author: Kunkle, J.

text:
    REDUCTION OF BOND IN INTEREST OF ESTATE.
    Court of Appeals for Franklin County.
    Wolfe et al, Trustees, v. Fidelity & Deposit Co.
    Decided, January 9, 1919.

      Trusts and Trustees — Authority of Probate Court to Reduce Bond— Saving of Expanse to the Estate a Sufficient Justification — Not Subject to Collateral Attack.

    1. Under Section 10591 General Code, the probate court has authority to reduce the amount of the bond of a trustee, accept a new bond, and discharge the sureties upon the former bond, where .it finds such action to be to the best interest of the estate.
    2. Where there are compensated sureties upon the original bond, the cost of which is paid by the estate, the reduction of such premium charge resulting from reducing the bond is sufficient to support a judgment of the probate court in ordering a new bond in reduced amount and in releasing the sureties upon the former bond.
    3. Such action of the probate court in accepting the new bond and releasing the sureties upon the former bond is within the jurisdic- ., tion of such court and therefore can not be collaterally attacked.

      Edward G. Turner, for plaintiffs in error.

      Daugherty, Todd & liarey, for defendant in error.
   Kunkle, J.

Heard on error.

In the lower court the plaintiffs in error were defendants and the defendant in error was plaintiff.

It appears from the petition that the plaintiff below, a surety company, sought to recover judgment against defendants below, as trustees under the will of Henry C. Pirrung, deceased, in the sum of $2,500, for premium on a bond upon which it was surety for such trustees.

Defendants below were required by law and the order of the. probate court to give a bond or bonds for the faithful discharge of their duties as such trustees The amount of such bond or bonds to be so given by said defendants as such trustees was fixed by the probate court at the total sum of $1,750,000.

.The defendants below jointly gave three several bonds as such trustees. Two of such bonds were in the sum of $500,000, and one was in the sum of $750,000. One of the said $500,000 bonds was executed April 5, 1915, and, among other things, was conditioned as follows:

“That if the said trustees should well and truly do, perform and discharge with fidelity all and singular the duties which they, as such trustees, should do, perform and discharge, and act in all things as required by law, and faithfully account for all money and funds that might come into their hands as such trustees, then said bond should be void; that otherwise the same should be and remain in full force and virtue in law.”

A copy of the bond is attached to the petition.

The petition recites that the defendants are still acting as such trustees under said appointment and that the estate has not been settled or the trust terminated; that to procure the plaintiff to sign and execute the bond as surety the defendants and each of them severally made application to plaintiff in writing, .and in said application defendants and each of them agreed that in consideration of the plaintiff executing or guaranteeing the bond the defendants would pay in advance the sum of $2,500 premium, upon execution of the bond, and the sum of $2,500 annually thereafter until plaintiff should be furnished with satisfactory and conclusive evidence of the termination of its liability under said bond: that plaintiff accepted said applications, and each of them, and duly signed and executed said bond, and thereby became liable for any default of said trustees, or either of them, in th'e particulars recited in said bond; and that the liability of plaintiff on said bond has not been terminated.

The petition also states that a further premium in the sum of $2,500 has become due and payable, but defendants have failed and refused to pay the same or any part thereof, and therefore ash judgment in the sum of $2,500.

Defendants below filed an answer which in brief states that on April 5, 1916, on their application and showing that the total amount of their said bonds, namely $1,750,000, was excessive and burdensome, and unnecessary for the protection of said trust estate, the probate court — ordered in due form made and entered upon said application and the evidence adduced — reduced the bond or bonds which should thereafter be given by said trustees to the total sum of $1,250,000, and ordered that the trustees should immediately give a new bond or bonds in the total sum of $1,250,000, with sureties to the approval and satisfaction of the court and conditioned according to law, for the faithful discharge of their duties as said trustees; that on April 5, ] 916, said trustees did, pursuant to said order, give new bonds as said trustees in the total amount of $1,250,000, with sureties to the acceptance and approval of said probate court; and that thereupon said probate court duly ordered that said bonds given April 5, 1915, including the bond upon which said plaintiff company was surety, should be no longer operative for the protection and indemnity of said trust estate for accounts or transactions thereafter occurring, and that said plaintiff company was, on said 5th day of April, 1915, to take effect on and after said 5th day of April, 1915, released and discharged as surety on said bonds.

Plaintiff below demurred to the answer upon the ground that the probate court was without jurisdiction to release plaintiff as surety on said bond.

This demurrer was sustained upon the ground that the probate court had no jurisdiction to release the surety company, and the court held that the trustees were liable upon their separate applications to the said surety company.

Defendants below not desiring to plead further, a final judgment was rendered in favor of the plaintiff, and from such judgment defendants below prosecute error to this court.

Plaintiffs in error in substance claim that the lower court erred:

1. In holding that said demurrer did not constitute a collateral attack upon a proceeding of the probate court.

2. In holding that the probate court was without jurisdiction to release a surety unless the Legislature first passed a statute authorizing such action, and providing for notice, etc., because the beneficiaries of the estate had a vested interest in the bond.

3. In holding that although defendants had been sued jointly as trustees, they might be held liable jointly as individuals.

We have carefully considered the pleadings in this case and also the very helpful briefs filed by counsel. We shall, however, not attempt to discuss in detail the various authorities cited by counsel.

Section 10591, G. C., provides:

“Every trustee appointed in a will, before entering upon his duty as such, must .execute a bond -with freehold sureties, payable to the state, in the probate court of the county in which such will is admitted to probate, to the satisfaction of the court, conditioned for the faithful discharge of his duties as trustee; except that, when by the terms of a will, the testator expresses a wish that his trustee may execute the trust without giving bond, the court admitting the will to probate, may grant permission to the trustee to execute the trust with or without bond. When granted without bond, at any subsequent period, upon the application of a party interested, the court may require bond to be given; and, upon the application of an interested party, if deemed necessary, require a new or additional bond at any time before the completion of the trust.”

Section 10214, G. C., provides:

“The provisions of part third and all proceedings under it, shall be liberally construed, in order to promote its object, and assist the parties in obtaining justice. The rule of the common law, that statutes in derogation thereof must be strictly construed, has no application to such part; but this section shall not be so construed as to require a liberal construction of provisions affeetino’ personal liberty, relating to amercement, or of a penal nature.”

The section of the code first above quoted, expressly provides for the giving of a new or additional bond. Under this section of the code the probate court upon the application of an. inter-es.ted party can authorize or require either a new or an additional bond to be given.

We can not concur in the suggestion that the giving of a new bond and the giving of an additional bond mean one and the same thing.

We think the Legislature intended to confer upon the probate court discretion either to require an additional bond or to authorize the giving of a new 'bond, according to the circumstances of the case. We also think the said trustees were interested parties, as provided by Section 10591, and could make an application for the giving of a new bond.

In the cas,e at bar it appears that the probate court found there was a necessity for decreasing the amount of the bond of said trustees. The finding as to such necessity is not disputed.

It is clear that the action of the probate court was beneficial to the trust estate, because it materially decreased the cost charged against the estate as premium in favor of the compensated surety. It is clear that such advantage could not be secured except by the execution of a new bond and a release of the sureties upon the old bond. It is a matter of common knowledge that in the administration of trust estates, and especially when compensated sureties are involved, the circumstances frequently justify a reduction of the amount of the official bond.

Section 10214, G. C., above quoted, requires a liberal construction of the provisions of part three and all proceedings thereunder. We think a liberal and practical construction of Section 10591 authorizes the acceptance by the probate court of a new bond and the incidental release of the sureties upon the old bond. ,

Counsel for defendant in error have cited and reviewed in their brief many cases from other jurisdictions to the effect that the acceptance of a new bond will not operate to release the sureties upon the old bond in the absence of a statute expressly authorizing such release. We acknowledge the weight of such authorities, but think most of those cases can be distinguished from the case at bar upon the ground that they did not involve a statutory provision similar to Section 10591, G. C., and a statutory rule of construction similar to Section 10214.

Notwithstanding the rule announced in the cases so cited we find a contrary rule established by the Supreme Court of the United States in the case of Veach v. Rice, 131 U. S., 293.

In this case an effort was made to hold the sureties upon both- the original and the new bonds, but the court held that the original bond was discharged by the giving and acceptance of a new bond, and, at page 317, the court, in referring to the case of Justices v. Selman, 6 Ga., 432, say:

‘ ‘ The second section of an act of 1812 came under consideration, which read as follows: ‘Any executor, executrix, administrator, administratrix or guardian, whose residence may be changed from one county to another, either by the creation of a new county, removal or otherwise, shall have the privilege of making the annual returns required of them by this act, to the Court of Ordinary of the county in which they reside, by having previously obtained a copy of all the records concerning the estates for which they are bound as executors, executrix, administrators, administratrix, or guardian, and having had the same recorded in the proper offic,e in the county in which they then reside, and having given new bond and security, as the law directs, for the performance of their duty.’
“The court held, Lumpkin, J., delivering the opinion, ‘That the mere taking _of a new bond does not, necessarily, release the old sureties, and especially when the new bond is taken by authority of law, for the purpose of strengthening the existing security, ’ but that when the second or subsequent bond is given for a new and different undertaking, it operates, ipso facto, as a discharge of the prior parties and hence that when the provisions of the act are fully complied with the sureties on the first bond are discharged from all further laibility on account of their principal.
“We are of opinion that the court erred in rendering a decree against the sureties on the joint bond of Erwin and Gray for a devastavit committed after June 12, 1876.”

In the case at bar the purpose of the new bond was not to strengthen an existing security, but was expressly intended to reduce the amount of the bond and the cost of premium chargeable against the trust estate.

This object could only be accomplished by the release of the former sureties.

We think the probate court had jurisdiction under the circumstances disclosed by the pleadings* and the provisions of our code above cited* to make the order for a new bond and to release the sureties upon the old bond.

The finding and order of the probate court being within the jurisdiction of the court, is subject to the well established rule against collateral attack, Shroyer v. Richmond, 16 Ohio St., 455; Union Sav. Bank & Trust Co. v. Western Union Tel. Co., 79 Ohio St., 89; Wilberding v. Miller, 90 Ohio St., 28, and various other Ohio authorities.

It therefore follows that the judgment of the court of common pleas should be reversed, and, if the plaintiff below desires to file a reply to the answer, the case will be remanded. Otherwise this court will proceed to render the judgment which the lower court should have rendered.

Judgment accordingly.

Allread and Fernebing, JJ., concur.

       Affirmed by the Supreme Court, November 11, 1919.


source: Caselaw Access Project

author: Washburn, J.

license: Public Domain

text:
    RIDICULE OF POLITICAL VIEWS.
    Court of Appeals for Summit County.
    Albert C. Holloway v. Scripps Publishing Co.
    Decided, July 7, 1919.

      Libel and Slander — ■Ridicule of Political Views or Arguments — Not Actionable Without Proof of Special Damages.

    Printed words of ridicule or contempt, which relate solely to political views or arguments on questions of public interest and do not attack the character of a person and do not impute immorality or a violation of law, but merely tend to lesson a man in public es-teen or to wound his feelings, are not actionable without proof of special damages.

      Holloway <& Chamberlain, for plaintiff in .error.

      Allen, Walter, Young & Andress, for defendant in error.
   Washburn, J.

Heard on error.

Plaintiff, Albert C. Holloway, sued the defendant, The Seripps Publishing Co., to recover damages for publishing in its newspapers'’certain purported news items concerning plaintiff, which it is claimed, contained libelous matter.

There was no allegation of special damages.

Defendant filed a motion to strike out certain parts of plaintiff’s petition, and that motion was granted, to Which ruling plaintiff excepted. Thereafter plaintiff filed an amended petition, to which defendant filed a demurrer, which was sustained by the court, and plaintiff not desiring to plead further, judgment was entered dismissing plaintiff’s petition. To this action of the court plaintiff .excepted and now prosecutes error to this court, seeking to reverse the judgment below.

It is unnecessary to discuss whether or not the court below erred in granting the motion to strike out, as we find that it was proper for the court to strike out at least a part of what was stricken out, but we shall consider the sufficiency of the petition as if the matter stricken out were still in the petition.

The publications complained of were made on the 4th, 5th and 14th days of June, 1917, when this country was associated with England in a war against Germany, but before the Espionage act was in force. For the purposes of this inquiry the allegations of the petition are taken to be admitted to be true, but that does not admit that the articles were wholly and entirely false but only those parts of the articles which, if true, would tend to subject plaintiff to public hatred, contempt or ridicule.

On June 4th, the defendant, in reporting the proceedings of a public meeting at which the plaintiff appeared and spoke, published the following:

“ ‘Wilson Sold People to England,’ is declaration of Socialist Orator. ‘ President AYilson sold out his Country to the English. He double-crossed his own people.’ — Attorney A. O. Holloway of Akron. ‘If there is any one guilty of treason it is President AA^ilson. ’ — xVttorney Alex Pattey of Cleveland. The above un-American utterances were the high spots in addresses delivered before a body of Socialists in Central Labor Union Hall, Sunday afternoon. Joseph Wein and H. E. Longacre said they would fight Holloway’s admittance into the ranks of the Army and Navy Union. Both said Holloway recently served notice that he would apply for membership. He has attended several meetings of the organization. Holloway said: ‘ Congress is composed of a bunch of hypocrites and liars. They have all sold out their country.’ ”

In its issue of June 5th defendant published the following:

“‘I-Iolloway will be kicked out by U. S. W. V. Official, says Socialist Attorney, violated oath and must be ousted. A. C. IIolioway, Atty., 439 Akron Savings & Loan Building, started something Sunday when, in an address to Jewish Socialists at Central Labor Union Hall, he made the statement that Wilson had double-crossed the people of this country and had sold out to the English. Officials of Camp Willford, Spanish-American War Veterans, said Tuesday that steps would be taken at the Wednesday night meeting to oust Attorney Holloway from the organization, as a result of his Sunday address. Joseph Wein, prominently identified with Akron organization of Spanish War Veterans, said steps would be taken to oust Holloway out of the ranks. ‘ Holloway has violated the oath that he took when he was admitted to membership, and under our rules and regulations the only thing left to do is to oust him. ’ ’ ’

And in the issue of its paper of June 14th defendant published the following:

“Third party to enter ticket in the race for all city offices. A third party is to have a City Ticket in the race this Fall, with a complete ticket from Mayor on down the list. Circulation of petition started Thursday. There will be no 'Socialist ticket in the field, but the new Citizens’ Ticket will be a combination of Socialists, Free Thinkers ,and others of the Democratic and Republican parties not in sympathy with the selective service Army plan. Albert C. Holloway, William F. Pottin, will be candidates for office on the new ticket, it was reported. Holloway is said to be grooming himself for the mayoralty race.”

The question is, admitting that said statements were untrue and that plaintiff can not prove that any special damages resulted from their publication, can he nevertheless maintain an action of libel?

If the statements complained of had been published by word of mouth instead of being printed in a newspaper, no action could have been maintained without special damage being alleged and proven.

Words, to be actionable, must come within one of the following classes:

1. Words importing an indictable offense.

2. Words tending to prejudice one in his office or calling.

3. Words involving moral turpitude of such a character as to tend to his exclusion from society.

The Supreme Court of Ohio, in Davis v. Brown, 27 Ohio St., 326, 328, referring to the above propositions, declares that, “Tírese rules have long been recognized and repeatedly affirmed in Ohio.” In Hollingsworth v. Shaw, 19 Ohio St., 31, the Supreme Court says: “An action of slander can not be maintained for calling the plaintiff a deserter, without averment and proof of special damage. ’ ’ It then quotes from 1 Starkie, Slander, 21, as follows:

“No charge, however foul, will be actionable, without special damage, unless it 'be of an offense punishable in a temporal court of criminal jurisdiction.”

The charge in the last mentioned case was made during the civil war and involved the highest degree of disgrace and infamy, and yet, because it was not an indictable offense, the right of action was denied.

In referring to these settled rules, the Supreme Court has declared its unwillingness to extend the class of cases in which recovery can be had for slander without proof of special damages, even going to the .extent of holding that words spoken of a man imputing to him an act of sodomy were not actionable without an allegation of special damages, because sodomy was then not an indictable offense under the laws of Ohio.

It is certain that if the publications in the case at bar had been by speaking, instead of printing, the rule applied in the foregoing cases would have to be applied to the case at bar, and it would follow that to state a good cause of action the petition would have to contain an allegation of special damages.

But iu many jurisdictions there is a well-recognized difference between words spoken and matter that is written and published concerning a person.

This distinction was stated in an early Ohio case, Watson v. Trask, 6 Ohio 531, 533, as follows:

“Whatever charge will sustain a suit for slander where the words are merely spoken, will sustain a suit for libel, if they are written or printed and published, and many charges, which, if merely spoken of another would not sustain a suit for slander, will, if written, or printed and published, sustain a suit for libel. Words of ridicule only, or of contempt, which merely tend to lessen a man in public esteem, or to wound his feelings, will support a suit for libel, because of their being embodied in a more permanent and enduring form, of the increased deliberation and malignity of their publication, and of their tendency to provoke breaches of the public peace.”

Tt is true that in some cases the soundness of this distinction is doubted, but its existence in Ohio is established. State v. Smily, 37 Ohio St., 30.

While this difference between slander and libel is recognized in Ohio, and is stated in the very broad, general terms, quoted aboye, it seems to be settled by the great weight of authority, that, even if printed, and published, mere words of ridicule, which tend to lessen a man in public esteem or to would his feelings, are not 'always actionable without proof of sp.ecial damages. Both of the eases in Ohio in which the rule has been referred to were cases where the publication charged the plaintiff with a serious violation of moral law, although not a technical violation of the criminal law, and when the authorities are carefully considered in the light of a sound public policy we think that to come within the rule permitting recovery, without proof of special damages the printed words of ridicule or contempt must relate to matters which are required either by the moral code or the law of the land, liberally and not technically construed; printed words of ridicule or contempt which relate solely to political views or arguments on questions of pxxblic interest, and which do not attack the character of a person, axxd do not impute immorality or a violation of law, come within the rule applicable to spoken words, and are not actionable without proof of special damage.

The acts and views attributed to the plaintiff in the publications complained of in the ease at bar related to political matters or matters of governmental policy. To criticise the president, even in time of war, if it does not give aid and comfort to our enemies, is not immoral, and except as limited by the espionage act (which was not then in force) is not illegal. To question the wisdom of the acts of Congress is not a crime in a democracy. It may be unwise and tend to make one politically unpopular. It s,eems to us quite apparent that at the time of the alleged criticism of the resident and Congress, such alleged criticism, if made, would not have subjected plaintiff to an action for libel or slander. If plaintiff had said that the President had sold out this country to England,, that would have been a severe and intemperate comment on matters oE public interest and general concern, but the public would have understood it to sure, at that time, but not a .charge that the President had been guilty of an immoral act or the violation of any law. Plaintiff had the moral and legal right to express opposition to the policy of the government, and, while such criticism of the President would probably have subjected plaintiff to contempt and ridicule for his political views, it would not have subjected him to contempt and ridicule for an immoral or illegal act. Many authorities sustain the proposition that it is not libelous to charge a man with doing that which he may lawfully do and which is not a violation of the moral code. Bennett v. Williamson, 4 Sandf. (N. Y.), 60; People v. Jerome, 1 Mich., 142; Homer v. Engelhardt, 117 Mass., 539; Goldberger v. Philadelphia Grocer Pub. Co., 42 Fed. 42; Urban v. Helmick, 15 Wash., 155; and Foot v. Pitt, 83 App. Div. (N. Y.), 76.

We are not unmindful of the fact that the situation in the country, and the state of public opinion, made the criticisms attributed to plaintiff unpopular with all right-thinking people, but the subject-matter being political, and the views attributed to plaintiff being neither immoral nor illegal, we hold that the acts charged in the publications did not expose plaintiff to hatred, contempt, ridicule or disgrace in the sense or to the degree required to make the publications actionable without proof of special damages.

We r.eaeh this conclusion not without difficulty and doubt, but it is our best judgment after a very thorough consideration of the record and the authorities.

Judgment affirmed.

Dunlap and Vickery, JJ., concur.


text:
    LIEN OF MORTGAGE ON AFTER-ACQUIRED PROPERTY.
    Court of Appeals for Miami County.
    E. W. Clark, Trustee, v. Strickler Bros. Canning Co.
    Decided, July 30, 1919.

      Corporation Mortgages — Covering After Acquired Property — Not Prior to the Liens of Subsequent Mortgages Without Notice of Said Provision.

    A mortgage executed by a corporation other than a railway company, which purports to include all “after acquired property” of the mortgagor, although duly recorded is not a prior lien upon such after acquired property as against subsequent mortgagees or lien-holders who obtain their liens without actual notice of ■ such “after acquired” clause in the former mortgage.

      E. H. & 17. B. Turner, for plaintiff.

      E. FI. & B. A. Kerr, for defendant.
   Kunkle, J.

Heard on appeal.

The question presented for consideration in this case -relates to the validity of the “after-acquired property” clause contained in the mortgage executed by the Strickler Bros. Canning Co., to E. W. Clark, trust.ee, which mortgage was given to secure certain bonds of the Strickler Bros. Canning Co.

The mortgage definitely described certain real estate then owned by the Strickler Bros. Canning Co. and also contained a clause to the effect that the mortgage should cover all “after-acquired” property of the said mortgagor.

After the execution of the mortgage, the Strickler Bros. Canning Co. purchased from A’. ~W. Timmer two additional lots in Tippecanoe City.

In brief, it appears that on May 11, 1915, the Strickler Bros. Canning Co. executed and delivered to the Monroe Building & Loan Association, a mortgage for $1,500 on these two lots, so purchased from A. W. Timmer, which mortgage was recorded in volume 103, page 365, of the Mortgage Records of Miami County; that on June 19, 1915, the Strickler Bros. Canning Co. executed and delivered to A. W. Timmer a mortgage for $917.50 upon the two lots in question, which mortgage was recorded in volume 119, page 247, mortgage records of Miami county, Ohio; that the mortgage to A. W. Timmer was to secure the balance of the unpaid purchase money for the said two lots and that.the money realized from the mortgage to the building and loan association was deposited by the Strickler Bros. Canning Co. in a local bank and was by it checked out on the same day to Timmer Bros, for lumber furnished to secure a building on the lots so purchased from A. W. Timmer.

The evidence does not establish the fact that either the building .and loan association, A. W. Timmer or Timmer Bros, had actual notice of the “after-acquired property” provision contained in the mortgage previously given by the Strickler Bros. Canning Co. to E. W. Clark, trustee.

E. W. Clark, trustee, claims a prior lien on the proceeds arising from the sale of the property acquired by the Strickler Bros. Canning Co. from A. ~W. Timmer, namely: Lots Nos. 88 and 89. The building and loan company, A. W. Timmer and Timmer Bros, dispute the validity of such “after-acquired property” clause contained in the mortgage given to E. "W. Clark, trustee, in so far as the same affects their liens.

Counsel for E. W. Clark, trustee, rely largely upon the case of Reed v. Ginsburg & Sons, 64 Ohio St., 11, and particularly upon the following paragraph in the opinion of Judge Davis, at page 24:

“The argument that the mortgage on after-acquired property is operative only as a contract to mortgage and that a new mortgage must be executed in order to acquire a lien in behalf of the bend holders on that property, is untenable and hardly calls for analysis.”

We think the decision in the case at bar must be governed by the registry statutes of Ohio, and by the decisions of our courts construing the same. In view of the existence of definite registry statutes in Ohio, some of the decisions quoted from other states would have no application.

The case of Reed v. Ginsburg & Sons, supra, related to a railroad mortgage, given in pursuance of special statutory authority, and we think the language of Judge Davis as used in that decision should be limited to the particular case under consideration. •

Our Supreme Court, in the case of Coe v. Columbus, P. & I. Ry., 10 Ohio St., 372, held both in the syllabus and in the opinion that a railroad mortgage containing a clause covering “after-acquired property” merely created an equity in the after-acquired property” may be, we think a mortgage other than one executed, by a railroad company must comply with the registry act in order to enable the mortgagee to obtain priority over subsequent innocent holders of valid legal mortgages or liens.

In our opinion, this conclusion must be reached, under our registry statutes, otherwise the clear purpose and intent of such statutes would be greatly weakened or entirely destroyed.

We think the Legislature, in view of the peculiar nature of railroad property and the public interests to be subserved, intended by the enactment of the special railroad statutes to confer authority upon railroads to mortgage their property as an entirety and thereby to include after-acquired property.

AYe are impressed with the reasoning and logic found in the decision of the case of Maher v. Smead Heating & Ventilating Co., (5 Circ. Dec., 159; 11 C.C., 381). While this .decision was rendered before the decision in the case of Reed v. Ginsburg, supra, yet we think the distinction as to after-acquired property between mortgages given by railroad companies and those given by other persons or corporations is well stated by Judge King in his decision in this case.

Decree accordingly.

Aldread and Ferneding, JJ., concur.


author: Shields, J.

text:
    AUTHORITY FOR TAKING DEPOSITIONS NOT RESTRICTED.
    Court of Appeals for Richland County.
    In the Matter of Delilah Berger, Ex Parte, Habeas Corpus.
    Decided, June 5, 1919.

      Depositions — Authority for Taking and Using Sharply Distinguished— Belief that the Taking of a Deposition is for Dishing Purposes— Not Ground for Refusal by a Party in Interest to Answer.

    Habeas corpus does not lie for -release of -a witness who has been committed for refusal to answer questions when the taking of his deposition was attempted in a case in which he is a defendant,. where the -sole ground for the refusal is that the purpose of -taking the deposition is to discover defendant’s evidence.

      Brucker & Henkel, for plaintiff in error.

      C. H. Workman, contra.
   Shields, J.

The following facts appear of record:

On February 13, 1919, one Louis Frietchen commenced an action in the court of common pleas of said Richland county against John Berger, Delilah Berger and Della M. Berger, for damages growing out of the alleged negligent, careless and unlawful operation of an automobile upon certain streets in the. city of Mansfield, in said county, on September 25, 1918, whereby the said Louis Frietchen was struck and thrown violently to the street and permanently injured, as is more particularly described in his petition.

On February 26, 1919, and after service of summons was made upon the said defendants in said action, said plaintiff’s attorneys caused subpoenas to issue for the said defendants, Delilah Berger and Della M. Berger, commanding them to be and appear before one Wm. F. Black, a notary public in and for said Richland county, on the 28th day of February, 1919, at the law office of said plaintiff’s attorneys in the city of Mansfield, in said county, to be examined as witnesses as on cross-examination, in behalf of the said plaintiff, in said cause. That pursuant to such process issued, the said defendants duly appeared at the time and place stated, when the said “Delilah Berger being duly sworn was introduced as a witness as upon cross examination,” who after making answers to the usual preliminary questions as to her residence and occupation, was interrogated as to the accident occurring at the intersection of the streets mentioned and at the place mentioned, as stated in said petition, when she refused to answer for the reasons hereinafter stated in said deposition and who on the advice of her counsel made and filed at said time with the said notary public the following affidavit:

“No. 13806. Louis Frietchen, Plaintiff, vs John Berger et al, Defendants.
“AFFIDAVIT.
“State of Ohio, Richland County, ss.:
“Delilah Berger, being by 'me first duly sworn says that she is one of the defendants named in the above style cause of action, and the daughter of the defendant, John Berger herein, that the cause in which her deposition is to he taken or to be attempted to be taken is now pending in this court; that she will of necessity be a witness in'the cause, and will be present to testify in the case and to subject herself to examination and cross examination; that the issues in the case have not yet been made up; that no answer has been filed to the petition of the plaintiff herein, Louis Frietchen, and that the time within which defendants are required to plead has not yet expired; that she is informed by her counsel and believes the fact to be that her deposition is not about to be taken in good faith and for the purpose of being used as testimony in said cause but for the purpose of finding out what her testimony and that of the defendants will be at the -trial, in advance of trial, and solely for the purpose and with the single object to discover the manner in which the defendants’ defense herein is to be established, and to compel the defendants herein to disclose in advance before trial their evidence which relates exclusively to said defendants’ defense.
“That she is now and has been for a number of years a resident of the county of Eichland and the city of Mansfield and expects to be a resident of this county and this city; that she is in robust • health, is not suffering from any infirmity, and does not expect to be imprisoned, and that her testimony is not required on any motion made or to be made but is asked wholly to discover the merits of the defense to plaintiffs’ action.
“And further affiant sayeth not.
“Delilah Berger.
“Sworn to and subscribed before me this 4th day of March, 1919. “Wm. F. Black,
“Notary Public.”

The grounds set forth in said affidavit being held by said notary public to be insufficient to excuse and relieve the said -witness from answering said interrogatories, said notary public thereupon further inquired of said witness:

“Q. You refuse to answer any and all questions pertaining to this inquiry for the reasons stated by your counsel ?
“A. Yes.
#***#■#
‘ ‘ Judge Brucker. I ask that she be -committed for contempt.
“Mr. Workman. I insist that the other method be taken, that the deposition be transmitted to the court with the affidavit of the witness and the counter-affidavit, if plaintiff so desires, with the request of the court to give instructions to the notary public as to the questions involved.
“The notary thereupon ordered and adjudged that the witness Delilah Berger be committed to the jail of Richland county, Ohio, for contempt, to which ruling counsel for the witness excepted.”

That afterward, upon application made, a writ of habeas corpus was issued by the court of common pleas of said county, directed to the sheriff of said county to produce the person of the said Delilah Berger in court, and having done so, said court upon a hearing had of the proceedings- herein ordered and adjudged “that the said Delilah Berger be forthwith discharged from her said detention,” whereupon a petition in error was filed in this court to review and reverse said judgment of said court upon the grounds .therein stated, among which is that said judgment is contrary to law.

It appears that the sole question presented upon the record is the legal question of the plaintiff below to take the testimony by deposition, in advance of a trial, of the said Delilah Berger, a party defendant to said action and served with process, and to have the said Delilah Berger true answers make before a notary public to all proper inquiries made of her, as upon cross-examination, in behalf of said plaintiff, touching the accident upon which said action is based.

The chancery practice of filing what was known as an equity bill for discovery appears to have 'been superseded by statutory 'legislation and as a substitute therefor Section 13497, General Code, was enacted by the Legislature which provides that:

“At the instance of the adverse party, a party may be examined as if under cross-examination, either orally, or by deposition, like any other witness. If the party be a corporation, any or all of the officers thereof may be so examined at the instance of the adverse party. The party calling for such examination shall not thereby be concluded but may rebut it by counter testimony.”

In addition to the foregoing, interrogatories are authorized to be annexed to a pleading under Sec. 11348, G. C. Under the same Chapter (3) relating to evidence Section 11525, General Code, provides that:

“The deposition of a witness may be used only when it is made to appear to the satisfaction of the court that he does not reside in, - or is absent from, the county where the action or proceeding is pending, or by change of venue, is set for trial; or that he is dead, or from age, infirmity, or imprisonment, is unable to attend court; or that the testimony is required upon a motion or where the oral examination of the witness is not required.5 ’

It will thus be seen that the first of the statutes cited provides for an examination of a party to an action by deposition, and by the last statute cited it is provided when the deposition of a witness may be used. One authorizes the taking without any restrictions, and the other the use of a deposition, subject to certain conditions. Here we have to deal with the first proposition only. As was said by Judge Davis in announcing the opinion in In re Rauh et al, 65 O. S., 128, 135:

“The right to ake depositions should be carefully distinguished from the right to use them.”

The question at issue here involves the right to take the deposition of the said Delilah Berger, and not the use of the deposition when taken. The law designates different officers before whom depositions may be taken, among them, a notary public, whose powers are not judicial, and therefore a notary public is not authorized to pass upon and determine the materiality Or competency of testimony offered, but whose duty it is to reduce such testimony to writing and transmit it to the court wherein such action is pending. As was held in DeCamp v. Archibald, 50 O. S., 618 (Syl. 3).

“Where the question propounded involves no question of privilege on the part of the witness, it is his duty to answer, if ordered by the notary public to do so. The question of its competency is a matter for the determination of the court on the trial of the action in which the evidence is taken; and if he refuses to do so, when ordered, he may be committed as a contumacious witness.”

An examination of the record herein shows that after the witness appeared before the notary public- for examination, pursuant to the command of the subpoena served on her, and after she was sworn to testify, her counsel objected to the taking of her testimony “for the reason that the object of the deposition is to discover defendants’ testimony,” which objection was overruled. Then followed the interrogatories and answers as appear in said deposition, when said objection was repeated and overruled, after said affidavit was filed. Hence it appears that the sole objection to the taking of said deposition was based on the ground that it was “to discover defendants’ testimony.” If it were a matter upon which we were required to speak, we would unhesitatingly record our dissent from the wisdom of the statute referred to, for reasons not necessary here to state, but it sufficient to say that the individual opinion of courts can not be substituted for the legislative will when enacted into law, and it is the duty of courts to announce the law as written into our statute books. The question made here is not one of professional ethics but of statutory law — a statute requiring enforcement as interpreted by the highest court of this state. In this connection we have examined the numerous authorities which the diligence and research of counsel have brought to our attention, and we think that the question presented has been met by like questions passed upon by the Supreme Court of this state and are therefore decisive of the question in controversy here. In re Rauh et al, 65 O. S., 128, already referred to, when Section 5266, R. S., now re-enacted as Section 11497, G. C., was under consideration it was held that:

‘ ‘ A deposition may be taken at any time after service of summons upon the defendant in the action, but it can be used on the trial -only in the eases prescribed in Revised Statutes, Section 5265; and the deposition of any witness, whether a party to the action or not, may be so taken.”

In Ex parte Malcolm Jennings, 60 O. S., 319, it was held that:

“A witness whose deposition is being taken before an officer may refuse to testify to facts not relevant to the issues in the case in which the deposition is to be read, if the disclosure of such irrelevant facts would be injurious to the business of the witness; and, if imprisoned by the officer for such refusal, he may be discharged on habeas corpus,”

Here the authority of a notary public committing a witness for refusing to answer a question of personal privilege, and an incompetent question was involved, and not the right of a party to take the deposition of an opposing party.

Ex Parte Schoepf, 74 O. S., 1, was cited and relied on by counsel for the defendant in error. The first two paragraphs of the syllabi in said case are as follows:

“The clause in Section 5247, Revised Statutes, ‘which he may be compelled to produce as evidence,’ and as used In re Rauh, 65 Ohio St., 128, must be construed with Section 5289, Reviséd Statutes, and is therefore limited to evidence-pertinent to the issue, in eases and under circumstances where a party might heretofore have been compelled to produce the same by the ordinary rules of proceeding in chancery.”
“The rule in chancery as to compelling the production of documents for the purpose of evidence and inspection was and is that a party is entitled to a discovery of such facts or documents in his adversary’s possession or under his control, as are material and necessary to make out his own case; but that this right does not extend to a discovery of the manner in which the adverse party’s case is to be established, nor to evidence which relates exclusively to the adverse party’s -ease.”

It is true that a reading of the last clause of the second syllabus cited, unexplained, is susceptible of an interpretation favorable to the contention made by counsel for the defendant in error, but an examination of the opinion in said ease, in connection with the facts, does not warrant such interpretation. Here it was sought to obtain from the witness, who was the claim agent of the traction company, answers to certain questions which were conceded to be immaterial, irrelevant and incompetent because they called for hearsay testimony and therefore “would be inadmissible if offered to a jury on the trial of a case, because of the rule against hearsay.” Fiirther, it appeared that said witness had delivered to the counsel for said traction company reports of the conductor and motorman of the car made to him of the accident nnd said reports were therefore private and privileged. The judge announcing the opinion in this ease in referring to the Jennings and Rauh cases says:

“Accordingly it was nowhere said in either of the decisions of this court already referred to, nor was it intended to be inferred, that a witness might be compelled to surrender to his adversary a coveted document, before the right to compel production of it had been submitted to the judgment of a competent tribunal.”

The question here put related to the inspection of documentary evidence, and the right given an adverse party to obtain such inspection is specially- authorized by statute. At best, the contents o'f said reports could not be orally given by the witness when they were in the possession of another, and it is apparent that they related exclusively to the adverse party’s case. Said reports were held to be privileged and, falling within that class of testimony, the court held that the refusal of the witness to produce said reports was not “lawfully ordered.” Not so in the ease at bar where the witness refused to answer questions solely upon the ground that an effort was being made, as claimed, “.to discover defendants’ testimony.” Of course we are not at liberty to speculate upon what the status of the case will be when the issues are fully made up between these parties, but in the light of the cases decided by the Supreme Court of this state we are of the opinion that the questions put to and declined to be answered by the witness, Delilah Berger, were both competent and pertinent under the petition filed, that the action of the notary in ordering said witness to be committed to jail as for contempt in her refusal to answer said questions was within the lawful exercise of his authority, and it follows that the judgment of the court of common pleas in discharging the said Delilah Berger from custody in said habeas corpus proceeding must be reversed, and it is so ordered. Exceptions.

Houck and Patterson, JJ., concur.

      Affirmed by the -Supreme -Court March 16, 1920.


text:
    TIME FOR FIXING VALUE OF LAND APPROPRIATED UNDER THE CONSERVANCY ACT.
    Court of Appeals for Miami County.
    The Miami Conservancy District v. Elsey Bowers et al.
    Decided, May 21, 1019.

      Appropriation — Application of the Three-Fourths Jury Law — Value of Land Taken to he Fixed as at the Time of the Trial — Taxation of Jury Fees.

    1. The three-fourts jury law applies to appropriation eases under the conservancy act.
    2. In an appropriation proceeding under the conservancy act the market value of the land taken should be estimated as of the time of the trial of the appropriation case, and not as of the time of the confirmation of the appraisement in the original ease establishing a conservancy district.
    S. Jury fees in an appropriation case may be taxed as costs in said case.

      O. B. Brown, A. B. Campbell and L. FI. Shipman, for plaintiff in error.

      Broomhall & Broomhall, for defendant in error.

      B. A. Kerr, Prosecuting Attorney for Miami county, as to the question of taxation of costs.
   Kunkle, J.

Heard on error.

The original action was an appropriation case under the Conservancy Act. The appraisement in the Conservancy proceeding was approved on June 30, 1917. An appeal was taken by the property owners under the Conservancy Act and the proceedings on appeal were had in the court of common pleas of Miami county. The trial resulted in a verdict for the property owners considerably in excess of the amount of the appraisement. The trial court instructed the jury that they might return a verdict under the thr,ee-fourths jury law, but the verdict was concurred in by the entire jury. Motion for a new trial was overruled and judgment was rendered on the verdict. The case has been brought to this court upon the petition in error of the Conservancy District.

Three questions are presented by the arguments and briefs of counsel, to-wit: (1) Whether the three-fourths jury law applies; (2) Whether the marked value of the land taken should be, estimated as of the time of the confirmation of the appraisement in the original case, or as of the time of trial of the present case; (3) Whether the jury fees can be taxed as a part of the costs in the case.

We doubt whether the application of the three-fourths jury law is raised in this case in view of the unanimous verdict.

This court, however, in the case of the Conservancy District v. Mitman in Greene County has recently held that the three-fourths jury law applies to an appropriation case under the Conservancy Act. A copy of that opinion has been furnished to counsel.

We have re-examined this question again in connection with the arguments and briefs of counsel in the present case, and have reached the conclusion that the decision in the Mitman case should be adhered to and followed.

The question as to the time for estimating the market value of the property taken is a very interesting — and in view of the recent fluctuation of values — a very important one. There is a conflict in the decisions of the trial courts in the various counties of the Conservancy District.

The trial court in the case at bar held that the market value at the time of the trial controlled. This question involves a construction both of the constitution and of the Conservancy Act.

Article 1, Section 19, of the Ohio Constitution provides:

“Private property shall ever be held inviolate but subservient to the public welfare. * * * Where private property shall be taken for public use a compensation therefor shall first be made in money, or first secured by a deposit of money; and such compensation shall be assessed by a jury, etc.”

The Constitution of- 3802 did not contain the provision that the ■ money should first be paid or deposited. Under the old Constitution abuses arose which were intended to be remedied by the Constitution of 1851 above quoted.

Under our present Constitution, therefore, the payment or deposit of compensation is a prerequisite to an appropriation except in certain cases specifically mentioned in the Constitution.

This ease does not come within the exception, but is governed by the general provisions of Article I, Section 19, above quoted.

It is urged that a fair construction of the Conservancy Act justifies the contention that the Legislature intended to make the appropriation complete at the tinte of the confirmation by the court.

While there is some force in this contention, if we were to consider the Conservancy Act alone, yet in case of doubt the legislative act should be construed in harmony with the Constitution. Under this rule of construction we think it would follow that both under the Constitution and the Conservancy Act the taking occurs when the compensation is either paid or deposited.

The nearest approximation to the time of the taking would therefore be the time of the trial before a jury in the appeal ease.

It is urged that the present proceeding was an appeal from the confirmation of the appraisement in the original conservancy ease and that therefore the value should be estimated as of the date of the judgment appealed from. This argument would have considerable — and perhaps controlling force — if we were considering only the Conservancy Act, but it must yield, in our judgment, to the superior force of the constitutional provisions. The jury trial provided for in the appeal case is the execution of the constitutional provision and such trial consummates the right of the Conservancy District to make the" appropriation.

It is strongly urged by counsel for plaintiff in error that the proceeds of special assessments and of bonds issxxed in the conservancy proceedings and remaining under the control of the court, contitute a deposit within the meaning of the constitution. We concede there is some plausibility in this contention, but after a careful consideration of the arguments and reasons advanced by counsel we think a fair compliance with the constitutional provision would require either a payment of compensation to the owner for the specific property or a special deposit for the specific property, payable directly to the owner.

We do not think a general fund under the control of the court, not specifically appropriated in the manner above stated, would meet the requirements of the Constitution.

We are therefore of opinion that the rule adopted by the trial court in this respect is correct.

The trial court taxed jury fees as part of the costs in the case, and this is objected to by the Conservancy District. The authority for so taxing the jury fees is found in Section 11089, G. C. This section is a part of the statutes regulating proceedings in the probate court by private corporations to appropriate land.

The Conservancy Act adopts these provisions to control proceedings under the Conservancy Act.

It is claimed that Section 11091, G. C., of the Probate Court Act would except Conservancy proceedings. The part relied upon is as follows:

“The provisions of this Chapter shall not apply to proceedings by state, county, township, district or municipal authorities, to appropriate private property for public use, or for roads or ditches * * *.”

This exception was intended to exclude the public authorities therein named, but the Act creating the Conservancy District and providing for appropriation proceedings in such eases, expressly adopts the statutes relating to appropriation proceedings in- the Probate Court, and being a special provision applying to Conservancy cases would prevail over Section 11091, G. C. Section 11091, G. C., is a general provision, while the Conservancy Act is a special provision affecting conservancy proceedings.

In our opinion, the jury fees in the case at bar were properly taxed as part of the costs.

Finding no prejudicial error the judgment of the lower court is affirmed.

Allread and Ferneding, JJ., concur.

      Affirmed by the Supreme Court, July 8, 1919.


text:
    DAMAGE TO ABUTTING OWNER IN ELIMINATING A A GRADE CROSSING.
    Court of Appeals for Franklin County.
    Etta Lewis and Emory Lewis v. Levi E. Douglass et al as Commissioners of Franklin County, Ohio.
    Decided, November 6, 1919.

      County Commissioners — Official Acts Distinguished from Those Purely Individual — Change in the Grade of a Road not an Ultra Tires Act —Whether a Reasonable Grade was Established a Question for the Jury.

    1. Where county commissioners, as a part of a plan to eliminate grade crossings over steam railroads, establish- the grade of a road or highway and cut down the surface thereof three or four feet in front of -property which has been improved with reference to such surface grade, the owner of such real estate can recover damages from the county, if any dam-age results from such change of grade and if same is found by the jury to be an unreasonable grade. '
    2. Where such unreasonable grade has been actually made by the county commissioners, the- fact that such commissioners made no formal record of the order and proceedings establishing the same is not a defense on behalf of the county, nor does such fact relegate the -property owner to an action exclusively against the county -commissioners as individuals.

      T. E. & J. M. Lewis, for plaintiffs in error.

      Hugo N. Schlesinger, Prosecuting Attorney, and John H. Summers, Assistant Prosecuting Attorney of Franklin County, for defendants in error.
   Kunkle, J.

Heard on error.

This is an action for damages against the defendants as County Commissioners of Franklin County on account of their establishing what is claimed to be an unreasonable grade on Seventh Street in front of the premises of plaintiffs in error, whereby it is claimed the easement of ingress and egress to their premises was impaired to their damage in the sum of $600.

The answer of defendants after admitting the official capacity of the Board of County Commissioners denies the other allegations of the petition. The answer, therefore, denies that the Board of County Commissioners of Franklin County by proper and legal proceedings made the change of grade complained of.

At the conclusion of the testimony defendants in error moved the court to direct a verdict in their favor upon the ground that the acts complained of were ultra vires and void and that Franklin County could not, therefore, be held responsible.

This motion was sustained by the trial court and the jury returned a verdict in favor of defendants in error.

Motion for a new trial was overruled and judgment was entered upon the verdict.

In brief it appears from the record that in October, 1916, the 'Board of County Commissioners of Franklin County without any previous proceedings having -been had therefor let a contract for grading and macadamizing the road in front of the •premises of plaintiffs in error.

This improvement involved a cut of between three and four feet below the former surface of the road in front of the. premises of plaintiffs in -error.

The County Commissioners afterwards by resolution adopted this road as part of the plan to eliminate grade crossings over portions of the Hocking Valley Railway Company.

It seems apparent that the new road was constructed for the purpose of permitting traffic to pass between High Street and the Smoky Row Road and formed a link in the elimination of grade crossings.

Counsel for defendants in error claim that as no previous proceedings or formal order of the Board of County Commissioners were had, that the contract for the improvement of the said road in front of the premises of plaintiffs in error and the construction of such road, became the individual act of the defendants who composed the Board of County Commissioners at that time and that defendants in error were not acting in their official capacity as public officers; that before Franklin County can be held liable it must affirmatively appear that regular proceedings for the establishment of such grade were had and that a formal order was entered by the Board of County Commissioners authorizing the improvement in question.

It is admitted that the record of the County Commissioners does not show that any formal action was tak;en by the Board of County Commissioners prior to’ the letting of the contract aforesaid.

Counsel upon both sides have favored the court with very exhaustive briefs citing and reviewing many authorities.

We have considered the authorities so cited but shall not attempt to review them in detail.

We think the authorities in this state sustain the view that no formal action or proceeding is required by the Board of County Commissioners prior to their improvement of a road in order to create a liability against the county for the making of an unreasonable grade in front of the premises of an abutting property owner.

The County Commissioners are charged by law with the maintenance and improvement of highways and although they may have proceeded irregularly in the first instance yet it appears that subsequently the improvement in question was formally recognized and adopted by the County Commissioners by the passage of Section 3 of the resolution designated as Exhibit No. 7.

Under the circumstances of this case we are of opinion that the acts of the Board of County Commissioners in the respects complained of were official, rather than individual acts and that :the grade of the road in front of the premises of plaintiffs in error as between the owners of property abutting thereon and the County Commissioners, was legally established.

It must be remembered that this is not a ease between the contractor upon the one hand and the public upon the other hand in which.the validity of a contract is involved.

.The following, among other Ohio authorities, might be cited upon the above proposition namely: 14 C.C. (N.S.), page 198; affirmed by Supreme Court in 84 O. S. Reports, 503; 50 O. S. Reports, page 628.

Counsel in their briefs and also in the oral argument have more or less frequently referred to a change of grade in front of the premises of plaintiff in error. We are of opinion that the .petition in this case proceeds upon the theory that an unreasonable grade was established rather than that there was a change of grade.

There is some evidence in the record tending to show that the grade established by the Board of County Commissioners was unreasonable. There is also evidence tending to show that the grade so established is not an unreasonable grade under all the circumstances disclosed by the record. This is a question for the jury rather than for the court.

We think th,e trial court was in error in holding as a matter of law that there could be no liability against the County for the action of the County Commissioners in cutting down the road in front of the premises of plaintiffs in error. The case should in our opinion also be submitted to the jury upon the question as to whether .the grade so established is or is'not an unreasonable grade. The judgment of the lower court will be reversed and cause remanded.

Allread and Ferneding, J. J. concur.


text:
    RIGHTS INVOLVED IN IMPROVEMENT OF A STREET IN MUNICIPALLY ACQUIRED TERRITORY.
    Court of Appeals for Montgomery County.
    The City of Dayton v. Elizabeth T. Haines.

    Decided, July 25, 1919.

      Street Improvement — Property Owner Must be Notified of Contemplated Change of Grade — Municipally Annexed Territory Subject to Established Grades — Rights of Abutting Property Oioner in Shade Trees and Excavated Dirt and Gravel.

    1. Notice of the improvement of a street involving a material change of grade, in order to bar an action by a property owner for damages therefor, should definitely state that a change of grade is contemplated as a part of such improvement.
    2. When the limits of a municipality are extended the municipality acquires the territory subject to the established grades of all highways within the territory so annexed.
    3. Where shade trees have been planted and maintained on the unused portion of a country road after a grade has been established upon such country road by improvement and user, damages to the abutting property by reason of the injury to or destruction of said shade trees, caused exclusively by a change of grade, may he recovered by the property owner.

      4. Dirt and gravel excavated by a municipality in making a street improvement may be appropriated by. such municipality so far as the same is necessary to be used in making such improvement. The property owner upon demand is entitled to the surplus dirt and gravel so excavated, to he delivered at the option of the city, either at some convenient place on the street or at some convenient place on the abutting property adjacent to the street.
    5. A demand made by the property owner upon the contractor for such surplus dirt and gravel is sufficient where the city has by its contract committed that feature of the work to the contractor.

      W. S. McConnaughey, John C. Shea and John B. Harshman, for plaintiff in error.

      McMahon & McMahon and Robert K. Landis, for defendant in error.

      Writ of certorari refused by the Supreme Court.

   Kunkle, J.

Heard on error.

This is an action in which defendant in error sought to recover damages on account of a change of grade in the street in front of her premises.

In the lower court defendant in error recovered a verdict in the sum of $1670. Motion for a new trial was overruled and judgment was entered upon the verdict. From such judgment plaintiff in error prosecutes error to this court.

In brief, defendant in error, in her petition claims that prior to 1909, the portion of Main Street, upon which her lands abut, was outside the limits of the city of Dayton and for a period of more than forty years such highway had been maintained and improved at a definite fixed grade by the proper authorities; that she, relying upon the apparent permanence of such grade, improved her real estate to conform to said grade by erecting a dwelling house and stable, planting shade trees and fruit trees, constructing fences and laying out a driveway from said pike into and upon her premises; that in 1909 the city by appropriate action extended the city limits so as to include her land and the portion of Main Street upon which it abutted; that in 1910 the council of said city fixed the grade of the portion of Main Street upon which her land abuts, lower than the grade of the highway as it was then constructed and used; that in 1911 the council of said city adopted an improvement resolution declaring it necessary to improve North Main Street from Norman Avenue to the north corporation line by setting stone or cement street curb, or combined curb and gutter of cement, and paving the roadway according to the grade established by council ; that a notice of the passage of this resolution was served on her and which notice was in the following form:

“Dayton, Ohio, March 14, 1911.

“To Elizabeth Haines:

“You are hereby given notice of the passage of the City Council of the City of Dayton, State of Ohio, on 27th day of February, 1911, of Improvement Resolution No. 861, which was duly approved by the Mayor of said city, declaring it necessary to improve North Main Street from Norman Avenue to the North Corporation line, by setting stone or cement straight curbing or combined curb and gutter of -cement, and paving the roadway either Brick, Sheet Asphalt, Bituminous Macadam (or certain other materials) in accordance with plans, specifications, estimates, and profiles on file in the office of the Dept, of Public Service.

‘ ‘ The expense of said improvement will be assessed by the foot frontage of the property bounding and abutting upon said improvement.

“By order of the Council.

“Wayne G-. Lee, Clerk of Council.

“Harry Schmitz, Ass’t..Clerk.”

Defendant in error says she had no other notice nor any knowledge that a change of grade was contemplated until the work was commenced on the street in the autumn of 1912 in accordance with an ordinance to .proceed passed by council April 21, 1911; that carrying out the provisions of the improvement resolution and ordinance the city has cut down the grade of Main Street in front of her property so that the surface of the street is from three to seven feet below the surface of plaintiff’s land; that seven of plaintiff’s live shade trees were undermined, cut and damaged so that same have died and all will be destroyed; that her driveway was destroyed, her fences torn down, her dirt and gravel- to the amount of 3250 cubic yards were hauled away against her protest and the means of ingress and egress to her property destroyed; that on April 11, 1916, she filed a claim for damages with the Clerk of the Commission of the city, which has never 'been allowed, adjusted or paid in whole or in part.

A demurrer was filed to this petition and was overruled by the lower court.

The answer -of the city in brief admits the allegations as to the legislation by the city council and that the improvement was made as provided thereby; avers that plans and specifications for said improvement were on file in the office of the Director of Public Service December 10, 1910 and were open to inspection, and employes of the city were at all times ready and willing to explain the same; that defendant in error did not file any claim for damages within two weeks after the notice recited in the petition was served upon her; that she thereby waived her right to claim damages and denies that she has been damaged and denies all other allegations.

At the conclusion of the testimony of defendant in error the city asked for a directed verdict, claiming,

(1) That the failure of defendant in error to file a claim within two weeks after service of notice, barred any claim.

(2) That there was no evidence that the land of defendant in error was any less valuable by reason of the change of the grade.

(3) That the evidence as to the disposal of the dirt in the street and the value of the trees and the cost of sloping and sodding and changing the driveway did not establish her claim to any damages.

This motion was overruled and the city, among other things, introduced testimony tending to show that the value of the property of defendant in error for platting purposes was increased by reason of the change of grade-; that the shade trees were within the line of the street; that the contractor offered to slope the banks along the property of defendant in error but she refused to allow him to do so, etc.

Various errors are relied upon by the city to secure a reversal of this judgment.

We have carefully considered the authorities cited in the very exhaustive briefs which have been furnished by counsel. We shall, however, not attempt to discuss or distinguish these authorities in detail but will 'merely announce the general conclusions at which we have arrived.

The first question presented for consideration, and the one which goes to the foundation of the action, relates to the notice which was served upon defendant in error and other property owners of the proposed improvement.

Sections 3814, 3815 and 3816 Gr. C. relate to the passage of a resolution declaring the necessity for the improvement, the filing of plans, specifications, estimates, profiles, etc.

Section 3818 G. C. provides that a notice of the passage of such a resolution shall be served by the Clerk of Council, or an Assistant, upon the owner of each piece of property to assessed, in the manner provided by law for the service of summons in civil actions.

Section 3823 G. C. provides that the owner of a lot, or of land bounding or abutting upon the proposed improvement, claiming that he will sustain damages by reason of the improvement, within two weeks after the service of the notice or completion of the publication thereof, shall file a claim in writing with the Clerk of Council, setting forth the amount of the damages claimed, etc.

Section 3911 G. C. reads as follows:

“Proceedings in respect to improvements shall be liberally construed by the councils and courts to secure a speedy completion of the work, at a reasonable cost, and the speedy collection of the assessment after the time has elapsed for its payment, and merely formal objections shall be disregarded, but the proceedings shall be strictly construed in favor of the owner of the property assessed or injured as to the limitations on assessment of private, property, and compensation for damages. ’ ’

From a car.eful consideration of the Sections of the Code referred to, the authorities cited by counsel, and the notice which was actually served upon defendant in error of the improvement in question, we ar.e of opinion that the notice was insufficient to bind defendant in error for the reason that such notice purports to define the nature of the improvement which the city intends to make in the street in front of the premises of defendant in error and entirely omits to advise defendant in error of the very important fact that a change of grade is contemplated or that the grade of the proposed improvement involves a material cut in front of her premises. This was an important feature insofar as defendant in error was concerned. To her it was probably the most important feature connected with the improvement of the street, yet the notice as served contained no suggestion that a change of grade was contemplated. It is true reference was made in the notice to the plans and specifications which, were on file in the office of the city engineer, but in our opinion when a notice purports to define the nature of the improvement-the failure to enumerate an important feature of the improvement would tend to mislead and would therefore be insufficient.

We think the failure to file a claim for damages within the specified time is in the nature of a forfeiture and the notice must be strictly construed and that the law requires a notice sufficiently definite to advise the owner of the property of what the city proposes to do ; that in the absence of such notice the property owner would not be estopped from asserting a claim for damages.

Upon the trial of the case the court, upon its own motion, submitted two special findings relating to certain features of damage, so as to enable the court upon a motion for a new trial to eliminate one or both of such elements of damage in case he, upon further consideration, became convinced that the. same were not proper. There was some controversy between counsel at the time and the court instructed the jury as to the part these findings should play in the general verdict for damages. Counsel for the city excepted to giving these special findings to the jury, and now complain that they w.ere improper and had a tendency to mislead the jury in fixing the amount of the general verdict.

The verdict including the special findings is as follows:

“We do assess plaintiffs damages by reason of the premises in the sum of ($1670.00) Sixteen Hundred-Seventy and 00-100 Dollars. As in part making up said damages we find that plaintiff’s premises have been depreciated in value First: by reason of the loss of dirt and gravel in the sum of ($720.00) Seven Hundred Twenty and 00-100 Dollars. Second: by reason of injury to shade trees in the sum of ($300.00) Three Hundred and 00-100 Dollars.”

Counsel for the city earnestly contend that the item of injury to the shade trees should not have been allowed and should now be eliminated from the verdict and judgment. This question is not free from donbt. There was evidence, however, tending to prove that the owner of the property planted said shade trees on or near the property line after the former alleged grade was established by improvement and user. The evidence tends to prove that all the shade trees were within the legal limits of the highway. It also appears that at the time the alleged former grade was established the road was a country road but that the city limits were subsequently extended so as to include the same.

The rights of an owner of abutting property who plants shade trees in the unused portion of a highway are not clearly defined, but we think the authorities establish the fact that such owner has certain rights in shade trees properly located on the unused portions of a highway and that where by reason of a change of grade such trees are injured or destroyed, damages therefor may be recovered in an action by the property owner.

If no change of grade had been made and the injury to or removal of the shade trees had been required by the city for the purpose of improving the street, at the former established grade, then the question would be entirely different. "We are at present considering a ease where there is evidence tending to show that the trees were planted according to an established grade and were injured by an improvement based upon a change of grade. We are of opinion that the injury to the shade trees was properly considered as an element of damage.

W.e have also had difficulty with the item as to dirt and gravel. We are clearly of opinion that the city had a legal right to excavate, remove and appropriate so much of the dirt and gravel from in front of plaintiff’s premises as was necessary to make the fills on the improvement in question. The evidence tends to prove that 1044 cubic yards of the dirt and gravel in controversy were used for this purpose. The trial court erroneously stated in his charge that 850 cubic yards were required for the fill in the street, but this statement of the court can be cured by a remittitur.

The difficulty arises over the demand of the property owner to have all of the dirt and gravel which was removed from in front of her property, hauled and deposited in a low place in the rear of her five acre tract. We think the defendant in error had an interest in the dirt and gravel removed from the street in front of her property and not required in the improvement in question. We think her rights were subordinate to those of the city in making the improvement. The question is not without difficulty as to how her right, to the excess dirt and gravel, should be worked out. We have reached the conclusion that the most reasonable rule would be that the property owner, by proper demand, may obtain the .excess dirt and gravel, when excavated by the city, the same to be delivered at the option of the city either at some convenient place on the street or some convenient place on the abutting property adjacent to the street. We do not think the city could be required to haul and deliver the dirt at some remote place on the plaintiff’s property.

We also think the demand which defendant in error made upon the contractor, under the circumstances of this case, was sufficient. It is true she demanded'more dirt than she was entitled to, but the demand called the contractor’s attention to her claim and he was not justified in entirely ignoring the same but should have offered to deliver the dirt, after being excavated, either on the street or at som,e convenient and proper place adjacent to the street.

Complaint is made that the demand of the property owner should have been made on the city or some authorized agent of the city but we think the city by its contract committed that feature of the work to the contractor and that the demand on the contractor was sufficient to bind the city. • The evidence was not very satisfactory as to the value of the dirt delivered on the street or adjacent thereto, and it appears that the jury must have adopted the estimate made by certain witnesses as to the value of such dirt delivered at the point which the plaintiff selected. We think the verdict is excessive and while the evidence is not clear as to the exact amount of plaintiff’s damage, we have considered all the evidence in the record and have also applied to a certain extent, the rules of general information, and have reached the conclusion that the item as to the removal of dirt and gravel should be reduced from $720 to $360. The reduction of this item to $360 also includes the amount to be remitted on account of the error of the trial court in reference to the amount, of dirt and gravel required to make the fills in the street.

Counsel for the city contend, as above stated, that the jury was misled by the court submitting the special findings above referred to. We are of opinion that the trial court had the right, especially with the acquiescence of one of the .counsel, to submit these special findings for his future guidance after a full consideration of the law applicable to the case. It was. a practical way of dealing with doubtful items. The court in his general charge and also in explanation of the special findings, gave the jury the true rule as to the measure of damages, namely: the difference between the value of the property before the new grade was established and the value after such grade was established. We think the special findings are consistent with the rule so given and we do not see how the giving of such special findings under the circumstances could have misled the jury.

We have examined all the questions presented and argued by counsel and are of opinion that there is no prejudicial error except as to the amount of the item for dirt and gravel.

If the plaintiff below will remit $360 from the amount of the verdict and judgment the same, as modified, will be affirmed. Otherwise, the judgment will be reversed and cause remanded for new trial.

Allread and Ferneding, JJ., concur.


text:
    SURETY NOT LIABLE FOR PERFORMANCE;^ AN UNAUTHORIZED CONTRACT.
    Court of Appeals for Franklin County.
    Columbus v. Chicago Bonding & Surety Co.
    Decided, December 5, 1918.

      Municipal Corporations — Principal and Surety — Contract Void Because in Excess of $500 and Unauthorized.

    Where the board of purchase of a city governed by a charter is authorized to make expenditures in excess of $500 only when authority ■for such expenditures has been granted by council, a contract in excess of $500 made by such board without authority from council is void, and the surety upon the bond given by the contractor to secure performance of such contract cannot be held liable in the absence of facts amounting to an estoppel.

      H. L. Scarlett and C. A. Leach, for plaintiff in error.

      James M. Butler and Franklin Rubrecht, for defendant in error.
   Kunkle, J.

Heard on error.

Plaintiff in error seeks to recover from defendant in error, a bonding company, upon a certain bond given by the Kokomo Foundry & Machine Co. to plaintiff in error for the purpose of securing the performance of a contract entered into between the city of Columbus and the Kokomo Foundry & Machine Co. for the installation of certain Stokers for the city municipal light plant. The substance of said bond is as follows:

“Know All Men By These Presents, That we, the undersigned, Kokomo Foundry & Machine Company of Kokomo, Indiana, as principal and Chicago Bonding & Surety Company of .Chicago, Illinois, as sureties, axe hereby held and firmly bound unto the city of Columbus, Ohio, in the penal sum of Three Thousand Dollars, for the payment of which well and truly to be made, we hereby jointly and severally bind ourselves, our executors and administrators.
“Signed this 28th day of September, 1916.
“The condition of the above obligation is such that if the said Kokomo Foundry & Machine Company shall well and faithfully do and perform the things agreed by them to be done and performed according to_the terms of the foregoing contract, then this obligation shall be void; otherwise the same shall remain in full force and effect.”

The petition contains the averments necessary to establish liability, and further alleges that the contractor has performed no part of the work specified in the said contract, and has not furnished, delivered, or erected two 500 horsepower underfeed stokers at the municipal light plant in said city of Columbus, nor performed any work in connection therewith, and that upon the failure of said contractor to fulfill its contract plaintiff in error was obliged to purchase the said material elsewhere and at a price $é,020 greater than the contract price with the Kokomo Foundry & Machine Co.

It is conceded that neither the contractor, nor the receiver of said contractor, has furnished any material or performed any labor under the contract, and that no payment has been made by the city to the contractor or receiver upon such contract.

Defendant in error filed an answer containing two defenses.

The second defense, with which we are now concerned, alleges as follows:

“This defendant expressly denies that the Board of Purchase of the city of Columbus, Ohio, was ever at any time authorized or empowered to advertise for bids upon or to enter into any agreement or contract for the purchase of two 500 horsepower Underfeed Stokers for use in extension of the municipal light plant of the city of Columbus or for any other purpose, or that any money was ever appropriated by the said city council to pay the- expense of the purchase or installation of the same, or that said Board of Purchase was ever at any time authorized or empo-wered to enter into any contract or agreement with the said Kokomo Foundry & Machine Co., or with any other persons for the purchase of two 500 horsepower Underfeed Stokers for use by said city of Columbus, as aforesaid.
“But on the contrary this defendant expressly avers that said alleged contract or agreement purporting to have been made with the said Kokomo Foundry & Machine Co., for and on behalf of the city of Columbus, Ohio, was made by the said Board of Purchase wholly without authority of any kind whatsoever from the city of Columbus or from the city council of said city without any appropriation ever having been made therefor; that said alleged contract between the said Board of Purchase of said city of Columbus and the said Kokomo Foundry & Machine Co. was and is not the contract of the city of Columbus, Ohio; and that, having been made by the said Board of Purchase without any authority of any kind whatsoever and without any appropriation therefor, as aforesaid, said alleged contract was and is of no binding force or effect and was and is wholly illegal and void.
‘ ‘ This defendant says that at the time it executed said alleged writing styled a bond, dated September 28, 1916, as afor.esaid, there was in fact no valid, binding or enforeible contract or agreement between the city of Columbus and the said Kokomo Foundry. & Machine Co. for the purchase, construction, delivery or erection of said 500 horsepower Underfeed Stokers or for any other purpose because of the facts and reasons hereinbefore set forth; that said writing styled a bond, dated September 28, 1916, as aforesaid, related only, and was.intended to relate only, to the said paper writing between the plaintiff and the said Kokomo Foundry & Machine Co.; that said paper writing, the performance of which it was intended to insure and cover, was and is in fact invalid, illegal, void and of no force or effect, and that therefore the said writing styled a bond, dated September 28, 1916, is itself a nullity, illegal, void, and of no binding force or effect whatever.”

The surety company by its answer thus raises the legal question as to whether or not the Board of Purchase of the city of Columbus had the legal authority to make the contract with the' Kokomo Foundry & Machine Co.

The city of Columbus demurred to the second defense of the answer upon the ground that the averments of such answer do not constitute a defense.

This demurrer was overruled iu the lower court, and the city not desiring to plead further, final judgment was rendered.

From such judgment plaintiff in- error prosecutes error to this court.

The demurrer admits the allegation in the second defense of the answer that the city of Columbus never received any authority from the city council to enter into this contract, and also admits that the city Board of Purchase advertised for bids, awarded the contract, and accepted the bond, without any action having been taken by council, and without any appropriation having been made therefor.

The demurrer also admits that nothing was done by the contractor under the said contract except to furnish the bond in question, and that the city made no payment on account of such contract.

Section 162 of the charter of the city of Columbus provides:

“When any expenditure in any department other than the compensation of persons employed therein, exceeds five hundred dollars, it shall first be authorized and directed by ordinance of the council. When so authorized and directed, the proper board or officer shall make a written contract in strict accordance with the terms and conditions of the ordinance, with the lowest and best bidder.”

Section 162 of the Columbus charter is similar to See. 4328, G-. C.

Section 142 of the Columbus charter creates a Board of Purchase, and provides that such board shall make all purchases for the city in the manner provided by ordinance.

It is claimed by counsel for defendant in error that there can not be a valid contract of suretyship without a valid principal contract, and -that in the case at bar the principal contract between the city of Columbus and the Kokomo Foundry & Machine Co. is void because it involves an expenditure in excess of five hundred dollars and the Board of Purchase entered into it without being authorized so to do by an ordinance of the council; that as the principal contract between the city and the contractor is void, the surety company can not be held liable upon its bond of indemnity.

Counsel have favored the court with very helpful briefs wherein many of the leading cases in this and other states are discussed. We shall not attempt to analyze or discuss these cases in detail.

Some of the decisions from sister states can easily be distinguished by reason of differences in the statutes of such states. . Our supreme court in an unbroken line of decisions, such as Lancaster v. Miller, 58 Ohio St., 558 (51 N. E., 52) ; Buchanan Bridge Co. v. Campbell, 60 Ohio St., 406 (54 N. E., 372) ; Comstock v. Nelsonville, 61 Ohio St., 288 (56 N. E,, 15) ; Wellston v. Morgan, 65 Ohio St., 219 (62 N. E., 127) ; State v. Fronizer, 77 Ohio St., 7 (82 N. E., 518), and various other decisions, has announced the rule that so-called “restrictive statutes,” which control and safeguard municipalities must fee complied with, and that the failure so to do- renders the contract void, and that the court will leave the parties where it finds them.

We had occasion to discuss one of these restrictive statutes in the ease of Mad River Township v. Austin-Western Road Machinery Co., 5 Ohio App., 298; 27 C. C. (N. S.), 209, in which the supreme court afterwards refused to order a writ of certiorari.

It is earnestly argued by counsel for plaintiff in error that Sec. 162. of the Columbus charter does not expressly provid? that a contract made in violation of the restrictive provisions of said section shall be void.

It is true that many of the restrictive sections of the General Code do provide that a contract made in violation of such restrictive provisions shall be void.

Where there is a statute conferring general powers upon a board, followed by a restrictive statute, it is possibly the rule that the restrictive statute would have to contain an express provision to that effect before the. contract would fee void. Where no general powers are conferred upon -a board and the only authority of the board is conferred by the restrictive statute, we are of opinion that if the terms of the restrictive statute, as to authority, are not complied with, any contract of the board made in violation of such restrictive provisions would be void and of no effect.

It will be noted that 'Sec. 142 of the Columbus charter does not confer general power to contract upon the Board of Purchase. Such section, in effect, makes the authority of said board to purchase depend upon the enactment of an ordinance.

Under Secs. 142 and 162' of the charter the enactment of an ordinance conferring authority upon the Board of Purchase for the purpose of enabling such board to make a valid contract is jurisdictional, and in the absence of such an ordinance we think the board would be acting without any authority.

The failure of the council to pass an ordinance authorizing the Board of Purchase to make a contract is not a mere irregularity, but goes to the question of the jurisdiction of the board to act.

The contract between the city and the contractor being void, and not merely voidable, there was no valid contract upon which to base a liability of suretyship.

Many cases are cited in which the surety was held although the principal was not bound.

We think the principle underlying this line of eases does not apply to a case wherein the principal contract is absolutely void.

It is also suggested that the surety company is estopped from, denying the recital in the bond with reference to the principal contract.

We think the recital in the bond is not of itself conclusive upon the surety that the contract referred to was a valid contract.

In addition to the recital in the bond, before the surety will be estopped, there must also be some circumstance which would make it inequitable for the surety to deny the recital in the bond and show the truth.

No such circumstance appears in the record. As a matter of fact the defect in the contract consists in the failure of the city to enact the necessary ordinance to make the contract valid.

Under such circumstances we are of opinion that the surety company is not estopped from showing the true situation with reference to the principal contract.

We have considered all the grounds for reversal suggested by counsel for plaintiff in error in their brief, and are of opinion that the judgment of the lower court should be affirmed.

Judgment affirmed.

Ai-lread and Ferneding, JJ., concur.