author: JONES (E. H.), J.

text:
    MANDAMUS
    [Hamilton (1st) Court of Appeals,
    June 24, 1915.]
    Jones, Jones and Gorman, JJ.
    State ex rel Herbert S. Bigelow, v. Frederick S. Spiegel, Mayor.
    1. Ordinance Regulating Street Assemblies, Construed in Reasonable Manner.
    An ordinance pertaining to street processions and assembly in the streets must be regarded as merely regulatory, its chief purpose being to advise the city authorities when, where, and in what manner it is proposed to assemble or parade; and the action of the authorities in granting or refusing permits for such use of the streets must be reasonable, and not arbitrary or governed by whim or caprice.
    2. Mandamus to Compel Permit for Use of Streets for Public Assembly.
    When, in an action for a writ of mandamus to compel the mayor of a city to grant a permit for public meetings on the streets, evidence is adduced sustaining the allegations of the petition that the action of the mayor in refusing the permit was not based upon an exercise of discretion but was arbitrary, whimsical and actuated by bias and prejudice toward the relator or the cause advocated by him; and when the evidence furnishes no basis for fear of disturbance, or public inconvenience from the holding of such meetings and shows that permits for like meetings are freely and frequently granted to other persons and organizations, such evidence, uncontradicted, furnishes ground for the issuance of the writ.
    3. Absence of Respondent in Mandamus Construed as Admission of Truth of Grounds Alleged in Petition.
    It is always incumbent upon respondent in a mandamus action to appear in obedience to the command of the court and to show cause why a peremptory writ should not issue. And, when he fails to appear, without explanation or reason for his absence given, such absence on his part lends added proof that the complaint of relator is true and that no reasonable ground exists for denying to relator the desired permit.

      Thos. L. Miahie and Ed. F. Alexander, for relator.

      Walter M. Schoenle and Saul Zielonka, City Solicitor, for respondent.
   JONES (E. H.), J.

The petition in this case alleges that the relator, Herbert S. Bigelow, is and has been for a long time pastor of the People’s Church, a religious society within the city of Cincinnati; that the membership of said church authorized and requested the relator as pastor to arrange for open air meetings during the summer months; that on or about June 15, 1915, relator applied to the defendant as mayor of the city of Cincinnati for a permit authorizing him to hold certain street corner meetings as follows :

Sunday, June 20th, 7:30 p. m., Fifth and Eace, northeast corner, near middle of block; Monday, June 21st, 7:30 p. m., Brighton; Tuesday, June 22nd, 7:30 p. m., Knowlton’s Corner; Wednesday, June 23d, 7:30 p. m., Madisonville; Thursday, June 24th, 7:30 p. m., Peebles Corner; Saturday, June 26th, 7:30 p. m., Findlay Market; that relator stated in his said application that said meetings were to be held for the purpose of discussing the application of the ethical teachings of the Bible to modern social problems, and that the discussion would be under the general subject, “The Bible and the Labor Problem.” The relator further requested from the defendant a blanket permit for any further meetings of similar character which he might desire to hold in the city during the summer.

Then the petition of relator sets out that in response to the above request the respondent Frederick S. Spiegel, mayor of the city of Cincinnati, wrote to him as follows, refusing his request:

“June 18, 1915.
“My Dear Sir: I have given careful consideration to the letter, addressed by Mr. Carl Brannin, executive secretary of the People’s Church, to the chief of police, reading as follows:
“ ‘The People’s Church is planning to hold street-corner meetings this summer for the purpose of discussing the application of the ethical teachings of the Bible to our modern social problems. These discussions will be under the general subject, “The Bible and the Labor Problem,” a different subject being used each week.
“ ‘We would like to begin these meetings Sunday night, June 20th, at 7:30 p. m., at Fifth and Eace, N. E. corner, near the middle of the block, and continue during the week according to the following schedule: Monday, June 21, 7:30 p. m., Brighton; Tuesday, June 22, 7:30 p. m., Knowlton’s Corner; Wednesday, June 23, 7:30 p. m., Madisonville; Thursday, June 24, 7:30 p. m., Peebles Corner; Friday, June 25, 7:30 p. m., Norwood ;* Saturday, June 26, 7:30 p. m., Findlay Market.
“ ‘A schedule of the meetings planned for the following week will be sent you at the proper time, unless you will accede to our request for a blanket permit, which would make same unnecessary. ’
‘ ‘ I have also carefully considered your letter, in which you inform me that the safety director and the chief of police have verbally refused your request, but that, under the ordinance, the request should have been addressed to the mayor, which is correct, and that, therefore, you desire that I should pass upon the matter.
‘ ‘ Sec. 3714 provides that municipal corporations shall have special power to regulate the use of the streets, to be exercised in the manner provided by law, and that council shall have the care, supervision and control over them.
“In accordance with this power, council has passed an ordinance, of which Sec. 677 (p. 282, C. of Ordinances) provides that all street assemblages, with certain exceptions, under which your request does not fall, are forbidden, unless a permit therefor shall have previously been obtained from the mayor.
“The letter from ,Mr. Brannin states that the People’s Church is planning to hold street-corner meetings this summer, for the purpose of discussing the application of the ethical teachings of the Bible to our modern social problems.
“No such request to use the public streets of our city has ever been received by me from any church or religious denomination. The streets are made for the purpose of traffic, open to vehicles and pedestrians, and it is the duty of the city authorities to keep the same free and clear from gatherings, impeding public travel.
“Since the law does not contemplate the granting of permits for the use of our streets for a series of public lectures, either religious or economic in their nature, for which churches and halls have been built, I must respectfully decline to grant these permits.
*Not in Cincinnati; therefore no permit required.
“A copy of this letter has been sent to Mr. Carl Brannin, executive secretary of the Peoples Church.
“Very respectfully,
“(Signed) Frederick S. Spiegel,
“Mayor.
“Mr. Herbert S. Bigelow, Leader,
“The People’s Church,
‘ ‘ Odd Fellows Temple,
“City.”

The petition then contains a copy of Sec. 677 of the ordinances of said city, as follows:

“Section 677. Street Parades. — That all street parades, processions and street assemblages occupying, assembling, or marching upon any street, lane, alley, highway, wharf or public square of the city of Cincinnati, excepting posts of the Grand Army of the Republic, the National Guard of the state of Ohio, funeral processions and the fire and police forces of the city of Cincinnati, are forbidden, unless a permit therefor shall have previously been obtained from the mayor. Written notice of the object, time and desired place or route of such procession, parade or assemblage, and the character, purpose and name of the officers of the same, shall be given by the chief officers thereof, together with the permit from the mayor not less than twenty-four hours previous to its forming, assembling or marching, to the chief of police, and to protect the business interests of the citizens and to prevent delay in travel, and to preserve peace and good order of the city, the said chief of police shall designate to such procession, parade or assemblage what and how much of the streets, lanes, alleys, highways, wharves or public squares it may occupy; and it shall be the duty of said chief of police to furnish such escort as may be necessary to protect persons and property and maintain public peace and good order of the city. ’ ’

The petition also states that upon the receipt of said written request it became the duty of said defendant in the exercise of sound discretion to grant a permit to the relator for the holding of said metings; that the refusal of said defendant to grant said permit is an abuse of the discretion vested in him by law, and is arbitrary and capricious; that the reasons assigned for said refusal are trivial and insufficient to warrant the refusal of the permit and amount to a complete denial of the right of assemblage and free speech on the public streets and squares, except at the whim of the defendant or his successors in office; that other permits have been granted for said meetings by the defendant and his subordinates, to the Salvation Army, Gospel Wagon, republican, democratic and socialist political parties, and to other organizations for various purposes, religious, political, commemorative and otherwise.

The relator then prays that a writ of mandamus issue to Frederick S. Spiegel, mayor of the city of Cincinnati, commanding him to grant to the relator herein a permit to hold the meetings aforesaid.

Upon the presentation of the matter to this court and upon an application for an alternative writ of mandamus, the same was allowed, returnable on June 23d. At that time the answer of the respondent had been filed, admitting the allegations of the petition as to the relation of relator to the People’s Church; admitting that the letter incorporated in the petition is a correct copy of the letter mailed to relator refusing to grant the application ; admitting that the ordinance in question is a valid ordinance and that he, the mayor, has granted permits in accordance with the terms of the same. Respondent then denies each and every other allegation of the petition in mandamus, and prays that the petition of relator be dismissed at relator’s costs.

Upon these pleadings and the issues made therein this case was tried, and on account of the nature of the case and the dates fixed for the proposed meetings the cause was advanced and proceeded to trial upon its merits.

The command of the alternative writ issued was that said Frederick S. Spiegel, mayor of the city of Cincinnati, “do immediately upon the service of this writ grant the permits required hy law to the relator herein for the holding of street meetings as requested hy said relator,” “or that at the time and place of the return of this writ he show cause why he has not done so. ’ ’

At the trial respondent appeared by counsel only, and the only expression we have from the mayor throwing light upon his refusal to grant the permit is his letter to Mr. Bigelow — a complete copy of which appears above. Mr. John R. Holmes, director of public safety under appointment by the mayor, and Mr. William Copelan, chief of police, appeared in court and testified. Their evidence shows that prior to the formal application in writing by Mr. Bigelow a request had been made by one Carl Brannin, who is an officer of the^ People’s Church, which request was addressed to said Copelan and by him referred to said John R. Holmes, his superior. This request was refused by these officials, and then it was that Mr. Bigelow made the written request in full conformity with the terms of the ordinance in question. The request by Mr. Brannin to the subordinate officers named was made in compliance with a custom, or a working rule, as it was termed by witnesses, which prevails in the matter of granting these permits, under which .rule scarcely any of the applications are ever brought to the attention of the mayor. A very large percentage of them are acted upon by the chief of police and only in rare instances are they referred to the director of public safety, and much more rarely to the mayor.

Messrs. Bigelow, Brannin, ■ Holmes and Copelan were the only witnesses called. Their evidence establishes without contradiction or dispute that Mr. Bigelow for over twenty years has been the pastor of the People’s Church; that during that time he has spoken frequently upon political, social, economic and religious questions in public buildings and on the streets of the city of Cincinnati and elsewhere. The evidence of the officers named shows that he usually draws large crowds, and it is admitted that at no time has any disturbance occurred at any of his meetings or has anything been done or said calculated to create any disturbance or to provoke a breach of the peace or disorder of any kind. While there is no evidence to that effect, it is a matter of history that Mr. Bigelow was elected by the electors of Hamilton county as one of their delegates to the late state constitutional convention, and that he was chosen by the assembled delegates as presiding officer of that body. His selection to that position was manifestly not on account of his being a minister of the Gospel, but rather on account of his known interest in and lifelong study of public questions, social and political. So that Mr. Bigelow not only has the presumption that he intended no wrong, in his favor, but in addition thereto has the uncontradieted evidence of good citizenship and a knowledge of and ability to discuss from his viewpoint the subject or subjects indicated in his application.

These things it was the duty of the relator to establish in this case, and the duty has been fully met.'

It then became the duty of the mayor under the express command of the writ, to show cause why the permit should not be issued. It was-not necessary for him to show a cause that would appeal to or be sufficient in the minds of this or any other court; all that was necessary for him to do was to meet the issue tendered in the petition and denied by him in the answer, namely, that his action in refusing the permit was not based upon an exercise of sound discretion, but that the same was arbitrary and capricious.

The allegation of the petition that permits had been granted to the Salvation Army, Gospel Wagon, republican, democratic and socialist political parties, and to other organizations for various purposes, religious, political, commemorative and otherwise, though denied in the answer, is admitted afterwards by the city officials upon the stand, and fully established by the evidence in this ease.

The evidence in fact shows that permits are granted to the Salvation Army, Gospel Wagon and different church organizations of the city without investigation or formality, and practically as a matter of course upon application, and that such permits are readily granted by the chief of police without being called to the attention of the mayor or any other superior officer. We think then that from the nature of the People’s Church, under whose auspices the proposed addresses are to be given and from the evidence as to the character and standing of Mr. Bigelow, relator has established the facts in support of his petition, which raise a presumption or reasonably give rise to the suspicion that the action of the mayor in refusing the permit was an arbitrary one and not the result of the exercise of that sound discretion which the ordinance in order to be valid must contemplate that he should exercise.

In this connection we might say that no attack is made upon the ordinance by relator or his counsel. On the contrary it is admitted by the pleadings that the ordinance is a valid enactment. But counsel for relator make such admission upon the condition that the language of the ordinance is to be given a reasonable construction and one that makes it incumbent upon the mayor to exercise discretion and not to act arbitrarily or unreasonably.

We deem it unnecessary to cite any of the numerous authorities which might be cited to show that this ordinance if construed so as to vest in the mayor an arbitrary power to grant or refuse permits at will, governed only by whim or caprice. would be absolutely void. There is nothing either in the language of the ordinance or the manifest reason for its enactment to indicate that such power was intended by council to rest with the mayor. On the other hand, the ordinance contemplates a reasonable exercise on the part of the mayor of the power given him. It must be regarded as merely regulatory, its chief purpose being not to limit or restrict the right of citizens to parade or assemble on the streets of the city, but rather to advise the city authorities where, when and in what manner such things are to take place and be held. It is only when so interpreted and understood that the ordinance can be deemed a valid law.

As already stated, the letter written by Mayor Spiegel to Mr. Bigelow is the only word from him explaining the refusal to grant a permit. This leter was not offered in evidence by either side, but was referred to in argument and will be considered insofar as it has any bearing upon the issues in this case.

The first alleged ground of refusal contained in the letter of the mayor is near the end thereof, and is couched in the following words: “No such request to use the public streets of our city has ever been received by me from any church or religious denomination.” This sentence certainly can not mean that no request was ever made to use the public streets for public meetings, but the words “such request” must have reference to the subject of the lectures, which is given in the preceding paragraph of the letter, as follows: “For the purpose of discussing the application of the ethical teachings of the Bible to our modern social problems.” To refuse the application upon the ground that that particular subject, or that a subject described in that precise language was never before embodied in a like request we do not regard as a sound reason, or as indicating the exercise of a sound discretion on the part of the mayor.

Immediately following the above language we find the following statement in the letter of the mayor:

“The streets are made for the purpose of traffic, open to vehicles and pedestrians, and it is the duty of the city authorities to keep the same free and clear from gatherings, impeding public travel.”

With reference to this alleged reason we may say that we doubt very much the power of the mayor to carry out such a policy and to prevent absolutely all gatherings upon the streets. But it is admitted by the evidence in this case that no such intention is entertained nor any such policy followed by the city authorities. On the contrary, the evidence shows that permits are frequently granted for public meetings in the streets, and that, too, during seasons of the year when no political campaign is on. The nature of the organizations which enjoy these privileges has already been given and bears close relation to that of the organization under whose auspices and for whose benefit this permit was requested.

Next, the mayor contends:

"Since the law does not contemplate the granting of permits for the use of our streets for a series of public lectures, either religious or economic in their nature, for which churches and halls have been built, I must respectfully decline to grant these permits.”

We are not sure of the mayor’s premise from which the conclusion in this last paragraph is drawn. We have made careful examination of the authorities upon the question, both those cited by counsel and others which have come to our attention, and we are not prepared to say with the mayor that the law does not contemplate the granting of permits for the use of our streets for a series of public lectures either religious or economic in their nature. In this connection we will cite a few authorities only.

In the ease of Anderson v. Wellington, 40 Kan. 173 [19 Pac. 719; 2 L. R. A. 110; 10 Am. St. 175], the question involved the constitutionality of a city ordinance which made it a misdemeanor punishable with fine or imprisonment or both, for any organization to parade in any public street shouting, singing or beating drums or tambourines, etc. The court held such ordinance void, as it was not a reasonable regulation to vest the power arbitrarily in the mayor to grant or refuse the permission to parade the streets for lawful or meritorious purposes.

In Chicago v. Trotter, 136 Ill. 430 [26 N. E. 359], the court said:

“Parades and processions upon the streets of the city, are not necessarily productive of danger and disorder so as to render them per se the creators of public disturbances, nor are they necessarily nuisances. There is no authority, therefore, in the municipal corporation to suppress such demonstrations of all kinds, at all times and under all circumstances. Citizens have the constitutional right of pursuing their own happiness, and on suitable occasions and for lawful purposes, and in a peaceable manner they may gather together in street parades and processions if they so desire, ’ ’ etc.

In the case of Rich v. Naperville, 42 Ill., App. 222, the court in the syllabus of that case held:

“1. Ordinances to be valid must be reasonable; they must not be oppressive; they must be fair and impartial, and not so framed as to allow their enforcement to rest in official deseretion.
“2. Where public parades and demonstrations whether religious or political, do not threaten the public peace, or substantially interfere with the rights of others, every measure repressing them, whether by legislative enactment or municipal ordinance, is an encroachment upon fundamental and constitutional rights.
“3. Upon proceedings against members of the Salvation Army, for the breach of an ordinance prohibiting the parading of streets by any organization without first securing the permission of the city council, this court holds the same to be void, upon the ground of its being unreasonable, oppressive and so framed as to allow its enforcement to rest in unregulated official discretion.”

And in the opinion of the same case the court uses this language :

“Ever since the landing of the Pilgrims from the Mayflower the right to assemble and worship according to the dictates of one’s conscience, and the right to parade in a peaceable manner and for a lawful purpose, have been fostered and regarded as among the fundamental rights of a free people. The spirit of our free institutions allows great latitude in public parades and demonstrations, whether religious or political, and if they do not threaten the public peace, or substantially interfere with the rights of others, every measure repressing them, whether by legislative enactment, or municipal ordinance, is an encroachment upon fundamental and constitutional rights.”

The Michigan Supreme Court, in the case of Frazee, In re, 63 Mich. 396 [30 N. W. 72; 6 Am. St. 310], on page 404 uses the following language:

“It has been customary from time immemorial, in all free countries, and in most civilized countries, for people who are assembled for common purposes to parade together, by day or reasonable hours at night, with banners and other paraphernalia, and with music of various kinds. These processions for political, religious and social demonstrations are resorted to for the express purpose of keeping up unity of feeling and enthusiasm, and frequently to produce some effect on the public mind by the spectacle of union and numbers. They are a natural product and exponent of common aims, and valuable factors in furthering them. They are only found to any appreciable extent in places having collected inhabitants, for spectators are generally as important as members. They are among the incidental conditions of city life, and are as much to be expected, on suitable occasions, as any other public meetings, and not necessarily any more dangerous.”

And on page 405:

“It is only when political, religious, social, or other demonstrations create public disturbances, or operate as nuisances, or create or manifestly threaten some tangible public or private mischief, that the law interferes. ’ ’

Space forbids further citations, but innumerable quotations could be made from eminent authorities to the same effect as those above given.

We therefore can not concur with the judgment of the mayor that “the law does not contemplate the granting of permits for the use of our streets, ’ ’ etc. On the contrary we believe that the law does contemplate such permits, and that they should be granted with great freedom and with little formality, and refused only in eases where disorder and lawlessness might be well considered the natural result of the permit sought, or unless other good cause be shown why they should not be granted. The granting of permission should never depend upon the attitude of the one in whom the granting power is vested toward the applicant or the cause advocated by him.

A fair and interesting discussion of the principles involved in this ease will be found in Garrabad, In re, 84 Wis. 585 [54 N. W. 1104; 19 L. R. A. 858; 36 Am. St. 948].

We, therefore, are of the opinion that the allegations of the petition, that there was no sound discretion exercised and that the refusal was made arbitaraily, have been proven by the evidence in this case, which upon this point stands uncontradicted. Not a word has come from the respondent during the trial of this case by way of explanation. We think that we have shown that the alleged reasons contained in his letter to Mr. Bigelow are not sufficient. They are inconsistent with the conduct of the mayor in granting permits, and in no sense, either severally or collectively, constitute any ground for a denial of the natural and ever zealously guarded right of free speech and the right to assemble.

As already stated, Mr. John R. Holmes, director of public safety, appeared and testified in this case on behalf of the respondent. Under our municipal code he occupies a position of much responsibility, is an appointee of the mayor and in the nature of things is in close contact with the executive officer of the city, being at the head of the police and fire departments. The matter of granting this permit was referred to Mr. Holmes, as before stated, by Chief Copelan. The only reason given at the time, by Mr. Holmes, for his refusal to grant the permit, was that it seemed to him to be an “I. W. W.” proposition. He was questioned about this on the stand, and was asked whether or not he believed Mr. Bigelow to be a member of the I. W. W. His answer was that he had no reason to disbelieve it. His evidence and demeanor on the stand plainly showed him to be very strongly prejudiced against Mr. Bigelow for some reason. He admitted that although he had been a resident of the city of Cincinnati during all the years that Mr. Bigelow has been so conspicuous as a preacher and public speaker, he had never heard his voice until he heard it in this court room. The evidence in the case plainly shows that the action of Mr. Holmes, therefore, in declining to issue the permit was purely arbitrary and prompted by ill-will towards Mr. Bigelow or some principle or cause which he advocates, or both. Mr. Holmes was fair about this, and made no attempt to conceal his feeling. Whether or not this feeling is shared by the mayor we do not know; but Mr. Holmes was brought here on behalf of the mayor, and we think it only fair to assume that the reasons given by him, or rather the want of reasons shown by him for refusing the permit, must be to same extent imputed to the mayor.

There being no valid or sound reason shown why the permit was refused, and the respondent having failed to show any proper reason for said refusal, the prayer of the petition will be granted and a peremptory writ issued in accordance therewith.

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


source: Caselaw Access Project

author: HENRY, J.

license: Public Domain

text:
    APPEALS
    [Cuyahoga (8th) Circuit Court,
    April 3, 1908.]
    Winch, Henry and Marvin, JJ.
    James R. Goldson v. Amanda S. Corlett et al.
    1. Action for Reconveyance and Judgment for Value of Property not Reconveyed not Appealable.
    When an action was brought against several parties ashing reconveyance of property as to certain parties and a judgment for the value of the property as against others in case reconveyance could not be decreed, and the parties against whom reconveyance is asked are dismissed from the case before its submission to the court. Held: That what remained was an action for money only and not appealable.
    2. Designation of Action as One for Accounting does not make it Appealable.
    The fact that an action is designated an action for accounting and equitable relief will not make it appealable, when it is in effect an action for money only.
    Appeal.

      A. H. Martin and A. T. Hills, for plaintiff.

      Burton & Bake, for defendants.
   HENRY, J.

This is an appeal from the judgment of the court of common pleas in an action to avoid conveyances, under favor of Sec. 5404 R. S., (Sec. 11696 G. C.) and for other relief. The petition alleges that in February, 1894, certain lands of plaintiff were' sold at sheriff’s sale to John Gallagher, one of the defendants herein, who, with his wife, shortly afterwards conveyed the same to Lawrence Sinnott, also a defendant herein. Sinnott had been one of the appraisers, under whose valuation of the land in question the sheriff’s sale took place. In December, 1898, Sinnott re-conveyed an undivided half interest in this land to the said John Gallagher, who, with his wife, a few days later joined with Sinnott, and the latter’s wife, in a conveyance of the property to William T. Corlett, who, in turn, quit-claimed the same to Amanda S. Corlett.

The petition alleges that Sinnott and Gallagher conspired together to enable the former to acquire the property, or an interest therein, in defiance of the prohibition of said Section 5104, prohibiting the purchase of property at an official sale by one who appraised the same for the purpose of such sale.

The decree of the court of common pleas, rendered January 8, 1908, is as follows:

“Jan. 8, 1908. To-Court. This cause came on to be heard upon the pleadings and evidence, and during the trial the plaintiff dismisses his action as to the defendants, Amanda Corlett and William T. Corlett, at plaintiff’s costs, for which judgment is rendered against him. And after due trial said cause was ■ submitted to the court on the pleadings and evidence, on consideration whereof, the court finds on the issues joined, for the remaining defendants, and the petition is dismissed. It is therefore considered that said remaining defendants go hence without day and recover from said plaintiff their costs herein. Judgment is rendered against said plaintiff for his costs herein. The amount of the bond for appeal herein is fixed at the sum of $100.”

At the outset of the trial in this court, the defendants Gallagher and Sinnott, being the only defendants left in the case, moved for a dismissal of the appeal for want of jurisdiction upon the ground that the action below was triable to a jury.

The prayer of the petition concludes with these words:

‘ ‘ That if for any reason the court should find the plaintiff not entitled to any relief against the said defendants William T. Corlett and Amanda S. Corlett, then and in that case the court order the said defendant Lawrence Sinnott to account to plaintiff for the full value of said property in addition to his accounting for the use and occupation and profits of same for that period of time during which the court shall find his use and occupation of said property continued, and for judgment accordingly ; and for all other and further relief proper in equity. ’ ’

In Grapes v. Barbour, 58 Ohio St. 669 [49 N. E. 306], it is said in the opinion of the court, by Shauck, J., at page 675:

“Whether the case is appealable is to be determined from the nature of the issues when it was submitted in the court of common pleas. ’ ’

The transcript here discloses that “during the trial the plaintiff dismisses his action as to the defendants, Amanda Corlett and William T. Corlett,” whence it appears that the time the cause was submitted in the court below, the actual restoration of the land was no longer sought.

In Doney v. Clark, 55 Ohio St. 294 [45 N. E. 316], it was indicated in the fourth paragraph of the syllabus .and at page 305 of the opinion of the court by Shauck, J., that:

“This was an action for the recovery of money only. In view of the fact that the fraudulent grantee had conveyed a valid title to the subject of the trust no decree in equity was needed or sought. Although the principles upon which recovery was sought may be of equitable cognizance, neither party is entitled in an action for the recovery of money only, to have the issues determined by a jury. ’ ’

In Gunsaullus v. Pettit, 46 Ohio St. 27 [17 N. E. 231], it was said in the opinion of the court, by Minshall, J., at pages 28, 29:

“The suit below was brought by the administrator of a deceased wife against the administrator of her deceased husband, and sought to charge his estate with a claim for money had and received by him in trust for her. * * * The fact that prior to the code the only remedy would have been a suit in equity, does not affect the right of either party to demand a jury trial upon the issues of fact joined in the action. * * * The ease then was not appealable and the circuit court erred in not sustaining the motion to dismiss the same.”

The right to demand a jury trial in the court below when the cause was finally submitted was thus not precluded by the fact that the cancellation of a fraudulent conveyance had originally been demanded and afterwards abandoned, nor by the fact that the case in the posture which it then assumed called for the ascertainment of a trust as the basis upon which a judgment for money only could be rendered. Nor did the fact that an accounting was demanded necessarily require the awarding of equitable relief, in case the plaintiff prevailed.

In Black v. Boyd, 50 Ohio St. 46 [33 N. E. 207], in the opinion of the court by Bradbury, J., at page 52, it is said:

“The circumstances that will warrant a court of equity to assume jurisdiction in matters of account have long been the subject of discussion by courts of the highest authority. Where the accounts are mutual and complicated to a degree that makes their examination by a jury difficult and unsatisfactory, equity will generally assume jurisdiction, though no rule of certain application can be laid down. The court should be satisfied of the inadequacy of proceedings at law to do justice between the parties. The doctrine is discussed, and the jurisdiction of equity, in the case of complicated mutual accounts, has been sustained by most, if not all, of the authors of the text books upon the subject of the jurisdiction of courts of equity.”

In the case before us, it is not urged that there was either complication or mutuality in the accounts with respect to which relief is demanded. Nor is there anything in the nature of the case to indicate inadequacy of legal remedy. In Bricker v. Elliot, 55 Ohio St. 577 [45 N. E. 1045], it was held in the syllabus:

“A suit to compel a trustee to account to the beneficiaries of his trust and for a judgment for the amount which, upon such accounting, may be found in his hands is not an action for the recovery of money only; and from the judgment of the court of common pleas in such action either party may appeal to the circuit court.”

But in the opinion of the court by Shauck, J., at page 579, it was said, concerning actions for money:

“The adjudications of this court determine that, if the action is for that purpose only, it is triable by jury even though the principles upon which a recovery is sought are equitable in their nature and origin. They also determine in those cases which are triable if the remedy of accounting in equity is not necessary to full and adequate relief even though disclosures from the defendant may be desired. ’ ’

It is further said at page 580:

“In the original petition the plaintiff did not allege an indebtedness for a definite amount due from the defendant. He alleged facts which excused him from doing so, by showing that, although the parties were adversary in the suit they had not been so in the transactions out of which it arose.
‘ ‘ The case alleged showed that the defendant was a trustee; that in consequence of the trust and confidence reposed in him by his mother, he was in possession of funds belonging to her, whose amount he knew and she did not. The case was not for money only. It invoked the exercise of equitable jurisdiction to compel the trustee to render an account necessary to the ascertainment of the amount due, and for a judgment for that amount when ascertained. ’ ’

The case before us is not the case of an express trust, but of a resulting trust, formerly cognizable, it is true, in equity alone, but no longer triable as of right without a jury if the ultimate relief sought is a judgment for money only. Chapman v. Lee, 45 Ohio St. 356 [13 N. E. 736].

In Lange v. Lange, 69 Ohio St. 346 [69 N. E. 611], the syllabus is as follows:

“In an action for money, not requiring a decree granting some mode of equitable relief, an appeal can not, under Sec. 5226 R. S. (Sec. 12224 G. G. et seq.), be taken from the court of common pleas to the circuit court, although the determination of the rights of the parties may involve the application of principles which are of equitable origin and nature.”

And at page 349 in the opinion of the court by Shauck, J., it is said:

‘ ‘ However uniformly it may appear that appealable actions are equitable the legislature has not used appropriate terms to make all equitable actions appealable. "While the constitutional requirement that the right of trial by jury shall remain inviolate has been effective to continue that right in all cases which were triable to a jury at the time of the adoption of the Constitution, it has not prevented, nor was it intended to prevent, the extension of the right of trial by jury to cases which were not so triable at the time of the adoption of the constitution; and every case included in such extension of the right of trial by jury is thereby excluded from the category of cases appeal-able, however clearly it may appear that the rights of the parties depend upon the application of principles which are of equitable origin and nature. ’ ’

It is true that there is language used in many earlier cases which seems somewhat at variance with the conclusions we reach in this case, notably in Pierce v. Stewart, 61 Ohio St. 422 [56 N. E. 201]; Raymond v. Toledo, St. L. & K. C. Ry. 57 Ohio St. 271 [48 N. E. 1093]; Hull v. Bell Brothers & Co., 54 Ohio St. 228 [43 N. E. 584]; Gill v. Pelkey, 54 Ohio St. 348 [43 N. E. 991]; Commercial Nat. Bank v. Wheelock, 52 Ohio St. 534 [40 N. E. 636; 49 Am. St. 738]; Ellsworth v. Holcomb et al, 28 Ohio St. 66; Rowland v. Entrekin, 27 Ohio St. 47; Converse v. Hawkins, 31 Ohio St. 209; Rankin v. Hannan, 37 Ohio St. 113; McCrory v. Parks, 18 Ohio St. 1; Reed v. Reed, 25 Ohio St. 422, and many others.

None of these cases have been overruled and we think they are all distinguishable from the cases above discussed. While the matter is not entirely free from doubt, we look upon the case before us as one where the right to demand a jury in the court of common pleas existed. Therefore the action was not appealable, and the motion to dismiss the appeal for want of jurisdiction is granted.

Winch and Marvin, JJ., concur.


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    HUSBAND AND WIFE
    [Cuyahoga (8th) Circuit Court,
    March 28, 1908.]
    Winch, Henry and Marvin, JJ.
    Leo W. Lederer v. W. J. White.
    1. Husband not Liable for Goods Purchased by Wife on His Credit from Stranger.
    A husband who suitably supplies his wife with necessaries, or with the money to purchase them, will not be held liable, on the ■ basis of a presumption of authority or of an implied agency, for goods purchased by her on his credit, without his knowledge or consent, of one with whom he had no. previous dealings, though the goods be of the quality of necessaries.
    2. Tradesman Supplies Goods to Wife at Peril.
    A tradesman supplies goods to the wife at his peril when the husband is guilty of no neglect of duty in the premises, and when, consequently, there can be no necessity for her purchasing on his credit.
    Error.

      Howland & Niman, for plaintiff in error.

      Clifford B. Haskins, for defendant in error.
   HENRY, J.

Plaintiff in error sued before a justice of the peace for necessaries furnished to the wife of defendant in error while living separate and apart from her husband in the family homestead. He recovered a judgment, which on error to the court of common pleas was reversed, and thereupon the case being retained for trial, as required by statute, trial by jury was waived and upon evidence the court rendered judgment for the defendant. The error assigned is that the judgment is not supported by the evidence and is contrary to law. Two questions are thus raised; first as to the authority of the wife to bind her husband for necessaries purchased by her when she is already amply supplied by her husband with the means to purchase the same, as is shown by the evidence to be the case here, and secondly, whether the husband has not in fact ratified the claim made against him here in that the entire principal of the account, interest whereon is the subject-matter of the present action, was paid out of moneys received from him and held by his attorneys for the settlement of his wife’s pecuniary claims against him.

We do not think the evidence of ratification is such as to warrant us in reversing the judgment of the court of common pleas for that reason. The circumstances of the payment made with the husband’s funds are quite consistent with the theory that it was solely the wife’s obligation and not his own that the husband was paying.

Upon the other question there is a surprising dearth of authority, and among what few decisions there are directly in point there is much contrariety. We think, however, the better rule is laid down in Clark v. Cox, 32 Mich., 204, wherein the fourth and fifth paragraphs of the syllabus are as follows:

‘ ‘ A husband who suitably supplies his wife with necessaries or with the money to purchase them, will not be held liable, on the basis of a presumption of authority or of an implied agency, for goods purchased by her on his credit, without his knowledge or consent, of one with whom he had no previous dealings, though the goods be of the quality of necessaries.
' “A tradesman supplies goods to the wife at his peril when the husband is guilty of no neglect of duty in the premises, and when, consequently, there can be no necessity for her purchasing on his credit at all.”

The judgment below is affirmed.

Winch and Marvin, JJ., concur.


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    PLEADING
    [Cuyahoga (8th) Circuit Court,
    March 28, 1908.]
    Winch, Henry and Marvin, JJ., Concur.
    Ferdinand Junge v. German Roman Cath. Cent. Verein W. & O. Fund et al.
    Several Cross>-Petltions may not be Filed when Relief Sought is Substantially Same.
    Several cross-petitions may not he filed under favor of Sec. 5008 R. S. (Sec. 1125 G. C.), when the only relief demanded therein different from that demanded by the plaintiff in the original petition is a demand for the respective shares of the petitioners in a fund impounded and in course of distribution under order of court.
    Error.

      L. A. Grossner, Herman Preusser and F. J. Wing, for plaintiff in error.

      M. P. Mooney, for defendants in error.
   HENRY, J.

This proceeding in error is prosecuted to reverse the judgment of the court of common pleas in sustaining a demurrer to an answer and cross-petition of Ferdinand Junge and many others, filed in the court of common pleas in a cause commenced there by Herman Preusser, for an accounting and distribution of an insurance fund of an incorporated fraternal order, which undertook, in excess of its corporate powers, to transfer said fund, under a contract of reinsurance, to another similar organization, in consideration of the assumption by the latter of the insurance contracts of the former.

A decree for plaintiff in that action was made some time ago and a referee appointed to make an accounting and report upon the plaintiff’s claim and other claims filed, and upon rendition of the referee’s report, all claimants dissatisfied with the reinsurance arrangement, who had presented claims to be paid their proportionate shares of the fund, were duly awarded and paid the amounts to which they were respectively entitled. Some matters of accounting were referred back to the referee for further report, and meanwhile other claims coming in, a number of claimants, including the plaintiff in error here, filed their joint answer and cross-petition, praying a general accounting of the fund and demanding their respective shares thereof.

The demurrer to this joint answer and cross-petition is founded upon alleged misjoinder of the cross-petitioners and upon the failure of their cross-petition to state a ground for affirmative relief in the action.

We think there was no error in sustaining this demurrer. True, it is provided by Sec. 5008 R. S. (Sec. 11257 G. C.),, that:

“When the question is one of a common or general interest of many persons or when the parties are very numerous, and it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of all.”

But under Sections 5066, 5069 and 5071 R. S. (Secs. 11314, 11317, 11319 G. C.) an answer demanding affirmative relief may be interposed by a defendant or defendants .against other parties to the action only when a “several judgment” is possible in the action as between the parties so put in opposition. In this case the accounting asked for in the cross-petition under consideration, is precisely the relief which the plaintiff in the original action on behalf of himself and all others, including said cross-petitioners, had already sought and obtained, or was in the course of obtaining. If the filing of the cross-petition considered as the commencement of a cross-petition is warranted in this case, it is surely not because of its reiteration of the demand already made on behalf of the same persons for precisely the same relief. Rather, must the cross-petition stand or fall upon the demand for the respective shares of the cross-petitioners in the insurance fund which has been impounded and partially distributed. This is the only new and affirmative relief prayed for by the answer and cross-petition which was not already covered by the original petition in the case. But these demands of the cross-petitioners are clearly not joint, but several. Each demands to be paid his individual share of the common fund, and the several claimants certainly can not join their several demands in a single cross-petition. The distinction is well illustrated by- a comparison of the decision in Platt v. Colvin, 50 Ohio St. 703 [36 N. E. 735], upon the one hand, and Jackson Tp. (Tr.) v. Thoman, 51 Ohio St. 285 [37 N. E. 523], upon the other. In the latter case a taxpayer commenced a suit on behalf of himself and other taxpayers against the county treasurer to restrain the collection of a tax alleged to have been illegally levied, and obtained a temporary order restraining the collection of the tax until the final hearing on the merits. Subsequently he filed a supplemental petition, alleging that since the commencement of thé suit the injunction being in full force and unmodified — all had been involuntarily compelled to pay the tax by the refusal of the treasurer to receive the taxes from them already due, though tendered, unless they paid the taxes that had been enjoined.

Under these circumstances the court held, with respect to the further prosecution of the action, that:

“A suit can not be maintained by one taxpayer on behalf of himself and others, to recover back taxes, alleged to have been illegally assessed, on the ground that the taxes were involuntarily paid by each. In such case each must bring the action in his own behalf.”

It is doubtful whether in view of the representative capacity in which the original plaintiff sued, the court in which the cause is pending should permit its records and files to be encumbered by pleadings of all or any of the other individual claimants, who desire merely to assert their adjudicated equitable title to an undivided portion of the impounded amount. If indeed the litigation should be prolonged in the posture which the cause had assumed when all the original parties were satisfied, so far as their individual claims or differences were concerned, the further distribution of the fund could be much better accomplished by requiring all claimants, upon due notice, to file their claims with the referee, with the privilege to them, if dissatisfied with the referee’s decision, to file exceptions thereto, than by permitting the claimants severally or collectively to file pleadings asserting their demands.

If the demand for the liquidation and distribution of the assets in question is such as to justify a court of equity in permitting it to proceed to final conclusion, the cross-petitioners represented by the plaintiff in error here have certainly not been prejudiced by the refusal of the court to permit their pleading to stand. If their rights are not properly protected in the referee’s report, they can file their exceptions and have the same passed upon and reviewed precisely as if they were expressly made parties and permitted to file pleadings.

Judgment of the court of common pleas affirmed.

Winch and Marvin, JJ., concur.


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    WILLS
    [Cuyahoga (8th) Circuit Court,
    March 23, 1908.]
    Winch, Henry and Marvin, JJ.
    Henry Kornfield et al v. Louisa Kornfield et al.
    1. Effect of Ascendency of Wife on Legality of Husband’s Will in Her Favor.
    The fact that a wife guides or even dominates her husband in the ordinary affairs of life, or has acquired an ascendency over him, does not render his will made in her favor invalid.
    2. Insufficient Evidence to Establish Existence of Spoliated or Lost Will.
    Offers to show that testator, before his death, spoke of having revoked one will and made a new will, that witnesses had seen a paper writing, signed by testator and witnesses, are not sufficient, if proven, to establish the existence of a will revoking the will probated especially, if the witnesses fail to recall any testamentary phrases.
    Error.

      Kerruish & Kerruish, for plaintiffs in error.

      Walter D. Meals and Thomas Robison, for defendants in error.
   HENRY, J.

The plaintiffs in error were contestants of the will of Leopold Kornfield, deceased, in an action begun by them in the court of common pleas, wherein by verdict of the jury said will was sustained. The grounds of contest were, first, that the will was made under undue influence exercised by the testator’s second wife, Louisa Kornfield, one of the defendants in error who was the chief beneficiary thereunder, and secondly, that the testator revoked said will by making another and later one, inconsistent with the former. The latter it is claimed was suppressed by testator’s wife.

The facts are as follows: Leopold Kornfield, a Hungarian Jew, came to this country in 1880, leaving his wife and five children behind. The wife followed later, bringing one child, Benny. The wife soon died in New York, and Benny was put into an institution there. In 1886 Leopold married a second wife, who, it is said, knew nothing of his family in Europe. He soon sent, however, for three of the children there, and later for the remaining child, Simon, a cripple, for whose admission under the immigration law he gave a maintenance bond. Meanwhile he had three children by his second wife.

After his second marriage, the testator was engaged in the saloon business in Newburg until his death. The presence of the first set of children in the household was much resented by the second wife, who constantly domineered over and abused both them and her husband.. In 1896, he desired to go to Hungary to see his aged parents, but she refused to allow it until he had made his will giving her all the property, amounting to about $15,000, including $7,000 life insurance, save that the will as actually made bequeathed $1,000 to Simon, the cripple. The' testator died in 1903, about seven years after this will was made.

By evidence of testator’s declarations the contestants offered, but were not permitted, to show that shortly before his death, he spoke of having made a new will and sent his wife with a written order for the first one to the office of the lawyer, Charles Zuker, Esq., who had drawn the same, and retained it for safe-keeping; that upon her return she handed him the will, remarking that it was good enough for him and that he had made a new will dividing his property evenly between wife and children, and told her to take the old one out and burn it; that she then took it out and on returning repeated her remark that the old will was good enough for her.

The contestants further .offered to show by another witness in answer to questions as to whether he had a conversation with the testator about a new will, whether he had seen that new will, and whether he had had it in his hands, that once when witness was moving the bed under him the will fell from under his pillow and he seeing it fall said to witness “Give me that paper; it is a new will I have made. ’ ’ that witness took it, opened it and looked at it, and testator took it and placed it under his pillow again; that it was “a large paper” with “names of witnesses and it was properly executed;” that testator said he had provided in his new will that he should be buried in the Jewish Burying Ground in Glenville, that he had given $200 to the old folks in the old country and divided the rest of his property evenly among his children.

The contestants further offered to show by testator’s child Simon, in response to inquiry whether he saw a new will made by his father, that the latter after his health got poor, on one occasion when Mrs. Kornfield was in the house, took some papers and picldng out one of them handed it to witness and said ‘ ‘ This is the new will;” that witness opened it, saw it was a written document, saw two names signed to it as witnesses and his father’s name at the end; that then there was some movement as of eavesdropping and testator seized the paper and took it away; that witness had the means of knowing, and knew, that the papers were locked up in the wardrobe, and that after testator went to the hospital where he soon died, Mrs. Kornfield, having access to the wardrobe, was seen to go there and take papers out.

All the testimony thus offered was excluded and exceptions were reserved. These rulings constitute one of the errors here assigned. They will be considered further. It is also complained that the trial court having refused to allow evidence of undue influence during the seven years interval between the making of the original will and testator’s death, charged the jury that they might consider that lapse of time as bearing upon the issue of undue influence at the time the will was made. The contention is that the charge though abstractly correct, was misleading in view of the refusal to allow proof of continuance of the undue influence. We think, however, that the error, if any, can not be ascribed to any evidence offered, the exclusion whereof was excepted to, which would tend to show the wife’s domination over her husband between his return from Europe and his death. The evidence excluded tends rather to show his escape from such domination.

A third error assigned concerns the weight of the evidence upon the issue of undue influence. The bill of exceptions does not contain a copy of the probate of the will which the statute requires to be offered and which apparently was offered in evidence. Whether it is now too late to correct the bill so that we may lawfully weigh the evidence we have not inquired. In examining the alleged error as to the exclusion of evidence we have necessarily considered the facts of the case. Upon this point a very recent case in which the facts are very similar is Gwin v. Gwin, 51 Idaho 271 [48 Pac., 295], and the law is well stated in the opinion of the court, as follows:

“The fact that a wife guides or even dominates her husband in the ordinary affairs of life, or has acquired an ascendency over him, does not render his will made in her favor invalid. ’ ’

Giving due heed to all that has been urged upon our attention, we can not say that the jury’s verdict is manifestly contrary to the weight of the evidence.

I recur now to the first error assigned, the exclusion of evidence tending to show that the testator made a second will inconsistent with the first. It is urged that enough evidence was offered tending to show the existence and different contents of the second will, and the probable suppression thereof by the testator’s wife, to authorize the jury to infer that such second will inconsistent with the first was actually made. Were the rejected evidence hereinbefore recited to be received, the theory of this branch of the contestants’ case would necessarily be that the very meager direct evidence of the appearance and nature of the document supposed to be the testator’s second will is 'confirmed by the testator’s declarations characterizing it as such and defining its testamentary provisions. Superimposed upon this foundation of proof as to the existence of a document deemed by the testator to be his last will, is the further testimony offered of his wife’s access to the place of deposit of that instrument, of her taking papers from said place, of the subsequent nonappearance, of the will and of her interest to suppress it. Applying then the maxim omnia praesuniur in odium spoliatoris, it is urged that, for the purpose of this case at least, the existence and due execution of a later will, inconsistent with and revocatory of the one under contest, are prima facie• shown.

It is, however, a fragile edifice which is thus ingeniously reared, and if it be faulty it must collapse like a house of cards. Let us therefore examine it in detail. Consider the paper first which fell out from under testator’s pillow. It was a written document bearing his signature and the names of witnesses. These attributes are not distinguishing characteristics, They are common to various instruments, testamentary contractural and declaratory. If in addition to the signatures, the witness who had the document in his hand, had read therein such words as “I have and bequeath,” or “This is my last will and testament,” or “I appoint as executor,” etc., the paper would be distinguished as of testamentary import, leaving its validity as such to be determined by further evidence. Without some such remark, the self identification of the paper as a will is not even begun.

It is generally conceded, moreover, that a testator’s declaration of having made or revoked a will is no independent evidence of the fact. Without some foundation of testimony or presumption as to the fact, such a declaration is not admissible at all. Only as it is offered to confirm or rebut such testimony or presumption, can a testator’s declaration in this behalf have any probative force whatever.

It is true that the late case of Williams v. Miles, 68 Neb. 463 [94 N. W. 705; 96 N. W. 151; 62 L. R. A. 383; 110 Am. St. 431] seems to hold the opposite view, and there are a few decisions to the contrary following the supposed authority of the leading English case of Sugden v. St. Leonards, L. R., 1 P. D., 154; but in the later case of Atkinson v. Morris, L. R., P. D., 1897, p. 40, in which Sugden v. St. Leonards was discussed, it was held that:

“Declarations made by a testator after the date of an alleged will are not admissible to prove the execution of the will.”

So also in a most excellent and exhaustive note to Clark v. Turner, 50 Neb. 290 [69 N. W. 848; 88 L. R. A., 433], many eases are cited at page 442 under the caption “Declarations” to the point that:

“Declarations of the testator are not of themselves alone sufficient to establish the execution of a lost or destroyed will, but are admissible in evidence and have great weight when corroborated by other evidence. ’ ’

This we understand to be in perfect analogy with the distinction made in Behrens v. Behrens, 47 Ohio St. 323, where it was held that:

“When a will, once known to exist, and to have been in the custody of the testator, can not be foimd after his decease, the legal presumption is, that it was destroyed by the testator with the intention of revoking it.
“To strengthen such presumption, it is competent to prove the declarations of the testator after making his will, that he had destroyed, or intended to destroy the same.” See, also, Tynan v. Paschal, 84 Am. Dec., 619.

Can this gap be bridged over by resort to the maxim omnia praesuntur in odium spoliatoris? We think not. In 1 Wigmore, Evidence, 382, 383, it is said in discussing the act of a spoiler, quoting from the opinion in McReynolds v. McCord, 6 Watts, 288, 290, that:

“Before he can be fixed with the character of a spoiler, the purport of the paper must be proved to have been what it is surmised to have been. ’ ’

It follows, therefore, that all the rejected testimony taken together does not tend to prove the existence of the alleged second will revoking the one which was admitted to probate. It is suggested, however, that when the court rejects the first link in a chain of proposed proof, it is not necessary to proceed step by step offering every link and excepting to its rejection; so here, the rejection of testimony that the lost document bore such signatures of testator and witnesses as a will must have, made it unnecessary to proceed further in order to save the point. It is doubtless that the offer should not be full enough in any case not only to indicate in outline what the full chain of proof would be but to embrace an actual tender of some testimony leading unequivocally in that direction. Be this as it may, the offers here were manifestly intended to cover all the facts in the entire chain of proof proposed. They may therefore be considered as we have considered them, in ascertaining whether prejudicial error was committed in the rejection of this evidence.

On the subject of admissibility of evidence our brother Marvin dissents from this opinion from the judgment of the court.

The judgment below is affirmed.

Winch, J., concurs.

Marvin, J., dissents.


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    DEEDS — DESCENT AND DISTRIBUTION
    [Cuyahoga (8th) Circuit Court,
    March 16, 1908.]
    Winch, Henry and Marvin, JJ.
    J. C. Lower, Admr. v. Nancy Gardner et al.
    1. Property Conveyed by Husband to Trustee and by Trustee to Wife Not Ancestral.
    When a husband conveys real estate to a trustee to hold for the benefit of the wife of the grantor and the trustee upon the same date and for a nominal consideration conveys the property to the wife without describing himself as trustee, the property so conveyed to the wife is acquired by her by purchase and not by deed of gift.
    2. Deed by Insane Person Voidable.
    A deed of conveyance made by a person of unsound mind is voidable only and not void.
    3. Conveyance by Deceased Insane Person may be Ratified by Husband as Heir.
    When the husband who is the only heir of a deceased insane wife, places on record a deed of conveyance from her to him he thereby ratifies such conveyance.
    Appeal.
   HENRY, J.

This action below was brought by the plaintiff as administrator of the estate of Malcolm D. McBride, deceased, for authority to sell lands of said decedent to pay debts owing by his estate.

The facts are as follows: On October 13, 1871, James Brown, the first husband of Emiline McBride, conveyed the land in question to one Charles M. Safford, trustee, upon the trust expressed in said deed that he hold said land for his (Brown’s) wife. On the same day the grantee made a deed of the same land to his cestui que trust, not however, describing or signing himself as trustee in said deed.

Thereafter, James Brown died intestate and without blood relatives,, and his widow, Emiline, married Malcolm McBride, to whom, on August 4, 1896, she made a deed of the same property. It is claimed that she was then insane. She died intestate, November 23, 1896, and the deed to her husband which meanwhile had been held in escrow by his attorney, was by him recorded five days later. Malcolm McBride died intestate in October, 1906.

The question arises between the next of kin of Emiline McBride and those of Malcolm McBride respectively, and turns largely upon the applicability of Sec. 4162 R. S. (Sec. 8577 G-. C.)

As we view the law, Emiline Brown acquired her title to the land by purchase and not by descent. The deeds from her husband to the trustee and from the trustee to her were both expressed to be given for a valuable, albeit nominal, consideration. The deed from the trustee to her, although it did hot describe the trustee as such, and although it may have been given in breach of the strict terms of the trust, expressed in James Brown’s deed to him, was nevertheless sufficient to give the legal title, as by purchase, to Emiline Brown. See 2 Jones, Law of Real Property in Conveyancing, 1058.

If her equitable estate in the same property was limited in duration to the.term of her natural life by virtue of the provision creating the trust in the deed from her husband to the trustee, the equitable estate in remainder was in her husband as creator of the trust and upon his death such equitable estate passed to his widow and became merged with the legal title which she already had.

Having thus a legal title by purchase which authorized her to convey an estate in fee simple, she made a deed thereof to her second husband, Malcolm McBride, as already stated, under circumstances which her next of kin, parties defendant here, now offer to show, render such conveyance void, on account of the grantor’s insanity and the grantee’s undue influence.

We think this evidence must be excluded, because at the time such conveyance was made the said defendants, as grantor’s next of kin, had no vested interest whatever in the property and threfore no footing existed on which they could be heard to complain of or avoid any conveyance which the grantor might make. Nor can they now be heard in that behalf, unless the conveyance from Mrs. McBride to her husband was absolutely void. A deed of conveyance made by a person of unsound mind is, however, not absolutely void, but merely voidable. See 1 Jones, Law of Real Property in Conveyancing, 63.

Malcolm McBride was not only the grantee but the only heir of his wife. By putting the deed in question on record after her death he affirmatively elected to take the property not by inheritance but by purchase. As the heir of his wife he was the only person having any right to challenge the validity of his wife’s deed, and instead of challenging it, he affirmed it. See 1 Jones, Law of Real Property in Conveyancing, 64.

It follows from the views thus expressed that neither Emiline Brown in relation to her first husband whom she survived, nor Malcolm McBride, in relation to the same woman his wife, whom he survived, can properly be described with regard to the acquisition of this property, in the language of Section 4162, Revised Statutes; as the relief of a deceased husband or wife dying intestate and without issue and possessed of any real estate or personal property which came to such intestate from any former deceased husband or wife, by deed or gift, devise or bequest, or under the provisions of Sec. 4159 R. S. (Sec. 8574 G. C.)

The supposed rights of the defendants who are next of kin of Emiline McBride, depending as they do upon the application of the facts of this case of said Sec. 4162 (8577), are without foundation, because the section does not apply.

The plaintiff may take a decree in accordance with this opinion.

Winch and Marvin, JJ., concur.


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    DAMAGES — INFANTS—PLEADING—TRIAL
    [Cuyahoga (8th) Circuit Court,
    March 16, 1908.]
    Winch, Henry and Marvin, JJ.
    Mrs. Loren Tuttle v. Louise Furi, Prochere Ami.
    1. Defects in Title and Verification of Petition Waived by Answer.
    When defendant files an answer she thereby waives any formal defects in the petition such as failure to use her Christian name in the caption or the proper verification of the petition.
    2. Objection to Introduction of Any Evidence for Insufficiency of Petition.
    Objection to the introduction of any evidence on the ground that the petition does not state a cause of action does not operate as an objection to evidence in support of an allegation in the petition which might have been eliminated from the petition by motion.
    3. Statutes Authorizing Suits for Infants by Next Friend, Constitutional.
    Sections 4998 R. S. et seq. (Secs. 7477 G. C. et seq.), providing that actions may be brought on behalf of án infant by its next friend are constitutional even though such next friend has not been designated or appointed by the infant or the court and is not responsible financially.
    4. Damages in Suit by Next Friend for Injury to Infant.
    Damages which may be recovered on behalf of an infant in an action by its next friend may not include' care and medical attendance or other items for which the parent is responsible.
    5. When Damages Erroneously Allowed not Cured by Remittitur.
    When the court has erroneously permitted the jury to include certain items of damages in their verdict the error is not cured by a remittitur when there is nothing to show that the amount remitted was the amount which the jury may have awarded because of those items.
    Error.
    O. J. Horn and Ralph, R. Snow, for plaintiff in error.
   HENRY, J.

By this proceeding in error, the plaintiff in error, Mrs. Tuttle, who was defendant below, seeks a reversal of the judgment for $250 recovered against her by the defendant in error, an infant suing by her next friend, as damages sustained by said infant in consequence of having been bitten July 3, 1905, by a dog alleged to have been owned or harbored by the plaintiff in error.

The first error assigned is upon the court’s denial of the motion, made by the defendant below, at the outset of the trial, to exclude all evidence offered in support of the petition, upon the grounds, first, that it does not state facts sufficient to constitute a cause of action, and secondly, that the next friend is without authority to bring the action.

Within the scope of the first ground, objections to the caption and to the verification of the petition are sought to be included. So far as such defects are merely formal, they were of course waived by the defendant below, when she answered and went to trial, without having first challenged them by motion. Her Christian name undoubtedly should have been used in the caption, in place of the expression “Mrs. Loren Tuttle” but her objection to it was made too late. The verification, we think, was properly made by the next friend, rather than by the infant, according to the provisions of Sec. 5109 R. S. (Sec. 11358 G-. C.), and particularly paragraph 2 thereof, the agency for that purpose and for all purposes connected with the prosecution of an infant’s suit, being derived not indeed from any appointment by, or agreement with, the infant, but by virtue of the statutory provision of Sec. 4998 R. S. et seq. (Sec. 7477 G. C. et seq.) But be this as it may, the objection to the verification was likewise made too late. Kerns v. Roberts, 2 Dec. Re. 537 (3 West. L. M., 604); Simmons v. Brown, 4 Dec. Re. 29 (Cleve. L. Rec., 33).

It is further urged, however, that the legislature could not constitutionally authorize the practice of planting suits on behalf of infants by persons as next friends under no appointment by such infants, or by any court; neither can the plaintiff’s just liability to judgment for costs in ease of defeat be shifted by the legislature from the shoulders of an infant plaintiff to those of a possibly irresponsible next friend. Reference is made to the bill of rights, but we find nothing therein to support these contentions, and the practice of suing by proehein ami is immemorial and well approved at common law and under both the old and the new Constitutions in 'this state Hanly v. Levin, 5 Ohio 227, 239; Massie v. Long, 2 Ohio 287; Pennsylvania Co. v. Gallagher, 40 Ohio St. 637 [48 Am. Rep. 689]. Moreover See. 4998 R. S. (Sec. 7477 G. C. el seq.), expressly provides that the court may dismiss an infant’s action brought by next friend, if it is not for the benefit of the infant, or it may substitute another person as next friend, or the infant’s legal guardian. It is no objection to this form of procedure that neither the infant nor its next friend has authority to bind it by a contract of settlement, if such be the law. The authority to enter into an accord is not a prerequisite to an iñf ant’s right to sue. The authority of the next friend in this case is sufficiently alleged in the petition, by the averment that ‘ ‘ Plantiff is an infant eleven years of age and brings this action by Katherine Furi, her next friend,'’ ’ it is sufficiently proved by the evidence that Katherine Furi is the infant’s mother, and there is absolutely nothing in the record tó rebut the presumption that the action was brought and throughout maintained for the infant’s benefit.

Sufficient facts to constitute a cause of action are set forth in the petition’s averments that plaintiff was, without warning to or provocation by her, bitten by a fierce and dangerous dog which the defendant owned and kept and, knowing its disposition, negligently allowed to run at large. We fail to see how the facts constituting the duty, the breach thereof, and the consequent injury to plaintiff could be stated so as to conform more nearly with the requirement of the first paragraph of Sec. 5057 R. S. (Sec. 11305 G. C.), that the petition shall contain “A statement of the facts constituting the cause of action in ordinary and concise language. ’ ’ The averments that the occurrence was “without warning or provocation,” so far as she was concerned, is the full equivalent of the expression “without fault on her part,” the absence of which from the petition is complained of.

The further criticism of the petition in connection with the motion to exclude all evidence in support thereof, becomes, of course, irrelevant upon the determination thus reached that its averments of fact suffice to constitute a cause of action. No motion was interposed to reform the petition in respect to any alleged indefiniteness or redundancy of its allegations, and defects of that character, if any, were therefore waived.

It is claimed, however that the objection to the introduction of any evidence under the petition operated to save all questions concerning the admissibility of evidence thereafter received. This is not true where the petition states, however, in artificially, a cause of action. In such case, specific objection must be made to each particular item of evidence adduced in support of averments which have no proper place in the petition, but which have been suffered to remain in it for want of any motion made to expunge them.

On the other hand, though timely objection be made, it is by no means true that evidence is admissible only of such facts as are specifically pleaded, or expressly put in issue. On the contrary, the evidence upon the trial of cases usually consists chiefly of testimony of other facts from which those facts may be inferred. Hence when the petition introduces its statement of facts with the qualification “at all times hereinafter mentioned,” an allegation for example, of the defendant’s knowledge of the vicious disposition of her dog, 'opens the door to proof of antecedent facts showing the mode of her acquisition of such knowledge. She had that knowledge at the times mentioned in the petition because the knowledge had been brought home to her by facts which had transpired on some former occasion. Hence the evidence of her dog having previously bitten some other child, to her knowledge, is admissible notwithstanding that it antedates the times expressly mentioned in the petition.

It is further complained that the verdict and judgment are not supported by sufficient evidence and are contrary to the weight of the evidence. The alleged conflicts in the testimony concerning the description and identity of the dog in question, as well as of divers minor matters, are not different in kind nor greatly different in extent from like discrepancies in most cases. The verdict of the jury is the means provided by law for settling disputed questions of fact and we can not say here that the solution of these questions implied in the verdict in this case is unwarranted by the evidence.

We have, however, paused somewhat on the question whether the bill of exceptions discloses sufficient testimony as to plaintiff in error’s ownership of the dog to warrant the submission of the ease to the jury, and more especially to warrant the refusal to grant a new trial for want of sufficient evidence in that behalf to support the verdict for the plaintiff below.

At page 52, plaintiff’s mother and next friend, testifies:

“When Louise got in bed I thought it was Kidd’s dog, but after I found out it wasn’t Kidd’s dog. After we found out that wasn’t Mr. Kidd’s dog, we found out it was Tuttle’s dog.”

The trial court excluded the last phrase from the jury and the witness continued:

“After this we found out. She said that was Mrs. Tuttle’s dog. I went to Mrs. Tuttle and brought her over, and she saw the circumstances the way that girl was bitten. Then Mrs. Tuttle says, ‘It’s not so bad after all.’ ”

The court withdrew from the jury the statement that it was Mrs. Tuttle’s dog, and the witness again continued:

“Mrs. Tuttle told me then I need not be afraid of the dog, he’s alright. He gets good care and fresh water every day. ’ ’

At page 69 et seq., Clarence Keehl, another child previously bitten by a dog alleged to be the same one, testifies lie had seen the dog around Mrs. Tuttle’s yard by the path, “right in front of her house. ’ ’

At page 92, Mrs. Keehl, the mother of Clarence, testifies, that after her boy was bitten, she and her husband went to Mrs. Tuttle’s house and talked with her, and her husband talked with her at the gate “and told her that there would have to be something done about the dog. She would have to kill it, and she said they wouldn’t, it wasn’t a bad enough bite, it had only scratched the child.” She further testifies that she saw this dog at Mrs. Tuttle’s house lying on her porch.

At page 132, Pearl Keehl, sister of Clarence, testifies that when she and her brother were going past Mrs. Tuttle’s house a dog ran out and bit him and that she had previously seen the dog in the yard and on the porch where Mrs. Tuttle lived.

While it is by no means conclusively shown that the dog which bit the Keehl child was the same one that bit plaintiff below, there is enough here shown to make a question for the jury as to whether Mrs. Tuttle owned or harbored the dog which bit the plaintiff and whether she had any knowledge of its vicious disposition. We think the jury were warranted, moreover, in finding as they manifestly did find upon these issues.

It is further complained that the court misdirected the jury, but upon examination of the charge we find it correct in every particular except one paragraph on page 161 of the bill as follows:

“By way of compensatory damages you may include reasonable expenses incurred for care and medical attendance made necessary by the injury; also loss of time that may have been sustained by reason of said injuries; also the pain and anguish the child may have suffered by reason of such injuries, including pain of body, anguish of mind by reason of fear, in any, and altogether such a sum as shall compensate for the injury received, and only such. ’ ’

While it is true that care and medical attendance under the circumstances were necessaries, they were not such necessaries as an infant is liable for if when they were supplied the infant lived with its parents, or either of them, and at the charge of such parent or parents.

In Swan’s Treatise, 21st Ed., p. 26, it is said:

“If the infant live with its father or guardian, and their care and protection are duly exercised, he can not bind himself for necessaries.”

A kindred principle was laid down in Toledo v. Duffy, 7 Circ. Dec. 113 (13 R. 482), where it was held that the husband and not the wife was entitled to damages in respect of physician’s charges incurred for treatment of negligent injuries to the wife, and a judgment in her favor was reversed because the court had erroneously charged the jury that they might include this element of damages in their verdict, if they found for her. See also Mt. Adams & E. P. Ry. v. Wysong, 6 Circ. Dec. 28 (8 R. 211).

In the case before us, however, the petition alleges that an expense of $26 was incurred for medicines and medical attendance, and the transcript shows that remittitur of $25 from the original amount of the verdict was required by the trial court, in disposing of the motion for a new trial, and the same was made accordingly by the plaintiff.

We have no means of knowing whether or not this remittitur was made because under the charge the jury might erroneously have included these items amounting to $26 in their verdict. But whether so or not, the remittitur can not cure the error in the charge in permitting the plaintiff to recover reasonable expenses incurred for ‘ ‘ care ’ ’ made necessary by the injury.

Care in the charge is distinguished from medical attendance and the only care disclosed by the record, other than that by the physician, is the care given by plaintiff’s mother and next friend. For such care, as well as for medical attendance, the mother, if the head of the household, might well recover Cincinnati Omnibus Co. v. Kuhnell, 9 Dec. Re. 197 (11 W. L. B., 189), and the .same is true of the child’s loss of time which the court said the jury might include as an element of damage sustained by it.

There was no evidence in this case of emancipation of the child’s parents. We did think that perhaps the child might have suffered damage from loss of time which it would otherwise have spent in school acquiring an education, but there is nothing in the record to show that it would have gone to school during the period when it was laid up by reason of its injuries, and this period comprised the three summer months when school is generally not in session.

For error in the charge as thus pointed out and for no other error in the record, the judgment below is reversed and the cause remanded.

Winch and Marvin, JJ., concur.


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    CORPORATIONS
    [Cuyahoga (8th) Circuit Court,
    March 17, 1908.]
    Winch, Henry and Marvin, JJ.
    August Becker et al v. Germania Hall Co. et al.
    1. Dissolution of Corporation for Failure to Discharge Charter' Object.
    To justify the dissolution of a) corporation on the ground that it has never discharged its charter objects, a plain violation of its charter must be proven.
    2. Failure to Make Pecuniary Profits not Deviation of Charter Object.
    The fact that a corporation organized under Sec. 3262 R. S. (Sec. 8698 G. C.), as a corporation for profit, has never been so managed as to attempt to make a pecuniary profit for its stockholders, may not in itself be a deviation from its corporate object.
    3. Corporation Organized for Recreation Owning Building and Renting Part not Real Estate Corporation.
    A corporation organized for “musical, artistic and gymnastic purposes” which owns a building where societies meet for those purposes, but part of which is rented, does not because of such ownership become a real estate corporation.
    Error.

      Smith, Taft & Arter, for plaintiffs in error.

      Squire, Sanders & Dempsey, for defendants in error.
   HENRY, J.

The action below was begun under favor of Sec. 5651 R. S. et seq. (Sec. 11938 G. C. et seq.), by more than one-third of the stockholders of the Germania Hall Co., to dissolve said corporation and distribute its assets. This relief was denied upon the ground that the evidence failed to disclose that the corporate objects of the defendant were no longer being fulfilled.

The facts as shown are, that certain German people of Cleveland desiring to provide a suitable place of meeting for various German societies to which they belonged, organized the defendant corporation under the laws of Ohio for musical, gymnastic, and artistic purposes, etc., and became subscribers severally to the capital stock thereof. With the capital thus obtained the corporation erected a building known as Germania Hall, containing places of meeting, which thereupon and ever since have been rented to and used by various societies devoted to the objects named, in accordance with the purpose of the promoters. Incidentally parts of the building, and at times the meeting places aforesaid, have been used for other philanthropic, as well as for business purposes. Among other things a saloon has been maintained upon the premises by lessees of the defendant, but in the main the building has been used as was originally contemplated, and broadly speaking, in accordance with the purpose specified in the charter. The corporation although organized with a capital stock has not been administered as a corporation for profit, and the only dividends that have been declared have in distribution been largely offset by sums due as rent from the lessee societies, which, or the members of which, were the principal owners of the defendant’s stock.

In the lapse of years the character of the neighborhood in which this building is located has greatly changed, so that although the value of the real estate became enhanced the suitability of the location as a meeting place for the societies in question was much impaired. Several of these societies have provided themselves with independent meeting places elsewhere, and one of the principal societies concerned, which apparently controls a majority interest in the stock of the defendant, desired to sell this property and use the proceeds in' erecting a building to be devoted to the same purpose in a more suitable location in this city. Accordingly the building and site owned by the defendant were sold, and the proceeds of said sale are now in the corporate treasury of the defendant. The plaintiff stockholders, owning as aforesaid, more than one-third of the defendant’s capital stock, dissent from the program above outlined and desire instead a dissolution of the corporation and distribution of its assets. It is plain, however, from the decided cases cited upon the hearing that the mere pecuniary interest or preference of the plaintiff stockholders can not be decisive of their right to the relief prayed for. It is admitted that the corporation is abundantly solvent, but it is claimed that it has never properly discharged its charter objects. We do not think that the facts as disclosed by the evidence justify this inference, for as already stated, the activities which the corporation has facilitated are, broadly speaking, within the scope of the objects originally named. To justify a dissolution of the corporation by judicial decree a plain violation of the charter in this behalf must be proved. It was suggested, however, upon the hearing, that inasmuch as the defendant was organized with a capital stock in the form necessary to corporations organized for profit, and inasmuch as the corporation had never been administered for the purpose of profit it might be said that the main corporate object had never been fulfilled or sought to be fulfilled; but a reference to Section 3262 R. S. (Sec. 8698 G-. C.), as construed in Snyder v. Chamber of Commerce, 53 Ohio St. 1 [41 N. E. 33], shows that our laws contemplate the lawful organization of an eleemosynary corporation with a capital stock. It is urged further that whatever may have been true in the past as to the performance by the defendant of its corporate objects, yet upon the sale of the building and site which it provided for the accomplishment of those objects, and the reduction of its assets to money, it must be deemed now to have abandoned those objects, particularly as its minutes show a willingness to pay out of the proceeds of such sale the par value of the shares held by dissenting stockholders who wish to retire from their connection with the corporation. Whether or not this part of the defendant’s program was lawful, it was not acted upon, because the book value of the shares is nearly double the par value, so that the proposition was not and is not acceptable to the plaintiffs. There is nothing in the charter restricting the defendant to the occupancy or ownership of the property thus disposed of, and it can not be assumed that the corporate objects are capable of being fulfilled only in the location originally selected. The admitted purpose of the defendant to secure a more suitable property indicates rather that the corporate objects will continue to be discharged.

It is urged further that the defendant is and always has been substantially a real estate corporation, which, at the time it was organized was not within the purview of our corporation laws, and even now is permitted only to corporations having a limited life.

But we hold that the ownership of real estate though convenient and perhaps necessary to the realization of the general aims and charter purposes of this defendant, is nevertheless but an incident of the main objects as set forth in the charter. In short, we fail to find any sufficient proof of a failure by the defendant to perform its declared corporate objects, nor do we discover any error in the record before us. The judgment is, therefore, affirmed.

"Winch and Marvin, JJ., concur.


author: MARVIN, J.

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    EXECUTORS AND ADMINISTRATORS — -TAXATION
    [Cuyahoga (8th) Circuit Court,
    March 19, 1906.]
    Marvin, Winch and Henry, JJ.
    Joseph C. Shields, Treas. v. Rosa S. Matthew, Admx.
    Surety Bond Given to Secure Payment of Bequests Not Taxable.
    When a testator makes a bequest payable in monthly installments and the executors of his will in order to settle up his estate set aside certain real estate from the rentals of which the monthly installments are to be paid and execute a bond which is deposited with the probate court securing the payment of the bequest, such bond is not subject to taxation.
    Error.
   MARVIN, J.

Julia A. Stone was the widow of Amasa Stone, deceased, who died in 1883.

By the third item of the will of said Amasa a bequest of $25,000 per annum, to be paid monthly, is made to said Julia. By the thirteenth item of the same will it is provided as follows, “In event that my estate shall close up to the value of $3,500,000 including $500,000 from which the annuity of $25,000 annually to my wife shall accrue, ’ ’ etc. Clearly the testator contemplated the setting apart of $500,000 from the rest of his estate, as the source from which the payments should be made to his widow.

It is settled, by the decision of Chisholm v. Shields, 67 Ohio St., 374 [66 N. E. 93], that this bequest is not taxable.

It is settled by Secs. 2736, 2737 and 2739 R. S. (Secs. 5376 G. C. et seq.) that annuities are taxable.

The bond sought in this action to be taxed was given on October 14, 1886. It was accepted by Mrs. Stone as a means of securing to her the bequest made in the third item of her husband’s will. It was deposited with the probate judge and was executed in accordance with his suggestions and as a means of closing up the settlement of Mr. Stone’s estate so far as the court was concerned.

Prior to the giving of this bond the executors of the will of Mr. Stone had set apart real estate of the value of $500,000 from the rents of which the monthly payments were being made to Mrs. Stone, an agent, Mr. Raymond, having charge of the property and out of the rents paying Mrs. Stone her monthly installments. This was continued up to the time of Mrs. Stone’s death in the same manner after the bond was executed. It was intended that it should so continue.

The deposit of the bond with the probate judge did not make it, nor is it to be treated, or considered in any wise as the bond provided by Sec. 5997 R. S. (Sec. 10608 G. C. et seq.) to be given by residuary legatees.

The testimony of Mr. John Hay and of Mr. S. A. Raymond was admitted, not to vary the terms, but to show the circumstances under which it was given, and the use of it. For that purpose the testimony was competent.

Copy of lease made in 1893, by Mr. and Mrs. Hay and Mr. and Mrs. Mather was admitted, though it is doubtful if such lease was competent evidence; it was not prejudicial to the plaintiff in error.

It is manifest from the evidence that after the giving of the bond, as well as before, the payments were, and were to be made to Mrs. Stone from the income of the $500,000 worth of real estate. There was no intention or thought of resorting to the bond, unless there should be a deficit from the rents, which there never was. Mrs. Stone was protected by the bond. She was by that instrument secured in the payments provided for her in the will, but she was to receive, as she had received, her income from their rents.

To hold that this simple change in the evidence of Mrs. Stone’s claim should subject this provision to taxation, would be a hardship and would seem to be an injustice. The reason for the decision in the Chisholm case, in great measure is applicable to this case, and the judgment is affirmed.

Winch and Henry, JJ., concur.


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    BILLS OF EXCEPTIONS
    [Cuyahoga (8th) Circuit Court,
    March 19, 1906.]
    Marvin, Winch and Henry, JJ.
    H. Taylor et al v. Joseph Bychick.
    Bills of Exceptions Must Show Trial Judge Settled, or Allowed it.
    When the trial judge signs a certificate that a hill of exceptions has been prepared, submitted to the attorney for the appellee and to the court for signature within the required time, but nowhere says that he has allowed it or settled it, there is no hill of exceptions which a reviewing court can consider.
    Error.
   MARVIN, J.

The complaint made here by the plaintiff in error, is that the facts did not warrant the judgment entered by the common pleas court. This can only be determined by us upon a bill of exceptions setting forth all the facts. Such bill of exceptions must be in conformity with the statute (Section 5301), which provides that the trial judge, after correcting the bill of exceptions, if necessary, shall allow and sign such bill. Section 5302, Revised Statutes, relieves from the necessity of having the journal show the allowance of the bill, and provides that the signature of the judge “allowing, settling and signing such bill shall be sufficient evidence of such fact. ’ ’

The judge before whom this case was tried has not signed anything showing that he has either settled or allowed any bill of exceptions. What he signed is this:

“This bill of exceptions was presented to the attorney for the plaintiff by defendant’s attorney, on the 10th day of March, 1906, and upon the- day of March, 1906, being within the time allowed by the court, it was presented to said court and the court asked to allow and sign the same, that the same may be made a part of the-,” etc.

What the judge signed is a certificate that he has been asked to allow and sign a bill of exceptions. He nowhere says that he has allowed it, and that he has settled it, or anything else. We have therefore no bill of exceptions which we can consider. There is therefore nothing to show upon what evidence the court acted, and the judgment is affirmed.

Winch and Henry, JJ., concur.