text:
    LEASES — ASSIGNMENTS FOR CREDITORS.
    [Lucas (6th) Circuit Court,
    January 25, 1904.]
    Parker, Hull and Haynes, JJ.
    Abel M. Rawn (Assignee) v. Hotel Madison Co.
    1. Assignee for Creditors Liable for Rental Under Lease, When.
    An assignee for creditors of a leasehold estate is liable as such during his occupancy for the rent reserved in the lease where, after offering tho chattel property in the building situate on the premises for sale and beins unable to make a judicious sale thereof unless the lease also be sold witli it, he reports the situation to the probate court which orders the lease sold along with the chattels, but which order was not in the form of an injunction, as in an adversary proceeding, compelling him to occupy the premises under the lease, hut rather in the nature of an order accept able to, if not positively agreed to, by all the parties concerned, and in pursuance to such order he causes the leasehold to be appraised, offered for sale, and sold; the appraisal of the leasehold, offering it for sale, and its subsequent sale, amounts to an unequivocal acceptance under the lease.
    2. No Rejection of Lease by Assignee for Creditors, When.
    Written notice by an assignee for creditors of the lessee to the lessor that he does not desire to accept the terms under the lease, and in which he indicates a desire to obtain better térms than those contained therein until such time as he is able to sell the contents of the building situated thereon does not amount to an unequivocal rejection of the lease.
    ERROR to the court of common pleas of Lucas county.
    Charles A. Thatcher, for plaintiff in error.
    F. M. Dotson, for defendant in error:
    An assignee who continues a business in leased premises thereby elects to hold under the lease, and /is liable for rent. Morrison v. Bruce, I Dec. 40 (1 N. P. .106) ; Cincinnati v. Goodhue, 10 Re. 345 (20 Bull. 370); Dorrance v. Jones, 27 Ala. 630, 633; Ohio Manual of Assignees (4 ed.) p. 75.
    "When once the election is made, the assignee cannot recede from it; length of possession is immaterial. His liability under the lease for rent arises when he takes possession and conducts the business, or sells and disposes of the goods assigned, etc. Cincinnati v. Goodhue, 30 Re. 345 (20 Bull. 370) ; Ohio Manual of Assignees (4 ed.) 75; Dorrance v. Jones, 27 Ala. 630, ,633.
    An assignee has also been held liable for rents under the lease by reason of ha.ving accepted the deed of assignment. Mayer v. Heilman, II O. F. D. 280 [91 U. S. 496],
   PARKER, J.

This action comes into this court on error. The action in the court below was by The Hotel Madison Company against Abel M. Rawn, assignee of Baird & Field, to recover rental on account of the occupation of the Hotel Madison by Rawn as such assignee, and the trial resulted in a verdict in favor of the plaintiff below, for the amount claimed, to wit, $832.80, which included the interest.

It appears that Baird & Field had been occupying the Hotel Madison, as tenants of The Hotel Madison Company; that they became insolvent and made an assignment of all their property, including this lease and leasehold interest, to Abel M. Rawn, under the statutes of the state for the benefit of creditors; that after Rawn became assignee he continued to occupy the hotel property for the period on account of which this claim for rental is made, to wit, from January 12, 1902, to August 1, 1902, inclusive. The lease under which Baird & Field occupied provided for the payment of a rental of $500 per month, and the amount recovered is at the rate of $500 per month for this period.

It is averred in the petition that Rawn, after he became assignee, continued to occupy under this lease. That is denied in the answer. It is admitted that the firm mentioned was in possession of the hotel property and it is averred that soon after the assignment, the defendant, finding that the lease described in the plaintiff’s petition had been executed, notified the plaintiff that he, as assignee, would not accept the terms of said lease and would not be bound by the same; and there are some other averments to the effect that at the instance and request of The Hotel Madison Company, the assignee continued to occupy the premises for the period on account of which this action is brought for rental; and it is also claimed that the assignee occupied somewhat under compulsion, that is, that the assignee not only ‘desired to give up the lease and the property, but that he desired to vacate the premises, and that by the order of the probate court, made at the instance of the Hotel Madison Company, he was required to continue the use and occupation of the premises, and, therefore, it is contended on behalf of the assignee, that one of two conditions resulted from that; either that he is liable simply for a quantum meruit, or that he is not liable at all, because, being at the instance of The Hotel Madison Company, at their request, to preserve their property, for their interest, he must be held to have had this use of the premises tendered to him as a gratuity; that therefore he is not liable to pay anything for the use and occupation; and it is also said in that connection that as a matter of fact the rental provided for by the lease was very excessive, more than any one could afford to pay for the premises, and that during this period the assignee lost money in running the hotel, and that if he is required to pay rental at thp rate of $500 a month it will result in taking that much money that ought to go to other creditors and paying it to the Hotel Madison Company, in effect as if it Avere a preferred creditor, because it is to be paid as a part of the costs and expenses of administration. The whole question turns upon whether the assignee elected — took such action as,amounts' to an election — to occupy these premises under the lease. If he did, then he is bound to pay the rental according to the terms of the lease. If he did not, if he rejected the lease, then perhaps one of the two possible results contended for by the plaintiff in error here would folloAV; either that he would be liable only for quantum meruit, or quantum valibant (which would perhaps be nearer the correct term) or for nothing.

It appears that the lease in question Avas made on September 18, 1900, to one Leona T. Field and that she subsequently assigned it to The Frisco Hotel Company, and there is no record of any assignment of the lease from the Frisco Hotel Company to Baird & Field. The lease provides that it may not be assigned without the eon ent of the lessor, and there is no formal assignment and no formal assent by the lessor to an assignment, and it is, contended on behalf of the plaintiff in error that Baird & Field were not in fact lessees under this lease and that it was not an asset conveyed by the deed of assignment, and that, therefore, the judgment is wrong. But AAre are well satisfied from the evidence that Baird. & Field had acquired the right of The Frisco Hotel Company Avith the assent of The Hotel Madison Company, and that by the agreement of Baird & Field A?ith The Hotel Madison Company, Baird & Field were occupying as tenants of The Hotel Madison Company under this lease at the time the assignment was made, and that therefore ’ none of the parties Avere in a position to dispute that the rights of the lessees were assigned and conveyed by Baird & Field to Abel M. Rawn by their deed of assignment. Now it appears that the assignee, after accepting the assignment, continued, as I have said, in the occupation of the hotel. It seems that some time before that the boarding of guests by the lessees had been discontinued; that the guests of the hotel were generally roomers, some few being transients; that the assignee carried on the business during this time for Avhich the rent was charged about as the assignors had theretofore carried it on. But it also appears that on June 16, 1902, shortly after the deed of -assignment Avas filed, this notice was served upon The Hotel Madison Company:

“Toledo, Ohio, June 16, 1902.
“The Hotel Madison Company,
“ Toledo, Ohio.
“ Gentlemen:
“At the request of A. M. Eawn, assignee of Baird & Field, you will take notice that as such assignee he does not desire to accept the terms of lease of Hotel Madison. "Will you please state the amount you will charge for the occupancy of the building by Mr. Eawn until such time as he is able to sell its contents, which are assets of the firm of Baird & Field ?• It is desirable that you make an early answer.
“Very truly yours,
“C. A. Thatcher.”

Bichard Waite, as secretary of The Hotel Madison Company, acknowledges service of this notice upon the same day.

The order of the probate court, to which I have referred, as it appears in the record, has no date, it reads as follows:

“In the Probate Court of Lucas County, Ohio.
“In the Matter of the Assignment of Baird & Field.
“The Hotel Madison Company through its attorney in open court having made application that the assignee in above matter be ordered and directed to continue the business of the assignors; the court being fully advised and there being no objections offered, and the court dooming it for the best of all parties in interest, hereby orders, and directs said assignee to continue the business of the assignors, and 1o furnish accommodations to guests, now in said hotel and those who may thereafter apply.
“I. I. Milliard,
“Probate Judge.”

But in addition to this evidence indicative of the purpose of the assignee, we have his own testimony and certain other records introduced in evidence, which disclose that this proceeding in the probate court which resulted in this order, was not adversary, as the order recites ; there was no objection offered to its being made, and the assignee testifies, in effect, that he had gone to the probate judge and talked with him about this matter — about his situation there — and suggested that some order might be made that would protect him so that he might know what his responsibilities would be in the premises. The testimony upon that subject appears upon pages twenty-three and twenty-four of the record:

“Q. I understood you to .say, in vour direct examination, to Mr. Thatcher — after (‘.ailing' your attention to this notice, he asked' you why you didn't follow if, up, and you stated that you went to the probate court and consulted with him, and he told you you had better keep it open, and at that time this order -was shown you? A. No, sir; it was not.
“Q. If you made that statement, you-were incorrect? A. Not necessarily; that order was made to put me right with the court; the court said he would have the order made; he had already made it verbally some time before this. I said to him I wanted it right and he said ‘I will have the order made.’
‘‘Q. This was made at your request, in order to have something on record? A. I don’t know that it was made at my request.
“Q. You did ask to have something on record? A. Yes, I wanted , something on record, to show what I was doing and why I was doing it.
“Q. This was the order that was made then? A. I expect it was; thei-e was something made.
“Q. The court told you he would do that, did he? A. I think he did.
“Q. You were satisfied with that and went on with the business? A. I did before and I went on, and that that is what I was doing—
“Q. And you 'went over and had a talk with the court? A. Yes —in order to have something definite.”

It appears from that and other evidence in the case that this, was not an adversary proceeding. We regard that evidence as competent and as not contradicting the record of the probate court in any respect. But, moreover (and a matter of much more influence with us) is this: It appears that the assignee offered the property of the assignors for sale, it consisting of chattels and furnishings of the hotel, and that he was not able to make a judicious sale, and that thereupon he reported to the probate court that he would not be able to make a judicious sale unless he also sold this lease with the property; that persons who thought of buying the property had said to him, in effect, that they did not desire to buy it and be obliged to remove it at once, but if they could buy the lease giving them the right to occupy it, they would feel disposed to buy the chattel property. And in pursuance -of that representation to the probate court, he was authorized to sell tbe lease and did sell it. Now it seems to ns that this notice that he did not desire to occupy the property under the lease and indicating a desire to obtain better terms from Tbe Hotel Madison Company, is not an unequivocal rejection of the lease: that this order of tbe. probate court was not in the form of an injunction upon him in an adversary proceeding compelling him to occupy the hotel; but, in the light of his evidence, that it is an order apparently acceptable, if not positively agreed to by all parties concerned, and that his action in having the lease appraised — the leasehold interest — and offering it for sale and selling it, is an unequivocal acceptance under the lease; that he cannot blow hot and cold with reference to this matter; that if the lease were rejected and made a dead letter it could not be revived afterwards to be sold; that if it were kept alive it was kept alive by virtue of the fact of payment or an obligation to pay rental for this interim on account of which this action is prosecuted, and we think it very clear under this evidence that the verdict of the jury was right in finding him liable for the amount of the rental sued for, and, therefore, the judgment of the court below will be affirmed.


source: Caselaw Access Project

author: GIFFEN, J.

license: Public Domain

text:
    HOMICIDE — CONFESSIONS—EVIDENCE.
    [Hamilton (1st) Circuit Court,
    February 1, 1904.]
    Giffen, Jelke and Swing, JJ.
    Frederick Geiger v. State of Ohio.
    1. Offer of Police Judge to Help Prisoner wot Prejudicial if Confession is not Induced Thereby.
    An /offer of help made by a police judge to a prisoner under arrest for murder, together with a promise to do everything he could for him, is an inducement to make a confession, but is not prejudicial if the statement made is not produced thereby.
    2. Statement by Child Imputing Crime to Father, Made in his Presence, Admissible to Show his Acquiescence Therein.
    A statement made by a child four years of age in the presence of his father and a chief of police, tending to inculpate his father in the murder of his mother, is admissible for the purpose of showing that the prisoner acquiesced in the statement by remaining silent.
    3. Denial of Right to Confer Witi-i Counsel Will be Reviewed Only, When.
    A refusal to permit a prisoner to confer with counsel, at a time when police officers were endeavoring to secure a confession from him, is not a matter which a reviewing court will consider, unless it distinctly appears in the record that in consequence of ill treatment by the police he was dazed, confused or unconscious, and therefore unable to understand the questions put to him.
    4. Act 96 O. L. 3 Confers Powers of Administrative Character and is Constitutional.
    The act of September 30, 1902 (96 O. L. 3), providing for the appointment of jury commissioners, confers power of an administrative character, and is not judicial within the meaning of Sec. 1, Art. 4 of the constitution; nor is it unconstitutional because it provides that only judicious freehold electors shall be appointed commissioners.
    5. Irregularities in Selecting Grand Jurors Cannot be Pleaded tx Aisvtkment.
    Mere irregularities in the selection of grand jurors must be taken advantage of, if at all, by challenge for cause, and cannot be pleaded in abatement.

      6. “J. P. Clark” Instead “John P. Clark,” Foreman oe Grand Jury; not Fatal Variance.
    It is not fatal to an indictment that the foreman signed it J. P. ClarK, instead of John P. Clark, the name appearing on the venire, for the court appointing the foreman' is presumed to know his identity.
    ERROR to the court of common pleas of Hamilton county.
    Shay & Cogan, for plaintiff in error.
    Hoffheimer, Morris & Sawyer, prosecuting attorneys, for defendant in error.
   GIFFEN, J.

Under an indictment charging the plaintiff in error with murder in the first degree, he was convicted of murder in the second degree, and sentenced to imprisonment in the penitentiary of the state of Ohio at hard labor during his natural life.

The chief ground of error alleged is the admission in evidence of certain declarations or admissions made by the prisoner after his arrest in the presence of police officers having him in custody; the one being a declaration made in response to questions put to him b> William H. Uueders, judge of the police court, the other being an admission or acquiescence by silence in a charge made by his infant son, Stephen Geiger, in the presence of James Casey, inspector of police.

In the first instance, Judge Lueders made the following statement :

“I said to him that if I could do anything for him or help him or relieve his mind in any way that I should be glad to do so, and then he said he would see me in the morning, or I said I would see him in the morning.
“Q. (By Counsel.) You said to him i'f you could do anything fo* him you would be glad to do so?
“A. Yes, sir.
“Q. That you would do all in your power for him to ease his mind?
“A. Yes, sir.
“Q; _ And anything you could do for him you would ? '
_ “A. ' I did.
“O. , He knew at that time you were a judge?
“A. He certainly did.”

The next morning the following occurred:

“I said, ‘good morning.’ I asked him if he had anything to say. He said, my wife is dead, I have nothing to fear, I have nothing to say.”

An offer of help to a prisoner under such circumstances made by a judge of the police court would ordinarily inspire hope in the mind of a prisoner and induce him to make a statement, concerning the crime for which he was held; but while it was calculated to induce such statement, it appears that the prisoner in this case was not so induced. In the first place, when the offer of assistance was made, nothing was said by the prisoner other than that he would see the witness in the morning, and no reference was made to the conversation of the first day when they met on the following morning. It is, therefore, less probable that what he did say on that morning was induced by the tender of assistance made by Judge Lueders.

Tn the second place the statement itself shows that the prisoner was not induced to make it by reason of the offer of help, but rather that it ,\vas in answer to the question whether he had anything to say, and the answer given is equivalent to saying, I have nothing to say, because my wife being dead, I have nothing to [car.

The statement made by the witness, Judge Lueders, to the prisoner contains no suggestion oí a threat, but rather of hope that the prisoner through him might obtain help. In the case of Spears v. State, 2 Ohio St. 583, 584, the syllabus contains the following propositions:

“No confession can be received in evidence in a criminal case unless it was voluntary.
“A confession induced by hope or fear, excited in the mind of the prisoner by the representations or threats of any one, is not to be considered as voluntary.
“The question in every case, where a confession has followed representations or threats, is, was it produced by them?”

Applying the ¡principles announced in this case to the facts before us, we are constrained to hold that while inducements were not wanting, the statement made by the prisoner was not produced by them, but on the contrary was voluntary.

The other alleged error involving an admission of the prisoner, oc-. curred while James Casey, inspector of police, was on the witness stand, and the question was asked by the prosecuting' attorney, a-s follows :

“ ‘ I will ask y^ou to state what the boy said.’
“ (Objected to by counsel for defendant.)
“Mr. Shay: ‘I now ask that I be permitted to examine the witness on his voir dire.’
(Motion overruled, and counsel for defendant excepted.)
“Mr. Shay: T object to its competency.’
“ (Objection overruled, and counsel for defendant excepted.)
“Mr. Shay: ‘I expect to prove upon my cross-examination, if permitted so to do, of this witness that the child was of delicate years, only four years of age, and that he had said that the declaration that he made to the police, in which he said that his father hurt his mother on that night, was instilled into him by his uncle on the night after they left the house where his mother was dead; that he was asleep and did not see it, and did not know anything of it or concerning it; that the child is but four years of age, and does not understand the nature of an oath and would be incompetent as a witness in this case; that the defendant was incarcerated in the jail on York street at about twelve o’clock on Thursday night, after the alleged death of his wife; that he was kept up b)r a constant jabbing and relay of police officers that night and not permitted to sleep, and brought out two or three different times before the police officers and the witness upon the stand, James Casey, who was at that time acting as superintendent of police, against his will, and that he objected to being brought before the said chief of police; that he demanded the right and privilege of seeing counsel, which was refused him; that his counsel, Messrs. Shay & Cogan, called at the office of Mr. James Casey to see the prisoner, and they were refused admission to him, and that this inquisitorial proceeding was had in this manner, against the wish of the defendant and against the wish of his counsel, and his counsel excluded from being present, and that it was no voluntary appearance upon his part, all of which this defendant will be able to show if permitted so to do.’ ”

Clearly the court was in error in overruling the motion of counsel for defendant for permission to examine the witness when he was about to relate the statement made by the boy, Stephen Geiger, in the presence of his father, the prisoner, charging him with assaulting his wife, the deceased, with a pair of scissors, but it does not follow that the erro1-was prejudicial, unless the facts which counsel for the defendant offered to prove when he asked for permission to cross-examine the witness make it so. In the case of Rufer v. State, 25 Ohio St. 464, the third proposition of the syllabus is as follows:

“Where, on a criminal trial, a witness is offered by the state to prove a confession made by the defendant, to the admission of which testimony the defendant objects, on the ground that the confession was not voluntary, it is the right of the defendant to inquire of the witness and prove his objection before the confession is given in evidence; it is error for the court, in such case, to refuse him leave to make such examination until after the examination in chief has been concluded and the confession given to the jury.
“4th. A judgment in such case, however, will not be reversed for refusing the defendant leave to show, by preliminary proof, that the confession was obtained by improper inducements,1 unless the facts constituting the alleged inducements, as proposed to be proved, be set out in the record.”

The first set of facts offered to be proven by counsel in this case related to the competency of the child as a witness; but the statement of' the child was not offered as substantive proof of the crime charged, but only to show that the prisoner, in whose presence, it was made, acquiesced by his silence. It has been held in the case of Richards v. State, 82 Wis. 172 [51 N. W. Rep. 652], in the fourth proposition of the syllabus that—

“Inculpatory statements, made in the presence and hearing of one accused of crime, which he, having opportunity to do so, does not deny, and the truth or falsity of which is within his personal knowledge, are admissions of the accused by acquiescence, and as such admissible in evidence, although such statements were made by a person not competent to testify in the case.”

Another set of facts, among those offered to be proven, relate to the truth of the statement made by the boy. But whether true or false, is one of the vital questions involved, and if false called all the more for a response by the prisoner. Other facts relate to his imprisonment or alleged barbarous and inhuman treatment by the police officers having him in charge, but there is no statement that the prisoner, by reason of the loss of sleep, or otherwise, was unable to understand or did not hear the statement made by the boy. In support of the objection to the admission of a statement made in the presence of the prisoner under such circumstances, counsel has cited the case of Bram v. United States, 168 U. S. 532 [18 Sup. Ct. Rep. 183]. The facts in that case are, however, different from those in this case, in that the prisoner there made a statement in response to th,e questions of the police officer, and the court held that such statement was not a voluntary confession. But in the opinion, page 563, it is said:

“Indeed, the implication of guilt resulting from silence has been considered by some’ state courts of last resort, in decided cases, to1 which we have already made- reference, as so cogent that they have held that where a person is accused of guilt, under circumstances which call upon him to make denial, the fact of his silence is competent evidence as tending to establish guilt. Whilst it must not be considered that by referring to these authorities we approve them.”

The argument in that case proceeds upon the theory that the prisoner is protected by a constitutional provision that no person shall be compelled in any criminal case to be a witness against himself, and that while under arrest and questioned by a police officer he would be impelled to speak either for fear that his failure to make answer would be considered against him, or of hope that if he did reply, he would be benefited thereby. It is difficult to see jwhy the admission of such statements is not an evasion of this constitutional provision intended for the protection of the prisoner. But, however strong the reasoning of the court in that case may be, the question is not an open one in this state, as the Supreme Court has held in the case of Murphy v. State, 36 Ohio St. 628, as follows:

“Where two persons charged with larceny, having the stolen property in their possession, were taken into custody by a police officer, the declarations of one them, assuming to speak for and implicating both, made to the officer in the presence and hearing of the other person charged, who remained silent, are competent evidence for the state bn a separate trial of the latter” — relying upon Kelley v. People, 55 N. Y. 565, of which the syllabus is as follows:
“Upon a criminal trial, evidence that the accused, when charged with the offense, or when declarations touching his guilt were made in his presence and hearing, remained silent when it would have been proper for him to have spoken, is competent, and it is no objection to the admission of the evidence that the accused was, at the time, under arrest.”

Although the case of Bram v. United States, supra, and other cases in many other states held, that such testimony is inadmissible, we are, of course, bound by the decision of our own Supreme Court. We do not wish to be understood, however, as approving the alleged ill treatment of the prisoner by the police. The zeal of the police officers in the discovery and punishment of criminals as manifested by fair and honorable means, is'worthy of the highest praise, but when accompanied by torture and persistent and unfair efforts to entrap the prisoner and manufacture testimony against him, not only impedes and tends to defeat justice, but deserves the condemnation of all good citizens.

Other facts, which defendant through his counsel offered to prove, were his demand for counsel and the’request of Messrs. Shay & Cogan to see the prisoner. It does not appear for what purpose he wished counsel at that time, nor that he was in need of advice from any source except as it may be inferred from the alleged ill treatment accorded him by the police. If he were dazed, confused or unconscious by reason of such treatment, and therefore unable to understand the questions put to him, such facts should distinctly appear in the record, and not be left to mere inference.

We are of opinion, therefore, that the court did not err preju-dicially in receiving in evidence the statement of the boy, Stephen Geiger, and the fact that the prisoner said nothing in reply.

Many other errors are assigned, but the following only are relied upon: The objection that the act of September 30, 1902 (96 O. L. 3:-Sec. 5163 Rev. Stat. et seq.), to provide for the appointment of jury commissioners is unconstitutional and void in that it seeks to confer judicial powers, is without merit. • Although the power conferred requires the exercise of judgment, it is administrative in character, and nor judicial within the meaning of Seel 1, Art. 4 of the constitution. Nor is it unconstitutional because it provides that only judicious freehold electors shall be appointed as jury commissioners. It has uniform operation throughout the state, and affefcts alike all the members of the class designated.

The objection to the manner of selecting and drawing certain grand jurors is also without merit. Mere irregularities must be taken advantage of, if at all, by challenge for cause, and cannot be so pleaded in abatement. Huling v. State, 17 Ohio St. 583.

It is further claimed that the indictment is not signed by the foreman of the grand jury, John P. Clark, but by J. P. Clark, and therefore is not a true bill. This variance is not fatal, for the court appointing the foreman is presumed to know his identity. Whiting v. State, 48 Ohio St. 220 [27 N. E. Rep. 96].

We find no prejudicial error in the record, and the judgment will be affirmed.


author: HAYNES, P. J.

text:
    DOWER — JUDGMENTS—JUDICIAL SALES.
    [Wood (6th) Circuit Court,
    March 26, 1902.]
    Haynes, Hull and Parker, JJ.
    Cassa M. Willford v. John B. Heimhoffer et al.
    1. Widow Entitled to Oil Produced From Dower Lands.
    The widow is entitled to the oil produced from land generally assigned and confirmed to her as dower, although the wells are sunk and the oil produced after her husband’s death.
    2, Judgment on Collateral Matters not in Issue Coram Non Judice — Purchaser at Judicial Sale Takes Subject to What Rights.
    The entry of a judgment cutting off the widow’s rights to oil produced from land theretofore regularly assigned and confirmed to her as dower in a partition proceeding is coram non judice and void when the widow, under the terms of an oil lease entered into between the heirs and herself prior to the commencement of the partition proceeding, is entitled to the oil produced therefrom, and her rights under such lease were not involved or made an issue in such proceeding; and a purchaser at the partition sale takes subject to the right of the widow to the oil under such lease.
    AppiSAR-from Wood common pleas.
    James E. Wert and Baldwin & Harrington, for plaintiff:
    James 0. Troup et al., for defendants.
   HAYNES, P. J.

(Orally.)

This ease is in this court on appeal. The pleadings were voluminous-but it is not necessary to state them .at length as the case was heard upon. an agreement as to the facts and some testimony, and it appears: that some years ago one Lewis D. Willford died in this county seized of the real estate described, and that he left a widow,' the plaintiff herein, and certain heirs at law who were of age. The heirs at law and the widow joined in and executed an oil lease on the forty acres to a certain party, and subsequently the land was partitioned The lease was in the ordinary form and provided for the sinking of four wells on the land. These wells were sunk and were productive, and at the time the assignment of dower was made m the partition case, ten acres of this land were assigned to the widow which had upon it two of these four wells. It was a general assignment of dower of that ten •acres and that assignment was confirmed by the court, and after the confirmation, or at the time of the confirmation, there was an order made by the court in a journal entry in regard to the two- wells on this ten acres of ground, practically providing that the widow should not have the two oil wells, but the land alone. Now the widow in her petition in this case claims the oil that has been taken from the land since the time of the assignment of dower. At the time of the execution of the original lease the power was given to one of the sons to draw the proceeds of the oil wells and act as agent of all these parties, including the plaintiff. Subsequently he transferred that power to others, and it passed down through one to another until I think the last party was John B. Heimhoffer.

It is contended that by the assignment of dower, the widow has no right to the oil. In some cases she would have the right to the product of the oil if the wells had been sunk prior to the death of her husband. It is further claimed that this order that was made in this journal entry was conclusive upon her right to the use of these wells and the product thereof, and that she is barred by the judgment that was rendered in that case. Now very briefly on this point: The dower question in this country is like a good many other questions; it is growing and expanding. The time was, when a woman's dower was thought about.as little of as she was (which was little enough). In the case of Crockett v. Crockett, 2 Ohio St. 181, 184, there is some discussion of the question of dower, and Judge Thurman in that case stated, upon the question of the right of the widow to cut timber, how extensively the widow might cut timber. The rule had been very rigid in ancient times. He says:

“That a widow is dowable of wild lands in Ohio has long been settled. * * * That she is bound to pay the taxes upon such lands, when assigned to her for dower, and that her failure to do so may result in a forfeiture of her estate, is expressly provided by statute. * * * It follows, in our judgment, that she may, by a sale of timber, raise money to pay the taxes; otherwise the estate would be a burden instead of a benefit to her. * * * Hence it is well settled, that many things may be done by a tenant for life here, that if done in England would be waste ; as, for example, the conversion of meadow or pasture into plowland, or woodland into a farm, etc. And it is also settled here, that timber cut in improving the land belongs to the tenant for life and not to the rever-sioner. We are also of opinion that where, as in the present case, the ■dower assigned consists of certain wholly unimproved and unproductive town lots and a tract of woodland, the assignment is to be considered so far an entirety as to authorize the sale of timber to pay the taxes on'the lots as well as on the land. But we think the right to sell goes yet further,” etc.

It will be noticed that in this case they recognize the right to change woodland into farmland, and giving to the widow the timber itself, a thing that would startle an old fashioned Englishman out of his grave.

There is a very instructive case in Seager v. McCabe, 52 N. W. Rep. 299 [92 Mich. 186]. In that cáse a man had died leaving a widow, and had died possessed of certain lands in northern Michigan. You know that up there, there is nothing but rock and occasionally a tree that has to fight for its life pretty hard; but it turned out that this land was valuable for its minerals, though it was not worth anything as land to cultivate. The supreme court of Michigan takes up the question of dower, and discusses all these authorities that I have seen and heard cited, and they go through the whole matter very thoroughly. They hold that the widow is entitled to be endowed with the land and the contents of the land — the proceeds of it, and they give her dower in that land and in the minerals in it. The syllabus is:

“Under Howell’s Statutes, Sec. 5733, giving to the widow of every deceased person the use during her natural life of one-third of all the lands whereof her husband was seized of an estate of inheritance at any time during the marriage, a grant of dower in lands of her deceased husband, valuable solely as mineral lands, includes their use, and entitles her -to her share of the proceeds of mining leases thereof, whether the mines were opened before or after the husband’s death.”

That is a wholesome doctrine and ought to be the doctrine in this country. If a wife helps a husband to accumulate property and get a farm, we see no reason why she ought not to have her share of the products of that land, whether it is from the surface, which may be very light, or from mines or mineral production under it which may be brought to the surface. However, it is unnecessary to go to that length in the decision here. I will state in our judgment, the heirs having united in making this lease and providing for the production of the oil and arranging as they did that it should be drawn as it was, that all this becomes a binding obligation, and whoever undertakes to take the assignment of that lease or of the products of the lease, would be bound by the arrangement that had been made. In other words, we think that it was sufficient to give her a right to the use of the' wells that may be sunk on the land (that were afterwards sunk) to her as dower, and it would be hers as rightfully as it would have been if the wells had been opened prior to the death of the husband. Now the ten acres having been assigned to her, we conclude that she had a right to the proceeds of these wells clearly, unless she has been barred by something that has been done since that time. The paper she signed, turning the property to one son, was simply to make him an agent. He was an agent of these other parties. Nowhere is it shown that she had consented that the money might be turned over to anybody else than herself. It is true that she waited for some time, and the matter had been going on for three .or four years, but she is an old lady, and perhaps was not very well advised as to her rights, and probably of not very strong executive ability, and she probably did not get stirred up sufficiently.

Now as regards, this decree, I will read from the case of Spoors v. Coen, 44 Ohio St. 497, 502 [9 N. E. Rep. 132], In that case a petition was filed in the probate court to sell property to pay debts, and it appeared that Spoors had at some time conveyed the property to another, and. it was claimed that he was old and infirm and was not competent to do that; that Spoors had conveyed to the widow two acres of land. The petition in that case set up that the widow was alive and was entitled to dower, and counsel for plaintiff filed on her behalf a waiver of her dower by metes and boimds, and consented to take it in money. The petition nowhere set up that there was any fraud as to her, nor was any claim made as to her property other than she was entitled to dower interest in the land, and when they took a decree in the case, they decreed that her land should be sold; practically took it out from under her. The court say:

“But, had the probate court the same jurisdiction in such matters as the common pleas, it would avail nothing in this case, for the reason that no such jurisdiction was invoked by the petition of the administrator as against Rhoda SpoOrs. There is no averment in the petition that any land had been'fraudulently conveyed, mediately, or immediately to her. The only averment as to her is, that she is entitled to dower in the lands, for which an order of sale is asked; and the only relief asked as to hei is that her dower may be set off and assigned therein. And, in the answer filed for her by the attorney of the administrator, she simply waives an assignment of dower in the lands and elects to take the same in money.
“It is by no means intended to question or impair the principle that when jurisdiction has been obtained over the subject matter of a cause, by a court competent to exercise' it, its judgment, however erroneous, cannot be questioned in a collateral proceeding. A judgment so rendered can only be set aside or questioned in a direct proceeding instituted for that purpose. This is familiar law. Freeman, Judgments Sec. 135.
“But a judgment rendered by a court of competent jurisdiction in a case brought before it, however erroneously the jurisdiction may have been exercised, is one thing, and a judgment entered by a court of like jurisdiction in a case not before it, is another and a different thing. In the one case its judgment may be erroneous, in the other it is void. To bring a cause before a court, competent to adjudicate it, it is not only necessary that the parties should be in jus vocatio, cited or summoned in the manner required by the law of procedure, but a case must also be made, or stated, affecting the party against whom relief is askedand then after discussing the case, they held this judgment was void.

We think that authority is still in binding force in the state of Ohio, and we think it clearly disposes of this question. It appears that this suit was brought for partition, and there never was a word said in it in regard to the right of this old lady to an interest in this lease, and an order for partition was taken in the ordinary course, and the commissioner’s make the partition, the sheriff returning it, in which they set off in the, usual and ordinary way, ten acres of land, and then afterwards when the matter is confirmed, they undertake to make such disposition of it as will deprive her of her rights in the oil in this ten acres. We hold that this is coram non judie e, and is void, and is not a bar to this woman’s right to recover.

We hold that she is entitled to the product of these wells, and that she is not barred or estopped iby this alleged judgment, and a decree inav be taken in her favor.


author: COOK, J.

text:
    BAILMENT — EVIDENCE.
    [Jefferson (7th) Circuit Court,
    November Term, 1903.]
    Laubie, Cook and Burrows, JJ.
    A. W. McDonald & Co. v. John A. Miser.
    Burden of Proof.
    In an action against the bailees of a team of horses, for causing the death of one of the horses and injuring the other, by negligently driving the same, the burden is on the bailor to prove negligence, and it is not shifted by showing the horses were sound when delivered to the bailees; the bailor being immediately informed by the bailees of the circumstances attending the injury to the team.
    Error to common pleas court of Jefferson county.
    Henry Gregg and J. C. Bigger, for plaintiffs.
    D. M. Gruber, for defendant.
   COOK, J.

The action below was to recover damages for negligently, causing the death of a horse of plaintiff and for injury to another. Plaintiff hired to defendants a team of horses to do certain hauling upon their contract of building a section of railroad. The averment of the petition is, “That by reason of placing said horses.in the hands of a different driver than the one agreed upon, which driver was incompetent to handle and properly care for said horses, and by reason of the negligence of said defendants in handling said horses and immoderately driving said horses and failing to take proper care of said horses one of said horses was killed and the usefulness of the other horse was greatly impaired for some time thereafter, to the damage of the plaintiff in the sum of $200.” To this petition there was a general denial; also an averment in the answer that the horses were unfit to perform the services for which they were hired. This averment was denied in the reply. The evidence showed that one of the horses died while it was being driven and that the other horse was also in bad condition when it was returned to plaintiff. The evidence further tended to show that the servants of defendants drove said horses, after having knowledge that the horse that died was entirely unfit to be driven and that the other was fagged out and not in good condition. The evidence further showed that plaintiff was immediately informed of the death of the horse and the manner in which it died; its symptoms, etc.: the claim being made by defendant’s servants that they had in no manner abused the horse and that the symptoms indicated colic which had been occasioned by previous bad feeding on the part of plaintiff.

The case under the evidence was not a clear one as to negligence and the jury would have been justified in finding for either plaintiff or defendant under the issues made.

Under these issues and this evidence the court charged the jury at request of plaintiff' as follows, upon the' question of the burden of proof:

“If you find from the evidence that the team of horses was in good condition when they were delivered to the defendants to be used as on the occasion mentioned in the plaintiff’s petition and one of them was dead and the other injured when returned, the burden of proof is upon the defendants to show that they used said team in a careful 'manner and as an ordinarily prudent man would have used them under similar circumstances. The law is that when property is received by the hirer thereof in a good condition and returned in a bad condition or not returned at all, the person so hiring said property is presumed to have acted negligently.”

In the general charge the court further said to the jury:

“Now the burden of proving the agreement set' forth in the petition as to the way the horses were hired, etc., is upon the plaintiff. He must satisfy you by a preponderance of the evidence that what he sets forth in that regard is the truth; but the burden of proving that the defendants, under the circumstances, exercised ordinary care and diligence in the use and management of this team is upon the defendants under the circumstances, and also the burden is upon the defendants of proving that the plaintiff was negligent in the manner set forth by defendants and that such negligence contributed directly to produce the injury to such team.”

As stated the action was for negligently driving the horses. It was not for conversion of the horses or either of them, and whatever may be the rule as upon whom the burden rests in an action for conversion by the bailee, if it is different, would not apply in this case.

It is insisted by counsel that in all cases of bailment where the property is delivered in good condition and destroyed or returned in an' impaired condition that the burden rests upon the bailee to show that he was without fault; that the rule arises from the necessity of the case, as the bailor would have no' knowledge as to the manner in which the property was taken care of.

It may be conceded that where property is delivered to the bailee in good condition and it is destroyed ór returned in an impaired condition and he gives no reason for its destruction or impairment, that that would make a prima facie case of negligence. The mere fact that he received it in good condition and did not so return it would be some evidence of negligence especially so when he gives, no reason why he did not return it in good condition; and, were there no other evidence, would justify a jury in finding that the defendant was guilty of negligence in its destruction or impairment; but we do not think that in a case like this, where there is a large amount of evidence, part of it tending to show that the bailees were guilty of negligence and some that they were wholly without fault, that it is proper to charge the jury that the burden rests upon the defendant’s bailees to show by a preponderance of the evidence that, they did not act negligently in the use of the property.

We are aware of the fact that there are courts worthy of great consideration that so hold. Cumins v. Wood, 44 Ill. 416 [92 Am. Dec. 189] and cases in the note.

It seems to us that in the cases so holding that there is confusion in confounding evidence making a prima facie case or the burden of evidence as it is sometimes called by text writers and the burden of proof in the case, and upon whom it rests.

The party upon whom the burden of proof rests is made by the pleadings and continues from the first stage of the trial to its end. He who affirms must prove.' The burden, of evidence shifts but the burden of proof never shifts. Mr. Taylor in his work on Evidence, Vol. 1, page 216, says: ,

“It is hardly necessary to say that the burden of establishing a case does not shift. It cannot shift simply because the issue has been fixed once for all by the pleadings and the rules of pleading do not permit it to he altered, during the progress of the trial on those pleadings.”

In Willett v. Rich, 142 Mass. 356, 360 [7 N. E. Rep. 776; 56 Am. Rep. 684], it is said

“We understand the doctrine to be well settled in this commonwealth, that the burden of proof never shifts, and we" think that, in the the case we are discussing, and in the case at bar, the burden to show negligence was upon the plaintiffs from the beginning, and remained upon them throughout the trial.” ,

That case was an action against a warehouseman. They received goods in good condition and did not return them in the same condition for the reason that they were injured by the fall of the warehouse. The court decided:

“In an action of contract against a warehouseman, for a failure to keep safely goods entrusted to him, if it appears that the goods were returned in a damaged condition, and that the damage was caused by the fall of the warehouse, the burden of proof is on the plaintiff to show that such dama.ere was caused by the negligence of the defendant or his servants.'

In the opinion Morton, C. J., says, page 357:

“The fundamental rule as to the burden of proof is, that, whenever the existence of any fact is necessary in order that a party may make out his case or establish a defense, the burden is on such party to show the existence of such fact. In Stephen’s Digest of the Law of Evidence, the rule is stated to be that ‘whoever desires any court to give judgment, as to any legal right or liability dependent on the existence or nonexistence of facts which he asserts or denies to exist, must prove that those facts do or do not exist.’ Stephen, Evidence (Am. ed.) 175.”

Again the learned judge says, page 359 :

“It may be that, where there is a refusal to deliver, the plaintiff may make out a prima facie case upon proving this fact, because such refusal, if unexplained, is some evidence of the breach of the contract. But this does not shift the burden originally on the plaintiff to prove a breach of contract.”

It should be stated that the declaration in this case contained two counts, and was tried on the second which contained the averment that the goods were injured through the negligence 'of defendants and their servants.

The case of Claflin v. Meyer, 75 N. Y. 260 [31 Am. Rep. 467], was an action against a warehouseman for failure to deliver goods deposited with him which had been stolen from the warehouse and the court held:

“In an action against a warehouseman for refusal to deliver goods entrusted to him, where the refusal is explained by the fact appearing, that the goods were lost by a burglary, the burden is upon the plaintiff to establish affirmatively that the burglary was occasioned by, or was not prevented by reason of some negligence or omission of due care on the part of defendant; the court will not assume in the absence of proof that the loss was the result of his negligence.
“The warehouseman in the absence of bad faith is only liable for negligence, and one bringing an action against him for the loss of goods must allege and prove negligence; this burden is never shifted; if plaintiff prove demand and refusal to deliver, this unexplained is prima facie evidence of negligence; but if it appear that the goods have been lost by theft, plaintiff must show that the loss arose from the negligence of defendant. 1
“Where therefore the facts proven are as consistent with due care as with want of it plaintiff cannot recover.”

In the opinion Hand, J., saj's:

“It will be seen, as the result of these authorities, that the burden is ordinarily upon the plaintiff alleging negligence to prove it against a warehouseman who accounts for his failure to deliver by showing a destruction or loss from fire or theft. It is not of course intended to hold that a warehouseman, refusing to deliver goods, can impose any necessity of proof upon the owner by merely alleging as an excuse that they have been stolen or burned. These facts must appear or be proved by reasonable certainty. Nor do we concur in the view that there is in these cases any real ‘shifting’ of the burden of proof. The warehouseman in the absence of bad faith is only liable for negligence. The plaintiff must in all cases, suing him for the loss of goods, allege negligence and prove negligence. This burden is never shifted from him. If he proves the demand upon the warehouseman and his refusal to deliver, these facts unexplained are treated by the courts as prima facie evidence of negligence; but, if either in the course of his proof or that of the defendant, it appears that the goods have been lost by theft, the evidence must show that the loss arose from the negligence of the warehouseman.”

A clear distinction between a prima facie case or the burden of evidence, and the burden of proof is made in the case of Oaks v. Harrison, 24 Iowa 179, referred to in Taylor, Evidence 27G, 279, under the heading of 11 Burden of Evidence. ’! It is there said:

“The duty of introducing evidence to prove or prevent proof of facts in issue is not, like the burden of establishing, a resultant of the pleadings. Its position, as between the parties, is determined, not by the stale of the pleadings, but by the logical state of the case. The issue beh.'g fixed, the logical interest of one party is to produce an affirmative conviction on the part of the tribunal. It is the object of the other party to prevent it. Such a state of the evidence as would, if undisputed, produce such affirmative conviction, constitutes a prima facie casé. It merely repeats the statement, therefore, in another forrn, to say that the interest of one party is to establish such a prima facie case, and of the other party to destro3r it, either by establishing a prima facie case of his own, or by reducing the probative force of the opposing case below the required standard. Should this effort succeed, the necessary consequence is that the burden or necessity rests on the first pleader to introduce additional evidence with a view to strengthening his former proof into a prima facie case, either by disproving the facts alleged against it, or by proving additional facts. If, when the evidence on both sides is all in, the pleader who has the affirmative of the issue remains with what the tribunal considers the equivalent of a prima facie case, he succeeds ; otherwise, not. The necessity for having the final tip of the scale in 1 is favor has net changed since the pleadings placed it on him, however i - :yv times the probative scales may have changed in their balance. When upon all the facts, the case is left in equipoise, the party affirming must fail.”

Then the learned author on Evidence says, under the head of '‘The Burden of Evidence Shifts,” says:

“It follows from what has been said that this burden of introducing evidence to prove or disprove a prima facie case may, and frequently does, change from one. side to the 'other. A fair test of where it rests at any particular stage of the case is to answer the question, against whom would the tribunal decide if no further evidence were introduced? Applying this test, it is obvious that at the opening of the case the burden of establishing’ and the burden of evidence rest on the' same person. Vieth v. Hagge, 8 Iowa 163, 192. Upon the establishment by him of a prima' facie case, while the burden of establishing remains, the burden of evidence is obviously shifted. Powers v. Russell, 30 Mass. (13 Pick.) 69, 77; Tolson v. Coasting Co. 6 Mackey 39; Penitentiary Co. v. Gordon, 85 Ga. 159; Ketchum v. Express Co. 52 Mo. 390. The two burdens are distinct things. One may shift back and forth with the ebb and flow of the testimony; the other remains with the party upon whom it is cast by the pleadings; that is to say, with the party who has the affirmative of the issue. Scott v. Wood, 81 Cal. 398.
“During the progress of a trial it often happens that a party gives evidence tending to establish his allegation; sufficient it máy be to establish it prima facie and it is sometimes said that the burden of proof is then shifted. All that is meant by that is, that there is a necessity of evidence to answer the prima facie case, dr it will prevail, but the burden of maintaining the affirmative of the issue involved in the action is upon the party alleging the fact which constitutes the issue, and this'burden remains' throughout the trial. Heinemann v. Heard, 62 N. Y. 448, 455. The supreme court of Texas, after saying that the fact that the negative form of the issue does not determine the burden of proving, add, 'Much less does the fact that a defendant is forced to maintain the affirmative of some fact, in disproving the plaintiff’s case, shift upon him the burden of proof.’ Clark v. Hills, 67 Tex. 141; Small v. Clewley, 62 Me. 155; Jones v. Simpson, 116 U. S. 609; Harris v. Harris, 154 Pa. St. 501.” To the same effect see Lawson, Bailments 543; 3 Am. & Eng. Enc. Law (2 ed.) 750.

In the case at bar as we have said the plaintiff averred in his petition that the death of one horse and the injury to the other was caused by the negligence of defendants and their servants; this was denied by the defendants and the further averment that the horses were unfit for the services for which they were hired. The fact that the horses were in good condition when hired and were not so returned possibly might make a prima facie case of negligence against defendants which they would be required to meet by evidence, but that prima facie case was met by evidence strongly tending to show that it was no fault of defendants that one of the horses died and the other was impaired, and that it arose from the condition of the horses when hired.

It then became the duty of the plaintiff to strengthen his prima facie case by showing the defendants were negligent or overcome the proof offered by the defendants, and when the whole evidence was in under the pleadings the greater preponderance of evidence should have been in favor of the plaintiff and the court should have charged the jury tlpat the burden of proof showing negligence was upon the plaintiff instead of the reverse. Directly in point is the case of Malaney v. Taft, 15 Atl. Rep. 326 [60 Vt. 571], wherein it is held:

“In an action on the case for negligence against the bailee of a horse for hire, the burden is on the plaintiff to prove negligence, and it is not shifted by merely showing that the horse was sound when delivered to the bailee, and when returned that it was injured in a way that does not ordinarily occur without negligence.”

A misdirection of the jury as to the burden of proof, is error for which the judgment'will be reversed at the instance of the party prejudiced thereby. McNutt v. Kaufman, 26 Ohio St. 127.

Judgment of court below is reversed for error in charge and cause remanded for new trial.


author: WINCH, J.

text:
    EMINENT domain — courts.
    [Summit (8th) Circuit Court,
    April Term, 1903.]
    Hale, Marvin and Winch, JJ.
    Cleveland Terminal & Valley Ry. Co. v. Akron.
    1. Jurisdiction of Probate Court to Appropriate Railroad Property for Street.
    Where, under Sees. 2642 and 2232 Rev.. Stat. et seq. which provide that a municipal corporation may commence proceedings in the probate or common pleas court for the appropriation of land held or owned by a railroad company, for the purpose of opening or extending a street across the company’s tracks, an action has been duly commenced for such purpose in the probate court, that court has exclusive original jurisdiction to determine whether such appropriation will unnecessarily interfere with the use of the company’s property so crossed.
    2. Act.ion in Probate Court to Appropriate Railroad Land not Enjoined, When.
    An action commenced in the probate court by a municipal corporation to appropriate land of a railroad company for the purpose of extending a street across the company’s tracks, will not be enjoined by the common pleas court in an action commenced there for such purpose on the ground that such appropria-lion will unnecessarily interfere with the use of the railroad property crossed by the improvement.
    3. Evidence Proper in Action to Enjoin Appropriation Proceedings, When.
    Where an action has been commenced by a railway company in the common pleas court to enjoin an appropriation proceeding commenced by a municipal corporation under Secs. ‘2(142 and 2232 Rev. Stat. et seq., an objection to the introduction of any evidence by the plaintiff should be overruled where a reply has been filed by plaintiff and the allegations of the city as to the regularity of its proceedings in the probate court are-contravened.
    Appeal from the court of common pleas of Summit county.
    Alien, Waters & Andress, for plaintiff.
    E. F. Voris and Osborne Esgate, for defendant.
   WINCH, J.

In this case, appealed from the common pleas court, the railroad company seeks to enjoin the city of Akron from proceeding with condemnation proceedings begun in the probate court of Summit county for the appropriation of property of the plaintiff for the extension,of Prune street. Upon the property sought to be appropriated are six railroad tracks.

The railroad company alleges that the extension of Prune street, at the point contemplated, at grade with its railroad tracks, will unnecessarily interfere with its reasonable use of its property and railroad tracks; that there is no necessity for the opening of said street; and that the city is not acting in good faith in vacating a portion- of Factory street near the proposed extension of Prune street, and in seeking to open up the latter street.

The railroad company' further says that for the wrongs it complains of it has no adequate remedy at law.

The city claims that, having begun appropriation proceedings in the probate court, it has a right to go forward with the same and have said court assess the amount of compensation to be paid to plaintiff for its property taken for street purposes; that said probate court has full, complete and adequate jurisdiction in said matter; and that this court has no jurisdiction to entertain and adjudicate the matters complained of by the railroad company'.

The statutes of Ohio, Secs. 2232, 2233, 223G, 2238 and 2.G4-2 Rev. Stat., provide that municipal corporations having passed certain legislation, may appropriate lands held or owned by railway companies for the purpose of opening or extending streets across railway tracks, where such appropriation will not unnecessarily interfere with the reasonable use of the. property so crossed by any such improvement; that such proceedings may be brought in either the common pleas or probate court, and notice thereof shall be given.

It is conceded that the city of Akron is a municipal corporation, that it has passed the requisite legislation as to the opening of Prune street, that it has begun proceedings m the probate court to appropriate lands owned by the plaintiff railroad company, and has given the notice thereof required by law.

The railroad compan)’, however, contends that such appropriation will unnecessarily interfere with its reasonable use of the property crossed by said improvement, and that the probate court is without jurisdiction to determine the question.

It was held by the third circuit court in the case of Toledo & Ohio Cent. Ry. Co. v. Fostoria, 4 Circ. Dec. 602 (7 R. 293), Judge Seney delivering the opinion, that such proceedings being brought in the probate court, the power to determine whether the appropriation will not unnecessarily interfere with the use of the railroad company’s property, as a jurisdictional fact, is inherent in said court. It is claimed that this holding was not necessary to the determination of the case referred to, the common pleas court being affirmed on this point, but reversen on other grounds.

This case was affirmed without report by the Supreme Court in Railway Co. v. Fostoria, 56 Ohio St. 726 [49 N. E. Rep. 1115], so that we are left without a clear decision of this proposition by the Supreme Court.

In the light of Judge Seney’s decision and the dictum of the Supreme Court in the case of Cincinnati, S. & C. Ry. Co. v Belle Centre (Vil.), 48 Ohio St. 273 [27 N. E. Rep. 464], the views of the Supreme Court are sufficiently apparent to us, so that we conclude that plaintiff is not entitled to the relief it prays for.

An able opinion, stating and considering all the authorities on the subject, was rendered in the court below [Cleveland T. & V. Ry. Co. v. Akron, 13 Dec. 411], and, as we reach the same conclusion on the law of the case, it is not necessary to make further reference to the authorities.

Upon the hearing the city objected to the introduction of any testimony by the plaintiff, a ruling upon which objection was reserved. We find there was a reply filed in the case, and the allegations of the city as to the regularity of its proceedings and the giving of the notice in the probate court were controverted; and we now overrule said objection.

There have been two appeals taken to this court in this matter, case No. 581 being an appeal from an order of the common pleas court dissolving a temporary restraining order, and case No. 604 being an appeal from the decision of said court upon the final hearing of the case. Our conclusions determine both cases, and similar entries should be made in each. The injunction is refused, and the petition dismissed.


author: JELKE, J.

text:
    POLICE AND FIRE CHIEFS.
    [Butler (1st) Circuit Court,
    February 2, 1904.]
    Giflen, Jelke and Swing, JJ.
    State, ex rel. Sipp, v. Charles A. Stroble.
    1. Who Ineligible to Appointment as Chief of Police — No Appointment Unless Service Classified.
    A person is ineligible to appointment as chief of the police or fire department ot a municipality who was not a member of such departments when the new municipal code went into effect, to wit, May 1, 1903, or who has not passed the' examination required by Sec. 159 (Sec. 1536-695 Rev. Stat.) ; and inasmuch as Secs. 149 and 150 (Secs. 1536-685 and 1536-686 Rev. Stat.) require such officers to be appointed from the classified list of such departments, no' appointment can be made when the directors of public safety have failed to classify the service in such departments as required by Sec. 153 (Sec. 1536-689 Rev. Stat.).
    2. Offices of “Superintendent of Police'’ and “Chief of Police" Identical, etc.
    The offices of “superintendent of police” and “chief of the fire department” under the special act of March 25,1898 (93 O. L. 500, applicable only -to the city of Hamilton) and “chief of police” and “chief of fire department,” respectively, created by Sec. 148 et seq. (Sec. 1536-684 Rev. Stat. et seq.) have substantial identity of functions and are identical, and each respective office can he filled by but one incumbent; and as the police and fire departments of all municipalities must be reorganized under Sec. 148 et seq. (Sec. 1536-684 Rev. Stat. et seq.) to meet so far as possible the conditions existing under the repealed statutes and to preserve the personnel of the old departments and standing of the persons composing it, the incumbents of the office of “superintendent of police” and “chief of the fire department” of the city of Hamilton at the time the new code went into effect, to wit, May 1, 1903, are entitled to he continued in office as “chief of police” and “chief of the fire department” of the reorganized departments under the new municipal code and cannot, under Sec. 167 (Sec. 1536-703 Rev. Stat.), be removed of reduced in rank or pay except in accordance with the provisions of the new code; and if such incumbents are removed other than as so provided and others appointed in their stead, the latter will be ousted.from office and the former reinstated.
    3. Incumbent of Office Under Invalid Act is De Facto Officer.
    The incumbents of the office of “superintendent of police” and “chief of the fire department” of the city of Hamilton at the time the new municipal code went into effect, to wit, May 1, 1903, were officers de facto and are within the protection of Sec. 167 (Sec. 1536-703 Rev. Stat.), notwithstanding the act of March 25,1898 (93 O. L. 500), creating the offices and under which they were acting is unconstitutional.
    M. O. Burns, Judge Neilan and Ellis G. Kinkead, for the .relator.
    Richard Shepherd and Warren Gard, contra.
   JELKE, J.

We have had no trouble in coming to a conclusion that the charges filed with the mayor against the relator were insufficient ‘ and that the trial under the same was void and of no effect in law.

We are further satisfied that the appointment of C. A. Stroble was contrary to law, 96 O. L. 70, Sec. 149, providing “The chief of police shall be appointed from the classified list of such department,” because on August 15, 1903, the classified list as required by 96 O. L. 71, Sec. 153, had not been made up and established, and if it had, C. A. Stroble could not have legally been on it as he had neither passed an examination nor been a member of the police department prior to May 1, 1903, the time when the new code went into effect.

The only real difficulty is to determine the official status of Jacob Sipp, the relator herein, between May 1, 1903, the day when the new' municipal code went into effect, and August 15, 1903, the day of the appointment of the said C. A. Stroble, and said Sipp’s right under Sec. 6764 Rev. Stat. to maintain this action. Prior to May 1, on April 28, 1903, Jacob Sipp was duly appointed to the office known as “superintendent of police” as provided by Sec. 18 of the then existing charter of the city of Hamilton, created by, an act of the general assembly passed March 25, 1898.

Section 149 of the new' municipal code (96 O. L. 70) provides that:

“The police department of each city shall be composed of a chief of police and such inspectors, captains, lieutenants, sergeants, corporals, detectives, patrolmen, and other police court officers, station house keepers, drivers, and substitutes as shall have been provided by ordinance or resolution of council.”

The cardinal question is whether or not the office of “superintendent of police” created under the charter is identical with the office of “chief of police” provided in the new code. If the office is identical, since the same permits of but one iheumbent, then Mr. Sipp became by virtue of the new code, going into effect under 96 O. L. 75, Sec. 167, the chief of police of Hamilton. The case of Kirker v. Cincinnati, 48 Ohio St. 507, 508 [27 N. E. Rep. 898] is instructive on this point in distinguishing the case of Reemelin v. Mosby, 47 Ohio St. 570 [26 N. E. Rep. 717] :

“It is argued that the separate character of the two boards is recognized in Reemelin v. Mosbv, 47 Ohio St. 570 [26 N. E. Rep. 717]. This may seem so from the second clause of the syllabus. But no such question was involved, nor considered or necessary to be considered, in that ease. It is true that the members of the new board are there referred to as members of another board. In one sense this is true, in another it is riot: With regard to the personnel, a change in the membership makes another board, but with regard to its functions, the board remains the same so long as its functions remain unchanged.”

Here the court points out, that, under the general law7, where the issue is as to the validity of their acts, the identity of two boards is to be determined by the identity of their functions, no matter what the respective names of such boards may be and regardless of the persons composing them. But here the general law is further modified by the express civil service provisions of the municipal code as to the police department, which provisions concern themselves particularly with the personnel of the office.

These provisions graft onto the law of the organization of the police department the principle of retaining in office those duly appointed to office. 96 O. L. 75, Sec. 167 provides:

“No officer or employe in the department of public safety shall be removed or discharged except for cause; and the cause of removal of any person shall be forthwith stated in writing by the mayor to the board, and shall be filed by the said board in its office, and shall be open to public inspection.
“No officer, secretary, clerk, sergeant, patrolman, fireman or other employe serving in the police or fire departments of any city of the state at the time this act goes into effect shall be removed or reduced in rank or pay except in accordance with the provisions of this ' act.”

In the case at bar we find a substantial identity in the functions of the offices of superintendent of police under the old charter and of chief of police under the new code. We further find explicit statutory direction that the organization of the police department under the new code is to be made to fit so far as possible the conditions existing under the old charter for the purpose of preserving the personnel of the department and the standing of the persons composing it. In this way only can 96 O. L. 75, Sec. 167 be given due effect. It would be impossible in any other way to keep Jacob Sipp on the force without reducing him in rank, as required by this section. Hence we are of opinion that on and after May 1, 1903, Jacob, Sipp was under the law chief of police of the city of Hamilton.

No matter what the Supreme Court might now hold as to the constitutionality of the act of March 23, 1898, the decision of the Supreme Court in State v. McMaken, 58 Ohio St. 731 [51 N. E. Rep. 1101], gave sufficient color of law to make Jacob Sipp a de facto officer on May 1, 1903. We are sustained in this view by what was evidently the view of the mayor and board of public safety at the time when they instituted proceedings against said Sipp. The idea that he could have sustained any other relation to the police department was only invented after the complete illegality and vanity of the proceedings against him became obvious.

We are therefore of opinion that a judgment of ouster should issue against -C. A. Stroble and of reinstatement of Jacob Sipp.


text:
    State, ex rel. Becker, v. David Lingler.
   The principles recognized in the foregoing case are equally applicable to this case and lead to a similar conclusion.

A judgment will issue herein against David Lingler ousting him from the office of chief of the fire department and of reinstatement of Adam Becker to said office.


author: ?*AYNES, J.

text:
    JUSTICES OF THE PEACE.
    [Wood (6th) Circuit Court,
    April 25, 1903.]
    Parker, Hull and Haynes, JJ.
    John W. Brownsberger v. Cincinnati, Hamilton & Dayton Ry. Co.
    1. Defendant not Entitled to one Hour Within Which to Appear' Before Justice of the Peace, When.
    When a case pending before a justice of the peace has been regularly adjourned for trial under Sec. 6548 Rev. Stat. until the time fixed for the return of the jury demanded by plaintiff under Sec. 6547 Rev. Stat., the defendant is not entitled, under Sec. 6576 Rev. Stat., to one hour from the time so fixed for trial within which to appear. /

      2. Application to set Aside Judgment Must Contain, What.
    An application by defendant to set aside a judgment rendered against it by a justice of the peace, based upon the facts of nonappearance at the hearing and that it wás not allowed one hour from the time set for trial within which to appear, should set forth the reasons for nonappearance, or offer to confess some judgment or pay costs.
    Error to the court of common pleas of Wood county.
    €L P. Thompson, for plaintiff in error.
    A. V. Watts, for defendant in error.
   ?*AYNES, J.

(Orally.)

This is a petition in error, the main question, and the only one perhaps being as to the right and claim of the defendant in error, the railroad company, that its attorneys had a right of one hour to appear when a case was adjourned.

The facts are that Brownsberger had a claim some two years old against the railroad company, and it not being adjusted he brought it to a suit before a justice of the peace in Weston township, this county. The suit was commenced and service was made upon the agent of the Cincinnati, Hamilton & Dayton Railroad Company at Weston, although the return is not in fact correct.

At nine o'clock on the return day the agent of the railroad company at Weston appeared with a telegram from the general counsel of the railroad company, asking that the case might be postponed until he would have time to look into it, and this the justice declined to do. The agent was there and remained there. The plaintiff then demanded a 'jury trial. The amount sued for was $17.93, which, with the interest, would amount, as we figure it, to a little over $20 principal and interest. When the plaintiff’s attorney 'demanded a jury the justice issued a venire and asked the agent of. the railroad company to strike off the jurors; he declined to have anything to do with the matter, and thereupon the justice struck off for the company and a jury was impaneled. The case was postponed until 1:30 that afternoon, and at 1:30 o’clock the jury was called, and the case proceeded to trial and at 1:40 o’clock the case had been heard, a verdict returned and judgment rendered. Soon after that, or about that time, there appeared before the court Mr. Watts, as attorney for the railroad company, and he promptly filed a motion to set the judgment aside, and allow him to come in and have a trial; the court refused that and entered the judgment, and a bill of exceptions was taken and the case was brought to the court of common pleas, and the court of common pleas reversed the. judgment of the justice on the ground that the defendant railroad company was entitled at 1:30 o’clock, to- an hour within which to appear; that is to say, they could not go to trial before 2:30 o’clock P. M., and to reverse the judgment of the court of common pleas, a petition in error is filed by Brownsberger.

The statute bearing upon this subject is Sec. 6482 Rev. Stat., which is as follows:

“The parties are entitled to one hour in which to appear after the time mentioned in the summons for appearance, but are not bound to1 remain longer than that time, unless both parties have appeared and the justice, being present, is engaged in the trial of another cause; in such case the justice may postpone the time of appearance until the close of such trial.”

It will be seen from that section that each party has a right to an hour after time set in summons within which to appear. Section 6547 Rev. Stat. provides that either party may demand a jury and how it shall be composed; and Sec. 6548 Rev. Stat. provides:

“When a jury is demanded, the trial of a cause must be adjourned until a time fixed for the return of the jury; if neither party desire an adjournment, the time must be determined by the justice, and must be on the same day or within the next two days; the jury must be immediately selected as herein provided.”

Section 6576 Rev. Stat. provides that the action may be dismissed: “2. When he (plaintiff) fails to appear at the time specified in the summons, or upon adjournment, or within one hour thereafter.”

It will be seen that nothing is said in that section about the right of the defendant to have an hour to appear. Now so far as that point is concerned we are unable to find any statute that authorizes a defendant to demand that there shall be a postponement of the case for one hour after the time to which it is first adjourned. If the case is called and the jury is impaneled, it is the duty of the defendant to be there at the time appointed, or if the case is adjourned, he should be there at the time to which it is adjourned. For some reason the statute allows the plaintiff to have one hour before judgment can be entered against» him dismissing the case without prejudice if he fail to appear.

It looked rather upon the face of the petition as if there had been some attempt to hurry the case through and deprive the defendant of its right to be present, but upon a full examination of the record we have concluded that is only seeming; the justice followed the statutes in the case; the claim was an old one — two years old; suit was brought, returnable at nine o’clock A. M. on the day of trial, and the application of the general counsel of the railroad company was for an indefinite postponement. A demand was made for a jury; the jury was struck in accordance with the statute, no one appearing for the railroad company, and the agent refusing to strike the jury, the justice did so as provided bj statute and the case went to trial. The statute provides that the case should be heard the same day or at least within forty-eight hours; it being contemplated, it seems to us, as though it was to be a continuous matter. The application to set aside that judgment by the defendant is not in accordance with the statute; it gives no reason for its nonappearance, neither does it make any offer to confess any judgment or to pay costs. We are of the opinion that there is no error in the case, nothing to call for the intervention of the court of common pleas; we therefore will reverse the judgment of the court of common pleas and affirm the judgment of the justice, and order that a certificate be sent to the justice’s court certifying the fact of this affirmance.


author: HAYNES, J.

text:
    MORTGAGES — LIFE ESTATES — COURTS.
    [Wood (6th) Circuit Court,
    April 25, 1903.]
    Parker, Hull and Haynes, JJ.
    Charles W. Sherman et al. v. Hattie May Sherman.
    1. Mortgage on Life Estate Must be Paid From Income and not Principal.
    The value of a mortgage incumbrance upon the interest of a life tenant in real estate can be paid only from the income arising from, and not out of, the principal of the fund created by a sale of the premises in-a proceeding commenced by the life tenant to sell the same and have the proceeds invested under order of the court for the benefit of the parties interested therein.
    2. Costs, Taxes, Attorney and Guardian Ad Litem Fees, how Paid.
    A life tenant in real estate who, for his own benefit, commences a proceeding to sell the premises and invest the proceeds arising therefrom under order ' of the court, as provided by Sec. 5803 Rev. Stat. et seq., must pay the costs of the proceeding and his attorney fee; and, as a tenant for life must pay taxes or forfeit his estate, either he or his mortgagee must pay the taxes on the land; and no part of such costs, fee or taxes (unless the taxes have been paid after forfeiture of the life estate), can be paid from the principal of the fund realized from a sale of the premises; but the fee of the guardian ad litem of a minor defendant may be paid from the fund.
    3. Court May Appoint Trustee to Invest Trust Fund.
    It is within the power of the court, in a proceeding commenced liy a life tenant in real estate to sell the land and invest the proceeds for the benefit of the parties interested therein, to appoint a trustee of the fund so created with power to invest the same under order of the court.
    ERROR to the common pleas court of Lucas county.
    F. J. Chase, for plaintiff in error.
    E. G. McClelland, for defendant in error.
   HAYNES, J.

(Orally.)

In this case a petition in error was filed by the plaintiffs ill error to reverse the judgment of the court of common pleas, the general ground alleged being that the court erred in rendering judgment against the plaintiffs in error, Lester D. Hill and Charles W. Sherman, and in favor of the defendant in error, Hattie May Sherman.

The petition of Charles W. Sherman in the court of common pleas sets forth that his father died, having made a will and had willed to him for life certain real estate, about eighty acres of land, with remainder over to the heirs of his body. He had one child, Hattie May Sherman, the defendant. Sherman had with all reasonable promptitude mortgaged h,is life estate to Lester D. Hill, and Hill comes in by way of answer and cross-petition and sets up his note and mortgage. The plaintiff, in his petition, sets forth that operation of the land under his life estate is not profitable; that the taxes and improvements thereon required are high, so that it yields nothing to him, and can be, in its present condition, of no value to the owner of the remainder; that from the rents it cannot be kept in repair with the -necessary ditches, taxes and improvements, and is therefore depreciating in value, and he prays that the land may he ordered sold, and the proceeds invested under order of the court in accordance with the statute (Sec. 5803 Rev. Stat. et seq.') in such case, and averring that it would be no injury to the person holding the remainder in doing so.

After a hearing, an order was made by the court of common pleas that a sale be made, and the plaintiff was appointed to make the sale, and a sale was made and the money was turned into the court, and is there now. The petition also prayed that the present value of the mortgage given by Sherman be ascertained and the same ordered paid him out of'the fund. The court refused to do that, and thereupon the plaintiff filed his petition in error.

We think the court is perfectly right in doing that; that it was a wise thing to do, and further that we do not find any provision in any statute that would authorize a court of common pleas to make an order of that kind, and so far as we can see, the court would have no authority to do so. The statute provides that the money made by the sale be invested in such and such a form. A sale was made and a certain party was appointed as trustee to take charge of the fund and make the investment. That was under the provision of the statute all right. The court further directs that certain payments be made; that the amount found due the defendant, Hill, upon his note and mortgage set forth in his answer be paid out of the income arising from said fund prior to the payment of any other claim or lien, except the costs of investing the same.

The court has done one thing, which is not alleged as error, but I will call attention to it, for so far as we know there is no law for the order that is made. The court has ordered the appointment of a trustee, that he shall give bond, and then when the bond is given to the clerk of the court “the amount of said fund remaining to which said trustee may be entitled, after retaining the costs of this action including a fee for plaintiff’s attorney, and also a fee for the guardian ad Jit cm heretofore allowed, which costs are taxed at $10.30 and the taxes due on the land amounting to $26.75; and it is hereby further ordered that after the payment of said money due the said L. D. Hill on his note and mortgage, the subsequent income arising from said fund be paid to said plaintiff, Charles W. Sherman, after deducting such costs and expenses as Shall he allowed said trustee,” etc. Now the tenant for life is bound to keep the taxes paid, else he forfeits his life estate, and further we know of no authority for paying the plaintiff’s attorney a fee in this case; nor do we know of any law that the costs of the court be paid out of the fund, or the taxes, unless they should be paid after a forfeiture is made. The fee of the guardian ad litem should be paid out of the fund. The whole thing is carried through here at the expense of this girl, a minor. The plaintiff and Hill, the owner of the mortgage, are not out a cent. The sale is made for the benefit of the plaintiff and upon his petition, and we know of no reason why he should net pay his own attorney and why he should not pay the costs of suit or why the mortgagee should not pay the taxes or the whole amount should be forfeited. I don’t care to have the matter pass by this court without entering our views upon the question.

The judgment of the court of common pleas, so far as the order appointing a trustee to invest the funds and refusing to find the present value of the mortgage and pay it, is affirmed.


text:
    GUARDIAN AND WARD — APPEAL.
    [Hamilton (1st) Circuit Court,
    March 5, 1904.]
    Giffen, Jelke and Swing, JJ.
    J. C. Harper (Tr.) v. R. L. Cilley et al.
    1. Guabdian Ad Litem May Appeal Under Sec. 5226 Rev. Stat.
    A guardian ad litem of an infant, appointed by the court under Sec. 5003 Rev. Stat., may, under favor of Sec. 5226 Rev. Stat., take an appeal as such from a judgment adverse to his ward; and while he has no personal interest in the suit, yet he takes the place of and represents the infant, who, though a party thereto, is without legal capacity to make a defense.
    2. Guardian Ad Litem to Determine Advisability of Appeal.
    Whether an appeal should he taken from a judgment adverse to an infant defendant, is for the determination of the guardian ad litem appointed by the court under Sec. 5003 Rev. Stat., and not by the infant.
    3. Guardian Ad Litem Personally Liable on Appeal Bonds.
    A guardian ad litem is personally liable upon his appeal bond. Whether he' has power to hind his ward’s estate thereby, quaere.

    Harper & Allen, for plaintiff.
    Bromwell & Bruce, for defendant:
    As to right of appeal. Section 2256 Eev. Stat.
    The guardian ad litem was a party to the proceeding in the common pleas court, as was also the minor whom he represented.
    As to the duty of the guardian ad litem. Long v. Mulford, 17 Ohio St. 484, 503; Dow v. Jewell, 21 N. H. (1 Foster) 470, 486; Sconce v. Whitney, 12 Ill. 150; Knickerbacker v. De Freest, 2 Paige 304; 1 Daniell, Ch. Pr. Title, Infants.
    As to the appointment of a guardian ad litem. Sections 5003, 5004 Rev. Stat. '
    As to the right of guardian ad litem to appeal. Stewart, In re, 48 N. Y. Supp. 999 [23 App. Div. 17]; Thomas v. Safe Deposit & Tr. Co. 73 Md. 451, 461 [21 Atl. Rep. 367; 23 Atl. Rep. 3],; Tyson v. Tyson, 94 Wis. 225 [68 N. W. Rep. 1015] ; Sprague y. Beamer, 45 Ill. App. 17.
    The bond required in an appeal case is only for the costs and to protect the county, against loss. It is made to the satisfaction of the clerk. The clerk has accepted the bond, and no question can be raised, as to its sufficiency or validity.
   GIFFEN, J.

This ease was appealed to this court by the guardian ad litem of an infant, and the motion is made to dismiss the appeal for the reason that the guardian was not such a party to the suit as entitled him to take an appeal. Section 5003 Rev. Stat. provides that:

£ 1 The defense of an infant must be by a guardian for the suit, and may be appointed by the court in which the action is prosecuted, or by a judge thereof, or by a probate judge. ’ ’

In the ease of Long v. Mulford, 17 Ohio St. 484, 485, the first proposition of the syllabus is as follows:

“It is the duty of a guardian ad litem, to make for the infant a proper defense, and for this purpose to bring the rights of his ward under the consideration of the court for decision. ’ ’

At page 502, it is said that:

“The appointment of a guardian ad litem is not a mere matter of form. A suit against an infant cannot be prosecuted without such guardian; and the object of the requirement is to secure to the infant a proper defense.”

The ease in this court is the same as that in which the guardian was appointed, and the question whether the defense should be made for the infant cannot be determined by her, but must be determined by the guardian, and if, upon full consideration he deems it advisable to appeal the case to this court, it is his duty to do so.

The question has never been decided by our Supreme Court, but in other states under similar statutes it has been held that the guardian ad litem has the right to take an appeal from the judgment adverse to his ward. The case of Thomas v. Safe Deposit & Tr. Co. 73 Md. 451 [21 Atl. Rep. 367; 23 Atl. Rep. 3], the fourth proposition of the syllabus is as follows:

“In contemplation of Sec. 24, Art. 5 of the code, regulating appeal ■ from courts of equity, a guardian ad litem may be a party to the suit, .and as such has the right of appeal on behalf of the infants, for the purpose of protecting or advancing their interests.”

In the case of Tyson v. Tyson, 68 N. W. Rep. 1015 [94 Wis. 225], the supreme court held that:

“A guardian ad litem, appointed for an infant defendant by the court in which the action is prosecuted, pursuant to Sec. 2613 Rev. Stat., may appeal from a judgment against the minor, without permission of court. ’'

It is claimed by counsel for the defendants that the guardian ad litem is not a party to the suit, and none but the party is entitled to take an appeal under Sec. 5226 Rev. Stat. While it is true that the guardian has no personal interest in the suit-, yet he takes the place of and represents the infant, who, though a party to the suit, has not the legal capacity to máke a defense.

The further claim is that the guardian ad litem who gave an undertaking for the appeal, is without authority to bind the estate of the infant, but assuming this to be true, he would nevertheless be liable individually upon the bond.

The motion will, therefore, be overruled.