text:
    JOINT ACTION AGAINST LESSEE AND ASSIGNEE.
    Circuit Court of Cuyahoga County.
    Francis M. Norris v. Charles Buchanan et al.
    Decided, February 18, 1907.

      Parties to Actions — Lessee and Sis Assignee May &e Sued Jointly.

    Where action is brought upon the covenants of a lease which are binding on both the lessee and his assignee, they may be sued jointly, and where one is found in the county summons may issue to an adjoining county for the other.

      Frank Higley, for plaintiff in error.

      Carr, Stearns ■£& Chamberlain and Garfield, Howe & Westenhaver, contra.
    Henry, J.; Winch, J., and Marvin, J., concur.
   The plaintiff in error was plaintiff below and he seeks here a reversal of the order of the court of common pleas granting the motions of two of the three defendants below to quash the summons served upon them. The ground of the motions was an alleged misjoinder of the defendants, and the erroneous issuing of summons to two outside counties of this state for the two defendants who filed the motions to quash.

The case made by the amended petition below is substantially as follows:

The defendant, Buchanan, procured a lease to himself and his assignees of plaintiff’s land in Lorain county, and immediately assigned said lease to the defendant, the United States Cooperage Company. The lease contained a covenant for the payment of rent, and under the rule in Sutliff v. Atwood, 15 Ohio State, 186, it became the legal duty of the assignee to pay the rent while it enjoyed the' estate, and the lessee continued personally liable therefor.

Buchanan subsequently became insane, and is now confined in a hospital at Toledo. The defendant Kahle was appointed his guardian.

The petition below further alleges that the defendants have broken the covenants of the lease in regard to the payment, of rent, and that they have removed property belonging to the lessor to his damage in an amount for which he asks judgment against Buchanan and the cooperage company.

The defendant, Kahle, as guardian, is also made a party defendant, under the provisions of Section 5000, Revised Statutes.

The cooperage company was served with summons in this counts'-, and the-other two defendants were personally served in the other counties.

The ground of the last two defendants’ motions to quash-is founded on the provisions of Sections 5028 and 5035 of the Revised Statutes of Ohio.

Section 5028 provides generally that actions, the venue of which is not otherwise specially provided for, must be brought in the county in which the defendant resides or may be summoned, except actions against an executor, administrator, guardian, or trustee, which may be brought in the county wherein he was appointed or resides, in which cases summons may issue to any county.

Section 5035 provides that:

“When the action is rightly brought in any county, according to the provisions of the preceding chapter, a summons may be issued to any other countjq against one or more of the defendants, at the plaintiff’s request,” etc.

The claim made in behalf of.the motion was and is that these three defendants were improperly joined as such: that no summons can be issued to another county, unless the action is rightly brought in the county from which said summons issues, and ■hence, that the summons issued to other counties for the defendants, Buchanan and Kahle, having beén erroneously issued, should be quashed.

As regards the guardian, it is not seriously urged that if his ward might properly be served with summons outside of Cuyahoga, county he might not also be lawfully served in the same manner, and we dismiss that question as of no moment. But it is said that the defendants, Buchanan and the United States Cooperage Company, are not jointly liable, and hence are not jointly suable in this action.

Without pausing to determine the correctness of the latter part of this proposition, I refer again to Sutliff v. Atwood, supra, as conclusive of the incorrectness of the former part thereof. In the opinion by White, J., at page 194, it is said that:

“The lessor, where there is an express agreement of the lessee, may sue at his selection either the lessee or the assignee or may pursue his remedy against both at the same time, though .lie can have, of course, but one satisfaction.”

The liability of the defendants Buchanan and the United States Cooperage Company being predicated upon the covenants of the lease, which are binding alike upon the original lessor and his assignee, it follows that it "is of a joint and several nature, such as to render the maintenance by the lessor of an action for money only against them jointly perfectly allowable under our code.

The order of the court below in sustaining the motions to quash the summons is therefore erroneous and must be reversed.


source: Caselaw Access Project

license: Public Domain

text:
    DEFENSE OF STATUTE OF FRAUDS.
    Circuit Court of Cuyahoga County.
    James Kane et al v. Louis Dominick.
    Decided, March 4, 1907.

      Justice Practice — Evidence.
    A justice of the peace may receive evidence of facts which will take a ease out of the operation of the statute of frauds.

      O. W. Broadwell, for plaintiff in error.

      Bemis ■& Calfee, contra.
    Henry, J.; Winch, J., and Marvin, J., concur.
   This proceeding in error is prosecuted to reverse a judgment of reversal rendered by the court of common pleas in a proceeding in error from the court of a justice of the peace. The plaintiff in error here was plaintiff in the original action. He prevailed in the justice court, but was defeated in the court of common pleas. The action was in forcible detainer, and the plaintiff claimed that the defendant in possession was a tenant at will, or at most a tenant from month to month, and proved a proper notice upon him to leave the premises. The defendant, however, claimed that he was in possession under a parol lease for one year at the rate of $12 per month, for which he was not in default. The justice of the peace refused to receive evidence of the alleged oral lease for one year, upon the ground that under the statute of frauds the lease must be in writing. It is conceded that possession under an oral lease for one year will suffice to take the case out of the statute by invoking the doctrine of equitable estoppel or-of fraud upon the statute or the law. But this seems to have been deemed by the justice of the peace a defense involving the exercise of equitable jurisdiction beyond the province of his court.

It is true, of course, that equity can not be administered by a justice of the peace, but it is not true that it involves the exercise- of equitable jurisdiction to receive evidence of an oral lease of land for one year.

The case of Wilber v. Paine, 1 Ohio, 251, seems to be decisive of the question. That was an action at law in which, however, proof was received of facts taking the case that was before the court'out of the statute of frauds.

Grant v. Ramsey, 7th Ohio State, 158, was decided after the adoption of the code permitting the joinder of legal and equitable causes of action, and legal and equitable defenses, and both these cases are cited in Swan’s Treatise, 20th Edition, page 576, as authority for the proposition that a justice of the peace may receive evidence of facts which will take a case out of the statute of frauds. The recognition of equitable estoppels by courts of common law is fully discussed in Columbus v. Street R. Co., 45 O. S., 98.

The judgment below is affirmed.


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    DAMAGES IN ACTION FOR. REPLEVIN.
    Circuit Court of Cuyahoga County.
    Philip Cohen v. William Longtin.
    Decided, March 4, 1907.

      Replevin — Damages where Plaintiff Elects to Tahe Value of Property.

    In an action of replevin where the plaintiff elects to take the value of the property as found by the jury, he can not also recover damages for its wrongful detention, and his recovery is limited to the value of the property thus found together with interest on that amount from the date of the wrongful detention.
    Henry, J.; Winch, J., and Marvin, J., concur.
   The original action was in replevin and was begun in the court of a justice of the peace, whence it was taken by appeal to the court of common pleas of this county.

Upon the trial in that court the jury found that at the commencement of the action the right in and to the possession of the property named in the petition was in the plaintiff, and assessed his damages at $90, and the value of said property at $100.

The defendant, Philip Cohen, moved for a new trial, whereupon the plaintiff elected to take the value of the property as found by the jury, together with the damages for the withholding thereof, and having remitted from the amount of the verdict of the jury the sum of $9.51, being the interest on the value of said property, as found by the jury, from April 3, 1905, to September 17, 1906, the first day of the term, said motion for new trial was refused.

The defendant below prosecuted error, and alleges as ground thereof, that the court erred in rendering judgment against him, for not only.the value of the property, but also for the further sum of $90 for withholding the 'same.

The property in question included a billiard table, the use of which, it was'claimed and found by the jury, was worth about $5 per month. It is urged by the defendant in error that the rule of damages in replevin is different from that in trover, in that replevin presupposes a continuing ownership by the plaintiff, and ultimate restoration to him of the property which is the subject-matter of the litigation. Upon this theory the plaintiff is clearly entitled to recover the damage done by the defendant to his property, together with the value of the use thereof for the period of time during which it has been withheld from nim by the defendant.

Under our statute, however, the action of replevin is of the character just described, only when the plaintiff, upon verdict in his favor, elects to retake the property itself. In case he elects to take the value of the property as assessed by the jury, as of the time when it was unlawfully withheld from him by the defendant, the title to the property is transferred to the defendant as of the same time, if the judgment be for plaintiff. •

In this aspect our statutory action of replevin is like the common law action of trover, and it is manifest that the reason for a distinction in the rules of damages in these two classes of cases' is thus eliminated.

There is some conflict of authority upon the precise question presented here, but the weight of authority now appears to be as above indicated. In Iowa, for example, the Supreme Court has reversed its original holding, that in replevin cases the plaintiff may have not only the value of the property, but also damages for its detention, and now holds that where the plaintiff elects to transfer the title to the property in controversy to the defendant the measure of his damages is merely the value of the property. Powers v. Benson, 120 Iowa, 428.

It is manifest that the plaintiff’s property .is no longer detained from him after title thereto has been transferred to the defendant by the voluntary action of the plaintiff; and the absurdity of the contrary rule is evident when we consider that a horse, originally the property of the plaintiff, and unlawfully withheld from him by the defendant, may be of the value of $100 but by reason of having its leg broken by the negligence of the defendant, while so withheld by him, the defendant will become liable not only for the value of the horse, $100, but also for damages thereto, for nearly or quite the same amount, in addition, because the broken leg has damaged the animal to that amount. It would be repugnant to the plainest principles of justice to permit the plaintiff, under such circumstances, to recover twice the original value of the horse that had been unlawfully withheld from him for a brief period.

The damages for detaining in the present case were $90 and to this extent the judgment below is erroneous, in view of the plaintiff’s election to take the value of the property. The plaintiff, was, however, entitled to the interest which he remitted, amounting to $9.50, so that the judgment is excessive to the amount of $81.50. Unless the plaintiff shall within ten days remit from the judgment the sum of $81.50 the judgment below will, therefore, be reversed, but if such remittitur is made the judgment will be affirmed.


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    ERROR. IN ASSUMING THAT THE TESTIMONY GIVEN WAS THE TRUTH.
    Circuit Court of Cuyahoga County.
    The Cleveland Electric Railway v. W. Sherwood Synder.
    Decided, March 11, 1907.

      Trials — lError to Direct Verdict for Plaintiff, When.

    It is the province of the jury to say whether or not the one upon whom the burden of proof has been cast has sustained it, and is error for the court to direct a verdict for plaintiff though his uncontradicted evidence makes a prima facie case.

      Squire, Sanders & Dempsey, for plaintiff in error.

      Excell ,<& Ohy, contra.
    Henry, J.; Winch, J., and Marvin, J., concur.
   The action below was brought upon an account which is alleged to have been stated between one Kelso and the Cleveland Electric Railway Company, through its president, IT. A. Everett, for expenses incurred by said Kelso on behalf of said company while he was in its service. Kelso afterward assigned the account to the defendant in error, Snyder, who was plaintiff below.

Upon the trial the plaintiff produced a written statement of the account approved, or initialed, “IT. A. E.” These initials, by the testimony of the secretary of the company who verified its answer denying the account, were written by its president.

The court, upon motion, directed a verdict for the plaintiff. This was error. The court can not assume as a matter of law that the testimony thus given was true, satisfactory or convincing to the jury, simply because no one by words contradicted it. Gannon v. LaClede Gas Light Co., 145 Mo., 502.

It is the province of the jury, not of the court, to say that he, upon whom is cast the burden of proof, has, in fact, sustained it. The court may, indeed, in proper cases, direct a verdict for the opposite party, for lack of evidence of an essential fact by him whose duty it is to prove such fact. But that is not this ease. Nor are we here considering a case where the plaintiff’s evidence is of such nature as to be legally conclusive and incapable of denial or impeachment.

The plaintiff in error urges other reasons why this ruling of the court below was erroneous, but we deem it unnecessary to examine them. The judgment below is reversed and the cause remanded.


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    ENFORCEMENT OF BUILDING RESTRICTIONS.
    Circuit Court of Cuyahoga County.
    Virgil D. Allen v. The Deming Realty Company.
    Decided, March 18, 1907.

      Covenants — Building Restrictions Enforceable in Modo et Forma.

    Where one has purchased a lot subject to general restrictions which were part of a general plan in opening up a street, or which were represented to him and the public to be part of such a plan, he is entitled, having relied upon and conformed to those restrictions, to have the same enforced, in modo et forma, against his vendor and all purchasrs from the vendor with notice of the general plan.

      Robert Grosser, for plaintiff.

      Smith, Taft <& Arier and E. J. Thobaben, contra.
    Henry, J.; Marvin, J., concurs; Winch, J., dissents.
   In this appeal the plaintiff seeks to enjoin the defendant from conveying any lots on Pasadena avenue, in its so-called “Grant-wood Allotment” in this city, without incorporating into the deeds of conveyance certain building and other restrictions such as are contained in the deed of conveyance from defendant to plaintiff of a certain residence lot now owned by plaintiff on said avenue.

The restriction in controversy is the last of a series to which plaintiff’s lot is subjected, and which he claims the defendant represented to him, at the time of his purchase, were part of a general plan, and applicable to all tbe lots on Pasadena avenue save for a slight variation in the stipulated minimum cost of buildings at different points thereon. From plaintiff’s title deed, dated June 5, 1906, it appears that his property is

“subject to the following reservations and limitations in consideration of this conveyance and shall be binding on the heirs and assigns of the grantee, and shall run with the land, to-wit: That said premises shall be used for residence purposes only by the grantee, his heirs and assigns; that no intoxicating liquors of any kind shall ever be maunfactured or sold on said premises; that no building shall be erected or placed on said premises which shall cost and be of value less than thirty hundred dollars ($3,000) and not nearer than thirty feet from the front and street line to the front line of the porch, nor nearer than eight feet from the east line of said premises; that no double or two family house or shop shall be erected or placed on said premises; that no terrace or apartment house shall be erected or placed on said premises; that no fence or enclosure of any kind shall be erected or placed within sixty feet from the front and street line of said premises; that' the general grade shall not be over eighteen inches higher than the top of the curb.”

The foregoing is a part of the defendant’s specially printed form of deed save that the figures or numbers and some other details were left to be inserted by the scrivener in proper blank spaces provided-for that purpose.

The defendant also had a specially printed form of land contract containing similar provisions, in the last of which, however, the word “uniform” is substituted for the word “general” in the deed, so as to read, “The uniform grade of said lot shall not be over-inches higher than the top of the curb.”

Neither of these blank forms of deed and contract respectively is peculiarly adapted for use in connection with the sale of lots in defendant’s “Greenwood Allotment,” and it is evident that they were not prepared exclusively for that purpose. Nor does it appear that the plaintiff had anything to do with this blank form of land contract. Endorsed on the back of the particular specimen of this blank form which is shown in evidence, are, however, certain written instructions to one of the defendant’s sales agents, given him as appears from the testimony, by the defendant’s superintendent, and defining the prices charged and the restrictions imposed by the defendant with respect to lots on four several avenues in said allotment. To these instructions I shall hereafter refer.

As already stated, the controversy here is over the 18, inch grade restriction. Plaintiff claims that this restriction was held out to him as being applicable throughout Pasadena avenue. Defendant claims that, while said grade was intended to be and has been applied to all of that avenue except some 16 lots at one end, it was never intended nor represented to be applicable to the land thus excepted. This end of the avenue terminates in a ridge or knoll, whereon, the general grade of lots was intentionally left indeterminate, pending the establishment of the curb-line and the ascertainment of its height.

Recently, however, the general grade of the lots at that end of the avenue has been fixed at 36 inches above the curb line. Some six of these lots have been sold, four of them before this litigation was commenced. These sales were all made, however, with the understanding that the defendant might fix the grade; which has now, accordingly been done. One Meermans has built a house upon his lot at the 36 inch level. But he was informed of plaintiff’s claim before his foundation was completed. None of these lot owners is a party to this suit, and of course no relief is asked as against them. Save for the unsold portion of the high ground at the end of the avenue, nearly all the lots on the avenue have been sold by deeds containing restrictions like those in plaintiff’s deed. Defendant claims that, prior to its purchase of this entire property, the plan was conceived of terracing the front lawns of the lots in the high ground of Pasadena avenue, and that prior to plaintiff’s purchase, the president'of the defendant company brought back from a trip to certain western cities a photograph illustrating the actual carrying .out of the park entrance and terracing idea which he proposed to employ. It claims further that á large grove of trees grows on this high land or, at least on that part of it embraced in the lots immediately behind those on Pasadena avenue, so that the grade of the Pasadena lots can not be cut down to the 18 inch level at this point without either sacrificing the trees or making an undesirable variation of grade between the lots on Pasadena avenue and those behind them.

We think these claims of the defendant are probably true, but the question we have to consider is what representations were made by the defendant to the plaintiff and to the public when plaintiff purchased. The plaintiff testifies that he was very much attracted in the spring of 1906 by the long stretch of lawns of uniform depth and grade on another street of defendant’s ‘ ‘ G-rantwood Allotment. ’ ’

He says he specially inquired of defendant’s salesman and of its superintendent if the same effect was to be carried out on Pasadena aveiue, and that he was repeatedly assured that such was the defendant’s intention. Plaintiff called the special attention of defendant’s agent to said knell, or ridge, inquired what was to be done with that, and was told that the defendant had cut away a similar ridge at the opposite end' of an adjacent avenue and would do the same with this. Several former sales agents testify that they were instructed without qualification that the grade of lots on Pasadena avenue was to be eighteen inches above the curb-line. Mr. Canniff, defendant’s superintendent, and a witness for defendant, testifies that he told the plaintiff that the grade would be "uniform” though he now says that he used this- expression in a sense different from that understood by the plaintiff. His written instructions already referred to expressly mention the 18 inch grade in the "first block” of Pasadena avenue. As to the "second block” the writing conveys no express- instructions, save that the minimum cost of buildings is there $3,000 instead of $3,500 and the- price "of lots is $30 instead of $35 as in the first block. But it is perfectly clear, reading the entire paper together, that the instructions are meant to be exhaustive, that the 18 inch grade, as well as all other restrictions named, apply to both blocks alike, and that the plan of varying the grade and terracing the lawns at the high end of Pasadena avenue is not contemplated thereby. Whether this was due to oversight or to the supposition that general representations of this- character might be varied to suit conditions at the high end of the street, without incurring any liability to previous purchasers is not necessary to determine. In either event the policy of making unqualified representations of this character was not restricted to this single instance, for, in a full page advertisement published by the defendant in the Cleveland Plain Dealer, of Sunday, July 1, 1906, the following language descriptive of the general plan of restrictions, applicable to this and other streets of said allotment is used:

“Double houses, apartment houses, terraces, tenement houses, two family'houses, business blocks and saloons are not allowed on beautiful Grantwood Allotment.
“The entire property is protected and reserved for private residence purposes exclusively.
“All the restrictions are incorporated in the deeds and run with the land perpetually.
“Houses must set back a uniform distance from the inside of the sidewalk, must maintain a uniform grade and location on the lots- which insures good common sense regulations, wide streets, and plenty of air space between buildings.
‘ ‘ Park entrances of artistic beauty are erected at the entrance of each street, insuring greater privacy to the street and lending individuality and tone to the surroundings. ’ ’

At this time the sale to the plaintiff had been completed but the plaintiff shows that the representations which he alleges were made to him in regard to the defendant’s general plan were not mere misrepresentations, but were in accord with what the defendants held out to the public in general at about the same time.

When it is declared, as in this advertisement, that “houses must set back a uniform distance from the inside of the sidewalk, must maintain a uniform grade and location on the lots” it is perfectly evident that intended purchasers were authorized to infer, as Alleai says he did infer, from the similar representations made to him, that the front lawns from one end to the other of any street in the allotment would stretch out in a vista of unvarying depth and.grade.

It is said, however, on behalf of the defendant, that the artistic excellence of its plan of terracing near the end of Pasadena avenue is quite equal to that understood by the plaintiff. The plaintiff, therefore, does not and can not show any damage or substantial invasion of his rights in the premises, and that he has no equity wherewith to invoke interference by this court in the issuance of the onerous writ of injunction, particularly as the rights of innocent purchasers will be interfered with, and plaintiff alone, of all the lot owners upon the street pretends that he has suffered, or will suffer, an irreparable injury or any injury whatsoever.

The answer to this contention is that if plaintiff purchased, subject to restrictions which were part of a general plan in the opening up of this street, or which were represented to him and the public to be part of such a plan, he is entitled, having relied upon and conformed to those restrictions, to have the same enforced in modo et forma as against his vendor who made the representations, and all others who purchased from said vendor with notice of the general plan.

Under the evidence in the case we can not escape the conclusion that a general plan of the sort claimed by the plaintiff was communicated to him and to the public generally at the time he made his purchase, and that he is, therefore, entitled to a decree enjoining the defendant from conveying any of the lots not sold upon such street, except such conveyances be made subject to the same restrictions in regard to grading of lots, and otherwise, as are contained in plaintiff’s deed.

Our brother Winch disagrees with the foregoing inferences of fact and therefore dissents from the judgment of the court, although agreeing with the views of the law taken by the majority of the court and applied by them to the facts as they understand them to be from the evidence.


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    RESTRICTION ON AUTHORITY TO DISMISS ACTIONS WITHOUT PREJUDICE.
    Court ol Appeals for Hamilton County.
    Hall v. W. M. Ritter Lumber Co.
    Decided, May 31, 1913.

      Dismissal — Action ,on Appeal May Not he Dismissed Without Prejudice to the Bringing of a New Suit, When — Court Procedure — Sections 10387 and 11586.
    1. Section 11586, General Code, authorizing the dismissal of actions in the common pleas court “without prejudice to a future action,” does not apply to a case conimg into that court on appeal.
    2. The power of parties to such ease with reference to dismissals, etc.7 is defined by Part Third, Title II, Chapter 9, General Code. ■

      Stephens, Lincoln é Stephens, for plaintiff in error.

      Cobb, Howard é Bailey and Henry L. Itochel, contra.
    Jones (E. II.), J. ■ Swing, J., and Jones (Oliver B.), J., concur.
   Defendant in error filed an action before a justice of the peace against plaintiff in error, who filed a counter-claim.

The plaintiff lumber company recovered a judgment before the justice and defendant, Hall, failed on his counter-claim and appealed the cause to the common pleas court.

Thereupon, against the objection of the defendant, plaintiff dismissed its cause of action “without prejudice,” which it claimed authority to do under Section 11586, General Code, which provides:

“An action may be dismissed without prejudice to a future action: 1. By the plaintiff, before its final submission to the jury, or to the court, when the trial is by court, ’ ’ etc.

This section is part of a chapter relating to proceedings in the common pleas court in actions originating there, but it is- claimed is made applicable to appealed cases by Section 10387, General Code, which is as follows:

“When an appeal is taken from a judgment of a justice of the peace, to the court of common pleas, the plaintiff below shall be plaintiff above; and in all respects, the parties must proceed as if the action originally had been commenced in that court. ’ ’

The effect of the above section is to make the rules and laws governing procedure in the common pleas court applicable in so far as there is a lack of special provision in the statutes for appealed cases.

We find that the subject of dismissal of. appealed cases in the common pleas court is fully covered by Part Third, Title II, Chapter 9, General Code.

We are, therefore, of the opinion that Section 10387 only applies to such cases when they are to proceed in the appellate court, as it only provides how the parties “must proceed” and says nothing about how they must or can stop. As the dismissal of such cases is fully provided for in other sections of the same chapter, we think the words “must proceed” as here used refer to the conduct of the trial and that the purpose of the section is to furnish, by reference, and in a brief way, the rules for pleadings, evidence, verdict, etc., and do not include or apply to such cases the rules as to dismissals of cases originating in the common pleas court.

We find no authority in Chapter 9, above referred to, for a dismissal by plaintiff “without prejudice,” and finding that Section 11586 is inapplicable, the judgment below is reversed.

Cause remanded for further proceedings.

Judgment reversed; and cause remanded.


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    BOY KILLED IN RUNNING ACROSS TRACK BEFORE AN ELECTRIC CAR..
    Court of Appeals for Hamilton County.
    The Cincinnati Traction Company v. Albert Beebe, Administrator, et al.

    Decided, June, 1914.

      Negligence — Conflicting Testimony With Reference to Accident — Efforts of Motorman to Prevent Striking of Boy — Speed of Car— Pecuniary Damage to Next of Kin — Charge of Court.

    1. While an ordinary person may not be at all accurate in giving in figures the speed of • a car or train at a given moment, yet his knowledge of speed may be sufficiently substantial to enable him to give testimony which will be an aid in determining whether .under all the circumstances of the case the speed was excessive at the time of the accident.
    2. In determining what amount of damages, if any, may be awarded to parents for the wrongful death of a minor child, the jury may consider the age and sex of the child, the circumstances and condition of life of the parents, and other helpful facts existing at "the time of the child’s death.

      Kinkead Rogers, for plaintiff in error.

      Tilomas L.Michie and William P. Hohmann, contra.
    Jones (Oliver B.), J.; Swing, J., and Jones (E. H.), J., concur.

      Affirmed without opinion, January 19, 1915, Cincinnati Traction Co. v. Beebe, 90 Ohio State.

   This is a proceeding in error seeking to reverse the judgment entered by the Superior Court of Cincinnati, for damages by reason of the death of Clifford Beebe.

Clifford Beebe, a boy seven years of age, was killed by a street ear operated by the defendant below, on Sixth street just west of Cutter street in Cincinnati. Sixth street has at this point a double track street railroad upon it. The car which struck the decedent was a west-bound car operating on the north track. The east-bound ears ran upon the south track.

The testimony in regard to the facts of the accident is rather conflicting and is of a character peculiarly appropriate for suumission to a jury for determination.

The witnesses for the plaintiff agree in their testimony that the decedent with other boys just out of school on their way home came from the south side of Sixth street crossing the street to the north, and that some boys threw decedent’s hat across the street in front of the car and the decedent intent upon recovering his hat ran in a northwesterly direction and was struck by the car which ran over him almost cutting him in two across the abdomen, the body being between the two left or-south wheels of the car, which was a single truck summer car. Their testimony is to the effect that the body lay with the head toward the northwest under the car, and the feet protruding out to the southeast, and it was necessary to obtain a plank or timber from the express stable nearly opposite, to lift the ear so that the body could be taken out.

• Several witnesses for the defendant testified that the boy ran from the north side southwardly in front of the car, all agreeing however that he was struck by the left side of the car and the body found on the south rail under the ear, some saying that the head was to the southward and the legs under- the car. The fact that it was under the left wheel to the south side of the ear indicates that those witnesses who testified that he came from the south, were probably correct, rather than those who stated that he came from the north.

The testimony of the motorman in regard to just how the accident occurred is rather inconsistent in itself. He says that the boy ran from the north sidewalk in front of the ear when it was about ten feet from him, and almost cleared the track, when the left bumper of the car hit the boy in the right shoulder and hurled the body around and threw him under the car in a manner he could not explain. He states that the boy.’s head was to the south and his feet under the car; that he procured a heavy plank or timber and helped pry the ear up so that the boy could be taken out. He says that the ear was slowed up at Cutter Street for the purpose of stopping in response to the signal of the conductor to permit a passenger to alight; that the passenger jumped off: before the ear had entirely stopped, • and the signal was given to go on; that he let off the brake and started the car up but was not running more than four or five miles per hour when the accident occurred. He claims to have been ringing the gong repeatedly and trying to stop the ear with the brake and that for that reason he was so occupied he made no attempt to use the fender. He says that he did not look on the south side and did not know how many boys or people there might be on the south side of the street or to the south of the.car on the street.

A witness, Donnelly, called by plaintiff, stated that he thought from the action of the motorman that he was trying to drop the fender but that it failed to drop. Another witness testified that tfh.e motorman took the switch-iron and leaned foirwfard as though he was trying to push the boy out from in front of the car.

There is some conflict in the testimony as to whether or not the gong was sounded, and considerable difference in the statements as to the speed of the car. The fact that many of the witnesses were unable to give the rate of speed in the number of miles per hour did not in our opinion disqualify them from testifying. An ordinary person can not be at all accurate in giving the rate of speed in figures unless he is a person who has had some experience and made observations in such matters, and yet he might have substantial knowledge of speed that would be available in the determination of whether or not the speed of a car was excessive under the circumstances of a particular ease.

The language of the court, at page 327, in Overton v. C. & E. I. R. R. Co., 181 Ill., 323, properly expresses this doctrine:

“While the court permitted certain witnesses to testify to the degree of speed at which the train that struck the plaintiff was running, the testimony of other witnesses for the plaintiff’s intestate that the train was going very fast was stricken out. This was error. A witness might know and truthfully say that a train was running fast or slow, and yet be unable to state the speed in miles per hour, and such inability would not render his testimony of no value or incompetent upon the question of speed. ”

The testimony of the motorman is to -the effect that the fender was in good working order on that occasion, and other evidence in the record would indicate that if he had dropped the fender promptly when he saw the danger to the boy his life might have been saved. The ringing of the gong, under the circumstances as he states them, would be much less effective than the dropping of the fender because, according to his story, the boy was running at such speed and was so near to the car that the gong could not avail, while the fender could doubtless have saved his life.

But it is useless to further discuss the testimony as to negligence, as it was properly submitted to the jury, and in our opinion their finding is supported by the evidence.

Plaintiff insists that there is no evidence in the record to support a judgment for more than nominal damages, and relies upon the case of St. Ry. v. Altemeier, 60 O. S., 10. That case holds that it is proper in the case of the wrongful death of a minor child to show the circumstances and health of its parents requiring that the child should aid them by his services not only during minority but thereafter. But we do not understand that it goes to the extent of holding that none but the very poor could recover damages for the wrongful death of a child or that proof of present earning power must appear. In this case the record shows that both parents were living and testified as witnesses before the jury, giving their ages and residence, and that the other beneficiaries of the suit were two brothers, one aged two years and four months and the other aged eleven months at the date of the filing of the petition, the latter of whom died before the trial. Tt is further shown that the deceased was 'a sturdy healthy boy of good disposition and habits. His years made it impossible to show that he then had an earning power, or just what such powers might in the future become, but the amount of the damage suffered was a. proper question to be. left to the consideration and determination of the, jury within the limits fixed by law. The amount of the verdict rendered in this ease shows that such duty was properly exercised by the jury without passion or prejudice.

The language of the court at page 320 in Ihl v. Forty-second St., etc., R. R. Co., 47 N. Y., 317, in our opinion properly states the law as to the determination of damages in such a case:

“The absence of proof - of special pecuniary damage to the next of kin resulting from the death of the child would not have justified the court in non-suiting the plaintiff, or in directing the jury to find only nominal damages. It was within the province of the jury, who had before them the parents, their position in life, the occupation of the father, and the age and sex of the child, to form an estimate of the damages with reference to the pecuniary injury; present or prospective, resulting to the next of kin. Except in very rare instances, it would be impracticable to furnish direct evidence of any specific loss occasioned by the death of a child of such tender years; and to hold that, without such proof the plaintiff could not recover, would in effect, render, the statute nugatory in most cases of this description. It can not be said as a matter of law, that there is no pecuniary damage in such a case, or that the expense of maintaining and educating the child would necessarily exceed any pecuniary advantage which the parents could have derived from his services had .he lived. These' calculations are for the jury, and any evidence on the subject beyond the age and sex of the child, the circumstances and condition in life of the parents, or other facts existing at the time of the death or trial, would necessarily be speculative and hypothetical, and would not aid the jury in arriving at a conclusion.”

Plaintiff in error also claims that the court in its general charge committed error by its instructions in regard to the equipment of the ear with a proper automatic fender. We think that the charge complained of was properly given by the court.As we have above stated, there was testimony in regard to the character and use of the fender, and the circumstances of the accident themselves seem to have indicated that if the body of the child had been struck by the apron, the basket should have been automatically dropped, or if the basket had been dropped by the motorman the life might have been saved. The language of the court in this part of the charge was guarded and it was quite proper in view of the pleadings and the evidence that such a charge should be given.

A careful examination of the record fails to disclose any substantial error to the prejudice of the plaintiff in error, and the judgment is affirmed.


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    ERROR. NOT AFFIRMATIVELY SHOWN ON THE FACE OF THE RECORD.
    Court of Appeals for Ashtabula County.
    William G. Haas v. Burton E. Thayer, as Treasurer of Ashtabula County et al.
    Decided, September Term, 1914.

      Misjoinder of Parties — Demurrer Overruled Without a Statement Showing Upon Which of Two Grounds it was Based — Presumption That it Was Sustained on the Proper G'i'ound.

    When a demurrer to a petition, which contains two grounds, a misjoinder of parties defendant and that the petition does not state facts which show a cause of action, is sustained, without stating upon which cause the demurrer was sustained, and the plaintiff declining to plead further the action is dismissed: A reviewing court can not reverse the judgment of dismissal of action against one of the defendants, if the demurrer was properly sustained upon either ground.

      E. E. Emimar, for plaintiff in error.

      E. E. Starkey and F. R. Eogue, contra.
    Pollock, J.; Metcalfe, J., and Spence, J., concur.
   The plaintiff in error, William G! Haas, brought an action in the court of common pleas of this county against the defendant, Burton E. Taylor, who was, at the time of the matters complained of in this petition, treasurer of this county, and the defendant, P. G. Remick, who was auditor of the county at that time.

The plaintiff claimed that he was a resident of the state of Pennsylvania and was the owner of a certain gasoline launch; that he leased this launch to one William Dehring on condition that it should not be taken out of the state of Pennsylvania; that Dehring, in violation of this agreement, brought the launch into this county and was selling intoxicating liquors in violation of the Rose law, this law being in effect in this county at that time. Dehring was arrested and plead guilty to the charge. The defendant auditor then placed the tax known as the Dow tax on the tax books of the county against Dehring, and the defendant treasurer, in order to collect this tax, levied on the launch and was proceeding to sell in order to pay this tax when the plaintiff in error brought an action to enjoin the treasurer from proceeding further in the sale of the launch.

This ease was prosecuted through all the courts of this, state, resulting in a judgment in favor of the plaintiff Haas. The plaintiff then brought this action in the court of common pleas to recover damages which he claims he sustained by the unlawful taking and keeping of the boat, and the petition further claims that, while the boat was in the possession of Thayer under his proceeding, he negligently and carelessly left it in the lake so that it was damaged by freight-boats, and that after that he pulled it up on the beach and negligently and carelessly left it uncovered so that it was damaged.

Both of these defendants filed a demurrer to the petition, on two grounds: first, a misjoinder of defendants; and, second, that the petition did not state facts sufficient to constitute a cause of action. The court in passing upon the demurrer sustained it, and the judgment on the demurrer is as follows:

‘ ‘ This day came the parties, by their attorneys, and this cause come on to be heard upon the demurrer to the petition, heretofore filed herein; on consideration whereof said demurrer is sustained, And the plaintiff excepts.”

After his demurrer was sustained, the plaintiff not wishing to plead further, judgment was entered against him and the action dismissed, and this proceeding in error is prosecuted to reverse the judgment of the court below for error in sustaining the demurrer.

The petition does not charge that Remick did anything more than simply place the Dow tax on the tax books of the county against Dehring; that the further proceedings as to levy and sale of the boat were done by Thayer under the statute requiring him to levy on and sell the property in which intoxicating liquors are sold, in order to pay the Dow tax. The plaintiff is not now claiming that he can recover damages for the taking possession of this boat and proceeding to sell it to pay this tax, but it is claimed that the allegations which charge Thayer with negligently taking care of the property while in his possession, resulting in damage, made a good cause of action, and that the general demurrer to the petition should not have been sustained. We agree with the contention of plaintiff in that regard, but nothing further need be said in regard to this' question for the reason that we believe the judgment of the court below should be sustained notwithstanding the petition did state a good cause of action.

It is now admitted by the attorney for plaintiff that there was a misjoinder of parties defendant in this action. The petition does not charge Remick with having anything to do with the possession and care of the boat. All he did was to place the Dow tax on the books of the county against Dehring. The other acts in the proceedings to collect taxes were done by Thayer, the treasurer. The demurrer was rightfully sustained on the ground of misjoinder of parties, but not on.the ground that the petition did not state a cause of action. The court sustained the demurrer without stating on which, ground, and upon the plaintiff’s refusal to plead further the court dismissed the action.

Section 11309 of the General Code provides that-the defendant may demur to the petition when it appears on its face that there is a misjoinder of parties, either plaintiff or defendant, or that the petition does not state facts which show a cause of action; so that the demurrer should be sustained if the petition fails, under either of these conditions, and the court was right in sustaining the demurrer, even though the petition-might be good on one ground, and, when the plaintiff declined to plead further, in dismissing the action.

The Supreme Court of Florida, in the case of R. R. Co. v. Peck, 46 Southern, 1019, say:

“When any ground of demurrer to a declaration is sustained, the demurrer to that declaration is sustained. In ruling upon a demurrer the court either sustains or overrules the demurrer generally. It is of no consequence that the court may, in terms, overrule one or any number less than the whole of the assignments of error. The sustaining of any ground is as effectual as the sustaining of the demurrer generally. The court is not required to specify the particular ground or point of law in his ruling upon a demurrer where several substantial matters of law are stated, though it may be more convenient to the party demurring for the court to do so.”

And again, the Supreme Court of Alabama, in the case of Terry v. Allen, 32 Southern, 664, lay down the same rule, as follows:

“Sustaining oE one ground of demurrer to a complaint, though others are overruled, warrants final judgment against plaintiff, he not amending.”

The presumption is always in favor of the decrees of a court being made upon proper ground, and error must always affirmatively appear before a reversal can be had. This principle was announced by our Supreme Court in the ease of Johnson v. Mullin, 12 Ohio, 10. And in the ease of Warder et al Co. v. Jacobs, 58 Ohio St., 77, the Supreme Court say:

“It is an established rule of reviewing.courts that the error, for which a judgment may be reversed, must affirmatively appear on the face of the record. ”

The presumption is that the court, in passing upon the demurrer in this ease, sustained the demurrer on the proper ground, that there was- a misjoinder of parties, and the judgment could not be reversed unless it affirmatively appeared that it was only sustained on the other ground. For this reason the judgment of the court below must be affirmed.


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    AS TO THE ACQUIRING OF TITLE BY ADVERSE POSSESSION TO PROPERTY DEDICATED TO PUBLIC USE.
    Court of Appeals for Butler County.
    J. H. Beard et al, Trustees of Lemon Township, Butler County, v. Elizabeth Beatty.
    Decided, 1914.

      Action to Remove Obstruction from Alley — Title Claimed by Abutting Owner Through Adverse Possession — Construction of Section 11220.
    The provision of Section 11220, permitting title to an unopened street or alley to ripen through adverse possession for more than twenty-one years, applies only to streets and alleys located within municipalities, and can not ee enforced against the state or any of its subdivisions other than municipalities.

      B. F. Harwitz, for plaintiffs.

      Woodruff ■■<& S&Jielhorn, contra.
    Jones (Oliver B.), J.; Swing, J., and Jones (E. IT.), J., concur.
   This is an action brought by plaintiffs as trustees of Lemon township, Butler county, Ohio, alleging that as such trustees they have charge of all public highways within their township that are not county roads; and that as such all highways in unincorporated villages and hamlets are public highways under their control. They seeh to enjoin the defendant from obstructing an alley adjoining her premises on the south and west, claiming that she has maintained an obstruction thereon in the way of a stable, barn and other buildings.

The defendant admits that plaintiffs have charge of such highways, but denies that there is or ever has been an alley lying in the rear of her premises as alleged in the petition, or that it was ever laid out or dedicated to public use, and alleges that the land in question has been enclosed by a fence, with building thereon, and held by defendant and her grantors in open, notorious and continuous adverse possession for more than twenty-one years last past, by reason whereof plaintiffs, if they ever had any rights therein, are now precluded from the use of same for alley purposes.

The lots owned by defendant were originally known as lots Numbers 1 and 2, and subsequently as lots Numbers 52 and 53, of the Paper Mill Addition to Amanda, Ohio. The proof shows that this subdivision was regularly laid out and a plat of the same adopted and acknowledged by Charles F. G-unckel, trustee, on March 25, 1890, and by him recorded on January 5, 1891. This subdivision was made of land lying adjoining to the incorporated village of Amanda, but is itself outside of the corporate lines, and is not within a municipal corporation. The plat shows an alley connecting with an alley previously laid out within the corporation and running westward south of the west end of said lot No. 1 a distance of 76 feet, and then west to the railroad line, which was the west line of the subdivision; then the alley is shown irregular in width west of the west end of lot No. 1 bounded by the' west line of that lot, which is at right angles to the south line, and which is 34 feet long; and bounded on the west by the east line of the railroad. From the north line of Lot No. 1 it follows the railroad a uniform width along the west line of the subdivision.

The evidence shows, without question, that this alley was regularly dedicated and became a public alley and the title thereto was vested in fee in the county under the terms of Section 8 of the act of March 3, 1831 (29 O. L., 350); afterward found in Section 2604, Revised Statutes, and 1536-69 Bates’ Revised Statutes; and now in Section 3589, General Code.

Defendant, however, claims to have acquired title by prescription, by virtue of the terms of Section 11220, General Code, and has submitted evidence tending to show that this alley was enclosed along with the lots in such a manner as to exclude the public for more than twenty-one years, and to come directly within the terms of the statute above mentioned.

A careful consideration of the evidence submitted fails to convince the court that she and her predecessors have had such possession for the full period of twenty-one years prior to February 13, the date on which the petition was filed. On the contrary, a number of her witnesses testified distinctly, in answer to leading questions, that the lots were enclosed with fences, and whether they so intended it or not their testimony, construed literally, would exclude any part of the alley from the enclosure. There is no question but that there was an old fence on the south and west lines which constituted part of the enclosure of the land subdivided, previously known as “Dickey’s Woods.” These old fences, however, would not exclude the public from the alley, and the testimony as to when the other fences were built is not clear and convincing, but on the contrary seems to indicate that they were not built until some time after the ownership of Susan Niehol, and probably shortly before she conveyed to J. M. Williamson by deed dated August 30, 1893. It is clear, under the evidence, .that the barn which is complained of and which constitutes the principal obstruction was not placed upon this lot earlier than September, 1893, that, being the time when Mr. Williamson took possession of the property, the barn having been moved there by him after he had taken possession; so that this obstruction occurred within the period of twenty-one years.

It is well settléd in Ohio that the owner of abutting property can acquire no right in a public highway by encroachment or occupation thereof, however long continued, where such encroachment or occupation is of a temporary character like the erection of fences or walls, and the planting of shrubbery and trees, and where it is upon that part of a street or highway not required at that time for public use. Lane v. Kennedy, 13 O. 5., 42; McClelland v. Miller, 28 O. S., 488; Ry. v. Commrs., 31 O. S., 338; Ry. v. Commrs., 35 O. S., 1; Ry. v. Elyria, 69 O. S., 414.

This question has been quite thoroughly examined and the decisions of this state considered and reviewed in Heddleston, Supervisor, v. Hendricks, 52 O. S., 460, the third syllabus of which reads:

“The right of an adjacent land owner to enclose by a fence however constructed, a portion of a public highway, can not be acquired by adverse possession, however long continued.”

And Judge 'Minshall, in the opinion of the court, at page 465, says:

“The general rule is that the statute of limitations does not apply as a bar to the rights of the public unless expressly named in the statute, for the reason that the same active vigilance can not be expected of it as is known to characterize that of a private person always .jealous of his rights and prompt to repel any invasion of them.”

The case of Winslow v. Cincinnati, 6 N. P., 47, which is a decision of the Superior Court of Cincinnati in General Term, contains a good discussion of the law in regard to adverse possession of a public highway by fencing.

In our opinion, the evidence does not bring the claim of the defendant within the terms of Section 11220, G. C., but this section, however, applies only to streets or alleys within a municipality. We know of no ease in Ohio where the statute of limitations has been enforced against the state or any of its subdivisions other than a municipality.

A decree will be entered granting the prayer of the petition, and requiring the defendant to remove the obstructions maintained by her upon the alley in question.


author: By the Court

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    PROSECUTION FOR CONTRIBUTING TO DELINQUENCY OF A MINOR.
    Court of Appeals for Perry County.
    William Willison v. State of Ohio.
    Decided, June Term, 1914.

      Juvenile Court — What Must be Set Out to Charge the Crime of Contributing to the Delinquency of a Minor — Furnishing Liquor to a Minor and Fermittng Him to be About a Gambling House.

    In a prosecution for contributing to tbe delinquency of a minor, tbe affidavit, in order to charge a crime, must allege that the minor is under eighteen years of age, and is a delinquent within the meaning of the statute, and that the defendant is guilty of contributing to such delinquency.

      T. B. Williams, for plaintiff in error.

      Tiros. M. Potle.r, Prosecuting Attorney, contra.
   By the Court

(Shields, Powell and Voorhees, JJ.).

The plaintiff in error, AAUlliam AVillison, filed his petition in error to review the judgment of the Probate Court of Perry County made in the exercise of its juvenile jurisdiction against him upon a complaint filed charging him with contributing to the delinquency of one TIenry Bateson, a minor under eighteen years of age, and also the judgment of the court of common pleas, affirming the judgment of the said probate court.

Numerous errors are charged, but two only are urged to the court as being sufficiently erroneous to authorize the reversal of the judgment below. The first is that the affidavit upon which he was arrested and tried is insufficient in law to sustain the action of said court. And secondly, that the sentence was excessive.

We have examined the record carefully and we find that the affidavit itself was attacked immediately on the arrest of the defendant, Willison. A motion was filed to quash the same and when it was overruled, a demurrer was filed attacking the sufficiency of such affidavit. This demurrer was overruled and -the cause submitted to the court on evidence. The defendant was found guilty and sentenced to one year in the workhouse and to pay a fine of $200.

This court is of the opinion that the affidavit is insufficient; that in cases of this sort there are two elements that enter into the crime charged, viz: that a minor child under eighteen years of age„is a delinquent within the meaning of the statutes; and secondly, that the person charged is guilty of contributing to such delinquency.

Section 1644 of the General Code, as found in Volume 103 Ohio Laws, at page 869, defines the words “delinquent child” and specifies the acts that constitute any minor under the age of eighteen years a delinquent. There are a number of specifications in this section when applied to such minor which constitute him a delinquent within the meaning of the statute.

The affidavit, in order to set out a crime, should not only charge that the party against whom the affidavit is filed was violating'some one of the criminal statutes of the state in contributing to such delinquency, but it should charge also that such child was delinquent and specify the particulars in which such delinquency exists.

The affidavit in this case charges that the defendant, Willison, furnished intoxicating liquors to the said Harry Bateson to be drunk by the said Harry Bateson as aforesaid, and specifies that such liquors were not furnished by a physician in the regular line of his practice, thus charging that the defendant was guilty of furnishing intoxicating liquors, but it does not specify that the said Harry Bateson either drank these liquors, or violated any of the criminal laws of Ohio, or did any of the acts specified by Section 3664 as constituting delinquency on his part.

It- further charged that the said Willison did permit said Harry Bateson to be in and about a certain house in said county, which house was controlled by the said Willison and in which there was permitted to be conducted and carried on at the instance of the said Willison a game of cards for money.

Now it is contended that this shows that the said Bateson was guilty of delinquency, or in other words was a delinquent.

The statute provides that any minor under fourteen years of age who “knowingly patronizes or visits a policy shop or place where any gambling device is or shall be' operated” is a delinquent.

This affidavit does not charge Iiarry Bateson with knowingly visiting either a policy shop or a room where gambling is carried on. It simply charges the defendant with permitting him to remain in a room under his control where gambling was carried on, and for aught that appears in the affidavit, he might have entered such room without any knowledge whatever that the same was used for gambling purposes.

We think the affidavit is defective in that there is no such sufficient averment therein as would constitute the said Plarry Bateson a delinquent child, and of course, if there was no delinquency, the defendant could not be guilty of contributing-to a delinquency that did not exist. We think the demurrer ought to have been sustained.

It will be the judgment of this court that the judgment of the juvenile court finding the defendant guilty as charged in said affidavit, and the judgment of the court of common pleas affirming the same, will be reversed and set aside and the cause will be remanded to the juvenile court of Perry county with instructions to sustain the demurrer to such affidavit.


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    CURING OF DEFECT IN AN APPEAL BOND.
    Court of Appeals for Meigs County.
    Henry Shires v. Lydia Fesler and Robert Fesler.
    Decided, December 12, 1914.

      Appeal — Defective Bond for — May heMade the Basis of a New or Amended Bond — Giving of an Appeal Bond Constitutes a Proceeding Which May he Amended — Sections 12232 and- 11363.
    Where steps have been taken by a party to give an appeal bond which is in proper form in every respect except that the same is signed by a party and not by a surety, and where such bond has been approved by the clerk, the court has authority to permit its amendment or renewal.

      B. J. Maud and Ervin & Crow, for plaintiff.

      Joy II. Hunt and A. D. Bussell, contra.
    Appeal from the Court of Common Pleas of Meigs County.
    Plaintiff filed his motion to dismiss the appeal upon the ground that the defendants filed no appeal bond as required by law.
    The defendant, Lydia Fesler, also files her motion in this court for leave to amend the appeal bond filed in this action, or for permission to give a new one to be approved by the clerk, and in connection with her motion makes profert of an appeal bond in proper form and with sureties approved by the clerk. • The first bond was in proper form and was signed by Lydia Fesler, one of the defendants, but was not signed by any surety. Tt- was, however, approved by the clerk.
    Jones, Thomas A., J.; Walters, J., and Sayre, J., concur.
   The sole question is whether this bond can form a basis for a new or amended bond; or whether this court has jurisdiction to permit an amendment or to require a new appeal bond.

Section 12226 provides that the appellant, "shall give an undertaking, with sufficient surety, to be approved by the clerk of the court,” etc.

Section 12232, General Code, as amended (103 O. L., 429), provides that:

“When a surety in an appeal bond has removed from the state, or is not sufficient, or in form or amount the bond is insufficient, on motion, the court of appeals may order its change or renewal or that a new one be given with security, to be approved by the court, or its clerk. ’ ’

Inasmuch as strict compliance was not had with this section, by the failure to have a surety sign the bond, it is claimed that the foregoing section having dealt particularly with the subject, we are confined to this section in the determination of our jurisdiction to allow the change or renewal of the bond.

• Tn view of the decisions of our courts, we do not agree with that insistence.

It has been repeatedly decided that steps taken in giving an appeal bond constitute a “proceeding,” and that as such it is amenable tq • Section 11363, General Code, permitting its amendment. Negley v. Jeffers, 28 O. S., 90; Johnson v. Johnson, Excr., 31 O. S., 131; Irwin et al v. Bank, 6 O. S., 81; Ireland v. Ireland, 11 C. C., 565.

Section 11363, General Code, provides that in furtherance of justice, before or after judgment, the court may amend any “proceeding” by adding or striking out the name of any party or by correcting a mistake in the name of a party or a “mistake in any other respect.”

It is not the appeal bond, but “the steps taken by filing ah appeal bond,” that constitute the proceeding. Irwin et al v. Bank, supra.

The mistake occurring in the steps so taken may therefore be subject to amendment.

Our courts have exercised great liberality in construing these remedial statutes, and especially in permitting amendments of appeal bonds, in furtherance of justice.

In the case of Bank v. Street, 16 O. S., 1, there was not even an attempt to give an appeal bond. Here the bond was perfect in every respect, except a party signed it instead of a surety. The party attempted to file a proper bond and it was approved by the clerk as an undertaking. It has all the earmarks o'f an undertaking.

Applying the dicta of Welsh, J., in Bank v. Street, supra, to such a state of facts the court would have undoubtedly held that, where a bona fide attempt had been made to give an undertaking, valid in ’ every respect except as to the absence of a surety, there was such a proceeding that could be amended.

The motion to dismiss will be overruled, and the new bond tendered will be permitted to be filed.


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    PARTICIPATION OF TRIAL JUDGE IN THE TRIAL.
    Circuit Court of Summit County.
    The American Cereal Company v. John Boltz.
    Decided, April 20, 1907.

      Negligence — Evidence of Prior Accidents Admissible — Misconduct of Court.

    1. In an action for personal injuries, evidence of a prior accident of similar character is admissible for the purpose of showing a dangerous condition, even though plaintiff relies upon notice and a promise to repair.
    2. It is a matter of taste how much a judge shall talk or ask questions from the bench, but it is not misconduct for him to do so, unless he asks questions which call for evidence that is inadmissible, and objections are made and exceptions are saved.

      Kohler, Kohler •& Hottinger, for plaintiff in error.

      O. M. Anderson, contra.
    Henry, J.; Winch, J., and G-ieeen, J. (sitting in place of Marvin, J.), concur.
   In this case John Boltz, an employee of the American Cereal Company, recovered a verdict and judgment for $3,000 for personal injuries sustained by him..September 2, 1902, while in the employ of said company. The company prosecutes error to reverse that judgment, and alleges a number of grounds for such reversal.

The first ground alleged is on the weight of the evidence, and in order to reach an intelligent understanding of the state of proof in that behalf, it will be necessary to state very briefly how the accident happened.

It appears that Boltz was a young man whose business it was to see to the checking off of the goods that were loaded by the plaintiff in error in cars for shipment, those goods consisting of bags or sacks, boxes or barrels, as the case might be, of various sorts of cereals in different conditions of manufacture for consumption. At the place where the injury occurred, a car was drawn up alongside of the company’s building, and within a few inches of the building, and from an upper floor, sacks of some sort of ground cereal were being conveyed of their own weight by gravity down an-inclined chute with an open top into the car, or to some point near enough to the car so that the sacks could be taken into the car and packed for shipment. Boltz, while standing in the doorway to which this chute came, was leaning outside the door in an effort to see the number of the car, which he could not see if he stood within the car because he could not get his head out properly, and, of course, he could only see at an angle from the doorway where he stood, and it was necessary for him to put his head out. The chute was, therefore, right alongside of him. While he was thus standing a sack weighing about one hundred pounds came down the chute to a certain place on the side of the chute from which it is claimed certain boards were missing, which would have carried the sides up farther and. prevented an accident of this sort, according to the claim made in the pétition below, and striking a projection at that point — an iron rod possibly, to which the board had been originally attached — the bag turned end over and struck the young man on the back of the head in such manner that he claims that he was thereby afflicted with the disease known as epilepsy, which has assumed a very aggravated form, and will become worse in course of time; and as to which, considered as a result of an accident of this sort, he produced abundant expert testimony to show that it, in fact, was a result of this accident, or might well have been.

He says that he knew about the condition of this chute, and that a few days before the accident to himself he had reported this condition to two foremen, or a superintendent and a foreman; that he called their attention to the fact that it was in a dangerous condition, and that it had, in fact, caused another similar accident to a boy who had been standing alongside of the chute as Boltz stood alongside of it, and that unless they repaired the chute somebody would be seriously hurt or killed. There were other witnesses to this conversation who testified at the trial. Some of them testified to parts of the conversation, others to all of it, and there were variations in the testimony. One of the witnesses says that the reply given by the foreman was “You go back to your work and we will attend to ours.” On cross-examination he suggests that either that was the answer or that “we will attend to this.” Boltz himself is quite clear, and to some extent he is borne out by other witnesses in stating, that the foreman distinctly said in response to that complaint made at the time of the happening of this former accident at this same place, that the defect in question of which Boltz complained would be repaired. Now, the foremen, both of them, to whom this statement and promise are alleged to have been made, stoutly deny that any such occurrence transpired. They say no such accident was reported to them, no such complaint made by Boltz, and no such promise was made by them. It should be said in addition at this point, that Boltz’s claim of complaint that he made, or the promise he received, was a little more comprehensive than I have thus far indicated. He claims in his petition at least, that a part of the defect, a concurrent defect of which he complained, was a lack of railing at the opening of the top of the chute, whereby packages or boxes or bags would be apt to fall off through the opening into the chute and in such manner as to jump and possibly jump out of the chute; but that feature of the claim made by the petition was entirely eliminated by a specific instruction given to the jury by the trial judge, that they should no longer regard that that was any part of the ease, there being no evidence upon that point.

Now as to the existence of the defect, which also I may say, was denied, and the making of this complaint, and the making of this promise to the defendant in error, it suffices to say that there is enough evidence in support of the claim made by the plaintiff below, defendant in error here, to make it a question for the jury, and to make it impossible for us, governed by the principles which must govern us in weighing evidence, and giving to the verdict of the jury the benefit of the presumption which attaches to it, in this state of the testimony, to heed the claim that this verdict is against the weight of the evidence, and I dismiss that subject without further discussion.

Another claim of error made is that certain.testimony relative to the prior accident, to which I have referred, and of another similar occurrence, which consisted of some bag or sack flying out of the chute and striking off the foreman’s hat, on one occasion a few days before the accident to the defendant in error, was incompetent and prejudicial — particularly the testimony as to the former accident to the boy, which was somewhat harrowing in its details. It is said it bore upon no issue which the jury were called upon to determine, and because of its manifest tendency to prejudice the plaintiff in error, the defendant below, it ought not to have been admitted in evidence.

The rule in Brewing Co. v. Bauer, 50 O. S., 560, is, in substance, to this effect: That evidence of prior similar accidents is admissible for two purposes, and two purposes only. One of those purposes is to bring home to the employer, or to the person accused of negligence, notice of the thing, the danger or the defect which it is claimed caused the accident in the case which is being tried; and the other object of such evidence is to establish the fact that the contrivance or machine in question was in fact dangerous. But it is distinctly said in the syllabus of that case, that such evidence is not admissible for the purpose of showing negligence upon the part of the defendant, because it may well be true that, though the danger existed and though the defendant knew of it, there were circumstances which would render any accident resulting therefrom of a non-negligent and non-actionable character, and inasmuch as it is impossible to try out the question of negligence in former cases, evidence of prior similar accidents should be strictly restricted to the proof of those two items of plaintiff’s claim, the danger of the contrivance and notice of its dangerous character brought home to the employer. Now, it is said that in this case, inasmuch as reliance is placed wholly upon a promise to repair and of express complaint made by the employee to the employer, it is unnecessary and improper to prove any other notice brought home to the employer than such express notice, since if the express promise made by him to- repair is not made out, the plaintiff below could not recover under any circumstances; for admittedly he knew of the defects of which he complained, and, within the rule of the Norman case, 49 O. S., 598, he could not recover unless upon complaint made and promise to repair obtained. So that evidence of prior accidents for the purpose of showing notice was not only superfluous, but unless it served some useful purpose or necessary purpose in the case, it was prejudicial error to admit it. But that argument overlooks the. fact that it was admissible for the other and further purpose of proving the existence of the defect and danger complained of, and it might well be true that with such evidence excluded, and with only such evidence-as the plaintiff might adduce, the jury would not believe that the danger or defect in question in fact existed, it being strenuously denied by the defendant. More than that, the admission of this evidence may be and it was, in argument, justified upon the ground, so far as the boy’s accident was concerned, upon the prior accident to the boy, that it was necessary to show that fact as an incident to or a circumstance of the complaint that was made by Boltz to his employer, the foreman, because his complaint involved the recital to the foreman of the fact that such an accident had occurred, and that it was only for the purpose of showing it in this way as a part of the express notice that was actually given by Boltz. Now, as a matter of fact, every time evidence of this character was introduced, the court did, in fact, specifically restrict it by a special charge to the jury made their and there, to its operation and effect by way of notice to the employer of the dangers or defects .com-' plained of, restricting it unnecessarily, and more than it is restricted by the case of The Brewing Co. v. Bauer, supra.

We think upon consideration of all of the instances in which such evidence was admitted, all the instances that have been cited to us by either side, that there is not a single one (aside from that incident, which I shall presently speak of), in which a recital of the prior accident to the boy was unnecesarily or improperly brought into the case, and to the attention of the jury; or that in a single instance it failed to be serviceable for the purpose that the court said it should be confined to in these special charges I have referred to, and also in his general charge to the jury, namely, the purpose of enabling Boltz to prove that he had, in fact, given express notice to his employer.

Now the hat incident was of a different character; for that was not part of the notice — the express notice given by Boltz, and the testimony thereof is of an independent similar accident. We think, however, that it was not of such a harrowing character as to have a prejudicial effect upon the jury. The-fact that a man’s hat was knocked off could not certainly have prejudiced the jury against this defendant. It was admissible for the purpose of showing that the defendant had notice, except for the limitations upon the issue of the notice in this case, as I have already described, and also for the purpose of proving the defect. We think no prejudice resulted from the error of the court in admitting evidence of this hat incident, if it was error.

There were several requests to charge made by the plaintiff in error before argument, and made in writing and'requested to be given before argument, and some of them were given. A number of them were not. We have carefully examined all those that were refused, and if any that were correct were refused, even though they might be substantially covered by others that were given, still there would be error and prejudicial error under the statute in refusing them. Several of them state the law correctly, but they fail to state the law in accordance with the rules of law, applicable to this ease, predicated upon the theory of a complaint and promise to repair, upon which alone the plaintiff coiild recover, but left that question entirely out of the account, and for that reason they were inapplicable to this case, and ought not to have been given. The eighth was right and should have been given, except for the fact that the word “facts” was used instead of “evidence.”

We have examined the charge of the court and we find no error in the charge.

It is complained, however, that the trial judge was guilty of substantial misconduct in participating to an undue and unwarranted extent in the trial of the ease; that is to say, in the interrogation of witnesses before the jury. Certain it is that he did ask a great many questions which are of record, and we have referred to and examined every one of those instances called to our attention by counsel. I won’t say we have examined every one of them, but we went two-thirds through a long list of instances, and it was not claimed that any of the instances urged by counsel differed from any other, but that it was the general habit of the court that was complained of, to participate in the trial of the case unduly. We did not find a single instance -in which we thought the court was guilty of misconduct in that behalf. It may be a matter of difference of opinion,, a matter of taste as to how much a judge should talk or ask questions from the bench, but it certainly is not misconduct for him to do so, unless he asks questions which call for evidence that is inadmissible, and objections are made and exceptions saved; and we find no error in that behalf, and no error in the record, and the judgment' is affirmed.


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    PROSECUTION FOR. FORGERY.
    Circuit Court of Lorain County.
    Frank Leiblang v. State of Ohio.
    Decided, May 1, 1907.

      Criminal Law■ — Trials—Affidavits of Prejudice, When too Late — Uttering Forged Instruments; When Complete — When Defendant may he Tried Though Absent.

    1. An affidavit of prejudice filed on the day of trial and immediately before its start, is too late and may be disregarded by the trial judge.
    2. The uttering and publishing of a forged instrument is complete where it is presented for payment, and the omission of defendant’s indorsement from the back of the copy of the instrument as set out in the indictment is an immaterial variation as the offense charged was complete when the indorsement was made.
    3. If after the trial of a criminal cause has commenced, the prisoner absents himself, the trial may continue whether the ease be one of felony or misdemeanor, though sentence may not be pronounced in the prisoner’s absence, except in cases of misdemeanor.

      Anthony Ileiding and Brady & Doiuling, for plaintiff in error.

      F. M. Stevens, contra.
    Henry, J.; Winch, J., and Marvin, J., concur.
   The plaintiff in error was convicted of uttering and publishing a forged instrument. An affidavit of prejudice was filed against the trial judge, who disregarded it upon the ground that it was filed immediately before the trial began and on the same day, and was, therefore, too late. Under the recent amendment of the statute in that behalf, we think the trial court committed no error in discharging the affidavit.

It is said that the prosecuting attorney was guilty of misconduct in his opening statement in intimating that the prisoner was guilty of attempted blackmail or extortion in connection with the offense for which he was tried. His statement was challenged at the time by the prisoner’s counsel but the court overruled his objection, stating that he could not at that stage of the case determine whether evidence of these collateral matters would or would not be competent. The prosecuting attorney seems to have been acting in good faith upon the supposition that the matters in question were material, but later in the trial when he attempted to introduce evidence thereof, such evidence was excluded. The trial judge, moreover, carefully instructed the jury to consider only the evidence introduced, and to disregard all statements made by the prosecuting attorney with regard to evidence offered but not admitted. In this, we find no prejudicial error.

Another error complained of is that the forged instrument set forth in the indictment did not contain the endorsement of the prisoner’s name, which appears on the back of the instrument introduced in evidence. We think there is no material variance in this respect. The evidence shows that before the forged check had been endorsed the prisoner sought to obtain money thereon by presenting the same and requesting to have it cashed. This, of itself, constitutes an uttering and publishing. The prisoner was told when he thus presented the cheek, which was payable to his own order, to write his name on the back of it. He turned and went a few feet away to a desk and came back after a few moments with what purported to be the same check bearing his signature. On this state of facts it is further complained that this endorsement was determined by the court to afford a sufficient basis of comparison to admit of the introduction in evidence of a letter alleged to have been written by Leiblang, and to authenticate his handwriting thereon, another writing proved to have been made by the prisoner was also used as a basis of comparison. It is objected, however, that inasmuch as no one actually saw the prisoner endorse the check, the circumstantial evidence that the endorsement was written by him was not sufficiently positive to make it a proper basis of comparison. We think that circumstantial evidence may, and in this case does suffice to lay proper foundation whereby one writing is so authenticated as to authorize the comparison therewith of another specimen of handwriting to show identity or diversity of authorship.

It is further complained that the court committed error in proceeding with the trial when, after the evidence was all in, the prisoner failed to appear at the opening of court on the morning of the last day of the trial.

Section 7301 of the Revised Statutes of Ohio provides:

‘ ‘ A person indicted for a misdemeanor may, upon his request in writing, subscribed by him and entered on the journal, be tried in his absence, or by the court; no other person shall be tried unless personally present; and if a person indicted escape or forfeit his recognizance, after the jury is sworn, the trial shall proceed, and the verdict be received and recorded; if the offense charged is a misdemeanor, judgment and sentence shall be pronounced as if he were personally present; and if the offense charged is a felony, the case shall be continued until the convict appears in court, or is retaken.”

It is insisted that this being the case of felony there is no authority for going forward with the trial during the prisoner’s absence, and that the only course open in this event is indicated by the words “the case shall be continued until the convict appears in court, or is retaken.”

We think that counsel misinterprets this section. The true intent and meaning thereof is, that in the prisoner’s absence a trial may not be commenced and carried on in case of felony; that it may be commenced and carried'on in ease of misde-. meanor, upon the prisoner’s request in writing, subscribed by him and entered on the journal. If, after the trial is commenced the prisoner absent himself the trial may continue whether it be a case of felony or misdemeanor. Sentence, however, can not be pronoimced in the prisoner’s absence, except in case of misdemeanor.

It is further contended that even with this interpretation of the statute, the trial was erroneously proceeded with, inasmuch as it did not appear that there had been an escape or forfeiture of recognizance. It is suggested that Ids absence may have been due to sickness, accident, arrest, or other cause beyond his control. This, however, would not be sufficient to prevent a forfeiture of his recognizance, although it might justify the setting aside of such forfeiture thereafter. The transcript here shows that the recognizance was duly forfeited on the same day that the bill of exceptions shows the objection to the further prosecution of the trial was made and overruled. We think there was no error in submitting the case to the jury and receiving their verdict under these circumstances, in the defendant’s absence.

No other error in the record is alleged, and we find none. Judgment is therefore affirmed.


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    INEFFECTUAL ANTE-NUPTIAL AGREEMENT.
    Circuit Court of Cuyahoga County.
    Anna Brunner et al v. Edward S. Isom et al.
    Decided, June, 1908.

      Estates — Covenant to Stand Seised Creates no Legal Estate in Ohio — ■ Recording of a Non-Recordahle Instrument Not Notice.

    1. The statute of uses is not in force in Ohio and an ante-nuptial agreement to stand seized of certain property creates no legal estate therein.
    2. Where the statutes of the state only provided for the recording of instruments by which “lands, tenements or hereditaments are conveyed or otherwise affected or incumbered in law,” placing an ante-nuptial covenant to stand seized upon record in the recorder’s office will not act as notice to purchasers for value.

      J. A. Fenner, for plaintiff.

      Cook $ McGowcm and Squire, Sanders & Dempsey, contra.
    Henry, J.; Winch, J., and Marvin, J., concur.
   In this appeal the cross-petitioners pray for the enforcement of a trust ai’ising from technical covenant to stand seized to uses made by John Leopold in an ante-nuptial agreement entered into between him and Frederica Kuhnberger in 1864, for her benefit and that of children by the former marriage of each and by their contemplated intermarriage. Leopold subsequently by warranty deed sold the land described in that agreement to the present occupants, or their predecessors in title. The abstract of title which was furnished to the purchasers omitted mention of said agreement, and they bought without actual notice of it. The circumstance that Leopold’s wife did not release her doAver does not, we think, raise any presumption of such actual notice.

The record of the ante-nuptial agreement would, however, operate as notice in law, if that instrument Ai'ere legally recordable. Tt. has already been held by this court in Barlag v. Leopold, et al, decided February 4, 1903, that said agreement created no legal estate, nor any right that Avould everripeu into a legal estate, but one cognizable only in equity. In England, by operation of the Statute of Uses, deeds of bargain and sale'and covenants to stand seized to uses, created equitable estates that were eo instanto transmuted into legal estates. But if the Statute of Uses was ever effective to that end in this state, as indicated perhaps by Section 3 of the Ordinance of 1787, it was only temporarily and until that method of conveyancing should be supplanted by the forms of instruments for that purpose now long familiar to us under legislation, the early enactment of which the ordinance itself contemplated. From a very early day, therefore, the Statute of Uses has been understood to be of no force in Ohio. Thompson v. Gibson, 3 Ohio, 339; Helfenstene v. Garrard, 7 Ohio (pt. 1), 275; Stilley v. Folger, 14 Ohio, 610, 650; Carroll v. Olmstead, 16 Ohio, 251; Crawford v. Chapman, 17 Ohio, 449; Urmey v. Wooden, 1 O. S., 160; Williams v. First Presbyterian Society, 1 O. S., 478; Thompson v. Thompson, 17 O. S., 649.

This ante-nuptial agreement, therefore, created no legal estáte whatever, and in law, as distinguished from equity, the land described in it was neither encumbered nor affected:

At the time the ante-nuptial agreement was recorded and until after the making by Leopold of the conveyance under which the present occupants claim title, the recording statutes in Ohio, S. & C., p. 458, Section 1, and par. 467, Section 8, applied only to instruments by which lands, tenements or hereditaments are “conveyed or otherwise affected or incumbered in law.” They had no application to. instruments relating only to equitable estates. Churchill v. Little, 23 O. S., 301.

It follows that the ante-nuptial agreement under which the cross-petitioners claim, was not a recordable instrument and the actual record thereof was not of itself notice affecting the present occupants’ title. Their predecessors in title were purchasers for value and without notice and took free of the trusts raised by said agreement.

This conclusion renders unnecessary any examination of the. questions made under the statute of limitations. The cross-petition is dismissed, and decree may be entered accordingly. "