author: JONES, O. B., J.

text:
    ADVANCEMENTS — EXECUTORS AND ADMINISTRATORS.
    [Hamilton (1st) Court of Appeals,
    December 13, 1913.]
    Swing, Jones and Jones, JJ.
    Aaron A. Ferris, Executor v. James Goodin et al.
    1. Receipting for Draft Endorsed as Charge Upon Expectancy In Testatrix's Estate Evidences Advancement.
    Endorsement of a draft by testatrix to her sister and receipt of the same by the latter as a charge on account of her future interest in testatrix’s estate, evidence an advancement and not a gift, notwithstanding the proceeds were for the benefit of the daughter of endorsee, a niece of testatrix.
    2. Parol Evidence Incompetent to Explain Written Receipt of Draft Charging Drawee’s Expectancy as Gift to Her Daughter.
    A written receipt of draft as a charge upon her expectancy in testatrix’s estate cannot be disregarded or explained by parol evidence tending to show that the money was intended as a gift to the daughter of drawee.

      Aaron A. Ferris, Rufus B. Smith and Bruce & Bruce, for plaintiff.

      John C. Healy, for defendants.
   JONES, O. B., J.

This is a proceeding brought by the executor and trustee under the will of Elizabeth Zinn, under Sec. 10857 G. C., asking the direction and judgment of the court as to whether the sum of $2,000 should be treated as a gift to Virginia G. Ellard, a sister of said deceased, or as an advancement to be charged against her interest in said estate.

The will of said Elizabeth Zinn was made August 10, 1906, and provided for certain legacies and trusts, dividing the residue of the estate into five equal parts, one of which was given to a brother, one to a sister, and the other shares in trust for the benefit of another sister, certain nieces and nephews and other relatives. Mrs. Zinn died February 28, 1908.

It is claimed by the executor and trustee and on behalf of certain legatees and beneficiaries under the will that the share of Mrs. Ellard should be charged with $2,000 which was paid by New York draft drawn by the Merchants’ National Bank, dated May 20, 1907, and payable to the order of Mrs. Elizabeth Zinn. This draft was procured for Mrs. Zinn by A. A. Perris, who was then acting as her attorney and managing her business affairs, and it was endorsed by Mrs. Zinn to the order of Virginia G. Ellard, and endorsed by Mrs. Ellard to the order of Mary E. 'Hoffman, her daughter, who collected the money thereon.

It appears that this draft was procured by Mr. Perris and was sent by him with a letter to Mrs. Zinn, dated May 20, 1907, in which he advised her not to endorse the draft in blank but tq make it payable either to Mrs. Ellard or to Mrs. Hoffman as she might prefer. In this letter he also transmitted to Mrs. Zinn the form of a note which he explained in the following language:

“Also find enclosed the form of a note which should be signed by Mrs. Ellard, as to money is really advanced for her. It is a matter of business, in the sense of advancing the money at least, and therefore you should have written evidence that the money has been advanced, and a note is the best form in which to have the acknowledgment.”

Mrs. Zinn after receiving this draft from her attorney endorsed it as above stated and delivered it to Mrs. Ellard, requesting her to sign the note. Mrs. Ellard retained .the draft but declined to sign the note. Mrs. Zinn on the following day reported to her attorney the refusal of Mrs. Ellard to sign the note and authorized him to stop payment on the draft until some satisfactory acknowledgment was received from Mrs. Ellard of the money so paid.

Under this direction and authority Mr. Ferris, acting for Mrs. Zinn, stopped payment of the draft and wrote Mrs. Ellard advising her of this fact and enclosed in his letter a blank form of receipt, stating in his letter that “the draft will not be paid until there is some written acknowledgment from you of the receipt of money,” and saying:

“I enclose herewith a blank form of receipt. You can, if you please, fill it out yourself giving the form of it, it being only necessary that you should express in some words that you have received the $2,000. "When such receipt is delivered to Mrs. Zinn and she notifies me to that effect I will countermand the order stopping payment on the draft.”

Mrs. Ellard then filled up and returned to Mr. Ferris her receipt in the following words:

“Cincinnati, May 23, 1907.
“Received of my sister Elizabeth Zinn her draft for $2,-000, on account of my future interest in her estate.
“(Signed) Virginia G. Ellard.”

The attorney after receiving this receipt from Mrs. Ellard advised Mrs. Zinn that he had satisfactory acknowledgment from her, and thereupon under Mrs. Zinn’s authority countermanded the order stopping payment on the draft, and the money was paid.

The testimony was received on behalf of Mrs. Ellard, subject to the objection and exception of the other side, tending to show a gift by Mrs. Zinn to her niece, Mrs. Hoffman, who was the daughter of Mrs. Ellard, of this $2,000 to be used by her in the purchase of a house.

It is a well settled principle of law that parol evidence can only be admitted to set aside such an instrument as the receipt made by Mrs. Ellard upon the ground of fraud or mistake. No such claim is made by her here in her pleadings. She seeks only to explain the receipt, or to have it disregarded by the introduction of evidence tending to show that the money was not in any way intended for her but was to be a gift to her daughter. This parol evidence can not be received to contradict the written instrument. Jackson v. Ely, 57 Ohio St. 450 [49 N. E. Rep. 792]; Cassilly v. Cassilly, 57 Ohio St. 582.

Indeed even if this evidence might be considered by the court, we do not feel that it would be sufficient to cause the delivering of the draft to Mrs. Ellard to be construed as an outright gift to Mrs. Hoffman which could in no way affect the ultimate share of her mother. Especially so when we consider the manner in which the draft was endorsed and the form of the receipt.

The effort of the defense has been to show that the idea of making this payment a charge upon Mrs. Ellard’s share was one originating solely with Mrs. Zinn’s attorney. But both Mrs. Zinn and Mrs. Ellard were clearly advised of it. Mrs. Zinn acted upon her attorney’s advice, and even though she did not herself see the receipt as finally written she was informed of its effect and was satisfied. And Mrs. Ellard, although she refused to sign the note, voluntarily made out and signed the receipt and did not undertake to appeal from Mr. Ferris to Mrs. Zinn to have the matter put in what she now claims to be its true character. So having agreed to the transaction as it was carried out, she must now be bound by it.

The general rule as to ademption is that it is wholly a matter of the intention of the testator. Where a legacy is given by a testator to a child or to one to whom he stands in loco parentis, a subsequent payment made to such child or person will raise a presumption of an intention on the part of the testator to adeem the legacy, while such a payment made to a person not in the relation named will not raise such a presumption, but the intention to charge the payment against the legacy must then be proved (40 Cyc. 1915, and cases cited).

In the opinion of the court, however, the intention of the parties is conclusively shown by the manner of the payment , and the form of the receipt given for it by Mrs. Ellard, so long as that receipt is not set aside.

Under the common law the mere expectancy or charge of succeeding to an estate is held not to be the subject of release or assignment, Needles v. Needles, 7 Ohio St. 432 [70 Am. Dec. 85], but that rule has been relaxed in equity, Rosenthal v. Mayhugh, 33 Ohio St. 168. And an heir apparent or one who is named as a legatee under the will, who has received a valuable consideration from the ancestor or testator under an agreement by him that same be charged against his future interest in the estate, is held to his contract by way of estoppel.

A case directly in point is that of Goodson v. Goodson, 31 O. C. C. 627 (12 N. S. 158).

Other cases where such estoppel is held are: Low v. Low, 77 Me. 37; Callicott v. Callicott, 43 So. Rep. 616 (Miss.); Vreeland v. Vreeland, 65 N. J. Eq. 668 [56 Atl. Rep. 1089]; Garcelon’s Estate. In re, 104 Cal. 570 [38 Pac. Rep. 414; 32 L. R. A. 595; 43 Am. St. Rep. 134].

In the opinion of the court, therefore, it is the duty of the executor in the distribution of said estate to charge against the share of Mrs. Ellard the sum of $2,000. Decree accordingly.

Swing and Jones, E. H., JJ., concur.


source: Caselaw Access Project

author: VOORHEES, J.

license: Public Domain

text:
    DEDICATION — ADVERSE POSSESSION.
    [Licking (5th) Court of Appeals,
    May, 1914.]
    Voorhees, Shields and Powell, JJ.

      Newark (City) v. Harriet B. Crane et al. Newark (City) v. James W. Burnette et al.
    1. Land Dedicated for a Specific Use can not be Diverted to Other Uses.
    Where an owner dedicates land to the public for a particular use, specifying the use and imposing restrictions for the dedication as expressed the land can not be applied to any other use or the • restrictions disregarded.
    2. Municipality can not Hold as Trustee and Adversely.
    A city holding land as trustee for the use of the public as a cemetery can not, at the same time, hold it adversely and for its own benefit.
    3. Fee Remains in Heirs of Dedicator and upon Abandonment of Original Purpose Reverts.
    Where land was dedicated to the town of Newark for a burying ground, and the city council of said town subsequently passed an ordinance prohibiting any further burials in the land so dedicated and ordering the removal of the remains buried therein, the ordinance was a valid exercise of the police p'ower of the city and operated as a complete abandonment of the dedicated use and the land would revert to the original owner, or his heirs. When the property is no longer desired, or the purpose for which it was dedicated attainable, it will revert to the dedicator.
    4. Upon Abandonment by a Town of the Public Purpose of the Dedication of the Land, the Property Reverts to the Original Donor.
    Upon abandonment by 'a town of the public purpose of the dedication of the land, the property reverts to the original donor.
    5. City Abandoning Dedicated Use Denied Retention for Other Purposes.
    Where a city or town has by its own act abandoned the use and violated the conditions specified in a deed, it can not retain the grounds for any other purpose.
    6. Adverse Possession of Dedicated Land Cannot Arise from Permissive Use.
    That a city may acquire title to land under the statute of limitations, by such adverse possession as is necessary to convey such title to land is not doubted; but the very foundation elements of adverse possession are wanting when the only possession is permissive possession for a dedicated use and while the city holds control of these premises as a graveyard the defendant could not take possession.
    7. Fee not Conveyed by Common Law Dedication.
    A common law dedication does not convey a fee.
    8. Fee of Land Dedicated for Cemetery Uses Remains in Patentee and Heirs.
    In the Burnette case the fee in the land never passed out of the heirs of the patentee, but was subject only to the use of the public as a cemetery, and where the city abandoned that use the premises revert to the descendants of the patentee free from the dedicated use. Such dedication, if there were any dedication, was a common law dedication, and its use would be merely permissive, and not adverse and the town or city of Newark would have no title and no other possessory rights; and the use and control of the grounds was not adverse to the dedicated use. In such case its use would not start the statute of limitations. Nothing but an open, notorious, visible, hostile and inconsistent act of possession could have that effect.
    [Syllabus by the court.]
    Error.

      Ralph Norpell, city solicitor, and Fitzgibbon, Montgomery '& Black, for plaintiff.

      Owen Nash and Craighead & Van Pelt, for defendants.

      Reversed, no op., Newark v. Crane, 91 O. S. 000; 60 Bull. 271.

   VOORHEES, J.

These eases were submitted together.

It will be sufficient in order to present the real issues in this case to state the following facts: ,

In January, 1801, a patent was issued to John Cummings; John Burnette and George W. Burnette, for section four, township two, range twelve, containing 4220 acres of land, and the premises embraced in the controversy in this suit, that is, the graveyard, were a part of said section.

On May 15 and 19, 1814, John and George W. Burnette having died, the heirs of George W. Burnette conveyed their interest in said premises to John N. Cummings and John W. Burnette and Harriet Burnette, heirs of said John Burnette.

On December 6 and 14, 1814, John W. and Harriet Burnette and John N. Cummings, deeded to William C. Sehenck an undivided interest in said land, amounting to a one-third interest in the whole tract. The recitals in this deed and the other deeds mentioned exhibit the chain of title and the amount of their respective shares, and show the relation of the parties and their respective shares in said land.

On June 20, 1817, an amicable partition suit was begun between Cummings, Sehenck and James W. and Harriet Burnette, for the partition of the residue of the lands' which remained unsold. This land included both inlots and outlots in the town of Newark, Ohio. It is not claimed that the lands known as the graveyard were set off to anybody in said partition proceedings. The plat in partition record A, June term, 1817, of the court of common pleas of Licking county, Ohio, page 7, attached to the record on page 9 of the bill of exceptions shows the old graveyard.

The plat on page 7 in the record of said partition suit, is the only one of importance in this ease. This plat shows the shape and boundaries of lot F, which was set off to the Burnettes, and which cornered on the graveyard. This plat also shows the three-cornered strip subsequently deeded to the town of Newark by Crane and wife, in 1848, “for the sole purpose of being used as a burying ground for the use of said town of Newark and for no other purpose whatever.”

In all these conveyances and proceedings the body of the graveyard remained unchanged and undisposed of. Just when the graveyard was originally laid out as such is not disclosed, but it was a graveyard in 1871. It is not contended that it was ever deeded to any person or association for that purpose. The only deed is for the small three-cornered addition made in 1848. It is not contended or claimed that there was any statutory dedication or any proceeding to condemn or appropriate this ground for a graveyard and the right of the public to use it for such purposes arises, if at all, by way of common law dedication, based on the fact that the original owners permitted it to be used for that purpose.

On February 8,1826, the town of Newark was incorporated, and the municipal authorities in November, 1868, prohibited any further burials in this graveyard.

On July 29, 1875, an ordinance was passed by the council of said town, among other things providing for notices to friends to remove the bodies buried' therein by November 1 of that year, and authorizing the cemetery trustees to proceed after that date to have the bodies and tombstones removed.

On November 4, 1575, a resolution was passed referring the matter of removing the remains of parties buried in the old graveyard to a special committee consisting of the cemetery trustees and three citizens, which would indicate that the bodies had not been removed.

On September 20, 1877, a further resolution was adopted by said council, reciting the dilapidated condition of the cemetery, et cetera, and directing the trustees to expend some money to repair and improve the cemetery. These proceedings were reported to the cemetery board and it employed two persons to make a plat of the ground and graves, taking care to preserve the monuments and tombstones, so that the same and the remains might be removed and the ground leveled off. A plat was prepared, beginning with the year 1850, under date of 1878.

On April 14, 1882, the board of education of Newark instituted a proceeding against the trustees of Newark township and the city of Newark and the unknown heirs of Cummings^ Burnette, Crane and Schenck, to condemn the ground known as the old graveyard for a school house site. A jury was impaneled and a verdict returned assessing the value of the premises in three tracts aggregating $7,500. In that proceeding the then solicitor of the city filed what he called an answer, asserting that the city was the real owner.

The heirs of Cummings, Burnette, Crane and Schenck, also filed an answer alleging that they were the owners in fee of the property. The court ordered that when the money was paid in the respective rights thereto should be determined. The board of education never paid in the money and there the matter rested.

In 1888 the picket fence, w'hich had been put up in 1878, was removed and put up in Cedar Hill Cemetery. Instead of removing the gravestones, as had been ordered in 1878, those doing the'work laid them down in the graves and covered them up. One monument still remains standing. How many old graves are still in the ground can not be now definitely known; but the testimony shows that many of these graves and gravestones are very, very old.

In the reply and testimony in the Crane ease it was shown that most of all the burials in the cemetery were before the date of 1848,, and Mr. Yanatta says, “that with no burials since 1860 or 1868, very little can be left of any remains; all or nearly all have necessarily disappeared.”

On September 11, 1905, the council of said city of Newark passed an ordinance selecting these grounds as a site for a proposed municipal hospital.

On March 6, 1906, these suits were brought by the city to quiet its alleged title in fee, claiming, in the Burnette ease, that it has ever since November 20, 1868, been in the open, exclusive, adverse and visible possession of the premises involved in that suit (the Burnette, suit), and has thereby become owner, and in the Crane case claiming ownership under the deed of the date of February 14, 1848. These claims the defendants absolutely deny.

In 1909, while these eases were pending and after the answers had been filed, the plaintiff city entered on the premises, laid cement walks diagonally across the same, built a fountain in the center; laid pipes, and strung electric wires, claiming that the premises had become a common and public park. These structures were put up on the premises for the purpose of improving them as the Sixth street park, as stated in the proceedings of the board of public service by the resolutions of July 6, 15 and 24, 1909. The photographs introduced in evidence tend to show the grounds now to be a park and that the city has completely abandoned the use of these premises as a cemetery.

The facts admitted in the pleadings may be summarized as follows:

In the Crane case:

1. Burials have been prohibited since 1850.

2._ Burials were prohibited by ordinance in 1868.

3. The Crane deed of 1848 contained restrictions as to the use of tbe land, stating that it should be used for the sole purpose of a “burying ground, for the use of said town of Newark, and for no other purpose whatever.”

4. That as early as 1850, Cedar Hill Cemetery was used.

5. That in 1868 and 1875 remains were ordered removed to Cedar Hill.

6. That the school board instituted proceedings in 1882 to appropriate said land for school purposes.

7. That fences around the graveyard were ordered removed in 1888.

8. An ordinance was passed by the council to establish a hospital in 1905.

9. A resolution was passed by the council ordering that the remaining bodies, and the tombstones be removed.

10. A fountain and other structures for a park were erected by the city.

11. Most of the'bodies had been buried in said cemetery prior to 1848.

In the Burnette case:

1. Burials wpre prohibited as early as 1850.

2. Burials were prohibited by ordinance in 1868.

3. The premises were used as a burial place from 1817 to 1868.

4. Cedar Hill was established about 1850 and has ever since been continuously used as a graveyard.

5. Burials in said cemetery in the Burnette land's or premises were prohibited in 1868.

6. All remains and tombstones were ordered removed in 1S75.

7. Proceedings of the board of education to appropriate the premises for school purposes were instituted in 1882, but never compieied.

8. The fences around said cemetery were removed in 1888.

9. Proceedings were had by council to appropriate said premises for a hospital site, but never consummated.

10. A fountain and other structures for a park were erected by the city on the premises.

It is unnecessary to go into detail as to the various acts and proceedings had by the town of Newark with reference to the lands and premises involved in these suits. For the purposes of this opinion, it will not be necessary to refer to the facts, ordinances, resolutions and acts of the town of Newark, further than to say that the only deed executed was the Crane deed, of 1848, for the three-cornered strip. .

At the January term of the court of common pleas, to wit, January 25, 1912, it was ordered, adjudged and decreed, among other things, that the petitions of the plaintiffs in cases numbered 13789 and 13790 be, and the same were dismissed.

The causes came into this court on appeal from the court of common pleas. They have been ably argued by council on both sides by briefs, as well as by oral argument. In the short time this court has had to consider the questions involved, and to assign reasons for its conclusion, it can not be expected that we will go into much detail in stating our conclusions.

By the deed executed in 1848, by Crane and.wife to the said town of Newark, the three-cornered strip, shown by the plat, was deeded "for the sole purpose of a burying ground and for no other purpose whatever.” This conveyance was to the municipal corporation of the. Town of Newark, for a public purpose, namely: for a burial ground, and for no other purpose. The town of Newark abandoned said premises as a burial ground, as shown by the various acts of the municipality and, therefore, the title reverts to the original owners or their heirs, by the plain terms of the deed.

In the ease of South Park (Comrs.) v. Ward & Co. 248 Ill. 299 [93 N. E. Rep. 910; 21 Ann. Cas. 127], it was held:

"'Where an owner dedicates land to the public for a particular use, specifying the use and imposing restrictions, if the dedication is accepted the land can not be applied to any other use or the restrictions’disregarded.”

In the case of Kansas City v. Scarritt, 169 Mo. 471 [69 S. W. Rep. 283], syllabi 1 and 2 are as follows:

"1. A square was marked ‘donated for graveyard,’ on an original plat filed by the owner with the recorder of deeds. Five years later a city was incorporated, including within its limits the graveyard. Held: That the legal title to the square remained in the original owners, subject to the use of the public, for the purpose of dedication; it not having passed to the city by dedication, as the latter was not in existence at that time.
"2. A city holding land as trustee for the use of the public, as a cemetery, can not at the same time hold it adversely and for its own benefit.”

Newark v. Watson, 56 N. J. Law 667 [29 Atl. Rep. 487; 24 L. R. A. 843], syllabus 2:

"The plaintiff, a municipal corporation, aeld lands under a grant from the proprietors of East Jersey for burial purposes, to be appropriated for no other use or uses whatsoever. An ordinance of the municipality and an act of the legislature prohibited the use of such lands for burial purposes. Held: That the title to the lands thereby reverted to the proprietors. ’ ’

In the case of Fulton v. Mehrenfeld, 8 Ohio St. 440, we find the following citations:

“Where land was dedicated to the city of Youngstown for a burying ground, and the city council of Youngstown subsequently passed an ordinance prohibiting any further burials in the land so dedicated, and ordering the removal of all remains buried therein, the ordinance was a valid exercise of the police power of the state and operated as a complete abandonment of the dedicated use, and the land would revert to the original owner or his heirs. Young v. Commissioners, 7 O. F. D. 171 [51 Fed. Rep. 585, 591]; Mahoning Co. (Comrs.) v. Young, 9 O. F. D. 202, 206 [59 Fed. Rep. 96; 8 C. C. A. 140; 16 U. S. App. 588].
“When the property is no longer desired, or the purpose for which it was dedicated attainable, it will revert to the dedicator.” Louisville & N. Ry. v. Cincinnati, 76 Ohio St. 504.
“Upon abandonment by a town of the public purpose of a donation of the lands, the property reverts to the original donors.” 75 Miss. 846; Patrick v. Y. M. C. A. 120 Mich. 185 [79 N. W. Rep. 208],

In the Crane deed, the language was: “for the sole purpose ' of being used as a burying ground for the use of the town of Newark, and for no other purpose whatever.”

These authorities make it clear that when the city abandoned the use of the premises conveyed as a burying ground, and attempted to divert them, first, to a schoolhouse site, later to a hospital site, and afterwards to a park, the title reverted to the heirs of Mrs. Crane, the .grantor. .

The city has, by its own unequivocal acts, abandoned the use and conditions specified in the Crane deed, and. can retain the ground for no other purpose.

The Burnette ease:

As to the Burnette case, we find: That the fee in the land in this case never passed out of the heirs of the patentee. It has always been in them, subject merely to the use of the premises as a cemetery; that by plain and unequivocal acts, the city has abandoned that use; that the premises have reverted to defendants free from the dedicated use.

The dedication of the Burnette tract, in case No. 1300 (if there was a dedication), was a common law dedication, and its use was merely permissive and not adverse. When these graveyard grounds came into the corporate limits of the town of Newark, it had no title and no other possessory rights. The use and control of the grounds was not adverse but in entire harmony with the dedicated use. Hence, its use did not start the statute of limitations. Nothing but an open, notorious, visible, hostile and inconsistent act of possession on the premises could have that effect, and no such act was done, or is claimed to have been done.

In 1888 the city took the fence down, threw the premises open to intruders and trespassers, and never after that sought to guard or protect the grounds, or to respect their character and saeredness as a burial place. This was an abandonment of the dedicated use.

Kansas City v. Scarritt, supra:

‘ That a city may acquire title to land under the statute of limitations by such adverse possession as is necessary to confer such title is not doubted; but the very foundation elements of adverse possession are wanting when the only possession .is permissive possession for a dedicated use. And of course while the city held control of this as a graveyard, the defendants could not take possession.”

Patrick v. Y. M. C. A. supra:

“A common law dedication does not convey a fee.”

Syllabus 6, supra, is as follows:

“A church society, having accepted lands for a period of time under a common law dedication to its use, executed a quitclaim deed to a certain person who had previously purchased the reversionary interest of a part of the dedicator’s heirs, and who conveyed the land to a Young Men’s Christian Association, which built a valuable building on the land.
“■PLeld: No evidence of hostility and the assertion of an adverse claim entitling the association to claim the land as against the dedicator’s other heirs by adverse possession.”

Syllabus 7:

“After a church sbciety had erected a building on a lot dedicated to the use of one of the first four religious denominations forming a society in the town and erecting a building on the lot, it conveyed the lot to a Young Men’s Christian Association, which demolished the church building and erected a building adapted to its own wants.
“Held,-. An abandonment of the use for which the lot was dedicated, entitling the holders of the reversionary interest to the lot.”

Campbell v. Kansas, 102 Mo. 326 [13 S. W. Rep. 897]. Syllabi 1, 2, 3, 4 and 5 are as follows:

“1. A square was marked ‘donated for graveyard’ on an original plat not assigned or acknowledged by the proprietors of a town site, but filed with the recorder of titles by one of them, who soon after used it at a public sale of lots. The plat, and the use of the land for interments were acquiesced in by the proprietors. Held: Sufficient evidence of a dedication in pais.
“2: The donors of land dedicated to a city for a graveyard have, while the public use lasts, no right to a concurrent possession subject to a reasonable use of the public, and can not maintain ejectment against the city to recover such a possession.
“3. Land dedicated to a city for a cemetery, which has no longer the character and name of a graveyard, but is used as a public park reverts to the donor, who may recover in ejectment against thé city, which in defense denies the abandonment.
“4. Tn such case, the question .will not be considered whether the land can be appropriated and used for other charitable purposes germane to the original one, in accordance with the equitable doctrine of oy pres.
“5. In 1857, land in a city, dedicated and used as a cemetery was by ordinance ‘vacated for graveyard purposes.’ In 1866, the council, by published notice, required all who had friends buried there to remove the remains. Many removals were made, but the majority of the remains were left to be taken away by the city. In 1869 it was used by the workhouse force, breaking rock. In 1870, earth was taken from it, and used to fill a street. In 1877, the city engineer was instructed by ordinance ‘to grade the old graveyard and get it into shape for a public park.'
“This was done the next year. The grading went below all the graves, except, perhaps, a few in the lower part, on which four to ten feet of earth were placed. Trees were planted, grass grown, and walks laid out. It was named and recognized by the city as a park. No visible grave or monument remained. During the final grading, in 1878, the removal of the remains exhumed was stopped, and the bones of from eleven to eighty-four bodies were reinferred, in small boxes, as near the places from Avhich taken as possible. Small stones, bearing numbers, but no names, were at these points either put five or six inches under ground, or they had sunk to that depth at the time of the trial, shortly before which the location of many of them was brought to light by agents of the city by ‘prospecting through the park with a sharp iron rod.’ Held: Sufficient evidence of abandonment.”

Without pursuing the discussion further, we are of the opinion that the city or toAvn of Newark has no right, title or interest in these premises, in either case, and that the petitions should be and they are dismissed, at the costs of the plaintiff.

It is therefore ordered by the court that said plaintiff remove all of said pipes, poles, electric Avires, cement walks, and the fountain from said premises, and restore the same to the condition that they were in before such pipes, poles, electric Avires, cement walks and fountain were placed in and upon said premises, and that the same be done within six months from the date hereof.

It is further ordered that a decree be drawn in accordance with the opinion of the court herein. Exceptions.

Motion for new trial, if one is filed, overruled. Exceptions. Ten days allowed for finding of fact and conclusions of law. Statutory time for bill of exceptions.

Shields and Powell, JJ., concur.


author: WINCH, J.

text:
    APPEAL — PARKS.
    [Summit (8th) Circuit Court,
    April 15, 1907.]
    Winch, Marvin and Henry, JJ.
    Mary V. Miller v. Akron (City).
    Appeal Lies to Probate Court Order Assessing Damages for Land Appropriated by Municipality.
    An appeal under Secs. 2254, 6407, 6408 R. S. (Secs. 3696, 11206-11209 G. C.), may be had to the common pleas court from a decision of the probate court assessing compensation to be paid by a municipality for land appropriated by it for park purposes.
    Error.
   WINCH, J.

The sole question raised by these proceedings in error is whether an appeal lies to the common pleas court from a verdict and judgment in the probate court, assessing the compensation to be paid for land appropriated by a municipality for park purposes.

Previous to the enactment of the municipal code in October, 1902, the right of appeal in such cases was granted by Sec. 2254 R. S„ and the manner in which such appeal might be perfected was prescribed by Sees. 2255 to 2259 inclusive. The new municipal code re-enacted the provision of Sec. 2254, granting the right of appeal (Sec. 3696 G. 0.), but repealed the other sections specifying the manner in which the appeal might be perfected. From this situation the city solicitor concludes that such cases no longer be appealed, and he is right in his conclusion and sustained by a former ruling of this court in the case of State v. Hanousek, 10 Circ. Dec. 516 (19 R. 303), unless other sections of the statutes provide the method of bringing such cases into the appellate court. Manifestly the legislature did not intend to take away the right of appeal, and was of the opinion that other sections fully provide the procedure in appeal, for otherwise it would not have reenacted' Sec. 2254. Having in mind this intention of the legislature and its judgment, we are called upon to examine Secs. 6407 and 6408 R. S. which plaintiff in error claims are applicable to this case.

Section 6408 provides what steps shall be taken by “the person desiring to take an appeal, as provided in the preceding section.’’

Section 6407 provides: “In addition to cases specially provided for, appeals may be taken to the common pleas court,” from the probate court in eight classes of eases, to no one of which this case belongs.

In addition to cases brought in the probate court by municipalities for the appropriation of land, there are several other statutes which provide the right of appeal in special cases. Some of these statutes provide that the appeal shall be perfected “as in other cases,” undoubtedly referring to Sec. 6408 et seq., and some set forth the procedure.

From this we conclude that the general procedure on appeal is regulated by Sec. 6408, for all cases where special procedure is not provided. To hold otherwise and to limit the application of the provisions of See. 6408 to the eight classes of cases as to which the right of appeal is “provided in the preceding section,” i. e., Sec. 6407, would be to take away the right of appeal in many cases by a strict and literal reading of a legislative act, without regard to the manifest intention of the legislature. We see no necessity for so holding, and thus nullifying not only Sec. 1536-114 which governs this ease, but many other statutes of like import.

The Hanousek ease is not in point. When the legislature created the insolvency court in Cuyahoga county, and provided that appeals might be taken to it from judgments of justices of the peace, without providing how such appeals should be taken, there were no other statutes applicable to the case, and the court properly held:

“If the jurisdiction is conferred by statute, then the court, if no method is prescribed for bringing a case before it on appeal or error, is powerless to prescribe any method by rules or regulations, either in matters of appeal or matters of error, and such court acquires no jurisdiction of such eases.”

In the case at bar the only question is whether the general procedure as prescribed by statutes in force, regulating appeals from the probate court to the common pleas court, apply where the intention of the legislature is manifest that they should apply, but the wording of the law is doubtful.

The right to appeal being plain, a liberal construction should be put upon the law providing the remedy.

We therefore hold that plaintiff in error was entitled to appeal her ease to the common pleas court, and that the said court erred in dismissing her appeal.

Judgment reversed, and cause remanded to the common pleas court for further proceedings.

Marvin and Henry, JJ., concur.


author: JONES, E. H., J.

text:
    PAYMENT — PRINCIPAL AND AGENT.
    [Hamilton (1st) Court of Appeals,
    March 4, 1914.]

    Swing, Jones and Jones, JJ.
    Thomas L. Evans v. James P. Vaughan et al.
    Payment of Principal and Interest at Office of Attorney Conformably to Statement in Note Held Payment to Principal under Equitable Rule.
    Payment of interest for several years and finally, the principal sum of a promissory note to an attorney, later absconding, at whose office the note itself makes it payable, and from whom the maker received the loan, the maker and payee never having met or consulted with each other, brings an action for recovery thereof within the rule with reference to innocent parties the carelessness of one of which is responsible for the loss, and ,is properly submitted to a jury under proper instructions, the verdict of which for the maker will not be disturbed on review. Nor is it error to exclude answer of payee as to whether he authorized such attorney to collect the principal of the note.
    Error.

      Overbeck, Kattenhorn & Park, for plaintiff in error.

      G. C. Wilson, for defendant in error.
   JONES, E. H., J.

The action in the court- below was upon a note for $700 secured by a mortgage. The following is a copy of the note sued upon:

“ $700.00. Cincinnati, O., March 21st, 1905.
“Two years after date I promise to pay to the order of T. L. Evans, seven hundred dollars. Payable at the law office of J. E. Humphreys, Cin. O., value received with interest at 6 per cent, per annum payable semi-annually. Privilege given to pay all at end of one year. (Signed) Jambs P. Vaughan.”

The endorsements on this note showed payment of interest to September 21, 1910. The plaintiff asked judgment below for the principal and interest from September 21, 1910, and also asked for foreclosure of the mortgage given to secure the payment of this note.

Defendant James P. Vaughan in his answer pleaded payment. The evidence showed that he had paid the semi-annual installments of interest as they became due, to September 21, 1910, at the office of J. E. Humphreys; that he has also paid upon the principal the sum of $300 at the law office of J. E. Humphreys in Cincinnati, Ohio, on September 21, 1909, and paid the installments of interest as they became due upon the remainder of the principal; and that on November 10, 1910, he paid at the law office of J. E. Humphreys the sum of $400 balance due on. principal and also $3 as interest, which, as he alleged, was all that was then due upon the note.

It is not contended by Mr. Vaughan that upon any of these occasions when he called at Mr. Humphrey’s office to pay interest or principal, he saw the note. On the other hand, Mr. Evans, the payee of the note, testified that the note and mortgage were in his possession during all of this time. Mr. Vaughan says that on November 10, upon which date, as he thought, said note was fully paid, John E. Humphreys promised bim to return properly canceled the note and mortgage. This Humphreys never did. The evidence shows that shortly thereafter he absconded, having failed to account to Mr. Evans for either the $300 or the $400 which were paid by Mr. Vaughan upon the principal. The evidence shows, however, that all the installments of interest, with the exception of the $3 paid on November 10, 1910, were remitted to Mr. Evans by Mr. Humphreys, and that after the payment of the $300 above referred to he continued to send remittances for interest the same as if said $300 had not been paid, when in fact he was receiving, after such payment, interest upon only $400 semiannually. In other words, instead of paying the sum of $12 as interest to Mr. Evans after September 21, 1909, which sum was the amount actually received by him, he sent to Mr. Evans the sum of $21 as each installment of interest became due and payable, obviously for the purpose of concealing from Mr. Evans the fact that he had ever received the payment upon the principal.

The action below was one for a personal judgment, and was tried by a jury. The question presented by the pleadings and the evidence was, which of two innocent persons should suffer by reason of the defalcation or embezzlement of this money by Humphreys.

The court charged the jury properly, as we think, in a special charge, as follows-.

“If you find that both this plaintiff and defendant are innocent of any intentional wrong, but that the loss in question in this case must fall upon one of them, then I charge you that the one of them whose carelessness was responsible for the loss, must suffer the loss, if you find there was such carelessness. ’ ’

The jury having found in favor of the defendants, it is but reasonable to conclude that under the charge of the court to the jury they found that the plaintiff had been guilty of carelessness, which carelessness had induced the defendant Vaughan to make the payments to Humphreys upon the note. Unless this finding is clearly against the manifest weight of the evidence and in the absence of any error in the charge of the court or in the admission or the rejection of material evidence, it follows that the verdict of the jury can not be questioned. The issue presented by the pleadings and submitted to the jury was one of fact to be determined solely by the jury on the evidence in the case.

We have read the reeord in the case very carefully in order to satisfy ourselves as to the evidence and the weight thereof as touching the respective claims of the parties. We can not say, after this examination, that the verdict of the jury is wrong.

It is contended by counsel for plaintiff in error that the question as to the position occupied by Humphreys in this transaction, viz., whether in receiving the sums paid upon the principal of the note he acted as the agent of Evans or as the agent of Vaughan, was one of law and should have been determined by the court. With this contention we can not agree. The action being primarily one for a money judgment is triable to a jury. The jury was entitled to hear all the evidence material to the issue, and all that would in any way enable them to decide whether or not the defendant had paid the note as claimed in his defense. It became a question, therefore, whether Mr. Vaughan had merely taken his money to Mr. Humphrey’s office and left it there in the custody of Mr. Humphreys with the request, express or implied, that it should be applied in payment of the Evans note, or whether he had paid it to Mr. Humphreys, warranted in believing from all the circumstances that he represented Mr. Evans as agent in the transaction and as such was authorized by Evans to receive the principal and interest.

The facts in the case in addition to those above stated are that although this note ran more than three years after it became due, the payee and holder thereof made no demand upon Mr. Vaughan at any time for the payment of the note and, so far as the evidence discloses, gave the matter no attention whatever. Mr. Vaughan and Mr. Evans had never seen each other before the trial of this case in the court below., The note stated on its face that it was to be paid “at the office of J. E. Humphreys, Cincinnati, Ohio.” Vaughan was ignorant and unaeeustomed to business affairs. The law is well settled that to make a note payable at a bank does not authorize the maker to pay the note at such bank and discharge him therefrom upon doing so, unless the bank ¿t the time of payment has the note in its possession. Nearly all blank forms of promissory notes are printed so as to be made payable at some bank or financial institution, and little attention is usually given by parties to a transaction to the provisions of the note in this respect.

It seems to us to make a somewhat different situation where as in this case the words are inserted-in the note maTring it payable at the private office of an attorney at law. This alone might not be important, but when it is borne in mind that the evidence in this case shows that Mr. Vaughan had never seen Mr. Evans; that Mr. Humphreys through an agent, Mr. Morton, was the one to whom he had applied for the loan; that the money was paid over to him by Mr. Humphreys; that he handed his note and mortgage to Mr. Humphreys who filed the latter for record; that he paid the interest for five years to Humphreys with the knowledge and without any protest from Evans; and, although the note was over three years past due when it was paid, which fact usually brings some protest or notice from the payee that he never received any notice, all these circumstances combine to induce a man such as Vaughan to look upon Humphreys as the agent of Evans for all purposes of the transaction.

Cases have been cited by both sides, and counsel for plaintiff in error rely upon the case of Antioch College v. Carroll, 11 Dec. Re. 220 (25 Bull. 289), decided by Judge Taft. That ease was tried to the court without the intervention of a jury, it being an equitable proceeding. It is needless to say that none of the cases presented by either side present the same state of facts as we find here. Such being the case, we should not be justified in discrediting the verdict of the jury in the case at bar, for the reason that it does not coincide with the views expressed in another case, where the facts are not identical, however able and distinguished might be the jurist who announced the opinion.

Some alleged errors are pointed out in the brief for plaintiff in error in the admission and rejection of evidence. One of these objections touches a vital spot in this case, and for that reason we shall refer to it briefly here. On page 48 of the bill of exceptions plaintiff was asked this question:

“Q. I will ask you whether you at any time authorized Mr. Humphreys to collect the principal of the note made by James P. Vaughan to your order in controversy in this case?”

An objection to this question was sustained and the ruling was excepted to. • The court very properly stated, in passing upon this objection, that it was “what was said and done” that should be inquired into. The question, in the form in which it was presented, asked the witness to give his conclusions.

In order to bind Mr. Evans in this ease by the payment to Humphreys it was not necessary that any express authority be shown as having been given by him to Humphreys, but authority might be implied from the acts of the parties. Such being the case, the court properly refused to allow the question to be answered.

This ruling upon the evidence involves in its legal aspect • the question raised by an objection to the general charge of the court. The court charged the jury, in part, as found on page 57, as follows:

“Now an agent may be one who has authority to collect money, actual authority to collect or ostensible authority to collect it. Now ostensible authority to collect money is shown by the intentional acts between two parties, or by the want of ordinary care, causing the loss to a third person, and that would be Mr. Vaughan in this case, to believe Mr. Humphreys had a right to collect this money on this note and mortgage. If you find from a preponderance of the evidence, Mr. Evans either actually or ostensibly permitted Mr. Humphreys to act as his agent in collecting this money, that he did this intentionally or by want of ordinary care, or by his own negligence led Mr. Vaughan to believe and have reason to believe that Mr: Humphreys was his agent to collect the money, then Mr. Evans can not recover and your verdict will be for defendant.”

The law is correctly, though somewhat imperfectly, stated in this portion of the charge. It is manifest, therefore, that the court below having in mind the principle here enunciated refused to permit Mr. Evans to answer the question above quoted as to whether he had ever authorized Mr. Humphreys to collect the principal sum of the note.

We think there was no error to the prejudice of the plaintiff in error here in any of the matters complained of in counsel’s brief.

The jury, under proper instructions from the court found that Mr. Vaughan in paying the money to Humphreys regarded Mr. Humphreys as the agent of the payee and as fully authorized to receive the money.

We think it was only natural for a man of Vaughan’s inexperience to be induced so as to believe and so to look upon Mr. Humphreys, from all the facts and circumstances in this case, and from the conduct of Mr. Evans himself. His silence for five years, and especially for the last three years when the note was overdue, would naturally tend to make Vaughan believe that the entire matter was in the hands of Mr. Humphreys with whom alone he had transacted the business so far.

We do not say that Vaughan was free from any carelessness and negligence. It was Ms duty as a careful man to have held the payment of the principal of the note until credit was given thereon in his presence or until when final payment was made the note was surrendered to him, but it seems that the implicit confidence which Mr. Evans placed in Mr. Humphreys, who was a stranger to Vaughan, inspired a feeling of security and confidence in the latter.

The jury must have found, as before stated, that of the two innocent parties the negligence of Evans more directly contributed to the loss, and that therefore under the well settled doctrine of law he must be made to suffer.

Judgment affirmed.

Jones, ©. B., J„ concurs.

Swing, J., dissenting.

There *is no evidence in the case that shows that Evans ever constituted Humphreys his agent to receive payment of this note, and there is no evidence that tends to show that Evans in any way represented to Vaughan that he was so authorized, and the judgment therefore is not sustained by the evidence.


author: RICHARDS, J. Kinkade, J.

text:
    COURTS — DIVORCE AND ALIMONY.
    [Sandusky (6th) Court of Appeals,
    October 15, 1915.]
    Richards, Chittenden and Kinkade, JJ.
    Cleveland Prot. Orphan Asylum et al. v. Hazel Taylor Soule.
    1. Juvenile Court Statute does not Supersede Divorce Statutes as to Disposition of Dependent Children.
    Sections 1647, 1648 and 8031 G. C., conferring on juvenile courts authority to determine cases involving delinquent, neglected and dependent children, does not supersede Sec. 11987 G. C. empowering common pleas courts to make orders for the disposition, care and maintenance of children of parents involved in divorce proceedings.
    2. Common Pleas has Continuing Jurisdiction in Divorce as to Custody of Children to the Exclusion of the Juvenile Court.
    A court of common pleas, having made an order concerning the disposition of a minor child of parents involved in divorce proceedings, has continuing jurisdiction of such child, precluding a juvenile court from taking independent jurisdiction thereof, if the best interests of the child demand a change of custody the proper procedure is by application to the common pleas court to modify its former order.
    3. Court Having First Jurisdiction Retains it.
    The principle, that the court first obtaining jurisdiction of a subject-matter retains exclusive jurisdiction and authority until final disposition, applies. to jurisdiction of a dependent child, concerning which a common pleas court has made an order for the custody in divorce proceedings, and a juvenile court has no authority to make an order for the disposition of such child.

      Error.

      ~W. J. Mead, for plaintiffs in error.

      Kinney, O’Farr ell & Bimelspach and E. 0. Sayles, for defendant in error.
   RICHARDS, J.

This is a proceeding in habeas corpus brought in the court of common pleas to recover the custody of a child about eleven years of age. The court of common pleas granted the writ and error is prosecuted to that judgment. The case raises a very interesting question of jurisdiction as between the probate court and the common pleas court. No disputed matters of fact arise in the case. The important facts to be considered in determining the questions raised are simply, that in a divorce action pending between the father and mother of the child, the custody of the child had been awarded to the mother in the court of common pleas of this county on December 26, 1913. In pursuance of this decree of the common pleas court, the mother took and retained possession of the ehild. In May, 1914, proceedings were instituted in the probate court, acting as a juvenile court in this county, in which it was charged that the child was a dependent child by reason of the fact that it had not pi’oper parental care and that its home was, by reason of neglect and depravity on the part of its parents, an unfit place for the child. On the trial in the juvenile court that court found and adjudged that the ehild was a dependent of about the age of eleven years, and that she was a ward of the court, and the court ordered that her custody be committed to the Cleveland Protestant Orphan Asylum, to be there cared for and educated until the further order of the court.

The authority vested by statute in the court of common pleas in an action for divorce is contained in See. 11987 G. C., and empowers that court to make such order for the disposition, care and maintenance of the child, as is just. The order which was made in the court of common pleas antedates the order in the juvenile court and was made in direct conformity with the language of the statute. It is said, however, that the juvenile court law supersedes the order and decree made in the court of common pleas. The juvenile court proceeded under and by virtue of the authority contained in Secs. 1647, 1648 and 8031 G-. C. These sections confer ample authority upon the juvenile court to consider and determine cases involving questions of delinquent, neglected or dependent children. The latter See. 8031 6. C., provides, in substance, that, when a parent, through vagrancy, negligence or misconduct, is unable to support a minor child or neglects so to do, or habitually ill-treats such child, the probate court may issue a summons requiring the parent to appear and answer the complaint and if the court finds the complaint to be true and that it is for the best interests of the child to be taken from the parent, it may make an order to that effect and direct the placing of the child in a suitable orphan asylum or children’s home or with some other benevolent society. We do not, however, understand that these sections operate to supersede the authority conferred on courts of common pleas to make proper orders for the disposition, care and maintenance of the children of parents involved in a divorce action before that court,. It has long been held that the jurisdiction of the court of common pleas over the children of parents so involved is a continuing jurisdiction, and that the child becomes the ward of the court. This child was a ward of the court of common pleas prior to and at the time the proceedings were brought in the juvenile court. We think that the statutes conferring authority on any court in such matters must be read as limited to children not already provided for by some other court having first obtained jurisdiction. Hoffman v. Hoffman, 15 Ohio St. 427; Rogers v. Rogers, 51 Ohio St. 1 [36 N. E. Rep. 310].

A similar question has been before the Supreme Court on two recent occasions, the first being Crist, In re, 89 Ohio St. 33. In that case the probate court had appointed a guardian of the child after the decree awarding the custody of the child had been entered in the court of common pleas, and it was held that the child had become the ward of the court of common pleas and that the jurisdiction over its custody was a continuing jurisdiction and could not be affected by the subsequent appointment of a guardian in the probate court.

The question was again before the Supreme Court in the Children’s Home of Marion Co. v. Fetter, 90 Ohio St. 110. In that case a delinquent child had become a ward of the juvenile court and had been committed to an institution under provisions of the General Code relating to that court. Thereafter proceedings in habeas corpus were brought by a parent of the child and it was held that the .order of the juvenile court was effective and controlling and that the court assuming to take subsequent jurisdiction was without authority. This is but another enunciation of a principle of law’ that has been recognized from time immemorial, that the court first obtáining jurisdiction of the subject-matter retains exclusive jurisdiction and authority until final disposition, free from interference by any other tribunal. Of course, this principle has nothing to do with the question of convictions of minors for violations of any criminal statute. To hold differently than in accordance with the rule above stated would permit a defeated litigant, seeking the custody of a minor child in the common pleas court, to go immediately to the juvenile court and there relitigate the question just determined in the common pleas court. It would be doing violence to all known rules of procedure to assume that the general assembly intended by the passage of the juvenile law to confer authority on the juvenile court to relitigate matters already determined in another court, particularly in view of the fact that the orders as to the custody of children are continuing orders.'

We see no reason why the order in the court of common pleas granting the custody of the child to the mother could not be modified in that court if conditions had so changed as to render such modification proper.

We .call attention of counsel to the language of the Supreme Court in the closing paragraph of the opinion in Bower v. Bower, 90 Ohio St. 172. In that ease the Supreme Court sustained the appealability of an order of the common pleas court determining the eare, custody and maintenance of minor children, and in so doing affirmed the judgment of the circuit court and remanded the case to that court for such further orders from time to time, touching the custody and support of the children, as that court should deem just and proper.

We are entirely in accord with the eloquent tribute to the home as a place for rearing children, announced by Mr. Justice Brewer, found in Bullen, In re, 28 Kan. 557. The only question however, that is in this court is one as to the jurisdiction of the juvenile court under the circumstances disclosed in the record. The court of common pleas found that the order made in that court in the divorce case was unreversed and not modified and still in force, and that for this reason the juvenile court had no jurisdiction over the child as a dependent child. With that judgment we are in accord and the same will, therefore, be affirmed.

Chittenden, J., concurs.

Kinkade, J.

I concur in the judgment of affirmance but I think it might well be placed on an additional ground than that mentioned in the opinion of Judge Richards, to wit, that it is manifest in the record that the child in question is no longer a dependent child, if she was such at the time of the entry of the judgment of the juvenile court.


author: HENRY, J.

text:
    ACTIONS — INSURANCE.
    [Cuyahoga (8th) Circuit Court,
    May 20, 1907.]
    Marvin, Winch and Henry, JJ.
    Lena Strauch v. Simon Strauch et al.
    Action for Cancellation of a Substituted Benefit Certificate Prematurely Brought before Death of Insured.
    Where a husband and wife, who had entered into an antenuptial contract in which he assigned all his property to her, later separated and he took out a second certificate in a mutual benefit association, which, by the by-laws of the association changed the beneficiary, in an action by the wife who was the first beneficiary against the husband, the association and the new beneficiary to compel the cancellation of the new certificate and the recognition of the plaintiff as beneficiary, is prematurely brought.

      J. C. Block and Daniel B. Stone, for plaintiff.

      C. W. Fuller and Laubscher & Kees, for defendants.
   HENRY, J.

Tbe defendant, Simon Strauch, is the husband of the plaintiff, and father of the defendant, Carrie Strauch, and a member and certificate holder in the Supreme Council of the Royal Arcanum.

Simon Strauch and his wife were married August 20, 1893; prior to that time they entered into an antenuptial contract- in writing, whereby he assigned all of his property to her. His business and health failing, he became unable to support his wife, and they have lived apart since April, 1900; he now lives with one of his daughters by a former marriage, Carrie Strauch.

The antenuptial contract makes no specific mention of his death benefit certificate in the Royal Arcanum, but that certificate and a policy of insurance in another company were made payable to Mrs. Strauch in September, 1897. Upon their separation the wife kept the custody of their two children, and by agreement with her husband, kept up the assessments on said certificate, payable, as aforesaid, to her. Some time after-wards, while living with his daughter by the first marriage, Simon Straueh wrote his wife, requesting her to send him said certificate. This request she did not comply with; whereupon, pursuant to the regulations of the Royal Arcanum in such case provided, he caused a new certificate to be issued to him in place of the former one, with his daughter Carrie as the designated beneficiary. Prior to that time the wife had paid the assessments; since then, the daughter has paid them. They have increased from about $4 a month during the prior period to about $16 per month at the present time.

Mrs. Straueh now brings her action for a cancellation of the substituted certificate and for the recognition of herself as the true beneficiary.

The regulations of the order permit members to change beneficiaries at pleasure, negative the existence of any vested right in a beneficiary, and provide that assignments of death benefit certificates shall be void. The Royal Arcanum is incorporated under the laws of Massachusetts, whose statutes and decisions have recognized and enforced these provisions. The Royal Arcanum is here resisting the granting of the relief prayed for by plaintiff. It insists that the alleged agreement between Mr. and Mrs. Straueh is void and creates no vested right in the latter.

In Tisch v. Home Circle, 72 Ohio St. 233 [74 N. E. Rep. 188], Davis, C. J., delivering the opinion of the court says at page 260:

“But prior to the death of the insured what enforceable rights can accrue to the beneficiary? That is the question which is presented in this case. The insured may acquire rights in his or her lifetime which may be protected by law, but before the death of the insured the contract is, in general, executory as to the rights of the beneficiary. It may be rescinded by the parties or it may be defeated by failure of the insured to perform. ’ ’

Without assuming to say that Simon Straueh and his wife might not enter into a contract valid as between themselves, whereby he divests himself of the right to change the benefit ■ ciary in his certificate, we think this action is prematurely brought. The wife and daughter are contesting about a mere expectancy. There is no fund in existence, for the death benefit, if and when it shall become payable, will be derived from assessments upon the members of the order who shall then be in good standing. It is as if two purchasers of a future catch of fish should litigate the question of their respective rights therein before the fish are caught.

The plaintiff’s petition is therefore dismissed without prejudice to a future action after the death of Simon Straueh.

Marvin and Winch, JJ., concur.


author: POWELL, J.

text:
    WILLS.
    [Licking (5th) Court of Appeals,
    1913.]
    Powell and Shields, JJ.
    (Judge Voorhees not sitting.)
    Laura Robraham et al. v. Allen B. Gregg et al.
    Limitation Upon a Devise Held Void.
    Where land is devised generally by G. to H., without qualification or condition except the proviso that, in the event H. does not sell said land during his lifetime or make disposition thereof in his last will, the said land shall go to and become the property of persons named, the devise over is void, and in an action to set aside the will of H., it is not error to sustain an objection to testimony of the said secondary devisees on the ground that they are not persons having an interest in the will of H.
    [Syllabus by the court.]
    Error.

      Carl Norpell and Kile <& Kirkpatrick, for plaintiffs in error.

      Fitzgibbon & Montgomery, for defendants in error.
   POWELL, J.

The plaintiffs in error, Laura Robraham, Sloan Campbell, Margery Johnston, Erma Crawford, Margaret A. Hill and Lois B. Ingalls file a petition in error in this court, by which they seek to reverse the judgment of the court of common pleas, in an action brought in that court to set aside the will of one Ensley Finney Haas, deceased.

These plaintiffs in error were, by leave oí the court, made parties defendant to a proceeding brought by the heirs at law of the said Ensley Finney Haas, deceased, to set aside what purported to be his last will and testament, which had been admitted to probate and record in the probate court of Licking county before that time.

By the will of Martha doff, who was a sister of the said decedent, Ensley Finney Haas, he became the owner of the east half of a tract of land consisting of 135 acres, more or less, in Licking county, and which was described in the will of said Martha Goff, deceased. The plaintiffs in error claim to be the owners of this tract of land, which was devised by the said Martha Goff to Ensley Finney Haas, by virtue of the provisions of her will, in the event that the said Ensley Finney Haas dad not sell, or otherwise dispose of said real estate during his lifetime, or by his last will and testament.

By item 2 of the will of said Martha Goff, an estate in fee simple was devised to the said Ensley Finney Haas. It was further provided in said item 2 of said will “that in the event that said Ensley Finney Haas does not sell or otherwise dispose of said east half during his life, or by his last will and’ testament, said east half of said property” — the said 135 acres— “shall go to and be the property absolutely of Margaret A. Hill, Margery Johnston, Eliza Dunlap, Addie Dunlap, Lois B. Ingalls, Laura Robraham, Sloan Campbell, Erma Crawford and Harriett Hughes; that is, that said property shall be owned by said named persons, or those of the same who are living at the time of my said brother’s death.”

The plaintiffs in error claim that, because of incapacity and undue influence, the paper-writing, which was admitted to probate and record as the last will and testament of the said Ensley Finney Haas, was not his will; and on the trial of said cause in the court of common pleas they endeavored to show, by testimony, that the same was not his will; that he was without capacity to make a will at the time when said purported will was executed, and that, by reason of undue influence on the part of the defendants, such paper-writing was not his will ; that they being named as. secondary devisees of said real estate in the will of Martha Goff in the event that said Haas did not dispose of the same, they became the owners of said real estate upon his death; and they seek a decree of the court setting aside said will.

Their right to offer testimony on the trial of said cause was objected to on the part of the various devisees named in the will of said Ensley Finney Haas, on the ground that these secondary devisees, now plaintiffs in error, had no interest in the estate of the said Ensley Finney Haas, deceased, and that the devise over, in the second item of the will of Martha Goff, was void; that they were strangers to his estate, and without authority to contest the validity of his will.

Their right to maintain said action depends upon the construction to be given to the second item of the will of said Martha Goff. There is no dispute among counsel or claim that the second item of the will of Martha Goff does not give an absolute estate in fee simple to the land described in said item to said Ensley Finney Haas; and it is not claimed but that, by the terms of said will, he had full power of disposition and could sell and convey, or could devise by last will and testament, the land so devised to him; and only in the event that he failed to exercise his power to convey the deed or by will, could the plaintiff in error become seized of any interest in said lands.

A large number of authorities have been cited as to the proper construction to be given to this item of the will of Martha Goff. If plaintiffs have any interest whatever under said will, they were entitled, by reason of such interest, to contest the validity of the will of said Ensley Finney Haas and to have the same set aside in case a proper showing for that purpose had been made. If they do not take any interest under the will of Martha Goff, then the action of the court below, in refusing to hear testimony offered by them, was correct.

Upon an examination of all of the authorities cited by counsel for both plaintiifs in error and defendants in error, the court has arrived at the conclusion that the plaintiifs in error have no interest in said lands derived through the will df the said Martha Goff, deceased; that the title to said lands passed by said will absolutely and in fee simple to the said Ensley Finney Haas and that the devise over, in the event that he died without having disposed of said real estate by deed or will, is void.

It is said to be a general rule that, when an estate is given to a person generally, with a power of disposition, it carries with it the fee; and the only exception to the rule is when the testator gives to the first taker an estate for life only by certain and express words, and annexes to it a power of disposition. There can be no question but that the estate conveyed by the second item of the will of Martha Goff to the said Ensley Finney Haas was an absolute estate in fee simple, with full power of disposition; and that the limitation over, in case he did not dispose of it by will or otherwise in his lifetime, is void. Finlay Brewing Co. v. Dick, 13 Dec. 581 (1 N. S. 592), the syllabus of which ease is: “If real estate is devised to A generally, without any qualification or condition, but with a proviso that in case of his death without will, the property shall go to B, the limitation over is void, and A takes the entire estate in fee simple, unaffected by the proviso.” This case was affirmed by the circuit court of Lucas county, without report.

We think this rule of law is controlling in the ease at bar; that the provision in the will of the said Martha Goff, deceased, under which the plaintiffs in error claim title, is void and of no effect; and that because said plaintiffs in error have no interest or title in and to the estate of the said Ensley Finney Haas, except under this void provision, they are without right or authority to contest his will. The persons who are authorized by statute to maintain a contest of the will of any deceased person are named and specified in Sec. 12079 G. C. The Supremte Court, in construing Secs. 5858 and 5859 R. S. say:

“Any person who has such a direct, immediate and legally ascertained pecuniary interest in the devolution of the testator’s estate as would be impaired or defeated by the probate of the will, or .be benefited by setting aside the will, is 'a person interested,’ ” and only “a person interested” can maintain a suit to set aside a will. Bloor v. Platt, 78 Ohio St. 46 [84 N. E. Rep. 604; 14 Ann. Cas. 332].

It follows that the judgment of the court of common pleas, in refusing to permit plaintiffs in error to introduce testimony because of their want of interest in the estate of the said decedent, was correct, and that the judgment of said court should be affirmed.

Shields, J., concurs.


author: SHIELDS, J.

text:
    CRIMINAL LAW — HOMICIDE.
    [Stark (5th) Circuit Court,
    February Term, 1912.]
    Voorhees, Powell and Shields, JJ.
    Joseph Andy v. State of Ohio.
    1. Near Relative of State Witness May Act as Interpreter In Trial for Homicide.
    It is not error in a trial for homicide to permit a near relative of one of the witnesses for the state to act as interpreter, where there is nothing tending to show that the said interpreter was in any way biased or prejudiced or interested in the outcome of the trial.
    2. Mutilated Heart of Person Killed Exhibited in Homicide Trial to Show Character of Incision.
    Nor is it error in such a case to exhibit to the jury the mutilated heart of the decedent for the purpose of showing the character of the incision which had been made therein as bearing upon the cause of death.
    3. Instruction Concerning Aider and Abettor not Prejudicial by Adding “and to Some Degree Contributed thereto” though Surplusage.
    The addition by the court to a special instruction to the jury asked by the defendant of the words, “and to some degree contributed thereto,” was not prejudicial but mere surplusage, since the conclusion that he was an aider or abbettor could not be reached by the jury unless there was evidence tending to show that he did something in furtherance of the common purpose to take the life of the decedent.

      4. "Guilty of Crime Charged” Sufficient Verdict in Second Degree Murder.
    A verdict, “Guilty of the crime charged,” in a prosecution for second degree murder, is properly received.
    [Syllabus by the court.]
    Error.

      Bussell J. Burt, for plaintiff in error.

      II. C. Pontius and Frank N. Sweitzer, for defendíante in error.
   SHIELDS, J.

The plaintiff in error, Joseph Andy, was indicted by the grand jury of Stark county, Ohio, at the September term, 1912, for murder in the second degree. Afterwards the accused was placed upon trial, and was found guilty as charged in said indictment. A motion for a new trial was filed, which was overruled, and the accused was sentenced according to law. A bill of exceptions was taken, embodying the evidence taken upon the trial, including the charge of the court, and said case was brought into this court for review upon a petition in error filed for that purpose.

Numerous grounds of error are alleged in said petition in error for the reversal of the judgment of the court of common pleas, but the errors relied upon by plaintiff in error and argued to this court are:

1. That the verdict of the jury is clearly against the weight of the evidence.

2. That the court below erred in permitting one Mary Pew, a sister of one of the state’s witnesses, to act as interpreter throughout the trial below.

3. That said court below erred in allowing the introduction in evidence of the heart of decedent.

4. That said court erred in its charge to the jury.

5. That said court erred in its charge to the jury upon the subject of aiders and abettors.

6. That said court erred in receiving the verdict as returned by the jury.

First. It is contended that the verdict of the jury was clearly against the weight of the evidence. On account of the importance of the ease to the plaintiff in error, as well as to the state, we have reviewed the evidence in the entire record with no little care, and with special reference to the contention of counsel for plaintiff in error on this ground; and as a reviewing court, keeping in mind the rule that the verdict of a jury should not be set aside unless it is manifestly against the weight of the evidence, we are of the opinion that the record presents a case which does not require this court to interfere with the verdict of the jury on the ground stated.

Second. It is contended by the plaintiff in error that there was'an abuse of discretion upon the part of the court below in. permitting one Mary Pew to act as interpreter at the trial of the plaintiff in error, because said interpreter was a relative of certain witnesses who testified upon the trial for the state. The record fails to show that said interpreter was biased or prejudiced, or in any way interested in; the outcome of said trial; and exercising a sound discretion possessed by the court presiding at said trial, in the absence of any showing that said interpreter was disqualified to act as such, we think there was no error upon the part of the court in this respect.

Third. It is argued by the plaintiff in error that the court below erred in allowing the state to make profert of the heart of the decedent before the jury. The burden of proving the cause of death being upon the state, it was certainly the privilege of the state, in our judgment, to make such proof by the production of this mutilated organ, as tending to show the character and extent of the incision made therein, and we think that the action of the court in this respect was not erroneous.

Fourth. It is claimed by plaintiff in error that the court below erred in its charge to the jury, and especially upon the subject of aiding and abetting in the commission of the crime charged in the indictment. A written request was submitted by the plaintiff in error, before argument, upon this subject with the request that the same be given by the court to the jury; and it appears that it was so given. But it is claimed that said court, in its general charge, when instructing the jury upon this subject, went beyond the rule of law embodied in said written request, and beyond the rule of law laid down by our Supreme Court upon this subject. An analysis of the instruction given leads us to disagree with the contention thus made; but granting that the words “and to some degree contributed thereto” were added, could, or did, such addition work any prejudice to plaintiff in error? We think not, for if the evidence showed that he was not a principal, but an aider and abettor in the commission of this homicide, such a conclusion could not have been reached by the jury, under the charge given, unless it appeared in evidence that he said or did something in furtherance of a common purpose to take the life of the decedent, and if such fact did so appear, it would contribute to the execution of such felonious purpose. We are of the opinion that this follows from the very definition of terms “aiders” and “abettors,” and that such additional instruction is mere surplusage at most.

Entertaining these views, the exception taken in this respect is held to be untenable, and affords no ground of prejudicial or reversible error.

Fifth. It is also contended that the court below erred in receiving the verdict as returned by the jury, because said verdict does not specify the degree of the crime of homicide of which plaintiff in error was found guilty. This is not a case wherein the verdict of the jury was for any degree or crime other than that charged. He was indicted for second degree murder, and was found guilty of said crime; or, in the language of the verdi at returned, “guilty as he stands charged in the indictment.” The court below properly instructed the jury that the crime charged included also the lesser crime of manslaughter, assault and battery, and assault, for either of which a verdict of guilty might be returned by the jury, and not guilty of the crime of murder in the second degree as charged in the indictment. But the verdict was: Guilty of the crime charged. In a case where a defendant is charged with first degree homicide, and the jury should find him guilty of second degree, or manslaughter, under the statute as it was prior to the enactment of Sec. 13692 G. C., then the contention of plaintiff in error might merit consideration, but not under the present statute; nor under the facts in this case where, under the charge of the court, the jury were instructed that they might return a verdict' of guilty of either of the offenses hereinbefore mentioned, on one of the several forms of verdict sent to the jury room, or a verdict of not guilty. For the foregoing reasons, we hold that this exception is not well taken.

We have also examined said record in reference to the other assignments of error set out in the petition in error, and we find no such error therein as to call for a reversal of the judgment of, the court below.

The judgment of the court of common pleas will, therefore, be affirmed, and said cause is remanded to said court for execution. Exceptions.

Voorhees and Powell, JJ., concur.


author: RICHARDS, J.

text:
    SPECIFIC PERFORMANCE.
    [Williams (6th) Circuit Court,
    October 31, 1911.]
    Wildman, Kinkade and Richards, JJ.
    Rhinold Bankey v. J. E. Manon.
    Specific Performance Refused Where Enforcement Would be- Harsh and Inequitable.
    A decree for specific performance will not be-granted, where to compel performance would be extremely harsh, oppressive and inequitable by reason of the fact that the option of purchase was not exercised by the lessee until the lessor, at the request of the lessee, had put in improvements which doubled both the market and rental value of the property, and double rental was paid by the lessee until about the time of the termination of the lease when an attempt was made to exercise the option of purchase.
    [Syllabus by the court.]
    Appeal.

      John H. Schrider and Newcomer & Gebhard, for plaintiffs
    Cited and commented on by the following authorities: Crawford v. Kastner, 26 Hun. 440; 63 How. Pr. (N. T.) 90;
      Rothschild v. Williamson, 83 Ind. 387; Harding v. Seeley,, 148 Pa. St. 20 [23 Atl. Rep. 1118] ; Gilbert v. Port, 28 Ohio St. 276; 36 Cyc. 625; He Rutte v. Muldrow, 16 Cal. 505; Wilkins v. Evans% 1 Md. Ch. 156; Bras v. Sheffield, 49 Kan. 702 [3] Pac. Rep. 306; 33 Am. St. Rep. 386J ; Schroeder v. Gemeinder, 10 Nev. 355; Elston v. Schilling, 42 N. Y. 79; Smith v. Gibson, 25 Neb. 511 [41 N. W. Rep. 360] ; Hartman v.' McAlister, 5 N. C. 207; 24 Cyc. 102.1,. 1023; Wiedemann Brew. Go. v. Maxwell, 78 Ohio St. 55, 63 [84 N. E. Rep. 595] ; Bacon v. Haniels, 37 Ohio St. 279; Woodland Oil Go. v. Crawford, 55 Ohio St. 161 [44 N. E. Rep. 1093; 34 L. R. A. 62] ; Brown v. Fowler, 65 Ohio St. 507 [63 N. E. Rep. 76] ; Monihon v. Wakelin, 6 Ariz. 225 [56 Pac. Rep. 735],

      Bowersox & Peck, for defendant.
   RICHARDS, J.

This case is pending in this conrt on appeal from the common pleas court. It is an action to enforce the specific performance of a contract containing an option to purchase certain real estate, situated in Williams Center, this county. It appears from the evidence that the property was leased by J. E. Manon to certain lessees, and that the lessees assigned to the plaintiff, Rhinold Bankey. This lease was executed on November 1, 1905, and was for one year with the privilege of five, and it contains a clause giving the right of purchase for the sum of $700 at any time while the contract was in force. The rental reserved in the lease is five dollars per month. Some time after the execution of the lease and after possession was taken undier it, the parties agreed to a modification, at least to the extent that the owner was to erect an addition to the building on the premises and that the rent should be increased to $11 per month. The improvements were made by the owner, and are conceded by the plaintiff in his reply to be of the value of at least $300. We find from the evidence that the value of these improvements, so made by the defendant, is at least the sum of $700. The increased rental was paid by the plaintiff until the expiration of the lease, or substantially to that date. The plaintiff has elected to exercise the option contained in the lease, and asks from this court that the defendant be required to . specifically perform by conveying the premises to him upon payment of the sum of $700. "We think it entirely clear from the evidence that these improvements were made by the defendant, and the value of the premises enhanced accordingly, under circumstances which show that the defendant did not understand thaj; he was still bound, after the change in the rental price and the completion of the improvements-, to convey.the premises to the plaintiff for the price named in the option. He had good reason to believe and apparently did believe that the substantial improvements made which at least doubled the value of the property, coupled with the change of the rent from $5 per month to $11 per month released him from the option in the lease. Under the circumstances existing in this case the plaintiff must not expect a court of equity to compel the transfer to him of property worth at least $1,400 upon the. payment by him of $700. The agreed rental value of $11 per month is equal to $132 per year, which would amount to an income of 8 per cent on a valuation of $1,650. The later rent paid amounts to nearly 20 per cent, on the sum of $700, which is the amount offered by the plaintiff, in return for which he demands the conveyance of these premises. It' is clearly a demand that a court of equity should do that which is inequitable. We call attention to the following eases: Tiffin v. Shawhan, 43 Ohio St. 178 [1 N. E. Rep. 581]; Hughes v. Roth, 7 Circ. Dec. 441 (18 R. 804).

To compel the specific performance of the agreement contained in the lease would be extremely harsh, oppressive and inequitable. The defendant in this case filed a motion for judgment upon the pleadings in his favor, and we think he is not entitled to have the same granted. Upon the merits of the case, however, we find for the defendant, and refuse specific performance.

Wildman and Kinkade, JJ., concur.


author: ALLREAD, J.

text:
    COURT — PROHIBITION.
    [Montgomery (2nd) Court of Appeals,
    March 21, 1914.]
    Allread, Perneding and Kunkle, JJ.
    Ex Parte David Oldham.
    Writ of Prohibition Denied Until Jurisdiction Denied in Court Challenged.
    The writ of prohibition will not ordinarily be allowed until the question of jurisdiction has been made and overruled in the court or tribunal whose jurisdiction is challenged.
    [Syllabus by the court.]
    Writ of Prohibition.

      Horace Andrews, H. H. McKeon and P. B. Taylor, for petitioner.

      John A. McMahon, J. Warren Kiefer. 0. B. Brown, John Galvin and E. A. Belden, amicus curiae.

      C. C. Hall, Pros. Atty., for Shelby County, J. Guy O’Donnell. Pros. Atty., for Miami County, F. G. Long, Pros. Atty., and A. J. Metier, for Logan County, G. 8. Thomas, city solicitor, and Robert A. Black, for City of Troy.
   ALLREAD, J.

David Oldham, a citizen and taxpayer of Shelby county, petitions for a writ of prohibition against the judges of the courts of common pleas, to restrain them from acting as a conservancy court, upon the ground that the conservancy act is unconstitutional and void.

The preliminary question is whether this court as a matter of right can, or, as a matter of discretion, should entertain the writ in advance of action upon the jurisdictional question by the tribunal whose jurisdiction is questioned.

The writ of prohibition is a remedy revived or brought into the jurisprudence of our state by constitutional amendment taking effect January 1, 1913. This remedy was not intended to become a substitute for, or supersede, the.ordinary or usual procedure of courts of general or special jurisdiction.

The writ must be confined to occasions and causes where the usual procedure is defective or inadequate and where it becomes necessary to subserve the ends of justice.

No better statement of the objects and purposes of the writ-can be found than in Walcott v. Wells, 21 Nev. 50 [24 Pac. Rep. 367]:

“The writ of prohibition is an extraordinary remedy, and should be issued only in cases of extreme necessity.. Before it should issue, it must appear that the petitioner has applied to the inferior tribunal for relief. The object of the writ is to restrain inferior courts from acting without authority of law in cases where wrong, damage, and injustice are likely to follow from such action. It does not lie for grievances which may be redressed, in the ordinary course of judicial proceedings, by appeal. It is not a writ of right, but one of sound judicial discretion, to be issued or refused according to the facts and circumstances of each particular ease. Like all other prerogative writs, it is to be used with caution and forbearance, for the furtherance of justice and securing order and regularity in judicial proceedings in cases where none of the ordinary remedies provided by law are applicable. ’ ’

Spelling, Extra Rel. Sec. 1731, says:

“The extraordinary remedy by prohibition is confined at present, as. when first employed, only to cases where it appears that the party seeking has an actual grievance and .has applied without avail to the inferior tribunal for relief.”

The authors of Cyc. (32 Cyc. 624), thus summarize the American and English authorities:

“An application for a writ of prohibition will not be considered, unless a plea to the jurisdiction has been first filed and overruled in the lower court. Until the inferior court has been asked in some form,, and without avail, to refrain from proceeding with the trial of a ease, or to dismiss the same, a superior court will not entertain an application for a writ of prohibition.”

Exceptions to the rule are noted in the text, but none apply to the present proceedings. Conflicting decisions are also noted.

Many of the cases cited by counsel for the petitioner acknowledge the general rule but originate and justify exceptions growing out of special circumstances. Some, notably the Arkansas and Colorado cases, are followed by subsequent cases in the same courts acknowledging the general rule.

Little Rock, Ex parte, 26 Ark. 52:

“Prohibition will not lie to an inferior court, in a cause arising out of its jurisdiction, until that matter has been pleaded in the original court and the plea refused.
‘ ‘ The circuit court will not be presumed to take cognizance otf matters not within its jurisdiction.”

Adams County Court v. People, 48 Colo. 539 [111 Pac. Rep. 86]:

“A petition to have a court prohibited on the ground of lack of jurisdiction from further proceeding in a criminal contempt proceeding is insufficient; it not showing that the jurisdiction of such court was challenged by appropriate plea or motion therein, so as to give it opportunity to pass on the question, as it is not to be assumed that, had the question been raised there, it would not have correctly ruled thereon. ’ ’

Chester v. Colby, 52 Cal. 516:

“If the question of the jurisdiction of an inferior court in a case before it has been submitted to that court by an appropriate pleading or objection, a writ of prohibition will not issue to restrain such court from proceeding in the ease while the question of its jurisdiction remains undetermined by such court. ’ ’

Oklahoma, Ex parte, 220 U. S. 191, 208 [31 Sup. Ct. Rep. 426; 55 L. Ed. 431];

“It is firmly established that where it appears that a court whose action is sought to be prohibited, has clearly no jurisdiction of the cause originally, a- party who has objected to the jurisdiction at the outset and has no other remedy, is entitled to a writ of prohibition as a matter of right.”

The argument is made that when the constitutional convention of 1912 submitted and the people adopted this judicial amendment, it was intended thereby to revive the common law writ as interpreted and practiced in the English courts.

This court will take judicial notice that eminent lawyers of the state were members of the constitutional convention and took a leading part in framing this judicial amendment.

It is, in our opinion, a more probable inference that the eminent lawyers who framed this amendment and the citizens who adopted) it contemplated the writ as known in this state by the practice in the federal court. This inference is strengthened by the close analogy existing between the judicial amendments in other respects to the federal practice.

The general rule above announced is especially applicable to the present proceedings. The enterprise at hand is one of great magnitude and importance. The conservancy act is of necessity comprehensive in its general scope and embraces many details.

The court specially charged with jurisdiction under the conservancy act consists in the present instance of ten judges of the court of common pleas, from the counties affected. These judges from the various courts are learned in the law, and experienced in constitutional interpretation. We think it would be an unjustifiable inference to be indulged in by this court that the conservancy court will not fully consider and correctly determine the constitutional as well as all other questions submitted. If the law should be wrongly interpreted by the conservancy court, there will still be am,pie opportunity for intervention in an appropriate court before the property of the petitioner can be affected.

For the reasons above stated, the writ of prohibition will be denied, and the petition therefor dismissed.

Ferneding and Kimkle, JJ., concur.