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

text:
    JURISDICTION OF MUNICIPAL COURT.
    Court of Appeals for Hamilton County.
    P. A. Keck, Executor, v. Harry Bahlke.
    Decided, June 12, 1916.

      Executors — Action for Maintenance of Decedent — 'Within Jurisdiction of Municipal Court of Cincinnati.

    The Municipal Court "of Cincinnati has jurisdiction of an action to enforce a claim against an executor for maintenance of the decedent.

      L. D. Oliver and Walter M. Beinhart, for plaintiff in error. •

      M. Muller, contra.
   Jones (E. H.), J.

Heard on error.

The plaintiff in error seeks a reversal of the judgment of the common pleas court affirming the municipal court of Cincinnati. In the municipal court Bahlke recovered a judgment against Keck, executor, for board and lodging furnished decedent, who was the mother of Mrs. Bahlke. The amended petition alleges an express contract providing for compensation at the rate of two dollars per week.

There was evidence of two competent witnesses to the effect that when the old lady came to live with Mr. and Mrs. Bahlke she agreed to pay Bahlke two dollars per week. This evidence was nneontroverted. Some evidence was received as to another contract providing for the payment of five dollars per month for lodging. This evidence related to conversations between witnesses and decedent in the absence of Bahlke and was clearly inadmissible, as was much of the evidence offered and received on behalf of defendant. But considering all the evidence in the record, we can not say that the judgment is not supported by' sufficient evidence.

The remaining question is one of jurisdiction. Plaintiff in error attacks the jurisdiction of the municipal court in this bind of an action. The question was not raised until this court was reached, and it is claimed the objection was thus waived and that complainant is now estopped. We are inclined to the opinion that this point is not well taken but do not deem it necessary to decide the question.

The municipal court, by the .statute creating it, has jurisdiction to try and determine this kind of an action. The plaintiff in his petition below asked not only that his claim be allowed, but also for judgment against the defendant executor. The law provides (103 O. L., 280, 281) :

Section 6. “The municipal'court shall have the same jurisdiction in criminal matters and prosecutions for misdemeanors or violations of ordinances as heretofore had by the police court of Cincinnati, and in addition thereto shall have ordinary civil jurisdiction within the limits of said city of Cincinnati in the following cases: # * *.
“2. In all actions and proceedings for the recovery of money or personal property of which the court of common pleas has, or may be given jurisdiction, when the amount claimed by any party, or the alleged value of the personal property sought to be recovered, does not exceed $600. * * *
“3. All actions on contracts express or implied, when the amount claimed by the plaintiff is exclusive of all costs, does not exceed $600.” * * *

These provisions are not affected by amendment.

It was held in Kennedy v. Thompson, 3 C. C., 446, that a suit for the allowance of a claim against an assignee where no money judgment was asked, was a civil action of which the court of common pleas had original jurisdiction.

The case at bar was brought under authority of Section 10722, General Code, which provides as follows:

“If a claim against the estate of a deceased person be exhibited to the executor or administrator, before the estate is represented insolvent, and be disputed or rejected by him, and has not been referred within six months after such dispute or rejection, if the debt, or any part of It be then due, or within six months after some part becomes due, the claimant must commence a suit for the recovery thereof, or be forever barred from maintaining an action thereon. No action shall be maintained thereon after such period by a person deriving title thereto from such claimant.”

Section 10725, General Code, recognizes this kind of an action as one for money, in other words, a civil action.

It seems clear, therefore, that the municipal court had jurisdiction to try and determine this case, and there being no error, the judgment is affirmed.

Jones (Oliver B.), J., and Gorman, J., concur.


source: Caselaw Access Project

author: Gorman, J.

license: Public Domain

text:
    QUESTIONS AS TO A RELEASE IN AN ACTION FOR DAMAGES FOR. INJURIES.
    Court of Appeals for Hamilton County.
    Swain C. Brown v. The Kiechler Manufacturing Company.
    Decided, January 8, 1917.

      Release — Proper Procediere Where Set iup by the Defendant — Determination Necessary as to Whether the Paper is Voidable — Then as to Whether it is Void — Not an Abuse of Discretion to Refuse to Permit Amendment of Petition at Glose of All'the Evidence, When — • Negligence in Operation of a Machine.

    1. The defendant in an action for injuries having set up a release, the question first to be determined upon trial of the case is as to ‘ the voidability of the release, the evidence failing to. warrant the court in setting the release aside, the question then arises whether or not it was void ab initio.

    2. Where the evidence has failed to establish the voidability of a release, but the plaintiff in his reply denies its execution, it becomes the duty of the court to submit to the jury all the evidence, both as to execution of the release and the negligence of the defendant in causing plaintiff’s injuries.
    3. An admission by the plaintiff that he signed the release, together with evidence that he received a substantial consideration therefor, bars recovery in the absence of any showing of lack of mental capacity or of fraud in securing his signáture thereto.
    4. " It further appearing from the evidence that the machine plaintiff was operating at the time he received his injury was not defective in the particular alleged, but, on the contrary, that it was in good working order, and that his injury was due to his attempting to operate it in a manner different from that directed by the foreman, it was not error to direct the jury to return a verdict for the defendant on the ground, among others, that he had failed to establish any defect in the machine of the character set out in his petition.
    5. Nor is it an abuse of judicial discretion to refuse to permit a plaintiff to amend his petition, at the conclusion of all the evidence,-by adding the allegation that the machine was defective in a manner to him unknown.

      Galvin '& Bauer, for plaintiff in error.

      Robertson & Buohwalter and Benton 8. Oppenheimer, contra.
   Gorman, J.

Plaintiff in error is asking this court in this proceeding to reverse a judgment of the Superior Court of Cincinnati, which court upon the conclusion of all the evidence arrested.the case from the jury — or rather, upon motion of the defendant instructed a verdict in favor of the defendant.

The plaintiff in error, the plaintiff below, sought to recover damages for personal injuries claimed to have been sustained while in the employ of the defendant, whereby he lost parts of four fingers on his left hand while working upon a machine for the defendant. In his amended petition plaintiff sets out that on the 21st of July, 1913, he was employed in the machine shop of the defendant, and assigned by the foreman on that day to operate a stamping machine used by the defendant in such shop; that while operating said machine' his left hand was caught and four fingers severed therefrom; that the machine was defective and known by the defendant to be so for some time previous to the happening of the accident. The particular defect alleged in the amended petition was that the clutch of the machine failed to act; that the threads of the cog or clutch had become worn from use so that the die which stamped the metal upon which it was impressed, was released by reason of said defective clutch and came • into contact with plaintiff’s left hand thereby causing his in- • juries. Plaintiff further set out the nature and extent of his injuries, the length of time he was confined to the hospital and loss of his wages, and asked $10,000 damages. The plaintiff further set out in his amended petition that on the 31st of July, 1913, ten days after he was injured and while he was, in the hospital to be cured of his wounds and previous to the filing of his petition herein, the defendant paid him the sum of $150 and that the plaintiff signed a receipt therefor. He further averred that the defendant now asserts that Said paper so signed was a release to the defendant for all liabilities for the injuries sustained by him as aforesaid, but plaintiff- says that at the time of signing said paper and receiving such money he was very weak in mind and body, and that he had no one to counsel or advise with respecting the nature and effect of such paper and that the same was signed by him in ignorance of its meaning and effect; that said paper writing was not a release by him, or intended to be such, of the liability of said company to him; and that as soon as he realized the purport and meaning of said paper writing he tendered to the defendant the said sum of $150 so received by him, which was refused. Plaintiff says that he stands ready and willing to pay over the said sum to the defendant upon demand at any time.

The defendant answered the amended petition, and for a second defense set up a certain release which it claims plaintiff signed, in which he released the defendant from any and all liability on account of any negligence which resulted in the injuries of plaintiff by said machine.

To this answer plaintiff hied a reply in which he denied each and every allegation of defendant’s defense with reference to the release. And further the plaintiff in his reply says that if he signed said document described in said answer, which he denies, he was not aware of its true import and meaning and that by reason of illness and weakness of body and mind he was unable to and did not understand the true nature and purpose of said alleged agreement, but on the contrary was made to believe by defendant and its agents that the $150 paid to him on said occasion was justly due him from insurance carried by the defendant company for his use and benefit.

When the case was called for trial the judge upon reading the pleadings stated to counsel that there was á question first to be determined by the court without the intervention of a jury; that that was the question of the voidability of the release and that it would have to be first determined before the question of the liability of the defendant company on account of any alleged negligence cduld be heahd,

The court heard the evidence upon the question of the voidability of the release, and upon the conclusion of all the evidence held that the plaintiff had failed to establish by clear and convincing evidence the voidability of the release.

The trial court held that the question of the voidability of the release was not one to be submitted to a jury, but was one to be determined entirely by the court under the settled rules of equity.

It was held in the ease of Terry v. O’Neil, 78 O. S., 209, that:

‘ ‘ If the party suing to recover for personal injuries admits the execution of a release and seeks to avoid it on equitable grounds, he must obtain that relief to maintain his action; when he denies the execution of the release, or that it is his act, on the ground of want of mental capacity at the time he signed it, or that his signature to the release was procured by fraud, such as misreading, the surreptitious substitution of one paper for another, or obtaining by some other trick or device an instrument which he did not intend to give, he may maintain his action without obtaining a decree. In other words, if the release is void he may ignore it in his petition, and if it is plead as a bar in the answer he may in his reply plead the facts that make it void; and if it is not void but only voidable, he must, to maintain his action, obtain its rescission or cancellation.”

It would appear, therefore, that there was presented to the trial court below, first, the question of the voidability of the release ; and second, under the pleadings as we read them, the question of whether or not the release was void.

Upon the question of the voidability of the release it was the province of the court to hear the evidence and determine whether or not the 'plaintiff had produced evidence sufficient to warrant the court in setting aside the release and holding it to be voidable. The evidence to establish that fact must be clear and convincing, as has been held by this court and other courts in many eases that might be cited. We are not prepared to say that the trial court erred in holding that the plaintiff failed to establish the voidability of the release by clear and convincing evidence.

After the court had heard the evidence upon the question of the voidability of the release, counsel for defendant moved the court to, instruct the jury to return a verdict in favor of the defendant. This motion the court overruled upon the ground that it appeared from the reply of the plaintiff that he denied the execution of the release, and this, if true, would make the release void and not voidable. If the release was void and not voidable, the facts which would make it void should be passed upon by the jury, and it was therefore the duty of the court to submit, the question of whether or not the release was void to the jury, together with all the evidence tending to support the plaintiff’s claim as to the negligence of the defendant in causing the plaintiff’s injuries.

The court thereupon submitted to the jury the facts which the plaintiff had adduced in order to establish his case, and it appeared from the evidence during this trial to the jury that the plaintiff admitted the signing and execution of the release. The trial court was of the opinion that in view of the fact that plaintiff admitted that he signed the release and in the absence of any showing of lack of mental capacity or any fraud in inducing him to sign it, and the fact that he had received the consideration of $150 for the signing of the release, there was nothing for the jury to pass upon as to that question; and that the release, being valid, was a bar to the plaintiff’s right to recover.

Furthermore, it appeared in the evidence that there was no defect in the machine such as was claimed by the plaintiff in his amended petition, as before stated, ‘ ‘ that the threads of the cog or clutch had become worn from use so that the die which stamped the metal upon which it was impressed was released because of such defective clutch.” The evidence clearly showed that there were no threads upon the cog and there was no cog at all upon the machine. There was a clutch, which consisted of a “shoulder” of iron which fit into a corresponding depression in another disk. In other words, there were two disks; upon the one there was a shoulder and upon the other disk there was a depression into which the shoulder fitted exactly, and when these two disks came together and the shoulder was let into the depression the disks were thereby brought into close contact and held together by the shoulder, which caused the machine to revolve.

At the conclusion of all the evidence the court instructed thei jury to return a verdict in favor of the defendant, on the grounds, first, that the plaintiff had failed to establish by clear and convincing evidence the voidability of the release; and secondly, that the plaintiff’s own testimony showed the release to be valid and not void; and thirdly, that plaintiff had 'failed to establish any defect in the machine such as he set out in his amended petition.

While the court was in the act of deciding the motion for an instructed verdict, counsel for plaintiff asked leave to amend his amended petition by setting out that the machine was defective in some way unknown to the plaintiff and that this defect was the cause of plaintiff’s injury. The trial court refused to permit such an amendment to be made, and one of the. errors complained of is that there was an abuse of the court’s discretion in refusing the plaintiff leave to amend at the time the request was made.

With the whole record before us, as it was before the trial court, we are not prepared to say that the court abused its discretion in refusing to permit the amendment to be made as requested by plaintiff. If after the entire evidence was offered in the trial of the case plaintiff’s counsel was unable to show in what respect the machine was defective, we think the trial court was justified in refusing to permit him to set up as an amendment to the petition that there was a defect in the machine unknown to the plaintiff. If he did not know of the defect after the entire case had been heard and after investigation made by him before he began his case, it was not probable that he would be able to show what the defect was if he had been given the opportunity to amend by setting out that there was a defect unknown to him.

Upon reading the entire record we are further of the opinion that the record discloses that the plaintiff brought about his injuries by his own negligence. It appears from the undisputed evidence in the case that a man named Harris, who was a fellow-workman of the plaintiff, was employed at the time that plaintiff was injured in the operation of the machine on which plaintiff was injured; that he was stamping out what is known as “slats” used in refrigerators. He was putting a crimp, as it were, in each one of these galvanized sheet-iron slats. Brown, who was working at what is known as a shearing machine, desiring to stamp out some slats upon the machine at which Harris was at work, came-along without being ordered so to do by the foreman or superintendent of the company, and said to Harris, who was sitting at the machine operating it, “Let me get at that machine and show you how to operate it.” Thereupon Harris arose and Brown began to feed the machine by shoving in slats at the front of the machine instead of pushing them in at the side as Harris had been instructed to do. Harris called his attention to the fact that the foreman had instructed him not to feed the machine’ that way, but to feed it from the side; but Brown insisted, telling him that the way in which he was feeding the machine was the correct way. And while telling Harris that this was the correct way, the die came down -and severed his fingers. It further appears from the undisputed evidence that immediately an engineer and mechanic of defendant’s plant came to the machine and found no defect in the machine whatsoever. It operated all that day, before Brown was hurt, and continued to operate thereafter, without any repairs or alterations being made therein.

Under the circumstances of the case it appears to the court, even if the release had been voidable or void and so found by the court and jury, nevertheless on the undisputed facts of the ease the plaintiff would not be entitled to recover, because the injuries which he suffered were due solely to his own negligence, as there appears to be no evidence of any negligence at all upon the part of the defendant.

Furthermore, it appears from the record that the plaintiff and his wife received the sum of $150 at the time he signed the release. This $150 was in the shape of a check which was deposited in bank by the plaintiff and his wife, and the proceeds* of the cheek were used by them; and neither the plaintiff nor any one for him tendered back the $150 up to the time the case was submitted to the court and jury. We think it is elementary that a release can not be avoided unless the consideration received by the person signing the release has been restored and restitution has been made or a tender back of the consideration.

The general rule is well settled that if a person enter into a contract and afterwards seek to avoid the effect of the contract upon any ground that will entitle him to rescind it, he must first restore the consideration, or what he has received or tender it back, He can not have his loaf and eat it. Drohan v. Ry. Co., 162 Mass., 435, 437; Insurance Co. v. Burke, 69 O. S., 294.

We find no errors in the record of this ease that would warrant the court in reversing the judgment, and the same is therefore affirmed.

Jones (E. IT.), P. J., and Jones (Oliver B.), J., concur.


author: Kinder, J.

text:
    VALIDITY OF PROVISION FOR. ADDITIONAL SALARY TO COMMON PLEAS JUDGES.
    Court of Appeals for Henry County.
    State of Ohio, ex rel Otto W. Hess, a Tax-payer, v. George E. Rafferty, as Auditor, et al.
    Decided, December 1, 1916.

      Constitutional Law — Provision for Additional Salary to Be Paid Common Pleas Judges Out of County Treasuries — Not 'Violative of Any Constitutional Provision — Not Nature of the Office — But Character of Services Performed and the Resultant Benefit — Determines 'Whether Compensation May Be Paid By Levy of Taxes on the County.

    Section 2252 of the General Code, providing for additional salary to be paid to judges of tbe court of common pleas, is not in conflict with any provision of tbe Constitution of Ohio and is therefore valid.

      Otto W. Hess, for relator.

      B. W. Cahill and John W. Winn, contra.
   Kinder, J.

The prosecuting attorney having refused, upon request, to bring proceedings, this action was begun by the relator under favor of Section 2922 of the General Code to enjoin the defendants from paying to the judge of the Court of Common Pleas of Henry County the additional salary provided for in Section 2252, General Code, alleging that such payment will be a misapplication and misappropriation of the funds of Henry county, because said section is unconstitutional.

The claim is made in behalf of the relator that by the Constitution, the state government is divided into three co-ordinate divisions, namely, executive, legislative, and judicial, and the office of common pleas judge falling within the latter division, such judge is a state officer and can be paid only out of the state treasury, from funds provided by taxes levied uniformly throughout the state and that the Legislature is without power to provide for additional compensation for such judge to be paid by the county from funds derived by taxes levied upon property wholly within such county.

It is also claimed that the section under consideration expressly violates Section 2 of Article'XII and Section 7 of Article X of the Constitution and Section 26 of Article II.

' Section 7 of Article X reads:

‘ ‘ The commissioners of counties, the trustees of townships, and similar boards, shall have such power of local taxation, for police purposes, as may be prescribed by law.”

So much of Section 2 of Article XII as is pertinent, reads as follows:

“Laws shall be passed, taxing by uniform rule, all moneys, credits, investments in bonds, stocks, joint stock companies, or otherwise; and also of real and personal property according to its true value in money.”

Section 26 of Article II reads:

“All laws of a general nature shall have a uniform operation throughout the state.” * * *

The legislative power of the state, except such as is specially reserved to the people to be exercised under the provisions relating to the initiative and referendum, is vested in the Legislature by the Constitution, subject only to the restrictions and inhibitions contained therein: hence, a law enacted by the General Assembly will be declared unconstitutional by the courts only when it is in conflict with some provision of the Constitution. Walker v. City of Cincinnati, 21 O. S., 14; State, ex rel, v. Smith, 44 O. S., 348, 374; Probasco v. Ring, 50 O. S., 378; State, ex rel, v. Miller, 87 O. S., 12, 28.

The cases of Frease v. Kreighbaum, 9 C. C., 619; Long v. Brickman, 7 C. C., 165; Witt v. Madigan, 14 C. C. Dec., 263; Wassaman v. Commissioners, 49 O. S., 622; Hubbard v. Fitzsimmons, 57 O. S., 436, and the case of Cobatt et al v. Baum, 110 Tennessee, 370 (75 Southwestern, 1061), have been cited and relied upon by the relator as determinative that the section under discussion is in violation of the provisions of the Constitution above set forth.

The Ohio eases do decide that the Legislature is without power to authorize or require a county to construct or maintain a purely public agency of the state beneficial to the people of the state at large, and pay for the same with moneys derived from taxes levied upon property within such county.

In the Tennessee case two propositions were determined. First, that under the provisions of the Constitution of that state, which required the salaries of judges to be fixed by law, the Legislature had no power to delegate the fixing of such salaries to a county court; and, second, that such act was in violation of the provisions of the Constitution of Tennessee granting power to the Legislature to authorize counties to levy taxes for county purposes.

The second proposition was decided on the theory that the provision of the Constitution under consideration in that case with respect to taxation by counties was a limitation upon the power of the Legislature. That case also decides expressly and by necessary inference, that counties and their organization are purely local and do not form a part of the permanent organization of the government of the state. The reverse of that proposition was held in Ohio in the ease of State, ex rel Guilbert, v. Yates, 66 O. S., 546.

It will also be observed that Section 7 of Article X of our Constitution is a grant of power to the county to tax for local purposes, limited as therein provided, and not a limitation upon the legislative power of the state-.

The difference with respect to the constitutional provisions, as well as the conflict of decisions between the courts of Ohio and Tennessee, would seem to render the Tennessee ease relied upon of little value touching the question under discussion.

The Ohio eases cited above are not conclusive of the whole question here involved, for there yet remains the inquiry whether the Legislature may impose upon purely state agencies or officers, duties which in their nature and effect are local and of benefit to the counties, and require such counties to contribute to the expense thereof from funds raised by taxation wholly within such counties ?

In the case of State, ex rel Guilbert, v. Yates, Auditor, supra, it was expressly held that county officers are not local officers, but are part of the permanent organization of the government of the state, and that the subject of compensation to county officers is not local in its nature, attention being called to the fact that such officers are local only in the sense that the Legislature has provided for their election by the people of the respective counties and that their duties are to a large extent circumscribed by the county.

Many, if not all, county officers are required by law to perform duties in carrying forward purely state purposes and at the same time perform services which are confined to the county and for the benefit of the county alone, and yet it has never been doubted but that the county might be required to levy taxes for the compensation of such officers.

That a purely state agency whose functions or services result in benefit to a county may be maintained or compensated in part by taxes to be levied within a county, was expressly decided in State, ex rel, v. Shumate, 72 O. S., 487, and by strong inference, if not expressly, in the case of State, ex rel, v. Edmondson, 89 O. S., 93.

Under the doctrine of the above cases it would seem that it is not the nature of the office which is held, but the character of the services performed and the resultant benefit, which are to determine whether the Legislature may provide for compensation to be paid by levy of taxes within the county.

It will be observed that no part of the jurisdiction, power or duties of the court of common pleas or a judge thereof is fixed by the Constitution. The entire subject is remitted for determination by the Legislature.

A large part of the services performed by a judge of the court of common pleas has to do with litigation affecting the people and public agencies of the county alone, and an examination of the statute discloses that, in addition to purely judicial functions performed by a common pleas judge, he is required, among other things, to act as probate judge; that he appoints the trustees of memorial buildings; that he passes upon claims against the county upon appeal from the county commissioners; that he appoints trustees of municipal libraries; licenses county auctioneers and county ferries; upon the location of the county seat, he is required to appoint a director to purchase property for the county; fixes the amount to be allowed for county law libraries; appoints soldiers’ relief commissions; is required to fix rules and regulations for the government of county jails; appoints members of commissions to pass upon plans and specifications, and so forth, and cost of the court house and jail or additions thereto, alterations, repair or improvement thereof; is required to appoint commissions to act with the county commissioners passing upon the specifications and costs of children’s homes; is required to appoint a jury commission for the county; approve the appointment of deputy clerks and deputy sheriffs. And it will be observed that each and all of these services are for the benefit of the county or the people residing therein only.

General Code, Section 2252, is of general application throughout the state, and the rate of compensation to each judge is the same, based as it is upon population, though the amount of salary paid to the several judges would, of course, differ.

We are of opinion that the cases of State, ex rel Guilbert, v. Yates, 66 O. S., 546, and Sipe, Auditor, v. Mansfield, 86 O. S., 80, dispose of the claim that the section under discussion is in conflict with either Section 2 of Article XII or of Section 26 of Article II of the Constitution.

It follows that the court can not say that General Code, Section 2252, is clearly-in conflict with any provision of the Constitution, and that the judgment of the court of common pleas must be affirmed.

Crow, J., -and Robinson, J., concur.


author: Powell, J.

text:
    UNLIMITED AUTHORITY IN THE LEGISLATURE WITH REFERENCE TO MECHANICS’ LIENS.
    Court of Appeals for Fairfield County.
    The West Side Lumber & Manufacturing Company v. The Lancaster Paper Mill Company et al.
    Decided, 1916.

      Mechanic's Liens — Construction of the Act of 191S — Lien Attaches, When — Priority—Mortgage Postponed to Mechanic’s Lien, When.

    1. Section 33 of Article II of the Constitution gives to the Legislature unlimited power to legislate with reference to mechanic’s liens, and the only duty of the courts is to construe enactments pertaining to such liens.
    2. Under the act of April, 1913, a mechanic’s lien attaches from the date of the first item secured thereby, but where there are several liens payable to different persons on the same job there is no priority between them.
    3. The conflict between Section 8542, General Code, and Sub-section 2 of Section 12 of the act of April 1913, must be resolved by giving effect to the later act, which gives priority to mechanic’s liens over a mortgage recorded after the commencement of the improvement to which the mortgage and liens attach.

      M. A. Daugherty, for plaintiff.

      C. W. & J. W. McCleery, W. K. Martin and Brooks E. Shelly for "other mechanic's lienholders.

      L. G. Silbaugh, for John L. Graham, trustee for the mortgage bondholders.
   Powell, J.

The question for adjudication in this case arises between the several holders of mechanic’s liens and a bondholder’s mortgage as to the proper distribution of the proceeds of the sale of the property of the defendant, the Lancaster Paper Mill Company.

The amount for distribution is the sum of $11,823.64. The costs and preferred labor claims have been paid.

The liens in the order of the dates of their attachment with interest to August 3, 1915, are as follows:

1. Plaintiff’s mechanic’s lien of date June 15, 1914, in the sum of $471.

2. John L. Graham, trustee for the mortgage bondholders, July 24, 1914, $28,999.

3. The mechanic’s liens of the other defendants in error are of a date subsequent to July 24, 1914, and aggregate $2,819.55.

The exact dates and amounts of all liens are agreed upon by the parties and appear, in the finding of facts entered in the final decree of the court of common pleas. The facts are sufficiently stated in this opinion to show the controversy in the case. The construction of the mechanic’s lien law as it existed from June 15, 1914, to January, 1915, is involved.

There is a constitutional provision relative to the mechanic’s lien laws that has some bearing on the case. It is as follows:

“Section 33. Laws may be passed to secure mechanics, artisans, laborers, sub-contractors and material-men, their just dues by direct lien upon the property; upon which they have bestowed labor or for which they have furnished material. No other provision of the Constitution shall impair or limit this power.” Constitution, Article II, Section 33.

The bearing that this provision has on the case under discussion lies in the unlimited power given to the Legislature to legislate upon the subject of mechanic’s liens. It may pass any kind of bill that it chooses and the same will not be unconstitutional. There is no room for it to be unconstitutional. Courts have only to ascertain what the ena'titm'ent says and the sáme betíomds clear at tin'ce.

Pursuant to the provisions of the Constitution a bill was passed April 16, 1913, providing for mechanic’s liens and the order of their priority. 103 O. L., 369.

Section 12 of this enactment is the particular part of the same we are called upon to construe. This section is as follows:

“Section 12. The several liens herein provided for shall be liens from the date the first labor was performed, or the first machinery, materials, or fuel, was furnished by the contractor under the original contract, and shall continue for six years after said affidavit is filed in the office of the county recorder. If the action be brought to enforce such lien within that time, it shall continue in force until final adjudication thereof, and such liens shall take priority as follows:
“First. If several liens be obtained by several persons upon the same job, in the manner hereinbefore prescribed, they shall have no priority among themselves, except that liens filed by persons performing manual labor shall have priority to the extent of the labor performed during the thirty days immediately preceding the date of the performance of the last labor.
“Second. They shall be preferred to all other titles, liens or incumbrances, which may attach to or upon such construction, excavation, machinery, or improvements, or to, or upon the land upon which they are situated, which shall either be given or recorded subsequent to the commencement of said construction, excavation, or improvement.”

It seems to us clear:

1. That mechanic’s liens attach from the date of the first items of the account secured thereby.

'2. That when there are several liens due several persons “upon the same job” they shall have no priority among themselves; and

3. That they shall be preferred to all other titles, liens or incumbrances which may attach to, or upon, the land upon which the improvement liable for the payment of such liens is situated, given or recorded subsequent to the commencement of said improvement.

Applying these rules of law to the. case under consideration, wkát is fhb result rdached ?

1. ■ Plaintiff’s mechanic’s lien is first in time and consequently first in right and should be first paid out of the funds for distribution.

2. The mortgage to John L. Graham, trustee, filed July 24, 1914, is second in the order of time, and therefore under the former mechanic’s lien laws, would be second in the order of priority. Section 8542, General Code.

This section, however, is in conflict with subsection 2 of Section 12 of the act of April 16, 1913, in the order of preferences. In such cases, where two statutes are inconsistent, or in conflict, the provisions of the statute last enacted must prevail. This would postpone the mortgage to the third place in the order of priority, as the several other mechanic’s liens on the “same job” due to several persons are without priority among themselves, and must be preferred to an incumbrance given or recorded after the commencement of the improvement upon .which such mortgage and liens attach.

3. All the other mechanic’s liens are subsequent in point of time to the mortgage, but having no priority among themselves, and being entitled to preference over the mortgage, they rank second in the order of their priority and payment. It is not necessary to determine whether the lien of plaintiff is of the same priority with the other mechanic’s liens taken subsequent to the mortgage, as there is a sufficient amount for distribution to pay all of the mechanic’s liens in full.

It follows that the judgment of the court of common pleas must be reversed.

And the court proceeding to render the judgment that the court of common pleas should have rendered, orders and adjudges that all of the mechanic’s or material-men’s liens shall be first paid out of the funds applicable to such payment, and that the residue of such funds then remaining shall be paid to the defendant, John L. Graham, trustee, to apply on the mortgage indebtedness.

Shields, J., and- Houck, J., concur.


author: Jones (E. H.), P. J. Gorman, J.,

text:
    SUFFICIENCY OF AVERMENTS WITH REFERENCE TO A COUNTER-CLAIM.
    Court of Appeals for Hamilton County.
    The Murdoch Coal Company v. Stearns Coal & Lumber Company.
    Decided, January 8, 1917.

      Pleading — Action on an Account — Defendant May Set up Gross-Claim —Alleging That Both Sis Claim and That of the Plaintiff Are Based on the Same Agreement.

    1. Demurrer does not lie to an answer and cross-petition which alleges that the account upon which the claim of the defendant is based arises out of an express contract which is really the subject of plaintiff’s action, with which contract the claims of both the plaintiff and the defendant are connected.
    2. Failure to allege that the contract which forms the basis of the action was for a definite period is immaterial, where it clearly appears that it was to remain in force until a certain specified date and that the grievances complained of occurred prior to that date.

      Hectly, Ferris & McAvoy, for plaintiff in error.

      Ernst, Cassatt cfc Cottle, contra.
   Jones (E. H.), P. J.

The question for decision here is one of pleading and can not be clearly stated without a complete copy of a lengthy answer and counter-claim upon which judgmént is asked against plaintiff below, defendant in error here.

A demurrer was sustained below to the answer and cross-petition on the ground that'it did not constitute a counter-claim. The court below held that the grievances set out in the answer do not arise “out of the contract or transaction set out in the petition as the foundation of plaintiff’s claim,” and are not “connected with the subject of the action.”

Section 11317, General Qode, defines a counter-claim thus:

“A counter-claim is a cause of action existing in favor of a defendant against a plaintiff or another defendant, or both, between whom a several judgment might be had in the action and arising out of the contract or transaction set forth in the petition as the foundation of the plaintiff’s claim, or connected with the subject of the action.”

The averments of the answer are taken as true for the purposes of this demurrer, and show that the account sued upon by plaintiff was for coal sold and delivered under the same contract which gives rise to the claim of defendant for damages.

The exact language of the cross-petition is:

“Defendant further states that the coal set forth in the account attached to plaintiff’s petition was delivered to the defendant’s customers and others solicited by the defendant through said agent, under the terms of the contract hereinbefore set forth.”

Such an allegation in an alleged counter-claim may not authorize a court in holding that the defendant can thereby read anything into plaintiff’s petition that would determine the nature or “subject of the action” to be other than as shown by the petition itself. But we are of the opinion that where the petition is on an account, a defendant who has a cross-claim or demand may plead by way of- answer that both his claim and that, of plaintiff rest upon and arise from one and the same agreement ; that such agreement underlies and is the basis of all transactions between the parties.

Such, in substance, is the answer in this case,'and in this view of the pleading the majority of the court is inclined to hold that that answer shows defendant’s claim to be connected with the subject of the action and therefore a counter-claim within the meaning of the code.

We have little doubt about the correctness of the conclusion we have reached, but if there be doubt it should be resolved in favor of the view taken, for it has long been the fixed policy of our Legislature and our courts to avoid multiplicity of actions.

In Needham v. Pratt, 40 O. S., 190, the court say:

‘ ‘ The scope of the counter-claim, and the liberal provisions for joinder of actions, and indeed the entire spirit of the practice act, show that one of its great objects was to enable and require parties, as far as practicable, to submit all their controversies for adjustment in a single action.”

If the positions of the parties here were reversed and the Murdoch Company as plaintiff had filed a petition for damages, setting forth the same cause of action in the same manner as in its cross-petition contained; and if a cross-petition had been filed by the Stearns Company for-coal sold and delivered, with a statement to the same effect as the one above quoted from the answer in this ease, namely, that the coal set forth in the account was delivered under the terms of the contract upon which plaintiff V claim was founded, the situation would be practically the same as under the present pleadings. Under such circumstances we fail to see how any question could be seriously raised as to the soundness of the counter-claim or its compliance with the requirement of the code that it must arise “out of the contract or transaction set forth in the petition as the foundation of the plaintiff’s claim or connected with the subject of the action.” In such case both these requisites would be fully met.

The confusion and doubt in the present case arises out of the fact that the action is commenced by the party holding the account. But the answer alleges that the account is based upon and arises out of an express contract which is really “the subject of the action” and with which both the claim of plaintiff and that of the defendant are connected. As a matter of pleading, this is sufficient, and the demurrer was erroneously sustained.

The point is made in oral argument by counsel for defendant in error that the answer does not allege that either the contract with the agent or that between the parties was for any definite time and for that reason no cause of action is stated in the cross-petition. It is true that the answer contains no statement as to how long these contracts were to run. It does clearly show, however, that they were to remain in force until on and after April 1st, 1915. As all of the grievances complained of in the counterclaim of defendant occurred before this date, and as the contract according to the same pleading had been broten and repudiated, the agent seduced and the benefits of his labors secured by plaintiff before said date, tbe exact duration of the contract is unimportant and statement thereof unnecessary.

The judgment will be reversed and cause remanded for further proceedings.

Jones (Oliver B.), J., concurs; Gorman, J., dissents.

Gorman, J.,

dissenting.

I find myself unable to agree with my associates in the conclusion reached that the cross-petition sets up a good counter-claim in favor of the defendant against the plaintiff.

The averments of the cross-petition purporting to set up a counter-claim disclose that the nature of the cause of action, if any the defendant has against the plaintiff, is one in tort arising out of the wrongful conduct of the plaintiff in enticing away the agent of the defendant. The cross-petition fails to aver that the agent was under contract with the defendant for any definite period of time. In order to create a liability against the plaintiff for enticing away the defendant’s servant it would be necessary to allege that the servant was under contract to remain with the defendant and that the plaintiff by enticing him away induced him to violate his contract with the defendant. The averments of the cross-petition, therefore, fail to disclose any ground for a recovery by the defendant against the plaintiff.

Furthermore, it is claimed that the enticing away of the servant is in some way connected with the contract between the parties to this action whereby defendant was to act as a selling agent of the plaintiff for the plaintiff’s coal and was to secure orders for plaintiff’s coal through its agents and employees, of whom the agent enticed away was one. But there is no averment in the cross-petition or alleged counter-claim which discloses that the contract between the parties to this action was in existence or in force at the time that the defendant’s agent was enticed away by the plaintiff. Manifestly, if the agreement between the parties to this action was not in force at the time the agent was enticed away from the defendant, and if the defendant had no contract between it and its agent for a definite time when the agent was enticed away, no cause of action was stated in favor of the defendant against the plaintiff. And if no cause of action was stated in the cross-petition against the defendant, the defendant has not set up a counter-claim; because it is one of the essential elements of a counter-claim that there must exist a cause of action in favor of the defendant against the plaintiff. If the averments of the cross-petition fail to disclose a cause of action, then it fails to show a counter-claim.

I am further of the opinion that if the cross-petition set out facts sufficient to show a cause of action against the plaintiff for enticing away the defendant’s servant, nevertheless that cause of action is in no way connected with the subject of the action set out in the plaintiff’s petition. That cause of action was to recover for coal on an account which was based upon a contract between the parties. Nor does the alleged'cause of action purported to be set out in the cross-petition arise out of this contract between the parties for the sale of the coal, nor is it connected with the transaction of the sale of the coal. The claim which the defendant undertakes to set up against the plaintiff is one purely in tort and not in contract, as was well said in Williams v. Lederer, 18 C.C.(N.S.), 515 (1st paragraph of the syllabus) :

‘ ‘ In an action on an account for goods sold and delivered, the defendant can not set up as a counter-claim a cause of action in tort growing out of the sending of a letter by plaintiff’s attorney to defendant’s employer, whereby the defendant lost his job.”

To my mind this decision and the authorities which support it cited by the court, show conclusively that the defendant had neither a' cause of action against 'the plaintiff which could be set up as a counter-claim, nor is there a cause of action stated in the alleged counter-claim'. For these reasons I hold that the judgment of the court below sustaining the demurrer should be affirmed.


author: Pollock, J.

text:
    DOUBLE RECOVERY POSSIBLE FOR. INJURIES SUFFERED FROM MOB VIOLENCE.
    Court of Appeals for Jefferson County.
    Edith M. Griffith, Administratrix of the Estate of George A. Griffith, Deceased, v. Phillips Sheet & Tin Plate Company.
    Decided, December Term, 1916.

      Damages Recovered From County — For Injuries Suffered by Reason of Mob Violence — Not a Bar to Recovery From the Tort Feasor— Whose Negligence Was the Proahmate Cause of the Injury.

    An action to recover damages for negligently causing the death of a person, against the party guilty of the negligent acts, is not extinguished by a former recovery and payment of a judgment, against the county, under the provisions of Sections 6278 to 6283, inclusive of the General Code, for the death of the same person from injuries received from lynching by a mob, unless the county is with the party charged jointly guilty of the same negligent acts.
    W. B. Alban, for plaintiff.

      P. P. Lewis, contra.
   Pollock, J.

Tbe plaintiff in error brought an action in the court of common pleas of this county against the defendant in error, alleging that during a strike at the defendant company’s tin mill in this city a riot occurred on the streets and in that riot her intestate, George A. Griffith, was shot and killed by an employee of the defendant company; and that his death was caused by the negligence of the defendant company in arming this employee with the gun that caused the death of her intestate.

In that action the Phillips Sheet & Tin Plate Company, defendant, answered and in its second defense alleged that the plaintiff, prior to the bringing of this suit, maintained an action against Jefferson county, Ohio, under provisions of Section 6278 to 6283 inclusive, to recover damages for the death of her intestate from injuries received from lynching by the mob, and in that ease she recovered a judgment which was afterwards paid by the county.

A demurrer was filed by the plaintiff to this defense in the answer and overruled by the court below. The plaintiff not desiring to plead further the action was dismissed, and this proceeding in error is now prosecuted to reverse that judgment, for error of the court in overruling the demurrer.

The claim is made by this defense, that, as plaintiff had received from the county satisfaction for the. damages that had been sustained by the death of her intestate, she could not now maintain an action to recover damages from this defendant for its negligence which caused his death.

The principle is well established that satisfaction received by the person wronged from one of several joint tort feasors, for damages caused by their joint wrongful act, is a bar to any recovery from the remaining wrongdoers. Ellis v. Bitzer, 2 Ohio, 89; Turner v. Hitchcock, 20 Iowa, 310, and the authorities cited in the opinion.

This rule is based upon the principle that as each wrongdoer is personally engaged in the wrongful -act he sanctions all that has been done, and is considered in law as having committed the entire tortuous act, and hence, there is but one injury and the party can have but one satisfaction for the single act.

The county and the sheet and tin plate company are not joint tort feasors. The county Was not jointly negligent with the defendant in the commission of the negligent acts alleged to have been committed by it. For that reason the principle ap-. plied in the case of joint actors in the commission of a negligent act does not necessarily prevail in this ease. The county’s liability is created only by statute. No such liability arose at common law. The legal representative of a person dying from injuries received from a mob, as that term is defined in the sections of the General Code referred to, can recover regardless of whether the county or any of its officers or agents were negligent or not.

Section 6282 of the General Code, so far as it refers to the right to recover reads as follows:

“Section 6282. The legal representative of a person dying from injuries received from lynching by a mob, may recover of the county in which such injury occurred, a sum not to exceed five thousand dollars damages for such unlawful killing.”

The mere fact that death occurred from lynching by' a mob allows the representative to recover damages. While the liability of the defendant company for damages resulting from the death is statutory, yet the statute only extended to the representative of the deceased the same right to recover which the person injured would have had at common law if he had survived the injuries.

The right to recover against the defendant company only exists if its negligent act proximately caused the injury. It is true that the amount of the recovery against both the county and the defendant is based upon the amount of damages or loss that those entitled to recover have sustained from the death of the party, but the county is an entire stranger to the act which caused the liability of the defendant. It is not because there has been full satisfaction of the ultimate loss sustained that a recovery from one joint wrongdoer prevents a recovery from the others, but it is because there has been a satisfaction for one wrongful act, that the remaining wrongdoers are released. Because the plaintiff has recovered from the county for the death of her intestate, which was caused by the wrongful acts of a mob, does not in any way compensate for the loss which she sustained by reason of the negligent act of the defendant company, if it were negligent.

Because some one, wholly disconnected with the wrongful act charged against the defendant, may have compensated the person wronged for the loss sustained by the death of plaintiff’s intestate, does not relieve the defendant from responding in damages as compensation for the wrongful act which it committed. This principle is sustained in the case of Missouri, K. & T. Railway Co. v. McWheter, 59 Kans., 345 (53 Pac., 135), as follows:

“1. The rule that a settlement by and discharge of one of two or more joint wrongdoers, operates as a discharge of both has no application unless both are guilty of the wrongful act. A settlement with and discharge of one not in fact guilty will not affect the liability of the wrongdoer. ’ ’ Iddings v. Citizens State Bank, 92 N. W., 578; Thomas v. Central R. Co., 45 Atl., 344; Fox v. Michigan Central R. R. Co., 68 L. R. A., 336; Chapman v. Pittsburg Railway Co., 140 Fed., 784; Pittsburg Railway Co. v. Chapman, 145 Fed., 486; Atlantic Dock Co. v. The Mayor et al, 53 N. Y., 64.

In the syllabus of the last case the court said:

‘ ‘ The cause of action ex delicto is not extinguished by recovery and satisfaction of a judgment against a stranger in no wise joined in liability with the defendant for the full amount of damages claimed, nor is the plaintiff estopped thereby. The adjudication only acts as estoppel between the parties thereto or those in privity with them.”

A recovery of a judgment against the county, by virtue of Sections 6278 to 6283 inclusive of the General Code, in favor of a legal representative, for damages for the unlawful frilling of a. person by a mob and the payment of the judgment by the county, will not bar a recovery of damages by the same party against a second party who is guilty of negligence which proximately caused the death of the same person, where it is not shown that the county was guilty of the negligent act charged against the second party.

Judgment reversed. Exceptions noted.

Spence, J., and Metcalfe, J., concur.


author: Houck, J.

text:
    DESIGNATION OF A BENEFICIARY.
    Court of Appeals for Muskingum County.
    Mary A. Sherry v. The Locomotive Engineers’ Mutual Life & Accident Association et al.
    Decided, November Term, 1916.

      Mutual Benefit Societies — Disposition of Proceeds of a Policy Made Payable to Wife of the Insured — Contest Between Second Wife and Children of the Mrst Wife.

    Where insurance is taken in a benevolent organization, payable to the wife of the insured or his lawful heirs, and subsequent to the death of the said wife and the remarriage of the insured the said policy was taken up and two new policies issued in its stead without any change with reference to the beneficiary, the proceeds of said policies become, at the death of the insured, the property of the second wife, and no part thereof is payable to the children of the first wife.

      E. E. O’Neal-, for plaintiff .in error.

      M. G. Pugh, contra.
   Houck, J.

This is a proceeding in error to reverse the judgment of the Common Pleas Court of Muskingum County, Ohio. The parties hereto.occupy the same position to each other as in the court below. The plaintiff, Mary A. Sherry, brought suit in the court below to recover on two insurance policies on the life of her husband, Patrick Sherry. The admitted facts in this case are as follows:

That on or about the first day of March, 1869, Patrick Sherry became a member of the defendant association; that at said time and by right of said membership there was issued to him a policy of life insurance in said defendant association in the sum of $3,000; that afterwards, on the 20th day of July, 1894, the said association took up the said • certificate of membership and the said policy of life insurance theretofore issued to the said Patrick Sherry, and in its stead issued to the .said Patrick Sherry two certificates of membership, or policies of insurance in their said association, each for the sum of $1,500. It is further agreed that Patrick Sherry died on or about the 24th day of October, 1914, and that at the time of his death all of the assessments due from him to said association by reason of said certificates of insurance and policies had been fully paid, and, further, that at the time of the death of the said Patrick Sherry he was in good standing in said association, and said policies of insurance were in full force. It is further agreed that at the time Patrick Sherry took out his policy in said association (in 1869) Miary McNally Sherry was the wife of the said Patrick Sherry, and^ continued to be his wife until the date of her death on February 21st, 1886. Thereafter, and before the 20th day of July, 1893, being the date that said original policy of insurance was taken up and the two new policies issued in place thereof, as above stated, Patrick Sherry married the plaintiff, Mary A. Sherry, who continued to be his wife until the date of his death. It is further agreed that six children were born from the marriage between Patrick Sherry and his first wife, Mary McNally Sherry, and that no children were born from the second marriage.

The defendant association filed an answer in the nature of an interpleader, in which it avers that it is ready to pay said sum to the lawful distributee or distributees under said policies, and will do so upon the order of the court. With reference to the beneficiaries thereunder each policy contains the following provision :

“All payments or benefits that may accrue or become due to the heirs of the person insured, by virtue of this policy, will be payable to Mrs. Patrick Sherry,- wife, or his lawful heirs.”

It will at once be observed that this clause is the governing factor to determine to whom the insurance money in question is to be paid, and this is to be determined from the plain meaning of the language used in said clause. It is urged by counsel for plaintiff in error that by reason of the de.ath of Mary McNally Sherry, the first wife of Patrick Sherry, and the subsequent marriage of Patrick Skerry and Mary A. Sherry, the plaintiff herein, and the issuing of the policies in question to Patrick Sherry subsequent to the marriage between Patrick and the plaintiff, and the fact that the plaintiff was his wife at the time of his death, she is entitled to all of the benefits arising under said policy of insurance, and that she is the sole and only beneficiary, and is the Mrs. Patrick Sherry, 'wife of the said Patrick Sherry, deceased, and is entitled as "such to said insurance money in question.

It is contended by counsel for the six children that the said Mary A. Sherry is entitled only to her legal share therein as the surviving widow of the said Patrick Sherry, deceased, and that they are entitled to the residue thereof.

In determining the rights of these parties we must rely wholly and entirely upon the language used in the clause of the policies hereinbefore referred to. At the time of the death of Patrick Sherry he had but one wife living, to-wit, the plaintiff in this ease. At the time of the execution and delivery of the policies in question he had but one wife living, the plaintiff herein. If he had intended to make any other person than his then wife, Mary A. Sherry, the sole beneficiary of said insurance policies, he certainly would have done so. It seems to us that in the light of all these facts, and being governed in the distribution of the fund in question by the surroundings of the parties, which taken in connection with the plain meaning of the beneficiary clause in the policies, it seems to us there can be but one conclusion reached, and that is that Mary A. Sherry is entitled to all of the fund, and is the sole beneficiary of the two policies in question.

It is contended by counsel for defendants that at the time the policy was taken out, in 1869, being the original policy, Patrick Sherry by his choice made provision for and designated the beneficiary thereunder, and must naturally, if not necessarily, have had in mind the person who was then his wife. If this line of reasoning be the correct one, then why is it not proper to claim that when the two policies in question were issued, and the plaintiff in this case was the wife of Patrick Sherry, it was his choice and his intention, and of necessity he had in mind the person who was then his wife? It seems to us if we apply to the two policies in question this same reasoning that is applied by counsel for defendants to the original policy we can arrive at but one conclusion, and that is that the plaintiff is entitled to the proceeds of the policies in question.

Judgment reversed, and judgment for plaintiff in error, the costs to be paid out of the fund and the residue to be paid to the plaintiff in error. Cause remanded to the common pleas court for execution. -j

Shields, J., and Powell, J., concur.


author: Jones (Oliver B.), J.

text:
    PROSECUTION OF A CORPORATION.
    Court of Appeals for Hamilton County.
    The Reinhart & Newton Company v. State of Ohio.

    Decided, April 5, 1915.

      Work and Labor — Prosecution of a Corporation — For Employing Females Over Eighteen Tears of Age More Than Ten Hours a Day in a Candy Factory — Jurisdiction of Magistrate Obtained Through Submission of President to Arrest — Section 1008.
    1. The provision of Section 13496 for the arrest of an accused person is not applicable to a corporation, but where in a prosecution of a corporation the president is arrested and taken before a justice of the peace, failure to take advantage of the irregularity by objecting to the jurisdiction of the court amounts to submission to its jurisdiction and a general appearance and prevents further question as to jurisdiction over the defendant corporation on the ground of improper service.
    2. The exception found in the statute prohibiting the employment of' females over eighteen years of age more than ten hours in one day, made applicable to “canneries or establishments engaged in preparing for use perishable goods,” does not apply to candy factories.

      Charles B. Wilby, D. J. Worhvm and Thomas E. Lannen, for plaintiff in error.

      Charles F. Hornberger and John A. Deasy, contra.

       Affirming Reinhart & Newton Co. v. State, 15 N.P. (N.S.), 92.

   Jones (Oliver B.), J.

The proceedings below originated from a prosecution of plaintiff in error, a corporation, for the violation of Section 1008, General Code, in the employment of females over eighteen years of age more than ten hours in one day.

It is claimed that the conviction was erroneous • for the reason that the justice of the peace had no jurisdiction of defendant because no provision has been made by statute, when an' affidavit charging such an offense is filed, for the service oí a warrant upon a corporation. Section 13496, General Code, provides for the issue of a warrant and the arrest of the accused. It fittingly applies to individuals who can be arrested, but it is inapplicable to a corporation. No other section is pointed out to provide procedure in bringing a corporation defendant before the justice’s court where an affidavit or information is filed. It is suggested that by analogy some such procedure might be had as is provided upon the return of an indictment by Section 13607, General Code. In this case a warrant was issued as though for an individual and the president of the corporation was placed under arrest and the warrant'returned with the following endorsement:

“I have the body of the within named J. D. Reinhart now in court. Edward Wise, Constable.”

This was undoubtedly an irregularity which might have been taken advantage of, had the defendant not proceeded in such a manner as to fully submit itself to the jurisdiction of the court. This it did by filing a motion to quash the information or affidavit, in which it objected not only to the jurisdiction of the court over the person of defendant but also to the sufficiency of the affidavit on the merits of the case. This motion effected a general appearance by the defendant and prevents further question as to the jurisdiction of the magistrate’s court over the defendant corporation on the ground of improper service. A demurrer to the information and affidavit is also found among the papers as having been filed before the justice and an entry overruling same, but is not shown in the transcript. It, also, must be held to have effected a general appearance, if it can be now considered.

No question is raised as to the authority of the president or the attorney to represent the defendant corporation, although its counsel argues here that some action authorizing them to act on its behalf should have been shown to have been taken by its board of directors. In the absence of any direct attack on their authority, we may assume that they had, as full authority to act before the magistrate as they have. in these error proceedings before this court.

Plaintiff in error also urges as a reason for reversal, that the evidence brings it within the exception found in the statute (Section 1008, G-. C.), in the following words: “provided, however, that no restriction as to the hours of labor shall apply to canneries or establishments engaged in preparing for use perishable goods.”

It is conceded that the candy factory of the plaintiff in error is not a cannery, but it is claimed to be an establishment engaged in preparing for use perishable goods. In the broad sense of the word probably all things earthly are “perishable.” Bouvier defines perishable goods as “goods which are lessened in value and become worse by being kept.” The word “perishable” is defined in the Standard dictionary, as, “Liable to perish; subject to destruction or decay; mortal; especially liable to decay speedily; as perishable goods; fruit is perishable.” And both the Standard and Century dictionaries mention as “perishable property” such “property as fish, fruit, etc., from its nature subject to speedy decay or deterioration.”

In Webster v. Peck, 31 Conn., 495, the word “perishable” is defined as meaning “subject to natural a.nd speedy decay.”

In Jolley v. Hardeman, 111 Ga., 749, in its opinion at page 751, the court said:

“Articles of a perishable nature are those which, because of their inherent qualities, rapidly decompose or decay, and in so doing undergo material changes of form and quality which render them unsuitable for use and of little or no value. Such things as fruit, fresh fish and the like-may properly be termed' articles of a ‘perishable nature’ within the meaning of the above cited section.”

It is urged that defendant’s candy factory should be brought within the exception, because candy can be sold only when the demand exists; that it should be made fresh to meet that demand; that it is better made in cold weather than in warm weather; that the great demand is from Thanksgiving through the holidays; also, that the principal ingredients entering into its manufacture, consisting of sugar, syrups, condensed milk, nuts and other goods, should be put in the class of perishable goods; therefore, the same exception should be extended to a candy factory as is given to a cannery where fresh fruit, fresh fish and other products are preserved by canning.

In the opinion of the court the evidence does not warrant it to hold that the statute was intended to extend its exemption to a candy factory such as that operated by the plaintiff in error.

The purpose of the statute must be considered. It is humanitarian in its nature and is intended to protect the health of work at an occupation which, if allowed continuously for too long a time, would be highly deleterious. It is designed to protect a class of operatives who are to a certain extent at the mercy of their employers and who may not be in a position to assert themselves in insisting upon hours for labor that would be compatible with good health and full efficiency. Such exercise of legislative power is highly commendable and the law should be reasonably construed to effect rather than defeat its purpose. The arguments made as to the peculiar character of the business of this factory should be addressed to the Legislature rather than to the court.

The judgment is affirmed.

Jqnes (E. H.), J., and Gorman, J., concur.


text:
    PREFERENCE IN THE MATTER. OF RENTAL ACCRUING PRIOR TO RECEIVERSHIP.
    Court of Appeals for Hamilton County.
    Charles Andrews et al v. Edward Beigel, Receiver of J. Walker Brewing Company et al.
    Decided, November 22, 1915.

      Receivers — Disastrous Result of a Continuance of the Business— Rental Ordered Paid Before the Outcome Was Forseen — Treated as a Preferred Claim.

    The fact that the conduct of a business by a receiver resulted so unfortunately that the proceeds finally derived from a sale of the business and property were not sufficient to meet the‘'obligations incurred in the operation of the business by the receiver, can not be regarded as ground for the setting aside of a positive order by the court for payment of a part of the rental which had accrued prior to the receivership, where it appears that at the time of the making of the order and afterward there were funds in the hands of the receiver which could have been used in making this payment; and the receiver’s certificate, issued in lieu of such payment, must be treated as a preferred claim.

      DeCamp & SutpMn and Gregor B. Moormann, for plaintiff in error.

      Kramer & Bettman, for Burger.

      Benner (& Benner and Otto Pfl.eger, for Beigel, receiver.
   Jones (Oliver B.), J.

The question in this ease grows out of a receivership of tbe J. Walker Brewing Company in which the receivers of the brewing company carried on the business under order of the court for a period of two years. The business was carried on by the receiver with a view of selling the property and business of the company as an entirety. Efforts were made by the receiver and his counsel to make such sale, at private sale, and these failing it was offered at public auction as an entirety and failed to sell. Afterwards the brewery was dismantled, the leasehold was sold separately and other property sold in parcels and thus disposed of.

The result of the management of the business by a receiver was most unfortunate. Money was borrowed for the purpose of paying for merchandise, labor and expenses of running the business, and after the property had been sold it developed there was not sufficient funds on hand to pay all the obligations of the receiver.

The question submitted in this case is as to the payment of rentals for the property occupied by the brewery and used by the receiver in the conduct of the business. This question arises upon an intervening petition filed by Charles Andrews and the representatives of the estate of Peter Andrews, deceased, and of the estate of Conrad. Schultz, deceased, said .three parties owning respectively nineteen-sixtieths, thirty-six-sixtieths and five-sixtieths of the property so used.

This property was held by the brewing company under a lease from said parties at a rental of $3,600 per annum, payable at the rate of $300 per month. The receiver was appointed August 30, 1910, and' the court by its receiver then took possession of all said leased property and ordered its receiver to continue the business of the brewing company, all of said property being essential to the conduct of said business.

The two proceedings in which a receiver was asked have been consolidated in this ease.

On December 10, 1910, a petition was filed by the receiver praying for instructions in regard to the payment of rentals for said property. On December 24, 1910, the court made an order finding said property under lease to the brewing company from the above named lessors at a rental of $3,600 per annum, and ordered the receiver to pay all rents accruing from the date of his appointment, being at the rate of $300 per month.

On June 17, 1911, an intervening petition was filed by said lessors setting out their claim for back rental and praying for an order for its payment prior to any other claim; that the lien for said rental might be established and declared; and that the receiver might be required by the court to elect and determine whether he would accept the leasehold estate and' assume the obligations thereof, including said rental, and in the event that said receiver should determine not to assume said lease that said lessors might be allowed to forfeit said leasehold estate or foreclose the lien thereon, or take other proceedings to enforce and protect their rights in said property; and that said receiver be required to pay the past due rentals as a condition for continuing in the use and occupation of the premises as receiver.

After several hearings upon said intervening petition an order was made by the court December 18, 1911, finding that there was due for back rentals under said lease, which had accrued prior to the appointment of said receiver, the amount of $5,736.42, and the receiver was ordered to pay to said lessors or their attorneys one-fourth of said-amount, being $1,434.11; and the time of the payment of the balance of said claim and the consideration of all other matters set forth in said intervening petition was postponed for further consideration of the court. And for the purpose of making said payment of $1,434.11 the receiver was authorized to borrow such sum, if necessary so to do, and to issue a receiver’s certificate therefor, which should-be the first lien upon the property and estates of said the J. Walker Brewing Company.

On April 6, 1912, an order was made to sell the brewery as a going concern, including said leasehold, and on the same day an order - was made providing that if such sale as an entirety was made that the lien to secure all rentals due under said lease up to the day of sale of said leasehold should be transferred to the purchase money derived from the sale of said company’s estates, and the lien asserted by said lessors should be transferred, in the event of such sale, to jihe proceeds of said sale as the first and best lien thereon and should be paid out of said purchase price prior and preferably to all other claims.

The property was offered as an entirety under said order and failed to sell, and an order was made on May 7, 1912, providing for the sale of said property in parcels if it failed to sell as an entirety; and on the 8th of May; 1912, an order was made providing that the lien reserved to the lessors to secure rentals under said lease up to the day of sale, should be transferred to the proceeds of sale of said leasehold estate as the first and best lien thereon, and said rentals should be paid out of the purchase price of said leasehold estate prior and preferably to all other claims. Upon said sale the leasehold sold for the sum of $1,000, and the court afterwards made an order that said amount should be paid by the receiver to said lessors and credited upon the amount due for rentals. ,

On November 23, 1912, another intervening petition was filed by said lessors, Charles Andrews and the representatives of said two estates, setting out the proceedings above detailed, and stating that no money had been paid on account of the sum of $1,434.11 ordered paid by the receiver to them under the order of court made December 18, 1911, and setting out the amount of unpaid rental due them from the receiver accruing after his appointment amounting to $2,115, and stating that the sum of $1,000, the proceeds of the sale of said leasehold ordered paid to them October 29, 1912, had been credited by them upon the rental due prior to said receivership, leaving a balance due of said rentals of $4,736.42, with interest for the amount due prior to the receivership, and $2,115 rental accruing under the receivership, and praying that the same be established as a first and prior lien upon 'the proceeds of sale prior to the claims of the-receiver’s certificates issued in said proceeding, and to the claim of the Fifth-Third National Bank for moneys advanced to said receiver, and prior to the claims of all creditors.

The right of such priority was contested by answer and cross-petition filed by ¥m. Ammann and the Burger Brothers Company, who were creditors for malt sold to said receiver, and also by answer of the receiver. Issue was made by reply of said intervenors, and evidence-was taken, and a hearing had thereon, all of which is set out in the bill of exceptions.

Where real estate is occupied and used by a receiver in the operation of a business under the direction of the court, the rental or compensation for the use of the property becomes an expense incident to the administration of the receivership and, like other costs, is to be paid before the assets of the debtor are distributed among his creditors. Where before the appointment of a receiver property has been held under lease, and the -receiver takes possession, he will be given a reasonable time to determine whether he will accept under the lease or not. If he does so accept, he will be bound by the terms of the lease. If he does not accept under the lease and no other terms are made with the landlord he will be required to pay for the time he occupies the premises a reasonable compensation not less than the rate of rental stipulated in the lease. The court has no power by the receiver to take possession of the property of a person without his consent and then make its own terms for compensation to be paid for its use. When a receiver takes under a lease under which arrears of rental are due, it can be made a condition by the lessor that such arrears must be assumed and paid by the receiver.

A careful consideration of the record convinces the court that it must be held that the receiver took under the terms of said lease, and that under the orders of the court as made December 24, 1910, and December 18, 1911, both the accrued rentals prior to the receivership and thosé unpaid accruing since the appointment of the receiver are obligations of the receiver.

The sum of $1,434.11, being one-fourth of the back rentals which was ordered paid December 18, 1911, and for which a receiver’s certificate was authorized, must be considered as a preferred claim, the order for payment by the court having been made positively, and the evidence showing that the receiver had froifi time to time funds in his hands sufficient to make such payment. The court in its order of December 18, 1911, allowed said back rental as an indebtedness of the receiver instead of refusing such allowance and granting the application of lessors the right to possession of their property or foreclose their lease. After the receiver had thus been enabled to continue in the possession of the property and to operate the brewery, it would be unfair to the- lessors to reverse this order, as was done in the final judgment of the court -below, and disallow any claim for back rent.

It appears, however, from the record, that these lessors were all stockholders in the brewing company, and, in part, its creditors ; that they with all the other parties interested were under the belief that the brewing company might through its operation by the receiver of the court and a favorable sale of its property as an entirety be enabled to pay all of its obligations, and because of this belief and the other interests of the lessors, while at no time expressly waiving any right of priority they might have for rentals, they undoubtedly did permit, with others interested, the continuation of the receivership and the accumulation of unpaid rentals to such- an extent that it would be inequitable under all the circumstances to prefer them to other creditors of the receiver who had also by extending their credits permitted the continuation of the receivership.

The judgment of the court below must therefore be modified to the extent of allowing plaintiffs in error a preferred claim of $1,434.11, with interest from the date at which it was ordered paid, and allowing' them to pro rate as to the balance of all rentals due — -both those accruing before and those accruing after the appointment of the receiver.

With such modification the judgment below will be affirmed.

Jones (E. IT.), P. J., and Gorman, J., concur.


text:
    ACTION- FOR. DIRECTION OF COURT AS TO DISTRIBUTION OF ESTATE OF DECEDENT.
    Court of Appeals for Richland County.
    F. M. Hess, Administrator of the Estate of Joshua Measle, Deceased, v. The American Bible Society et al.
    Decided, 1916.

      Distribution — Property Bequeathed to Husband and Wife Jointly— Wife Dies Without Issue Before Testator — Husband Dies Before Distribution — Devise to Wife Treated as Having Lapsed — Presumption as to Husband Having Elected to Talce — Provision for Disappointed Donee.

    The will of M devised certain real estate to his sister and her husband jointly, burdened with a bequest of $10,000 to the American Bible Society. The sister died without issue prior to the death of the testator. The husband survived the testator, but died before a sale of the land had been effected or he had made an election under the will. Held:

    1. The bequest to the sister of an undivided one-half of said property lapsed, and said interest thereby became intestate property.

      2. The other undivided one-half passed under the will to the husband of said sister, subject to his right of election to accept benefits and assume the obligations thereby conferred, with the privilege of postponing his election until he could determine whether acceptance of the bequest would prove a benefit or a detriment; and inasmuch as there will be something over after payment of the legacy to the Bible Society together with costs, he will be presumed to have elected to take.
    3. If the devise to the sister did not lapse, it became subject to the equitable rule of election, and in either event should be applied to payment of the disappointed donee, the American Bible Society, whose legacy was general and not special, and as intestate property this lapsed bequest should be exhausted in payment of costs and the Bible'Society legacy before resort is had to the remainder of the estate.
    4. The residue of the legacy to the Bible Society with accrued interest should be paid out pf the other half of the estate, the balance over going to the heirs of the deceased devisee.

      Brucker, Voegele & Henkel, for plaintiff.

      Olin M. Farber, for the American Bible Society.

      W. 8. Kerr and Dotiglass & Hutchinson, for other defendants.
   Powell, J.

Appeal from the court of common pleas.

This is an action for the direction of the court relative to the administration of the estate of Joshua Measle, deceased, and the same is authorized by Section 10857, General Code.

First in logical order is the construction to be given the will of said Joshua Measle, deceased, in view of the admitted and established facts. The pertinent facts are as follows:

Joshua Measle died October 3, 1908, leaving a will, which was duly admitted to probate and record in this county. Mary Sprow, his sister and devisee under his ,will, died without issue surviving her August 25, 1908.

Lewis Sprow, the husband of said Mary Sprow, was appointed executor October 29, 1908.

On the 28th day of December, 1910, after the verdict of a jury sustaining the will of said Joshua Measle, Sprow as executor filed a petition to sell the real estate of said testator to pay debts, costs, and a legacy to the defendant, the American Bible Society, in the District Court of Cedar County, at Hartington, Nebraska, in which state said real estate was situated. Lewis Sprow died April 10, 1911, before said lands had been sold, and F. M. Hess was appointed administrator de bonis non with the will annexed of the estate of said Joshua Measle, deceased.

Hess sold the said real estate Juné 10, 1911, for something more than $16,000, and filed his petition in this ease February 8, 1912.

The provisions of the will of the said Joshua Measle requiring construction are as follows:

“Second, I give and devise and bequeath to my sister Mary Sprow and her husband Lewis Sprow in fee simple all my personal property and real estate of every kind, nature and description that I own or may own at the time of my decease.
“My real estate at this time is situated in Town 30, Range 2 E., Cedar County, Nebraska, they to have the exclusive right to do whatever they think best with the same, just as though they had purchased it and received deeds from me.
‘ ‘ Item Three. It is my will and I hereby order that my sister Mary Sprow and her husband Lewis Sprow shall pay to the American Bible Society, Bible House, New York, ten thousand dollars ($10,000) within one year after my death and to take good and sufficient receipt in my name for the same from the American Bible Society or their proper officials.”

Mary Sprow died without issue before her brother, the testator, and her interest in his property under his will lapsed, unless it comes within the exception mentioned in Section 10581, General Code, relating to residuary legatees. Such exception is as follows:

“Section 10581. * * *. If such devisee leaves no such issue, and the devise be of a residuary estate to him or her, and other child or relative of the testator, the estate devised shall pass to, and vest in such residuary devisee surviving the testator, unless a different disposition be made or required by the will.”

The words “residuary estate” in this statute are held to be used in a technical sense and should be given their technical meaning, when it becomes necessary to construe the same to determine their legal effect. Jewett v. Jewett, 21 C. C., 278.

Applying such construction to the language of the will of Joshua Measle, and Mary .Sprow and Lewis Sprow become and are general legatees or devisees and not residuary legatees, and the exception mentioned does not apply, and Lewis Sprow did not take the half of testator’s property devised to Mary Sprow as a residuary devisee under the will.

For another reason Lewis Sprow could not take the share devised to Mary Sprow, and that is, he is not such relative of the testator as is contemplated by the provisions of said Section 10581, General Code. He is a relative of the testator by affiñity only, and not by consanguinity. Schaefer v. Bernhardt, 76 O. S., 443.

And though Lewis Sprow may have been next of kin to Mary Sprow, and entitled to inherit from her, yet his relationship to her brother, the testator, is not such as to prevent the legacy to Mary Sprow from lapsing. Norwood v. Mills, 3 O. D., 356.

MQary Sprow having died before the deatbuof the testator, the share of his estate given and devised to her must be held to have lapsed and thereby to have become intestate property.

A testator may die testate as to part of his property, and intestate as to the residue. Goff v. Moore, 20 C.C.(N.S.), 224.

The other undivided half of said estate passed under the will of said testator to Lewis Sprow, subject, however, to a right of election on his part, as to whether he would accept the benefits conferred on him by said will and assume its obligations, or refuse to accept such benefits and thereby decline to assume its burdens.

This was a case for an election. The testator devised one-half his estate to Lewis Sprow coupled with a provision that he should pay a legacy of $10,000 to the American Bible Society; and he can not accept the benefits conferred on him by an instrument of this character and at the same time repudiate the burdens which such instrument imposes.

“1. When a testator by will confers a benefit out of his own estate upon another whose estate he also attempts to dispose of by such will, the acceptance of the benefit by the devisee is a ratification of the attempted disposition of his own estate.
“2. When from all the terms and the entire scope of a will it appears that the testator intended to charge property in the hands of his immediate devisee with a trust in favor of third persons, courts will give effect to that intention, whether the terms used by the testator be, in form, dispositive, peremptory or precatory only.” Ide v. Clark, 5 C. C., 239.
“No technical language is necessary to the creation of a trust; and a devise accompanied by words imperative, expressing a wish or recommendation that devisee will apply it to the benefit of others, may create a trust.” Colton v. Colton, 127 U. S., 300.

This doctrine seems well settled law in Ohio. Huston v. Cone, 24 O. S., 11; Hibbs v. Ins. Co., 40 O. S., 543; Corry v. Lamb, 45 O. S., 203; Bebout v. Quick, 81 O. S., 196; Pomeroy’s Equity Jurisprudence, Section 395; Snell’s Equity, 178.

A statement of the doctrine applicable to eases of this kind may be found in 81 Ohio State, 196, above cited. Quoting from Pomeroy’s Equity Jurisprudence, Section 395, the court says:

The owner of an estate having, in an instrument of donation, applied to the property of another-expressions which, were that property his own, would amount to an effectual disposition of it to a third person, and having by the same instrument disposed of a portion of his own estate in favor of the proprietor whose rights he assumed, equity imposes upon that proprietor the duty of electing either to relinquish the benefit conferred upon him by the instrument, if he asserts his own inconsistent proprietary right, or if he accepts that benefit, to complete the intended disposition by conveying in conformity to it that portion of his own property which it purports to affect. ’ ’

The court is of the opinion that this doctrine is applicable to the case under discussion. Lewis Sprow was the devisee of the half of testator’s property. He, or it is charged by the will making the devise, with the payment of $10,000 to the American Bible Society. If he accepts the gift he must make the payment. The two acts of acceptance and payment are concurrent and no statute of limitations applies to the one that does not equally apply to the other.

As a matter of fact, did Lewis Sprow make an election to accept the devise made for his benefit by the will of said testator ? The court is of the opinion that he did not make an unconditional election. He proceeded as executor to convert the estate into money, in order to make settlement of the same. He was under no obligation to make such election until the rights of third persons were interfered with, and he could proceed as he did proceed to settle up the estate, and postpone his election until he could ascertain and know whether such election would be a benefit to him or a detriment.

The law presumes, however, that if in the end, an election to take under the will would be beneficial to him, such election would be made accordingly.

In the circumstances of this case an election to take under the will will be presumed to have been made if anything remains for distribution after the payment of costs and the said legacy.

We have then two estates or conditions growing out of the will of said Joshua Measle, deceased:

1. One-half of his estate intestate property by reason of the lapsing of the devise to Mary Sprow; or if the devise to Mary Sprow did not lapse or become intestate property, it at least became subject to the equitable rule of election, and should be applied as compensation to the disappointed donee, the American Bible Society. Bebout v. Quick, 81 O. S., 196.

2. The other half of his estate testate property under an acceptance of the devise to Lewis Sprow, subject to the payment of the remainder of a gift of $10,000 to the American Bible Society, after any other property of the testator, subject to such payment shall have been applied thereon.

Having determined the status of the estate of said testator, it follows, in logical order:

Second. That the court shall determine the disposition of the same. Intestate property should first be applied to the payment of debts, costs and general legacies, and in the proper order of distribution of the funds in the hands of said administrator all costs should be first paid out of said estate. One-half of the residue, being the intestate property of which the testator died seized, should be applied to the payment of the legacy due the American Bible Society, the same being a general legacy and not specific. The residue of said legacy, with accrued interest from the date it became due and payable, should be paid out of the residue of the funds in the hands of plaintiff as such administrator, and then if any residue remains for distribution, it should be distributed to such of the next of kin and heirs at law of Lewis Sprow, deceased, as are entitled under the laws of Nebraska, for the descent of real estate, to receive the same.

A decree may be entered in conformity with the views expressed in this opinion, and the ease will be remanded to the court of common pleas to carry the same into execution.

Shields, J., and Houck, J., concur.