, served upon him, so that the board, before it acts, may know that he has received it and that it has jurisdiction over him.

In the case of Moore v. Given, 39 Ohio St., 661, the second syllabus says:

“Where a statute requires notice of a proceeding, but is silent concerning its form and manner of service, actual notice will alone satisfy such requirements.”

And again in the decision of the case it was laid down as a positive rule of law. Now that statute was in regard to a partition fence, and the obligation of the parties to build a portion, and in case of any disagreement, a notice was to be served upon the parties by the township trustees, perhaps the commissioners to apportion the work.

The Circuit Court of Hamilton County had this matter again before it under Section 2804, Revised Statutes, in regard to the action of the board of revision of real estate, but the language is the same in each. In the case of Perkins v. Zumstein, 4 C. C., 371, that court says:

“Section 2804, Revised Statutes, prohibiting the county and city boards of equalization from increasng the valuation of real estate, except on reasonable notice to all persons directly interested, and an opportunity for full hearing of the questions involved, is mandatory, and must be strictly complied with,” and “where no other kind of notice is prescribed in the statute, it must be actual notice.
“Notice of intent to increase valuation served on one owner of an undivided interest in real estate will not bind any of the others. ’ ’

Now the court says in announcing the opinion in that ease:

“If the language of the statute were not sufficiently clear to show its mandatory character, there are abundant authorities so deciding. In Cooley on Taxation, page 287, it is laid down, ‘so all provisions designed to give the tax-payer an opportunity of the review of the assessments themselves, or on an appeal, are exclusively in his interest. Every notice which the statute provides for that end, whether by publication or otherwise, must be given with scrupulous observance of all its requirements. The notice can not be shortened a single day without rendering it ineffectual; the presumption being that the law has made it as short as was deemed consistent with due protection. A published notice can not be received as the substitute for a notice to be personally delivered to the party concerned,’ * * * and the same rule applies to any notice required by subsequent proceedings, and when a statute requires notice of a proceeding, but is silent concerning its form or manner of service, actual notice will alone satisfy such requirement.” Citing eases as follows: Moore v. Given, 39 Ohio St., 661; Roche v. Dubuque, 42 Ia., 250; Lagroue v. Rains, 48 Mo., 536; Powers’ Appeal, In re, 29 Mich., 504; Plumer v. Marathon Co. (Supvrs.), 50 N. W. Rep., 416 (46 Wis., 163); Rathbun v. Acker, 18 Barb., 393; St. Louis v. Goebel, 32 Mo., 295.

Neither of these cases seem to have been taken to the Supreme Court; but the Legislature, probably acting on the decisions of that court in regard to the provisions of that 'statute in regard to real estate, passed an act soon after that, found in 69 O. L., 175, providing for the service of notices in cases of this kind: (1) by delivering a copy thereof to the person or persons interested in said real estate; or by leaving such copy at the usual place of residence or business of such person or persons; or if such place of residence or business shall not be found in the county; (2, by delivering such copy to the agent in charge of said real estate to collect the rents thereof; or, if no such agent shall be found in the county, (3) by publishing thereof, inserted in a newspaper one time etc.; and that court has held since that time that these should come in this succession, first, giving the notice by delivering a copy to the persons interested, or, if that can not be done, then the others in their order.

We have examined this matter very carefully and come to the conclusion we have, both upon authority, and we think upon principle, that the service of notice under this statute should be made to the party personally; that there is no provision of law or principle of law that we find authorizing the making of service by simply depositing a letter in the post office addressed to the party. Of course, if such letter was received by the party in time to obtain a hearing at the time stated in the notice and he appear, he would be bound by it. But it is incumbent upon the board itself to know that the paper has been received by the party and service has been made upon him in that respect. It should be served by a proper person or officer and proof made to that effect.

Holding these views, the judgment of the court of common pleas will be reversed, and this court proceeding to render the judgment that court should have rendered, judgment will be rendered for the amount only admitted to be due, and which had been tendered by the defendant.