text:
    INJURIES ON DEFECTIVE SIDEWALKS.
    Court of Appeals for Muskingum County.
    Josephine G. Adams, v. the City of Zanesville.
    Decided, May 22, 1919.

      Municipal Corporations — Knowledge of the Condition of a Defective Bidewalk Precludes Recovery for Injuries Received Thereon.

    An action does not lie against a municipality for injuries received by a pedestrian on a defective sidewalk, where it appears from the testimony that the plaintiff was fully aware of the condition of the' walk and attempted to pass over it regardless of the danger.

      A. A. George, for plaintiff in error.

      J. Ernest Harlmess, City Solicitor, contra.
   Houck, J.

The error complained of in this ease is to the trial judge’s sustaining a motion for a directed verdict in favor of the defendant below, the defendant in error here.

The suit was one for personal injuries, alleged to have been received by plaintiff, and caused by a defective sidewalk in the ■ city of Zanesville.

The answer was in the nature of a general denial; and it affirmatively averred that if plaintiff was in any way injured it was the result of her own negligence and carelessness in the premises.

We have read all the evidence offered by plaintiff in the trial of the case, and it has brought us to the unanimous conclusion that plaintiff failed to produce any legal evidence that would justify a finding hy a jury or a court in her favor.

The evidence clearly shows that whatever injuries the plaintiff received, at the time and place set forth in her petition, were the result of her own negligence. Plaintiff was familiar with the sidewalk in question and had known of its dangerous condition for some time prior to the time she received the injuries of which she complains.

In her cross-examination the plaintiff testified as follows:

Q. Mrs. Adams, how long had this condition in the sidewalk, where you were injured, existed? A. It has been in that condition for a long time.

Q. How long? A. Well, I will tell you; I have always been afraid to go up that way. The pavement has been in a bad condition a long time.

Q. How do you know it was in bad condition? A. I have seen it myself.

Q. Yourself'? A. Why, sure.

Q. How did you happen to see it? A. I looked at it.

Q. You saw these places before the accident; tell how they looked; describe them fully. A. Well, do you know how raised brick look?

Q. Yes. A. Well, that is just the way it looked and some of the brick were sunk down.

In the instant ease, as conceded by the plaintiff in her testimony, the defect in the sidewalk and its dangerous' condition were apparent and were clearly seen and observed by the said plaintiff, and its condition had been known to her for some time prior to the time she was injured.

The defect in the sidewalk was known to plaintiff and the dan'ger obvious and such that a reasonably prudent person would not have ventured thereon. There was danger ahead, the peril was well known to plaintiff, and yet she voluntarily and unnecessarily “pressed on,” not using or exercising that prudence and care that a reasonably careful person would or should do under such circumstances, and therefore she did so at her own risk.

Applying this rule of law, which we hold is sound, to the conceded facts in this case, the plaintiff was not entitled to recover.

The plaintiff in error contends that the question of negligence was for the jury to pass upon. True, it is, when there is a dispute of fact as to the negligence; but here the negligence is admitted, and there being no disputed question of fact, there is nothing to submit to the jury.

Finding no error in the record, the judgment' is affirmed.

Judgment affirmed.

Shields, j., and Patterson, J., concur.


source: Caselaw Access Project

author: Middleton, J.

license: Public Domain

text:
    ACTION AGAINST THE SURETY OF A DEFAULTING CONTRACTOR.
    Court of Appeals for Cuyahoga County.
    (Walters, Middleton and Sayre, JJ., of the Fourth District sitting in place of Dunlap, Vickery and Washburn, JJ., of the Eighth District.)
    The Fidelity & Deposit Company of Maryland v. The City of Cleveland.
    Decided, July 2, 1919.

      Sureties — Alleged Misleading Representations — Whether of a Character to Avoid the Bond is a Question for the Jury — Alterations in Contract after the Bond ivas Executed — Conclusiveness of a Eormer Judgment — Effect of Erroneous Dismissal of Surety — Direct Obligation Distinguished from Responsibility Over.

    1. It is a fundamental rule of pleading that a general demurrer to any pleading, containing two or more causes of action or defenses, may not be sustained if any one cause of action or defense therein is well pleaded.
    2. A surety has the right to have determined primarily by a jury whether representations upon which he claims to have relied to his injury were sufficient to justify an avoidance of the contract of suretyship.
    3. Provisions which permit of alterations or modifications of a contract, for the purpose of taking care of conditions and situations arising during the course of the work and which could not be anticipated at the time of making the original agreement, are such modifications as do not increase the liability of the surety. Whether other modifications have resulted in increasing the liability of the surety is a question which he is entitled to have determined by a jury,' and if found to be material and to have substantially increased such liability, they are fatal to the right of the obligee to recover on the bond.
    4. The conclusiveness of a judgment against a contractor and his surety • can not be maintained as to the surety, where it was rendered in an action from which the surety had been dismissed, and therefore at the time the judgment was rendered was not a party nor in privity with anyone who was a party; and this is true notwithstanding the order dismissing the surety was probably erroneously entered.
    Heard on error to the Court of Common Pleas

      W. S. FitzGerald, and Alfred Clum, for plaintiff in error.

      Tolies, Hogsett, Ginn <& Morley, and Hoyt, Dustin, McKeehan & Andrews, contra.
   Middleton, J.

. It appears from the record herein that on the 22nd day of August, 1896, the plaintiff in error, the Fidelity & Deposit Company of Maryland, hereinafter designated as the surety company, executed and delivered to the defendant in error, the city of Cleveland, a certain bond in the sum of $262,000, conditioned for the faithful performance of a contract by one W. J. Gawne. This contract was one for the construction of a lake tunnel, which was intended to afford the city a better and purer supply of water. The conditions of the bond were as follows:

“THE CONDITION OF THIS OBLIGATION is such that, whereas, the above named principal did on the 22nd day of August, 1896, enter into the foregoing agreement with the said city of Cleveland, which said agreement is made a part of this bond the same as though fully set forth herein:
NOW, if the said party of the second part in the said foregoing agreement, shall well and truly execute all and singular the stipulations of said agreement by him to be executed, and shall pay all just and legal claims for labor performed upon, and for materials furnished for the work specified in the said agreement, then this obligation to be void, otherwise to remain in full force and virtue in law; we agreeing and hereby consenting that this undertaking shall be for the use of any laborer or materialman, having a just claim as aforesaid as well as for the said city of Cleveland, and further, that the parties to the foregoing agreement may, from time to time, and as often as they see fit, make any additions to, omissions from, or modification of the work and the said agreement, which in the judgment of the said parties do not materially increase the liability thereon, without consulting the sureties hereto, and without in any way affecting- their liability hereon,”

Subsequently this action was brought by the city against the plaintiff in error to recover the full penalty of the bond. The amended petition, on which judgment was rendered in the court below, contains two causes of action. In the first cause of action the city, alleges a breach of the contract on the part of the contractor Gawne, and avers violations of the conditions of said contract on his part, the doing of defective work and the use of defective materials, and his refusal to make proper repairs necessitated by, such defective work and material, and many other breaches of the contract. The amended petition further alleges that the city was' obliged to complete the work by the expenditure' of a large amount of money, whereby the contractor and the surety company became indebted to it in the sum of $262,000, with interest from the first day of January, 1904.

In the second cause of action the city alleges that on the 4th day of April, 1905, said contractor began an action in the court of common pleas of this county against the city, in which he claimed a balance due on said contract of $123,147.34; that the city filed an answer and cross-petition in said action and made tbe surety company herein a party defendant; that said cross-petition set forth the bond aforesaid and the breaches of the contract by the contractor Gawne aforesaid, and asked a judgment against said contractor and against said surety company in the full amount of the penalty named in the bond. It is further alleged in said second cause of action that a summons was issued on said cross-petition and served upon the surety company, and that the surety company thereupon filed a demurrer to said answer and cross-petition upon the ground that there was a misjoinder of parties defendant; that said demurrer was thereafter sustained by the court and the cause thereupon proceeded between the contractor and the city, resulting in a judgment in favor of the city and against the contractor in the sum of $234,802.85, whereby a judgment is asked against the surety company in the present action for the full penalty of its bond, amounting to $262,000.

To this amended petition the surety company filed an amended answer containing many defenses, which hereinafter will be noted more in detail. A general demurrer to said amended answer was sustained by the trial court, and the surety company not desiring to plead further a judgment was entered against it for the full amount of said bond, namely, the sum of $262,000 with interest. These proceedings are now prosecuted to reverse that judgment.

• From the opinion of the learned trial judge, filed with the briefs herein, it seems that the general demurrer to the amended answer was sustained upon the theory that the judgment obtained by the city against the contractor in the first suit, as set forth in said second cause of action aforesaid, concluded the surety company in respect to all matters litigated in that case or which might have been litigated; in other words, that the judgment recovered in the first case was res adjudicata as to all questions of the surety’s liability to the city. The trial court’s conclusions in this regard are stated in the opinion as follows:

‘ ‘ In an action against a surety, where the covenant is that the principal shall well and truly execute all and singular the stipulations on his part to be performed, the judgment in the original case between the obligee and the principal is conclusive against the surety, due notice of such suit having been given as to all matters which were or which could have been adjudicated between the obligee and the principal. Such judgment will not conclude the surety from setting up any defense which is purely personal as to the surety or which would relieve the surety from liability on its bond, and the surety may set up a defense for fraud or collusion between the principal and obligee.”

The learned trial court, then applying the law so determined by him to the facts pleaded in the amended answer, held that the defenses numbered two, three, four and five therein dealt with matters which were or might have been litigated in the original suit, and therefore, constituted no defense in the instant action. It may be admitted that all of the facts pleaded in said defenses have to do with matters which could have been litigated in the former action had the surety company the opportunity so to do. But it did not have that opportunity, and as the first cause of action in the amended petition is founded wholly on alleged breaches of the contract by G-awne, and therefore tenders the same issues on the part of the city as were presented by it and determined in the original action, it certainly follows that so long as the city stands upon this first cause of action these defenses ar.e pertinent and proper to the issues thus presented. A general demurrer, therefore, to the amended answer as a whole could not properly be sustained. It is a fundamental rule of pleading that a general demurrer to any pleading containing two or more causes of action or defenses may not be sustained if any one cause of action or defense therein is well pleaded. (Bates PI. & Pr., Yol. 1, p. 415). For that reason, if no other, a general demurrer to the amended answer should have been overruled.

In the first special defense in the amended answer the surety company pleads that the bond never went into effect nor became binding. It alleges that certain misleading statements were made by the city which affected the risk and which were material to the surety, and by reason of which it should be released from the bond.

Further pleading in this defense it states that the contract between Gawne and the city, made a part of the bond executed by the company, was materially altered without the surety’s knowledge or consent before it was accepted by the city, and that by reason thereof it never went into effect and never was intended to, nor did it, secure the performance of the contract as actually entered into by Gawne and the city. The matters in this defense were held insufficient on the theory that the bond itself provided for the alterations made in the contract before it was accepted, and the misleading statements relied upon by the company as a defense were not material.

We regard the facts pleaded in this defense as sufficient to raise a question for the determination of a jury. The company has a right to have a jury determine primarily whether the misrepresentations it relies upon are sufficient to justify an avoidance of the contract on its part. This defense, however, is subject to a motion to make more definite.

In respect to alterations made in the contract before it was accepted by the city, it is not our conclusion that such alterations are provided for in the bond. The bond does not provide in specific language that alterations may be made in the contract before it is accepted by the city. The manifest purpose of these provisions permitting an alteration or modification of the contract, and of the work to be done thereunder, is to take care of conditions and situations which may arise in the course of the construction of the tunnel and which could not be anticipated in the making of the original agreement. We do not hold that every alteration or modification of this contract after the bond was executed and before the bond and the contract were accepted by the city would release the surety and vitiate the bond. We are, however, convinced that a material alteration or modification in the contract before its acceptance would have that result, and that whether or not such modification increased the liability of the surety is a question for a jury and may not be determined by the city and G-awne under the authority of the bond. This is so, because the provisions of the bond relied upon as authorizing such modifications did not become operative until both the contract and the bond were accepted. Both constituted one contract in so far as the liability of the surety was involved. When they were presented to the city no substantial change could be made in either without the knowledge and consent of the surety. Whether the alterations or modifications complained of were and are material to the surety is, in our judgment, as before observed, a question for the jury; and if determined by the latter to have been material, and such as to substantially increase the liability of the surety company, they- are fatal to any right to recover on the bond. We are, therefore, not in harmony with the conclusions of the learned trial judge in his determination of the sufficiency of the first special defense.

We now come to consider what may be regarded as the controlling question in this case. The city’s second cause of action, as before noted, is founded upon a judgment it recovered against Gawne in a prior suit on the contract. To this cause of action the surety company now pleads that, after the filing of the so-called answer and cross-petition of the city in said former suit, it filed a demurrer to said answer and cross-petition, upon the grounds that there was a misjoinder of parties defendant therein, that several causes of action were improperly joined, and that separate causes of action against several defendants were improperly joined in said answer and cross-petition. It alleges further in its sixth defense that a final judgment was entered in said action in favor of it upon said demurrer, from which judgment no proceedings in error were prosecuted and the same became a final judgment in favor of the surety company, and that said judgment still stands unmodified and unreversed. Pleading further it says:

“That by virtue of the foregoing it was not, and should not now be held to be or have been, bound in any wise by any adjudication had or made in said action other than the adjudication made in its behalf upon said demurrer. * * That it should not be in any wise bound by any judgment in said action or proceedings, and that the city of Cleveland is now, by virtue of the judgment entered in favor of this answering defendant upon the sustaining of its demurrer, forever stopped from claiming this answering defendant is or was bound by any adjudication, finding or judgment entered or made against W. J. Gawne in said action.”

The court below found that the surety company was concluded by the judgment against Gowne, and could not in the instant case religate any matters which were or might have been litigated in that suit. This ruling is very vigorously attacked by the surety company, and just as strenuously defended by the city.

It would be impossible within any reasonable limits to notice in detail the authorities submitted by counsel upon both sides in support of their respective claims on this question. In a general way it may be noted that many of the eases relied upon in support of the claim of the finality of the former judgment are cases in which the defendant was by law or contract responsible over to the party claiming the conclusiveness of the judgment. The general rule in this character of cases is well stated in Am. & Eng. Ency. Law (2 Ed.) Vol. 24, p. 740, et seq:

“Where a person is responsible over to another, either by operation of law or by express contract, for whatever may be justly recovered against such other, and he is duly notified of- the pendency of the suit and requested to take upon himself the.defense of it and is given the opportunity to do so, the judgment therein, if obtained without fraud or collusion, will be conclusive in a subsequent suit against him for the indemnity, whether he appeared or not.
“In such a case the person responsible over is no longer regarded as a stranger, because he has the right to appear and defend the action, and has the same means of controverting the claim as if he were the real and nominal party upon the record, and it would be unreasonable to permit him to contest the justice of the claim in the suit against himself after having neglected or failed to show its injustice in the suit against the person he was bound to indemnify.”

Clearly, the instant case is not within the letter or reason of this rule. The surety’s obligation here is a direct obligation to the city, which was the plaintiff, and not to Gawne, who was the defendant, in the former action. The surety company owed no duty to Gawne to defend the former suit, and-it had no opportunity in that suit to defend against its own liability. Under the plain terms of its bond it made itself directly responsible to the city for the faithful performance of the contract by Gawne, and upon a breach thereof by him the city had a right of action against it, which action might be either joint or several.

In the case of Walsh Construction Co. v. City of Cleveland and National Surety Co. (16 O.L.R., 62), in the United States court, Northern District of Ohio, Eastern Division, a bond, identical in every respect to the one ‘involved in the instant case, was before the court for construction upon a demurrer to the cross-petition, which demurrer was based upon the same grounds as the demurrer of the surety company in the original case against Gawne. Judge Westenhaver, in discussing the liability of the principal and surety under the bond, says:

“The fundamental assumption of this argument is that the construction contract and the performance bond are separate and independent contracts. This assumption can not be admitted. On the contrary, these several documents are expressly made a part of the same contract. They were all executed at the same time upon the same consideration, and for the same purpose, and took effect by a single delivery. As a result there is in law but one contract. A simple test of the question presented, is whether or not an original action against the Walsh Construction Company and its surety could be maintained on the third cause of action set up in the -cross-petition. Such an action on well settled legal principles could undoubtedly be maintained without first compelling the obligee to sue the principal on the contract and exhaust his remedies against him. Both defendants have agreed jointly and severally to perform all the terms of the eonstruction contract. They are in law joint and several contractors and obligors. The surety’s obligation is not that of an indemnitor or of a collateral guarantor against whom no action can be brought without demand or notice or until after failure to collect from the principal; the obligation is an absolute and unconditional one, binding both principal and surety for the full performance of each and everyone term, condition and requirement of the contract. A joint or separate action might at common law and under sections 11256 and 11258, General Code of Ohio, be brought thereon. Stage v. Olds, 12 O. R., 159; Neil v. Board of Trustees, 31 O. S., 15; Saint v. Wheeler & Wilson Mfg. Co., 95 Ala., 362; 36 Am. St. Rep., 210.”

This able interpretation of the rights and liabilities of the parties to a contract of the kind involved here is, in our judgment, a correct statement of the law.

Many cases have been examined by us in which, under bonds of the kind involved here, a judgment of a materialman against the obligee was held conclusive against the surety. The conditions surrounding cases of that kind, however, are entirely different from the circumstances here. In those eases there was a responsibility over; that is to say, the obligee of-the bond was the defendant in the original suit, and therefore should not be compelled after he had given notice to his surety to relitigate the claims made against him. We have also examined very carefully the ease of McConnell v. Poor, 113 Iowa, 133, 84 N. W., 968. This case appears to support the contention of the surety company in the instant case. It is there said:

"The defendant in the case at bar was not a party to the contract, nor could he have insisted on being made a party to the action between Evans and McConnell thereon. The latter might have brought suit against both principal and surety on the bond; but he chose, as was his right, to base his action on the contract alone. Even if these might have been regarded for some purposes, as one instrument, the appellant elected to treat them as distinct and separate by basing his suit against Evans solely on the contract, and that against Poor on the bond. The surety may require the principal to defend, for this is his duty; but the surety owes no obligation to defend him. * * * Privity, says Greenleaf, denotes mutual or successive relationship to the same right of property. Privity in law involves the right of representation, and certainly the principal, in an action against himself alone, may not represent the surety. ’ ’

In the case of Friend v. Ralston, et al, 77 Pac., 794, it was held that a judgment obtained in good faith by the owner of the building against the contractors for breach of the conditions of the contract, is conclusive against the surety in an action to recover on the bond if there was no fraud or collusion in obtaining the first judgment. This case discusses the case of McConnell v. Poor, supra, and the court in referring to the latter case say:

“The case of McConnell v. Poor, 113 Iowa, 133, is an authority upon which appellant places its principal reliance, but we fail to discover wherein it is in conflict with the conclusions heretofore declared respecting this feature of the present controversy. Notwithstanding the statement in the syllabus, the case fails to show that the surety had notice of the prior suit against his principal, or was given any opportunity to appear and defend such action, and it further appeared that the plaintiff had elected to treat the bond and contract as separate instruments for the purposes of the litigation. The able court properly held that a judgment rendered in favor of the obligee for breach of the contract against the principal did not estop the surety, when sued on the contractor’s bond.”

A consideration of all the cases will disclose, we think, that the courts have been inclined to base their conclusions in each case on some particular facts involved, and were not inclined to apply any infallible rule or doctrine of law. This we are disposed to do in the instant ease, because it presents certain facts which are not to be found in any of the cases cited and which, in our judgment, removes it from the operation of any general rule which has been applied in other cases. We are, however, inclined to the opinion that there is no more foundation for the claim of the city of the conclusiveness of the former judgment than there would be if that judgment had been recovered against Gawne upon a joint and several promissory note executed by Gawne and the surety company, instead of the contract and bond in this case.

Where the rule of the eonclusiveness of a former judgment has been applied by the courts they all agree that two things must be present: first, there must have been a notice to the surety of the pendency of the original suit, and the surety must have had the opportunity to defend. In the instant case the last essential element is lacking. The surety company in the suit against Gawne had no opportunity to defend. The court in that case, in ruling upon the demurrer, said to it in so many words: “You are a stranger to this action.. You can not be heard in this suit. Your liability to the city of Cleveland is not a joint liability with Gawne, but it is a several liability, and the city can only assert its claims against you in a separate and independent action. ’ ’

The amended answer avers that the judgment on the demurrer is still in full force, unmodified and unreversed. While the answer does not plead upon what ground the demurrer was sustained, that is immaterial as all were directed to the question of a joint liability, and whether it was sustained on all the grounds or only one of them the result is the same. It was a determination by a court of competent jurisdiction that the liability of the surety company under its bond was a several and independent liability. It was a determination, in other words, of all the matters legitimately involved in a consideration of the law invoked by the demurrer, and was and is conclusive against the city. It is now urged that this judgment was erroneous. In that contention we fully concur; but if erroneous, it is none the less binding and effective. It is said in 7 Howard, 48 U. S., 612-624:

“It is a doctrine of law, too long established to require a citation of authorities, that where a court has jurisdiction it has the right to decide every question which occurs in the ease, and whether its decisions be correct or otherwise its judgment, till reversed, is regarded as binding on every other court. ’ ’

It was once said by an eminent judge in commenting upon the finality of a former adjudication that a judgment of a court of competent jurisdiction, if based upon erroneous notions of law or founded upon false evidence, was, nevertheless, when rendered by the court, the “infallible truth.” These principles, however, are elementary. The judgment on the demurrer in the original suit determined conclusively the manner or mode by which the city could then and thereafter enforce its rights against the contractor and the surety company. It was an adjudication by a court of competent jurisdiction of all the remedies available to the city in respect to any claim it might desire to assert against the contractor and his surety growing out of the breach of the contract by the former. It was not, of course, a judgment on the merits of such a claim, but it was a determination against the city in respect to its right to prosecute a joint action against G-awne and the surety company; and, right or wrong, this court and other courts are bound to observe it in subsequent litigation between the same parties in respect to the same subject-matter. This being so, upon what theory may the city now plead the law of res adjuiMcata against the surety company It was not a party to the former suit when the judgment was rendered; nor, under the ruling of the court, was it in privity with anyone who was a party at the time the judgment was rendered. Privity, as declared in McConnell v. Poor, supra, involves the right of representation. If the surety company could not represent itself in the original action, how may it now be claimed that it was represented by G-awne?

We are impelled to conclude that the judgment in the original case, dismissing the surety company from that suit, while erroneous, is nevertheless binding upon all the parties to this suit, and therefore completely estops the city from now claiming any adjudication in the former case of the merits of its claim against the surety company. That judgment confined the city to a several action against the surety company, in which any and all defenses affecting or relating to the latter’s liability are available to it. In other words, the city must now prosecute its claim against the surety company as if the judgment against Gawne in the original action “is not, and never was.”

An amendment to the petition in error was filed, and a motion to strike this amendment from the files was submitted to the court. Under our conclusions in this ease we regard this amendment now as immaterial and that the motion should be sustained. One of the things which the amendment sought to bring into the case was the insufficiency of the amended petition. As th.e case must now be retried, we would suggest that the first cause of action in the amended petition be amended so as to show a performanee by the city of all the conditions of the contract on its part to be performed. We regard the first canse of action in the present amended petition defective in that respect.

In view of the foregoing considerations, the demurrer to the amended answer should have been overruled and the judgment of the lower court, therefore, in sustaining the same is reversed, and the ease is remanded to the court of common pleas of this county for further proceedings according to law.

Walters and Sayre, JJ., concur.

      Motion to require the Court of Appeals’ to certify its record in this case dismissed by the Supreme Court, December 9, 1919.


author: By the Court.

text:
    MODIFICATION OF JUDGMENT.
    Court of Appeals for Clinton County.
    In Re Robinson.
    Decided, January 7, 1917.

      Sheriff — Empowered to Transfer Prisoners — When a Different Worlchouse has been Designated for Their Incarceration — Court Without Power to Modify Its Sentence After Expiration of Term— Habeas Corpus.

    1. A court of common pleas has no power or authority to modify its judgment after the term at which it was made has expired, except in a manner pointed out by statute.
    2. Where a defendant is sentenced by a common pleas court to pay a fine and costs and to stand committed to a certain workhouse until the fine and costs are paid or until he is discharged by due process of law, the subsequent abrogation by the county commissioners of their contract with such workhouse and the notification by the workhouse authorities to the commissioners to remove such defendant, do not authorize the court, after the term at which such defendant was sentenced, -to modify the judgment entry by finding the amount of fine and costs not worked out and ordering the defendant committed to another workhouse until such sum shall be paid by the labor of the defendant or until the balance of the fine and- costs should be paid by him.
    3. Under such a state of facts the sheriff of the county is authorized to-. transfer the defendant to the workhouse which the county had provided for the incarceration of prisoners sentenced by its courts, regardless of tbe lack of authority of the common pleas court to modify its judgment.

      Hayes & Hayes, for Ben Robinson.

      Joe T. Doan, prosecuting attorney, for state of Ohio.
    Error to the Court of Common Pleas of Clinton County.
   By the Court.

This proceeding was originally one in habeas corpus brought by Ben Robinson, claiming that he is unlawfully restrained of his liberty by the sheriff of Clinton county.

It appears that at the October term of the common pleas court of Clinton county Ben Robinson was indicted on two separate indictments, one charging him with unlawfully selling intoxicating liquors to a minor, and the other charging him with keeping a place where intoxicating liquors were sold contrary to law. These indictments were numbered separately 3325 and 3326. Upon being arraigned Robinson pleaded guilty to both indictments; and the court adjudged him to pay a fine of $100 and costs in each case, and to stand committed to the Cincinnati workhouse to be kept at hard labor until the fines and costs were paid, or until he should be discharged by due process of law.

Robinson was taken to the Cincinnati workhouse and turned over to the authorities of that institution. He continued there until March 31, 1916, at which time the authorities of the Cincinnati workhouse notified the county commissioners of Clinton county to remove Robinson from the Cincinnati workhouse and that they would no longer be responsible for his care.

The commissioners of Clinton county had, prior to the October term, 1915, a contract with the workhouse authorities of the city of Cincinnati for the receiving and maintenance of the prisoners committed thereto by the courts of Clinton county. This contract the commissioners of Clinton county abrogated and rescinded February, 1916, and thereupon entered into a contract with the authorities having control of the workhouse of the city of Xenia.

The sheriff of Clinton county, on being notified that Robinson would not be longer retained in the Cincinnati workhouse, took possession of him and turned him over to the authorities of the Xenia workhouse. Before his doing so, however, the court of common pleas made an entry on or about April 5, 1916, modifying the judgment entry of the October term, 1915, in which entry the court found the amount of the fines and costs not worked out by Robinson in the Cincinnati workhouse to be $32.94 in one case, and $114.54 in the other, and ordered that he be committed to the workhouse of the city of Xenia until said sums should be paid by the labor of Robinson at the rate of sixty cents per day, or until the balance of the fines and costs should be paid by him. The court of common pleas dismissed the plaintiff’s petition in habeas corpus, and Robinson prosecutes error to this court to reverse this judgment.

The claim, and practically the only claim urged by Robinson’s council, is that the court of common pleas was not authorized in April, 1916, to modify an entry made at the October term, 1915; and that, therefore, Robinson is not held under any sentence or judgment of the court and should be discharged.

Manifestly the court of common pleas had no power or authority to modify its judgment after the term at which it was made had expired, except in a manner pointed out by statute The reason for modifying the judgment by the court of common pleas in April, 1916, does not fall within any of the grounds set out in the statute, and therefore the court had no power or authority to modify this judgment as to Ben Robinson in either of the cases in which he pleaded guilty. But Robinson having been confined in the Cincinnati workhouse, which was the institution to receive him under the provisions of the contract between the authorities of that institution and the commissioners of Clinton county, the state of Ohio and the county of Clinton had a right to retain Robinson in custody until he complied with the judgment of the court requiring him to either pay his fine and costs or work the same out at the rate of sixty cents per day as provided in the judgment of the court. From the fact that the county of Clinton had no contract with the authorities of the Cincinnati workhouse which would compel that institution to keep Robinson in custody when this situation presented itself, and had a contract with the authorities of the workhouse of the city of Xenia, the sheriff of Clinton county was authorized and warranted under the law, in our opinion, in transferring Robinson from the Cincinnati workhouse to the workhouse which the county of Clinton provided for the incarceration of prisoners sentenced by its courts; and, therefore, regardless of the power and authority of the common pleas court to modify its judgment, we hold that the sheriff of the county was warranted in taking Robinson from the Cincinnati workhouse and transferring him to'the workhouse of the city of Xenia.

In this view of the ease the modification of the entry made by the Court of Common Pleas of Clinton County was not prejudicial to Ben Robinson. He was lawfully in the custody of the sheriff at the time the writ of habeas corpus was sued out, and the sheriff was authorized to take him to the workhouse of the city of Xenia until the judgment of the court which sentenced him in the October term, 1915, had been complied with.

For the reasons stated the judgment of the court of common pleas will be affirmed.

Judgment affirmed.

Jones, E. H., Jones, Oliver B., and Gorman, JJ., concur.


author: Richards, J.

text:
    MEASURE OF COMPENSATION TO TENANT DISPOSSED BY FORECLOSURE.
    Court of Appeals for Lucas County.
    Michigan Mutual Life Insurance Co. v. Sheridon et al.
    Decided, November 18, 1918.

      Landlord and Tenant — Leasehold Sold in Foreclosure — Tenant’s Claim for Compensation Prior to Later Liens — Measure of Compensation.

    1. A tenant in possession, holding under a valid lease with an implied covenant for quiet and peaceable enjoyment of the premises, who is deprived of the leasehold estate by foreclosure and sale of the premises, is entitled to be compensated therefore out of the proceeds of the sale, and such right is a prior claim to that of mortgages or liens executed subsequent to the lease.
    2. In such a case the amount of compensation to which the tenant is entitled is the difference between the rent reserved in the lease and the actual net value of the leasehold estate, the amount thus found to be reduced to its present worth.
    (To be officially reported in 11 O. App.)

      J. A. Barber, for plaintiff.

      Calkins <& Storey, for Robert A. Draper and Detwiler Real Estate & Investment Company.

      Warren L. Smith and Thomas L. Gifford, for Yondota Lodge, K. P.
   Richards, J.

Heard on appeal.

The real estate involved in this controversy has been sold under foreclosure and the proceeds arising paid into court. This sale was made in September, 1917, for $17,500 to the defendant, Robert A. Draper, and the amount of the first mortgage, together with taxes and costs, has been paid from these proceeds, leaving, for distribution the sum of about $5,500. The matter remaining for disposition is the right of various claimants to this money still remaining in the hands of the court.

The facts necessary for a solution of this question are in substance as follows: In 1904, Sanford W. Cook was the owner of the real estate, situated in East Toledo, and he then mortgaged the same to the Michigan Mutual Life Insurance Co. for $10,000, his wife, Lottie Cook, joining in the mortgage. Thereafter he conveyed the property to his wife, and in 1912 she entered into a written lease of the property to Yondota Lodge, K. P., for a period of five years from June 1,1912, at $40 per month, with the privilege of renewal for another five-year term at a rental of $50 per month. The Yondota Lodge took possession of the premises and the lease held by it was duly placed on record. In October, 1914, Lottie Cook executed a mortgage on the property to the Walding, Kinnan & Marvin Co., which mortgage was subsequently assigned to the defendant, Robert A. Draper, and there remains still due on the same about $1,000. Thereafter Lottie Cook conveyed the real estate in fee simple, and it passed by mesne conveyances to the defendant, Sheridon, who, in August,. 1915, executed a mortgage on the same to the defendant, The Detweiler Real Estate & Investment Company, and on this mortgage .there still remains due about the sum of $7,500. Yondota Lodge claims an equitable interest in the money remaining in court to the extent of the loss suffered by it in being deprived of its leasehold interest in the premises by the foreclosure and sale. The second and third mortgagee claim that they are entitled to the remaining proceeds and insist that the lodge has no claim whatsoever to any part thereof. The lease held by the lodge gave it the right to sublet the premises, which it was doing to various sub-tenants through the entire period that it occupied the premises. It had elected to retain the premises for the second period of five years at the increased rental of $50 per month and was receiving during all the time large amounts of rental from its various subtenants. The terms of the lease required the landlord to heat the hall occupied by the lodge and to beep the same in reasonable and necessary repair. The lodge on taking possession under its lease, and with the consent of the landlord, remodeled the room at an expense exceeding $1,400. The lease held by the lodge contains no express covenant, but there is, of course, the implied covenant that the tenant would be entitled to the quiet and peaceable enjoyment of the premises during the term of the lease and for the renewal period provided by the lease.

Counsel for the mortgagees insist that if the lodge" has any claim it would be only against the original lessor, and that it has no interest in or lien on the proceeds in court, nor any equitable right to any portion of the same. This claim is based very largely on the decision in Burr v. Stenton, 52 Barb. (N.Y.), 377, and on certain text-books which cite and restate the rule which they assume to be there announced; and it must be admitted that a cursory reading of that case seems to lend much support to the contention so made. A careful study, however, of the case of Burr v. Stenton shows that it has very decided limitations and must be construed and interpreted in accordance with the peculiar facts existing in the case that the court was then deciding. The lessor in that ease was not the owner of the premises at the time he executed the lease, but subsequently became the owner thereof, and the lease which he gave contained an express covenant for the quiet enjoyment of the premises without molestation or disturbance from the lessor, his successors and assigns. There was a mortgage on the premises which had been theretofore made by the former owner. The court held that by reason of the express covenant contained in the lease there was no room for any implied covenant on the same subject-matter, and that as the express covenant was limited by its terms to the acts of the lessor, his successors and assigns, and the mortgage had not been made by the lessor, but .by a former owner, therefore there was no covenant either express or implied against the same, and that for this reason, and this reason alone, the tenant was not entitled to share in the proceeds remaining for distribution after the premises had been sold under this antecedent mortgage. The case was affirmed by the court of appeals of New York in Burr v. Stenton, 43 N. Y., 462. In the course of the opinion announced by the court of appeals it is stated that the case was considered upon its own merits, leaving a case where there is an express or implied covenant for quiet enjoyment in the lease to be determined when it arises. In the ease at bar we have found that there is an implied covenant for quiet enjoyment, and this distinguishes the case from that of Burr v. Stenton, supra. The case of Burr v. Stenton has been often cited, and numerous restrictions announced which must be placed upon its application to other cases.

We call attention to Clarkson v. Skidmore, 46 N. Y., 297, where it was held that a lessee for years of mortgaged premises, who holds under a lease containing a covenant of quiet enjoyment, is entitled to receive out of the surplus moneys arising on foreclosure the value of the use of the premises for the remainder of his term, less the rents reserved. The court in the opinion distinguishes this case from Burr v. Stenton by pointing out that the lease in that case contained no express or implied covenant of quiet enjoyment except against the acts of! the lessor. In the decision of the lower court in Clarkson v. Skidmore, 2 Lansing, 238, it is expressly stated that Burr v. Stenton does not control. It may be noted in passing that the leci'mn of the court of appeals in Clarkson v. Skidmore, supra, was rendered by the same judges who decided the case of Burr v. Stenton, supra.

The principle that a tenant having the protection of a „eneral covenant for quiet enjoyment is entitled to be compensated out of the proceeds of the sale for the loss he suffers by •easm of being deprived of the rights granted him under the lease is also announced in Larkin v. Misland, 100 N. Y., 212 (3 N. E., 79) ; in Winthrop v. Welling, 2 App. Div. (N. Y.), 229, and in Ely v. Collins, 92 N. Y. Supp., 160.

After all these criticisms and limitations on the case of Burr V Stenton little remains of that case as an authority, and it can not be applied beyond the peculiar facts under which it •arose. It is true that in 2 Jones, Mortgages, See. 1696, the case of Burr v. Stenton is cited as announcing the doctrine generally that a lessee when his interest is cut off by foreclosure is entitled to no part of the surplus arising from the sale. This principle is so stated in the fourth edition of Jones on Mortgages and the statement is repeated in the sixth and seventh editions of that treatise, and this in spite of the peculiar facts existing in the cáse of Burr v. Stenton, which necessarily limit the scope of the decision, and notwithstanding the subsequent limitations put on that case by various decisions already cited rendered by the courts of the same state. The learned author of 2 Jones on Mortgages (7 ed.), Section 773, however, states that 'a lease already existing at the date of the mortgage is in no way invalidated by the giving of the mortgage, and that the lease is a paramount interest and the mortgage subject to it. He also says that the mortgagee has only the rights of the mortgagor as against the lessee. The language is directly applicable to the rights of the second and third mortgagees in the ease at bar, and is not consistent with the language used by the author in Section 1696, cited supra. Indeed, on a review of the situation disclosed by the record in this ease it is apparent that to adopt the contention of counsel for the mortgagees would .be in effect to hold that a subsequent lien is prior to any right of the owner of a preexisting estate in the premises. The lease held by the Yondota Lodge was on record, and the lessee was in possession, and it necessarily follows that the rights of the subsequent mortgagees are subordinate to the rights of the lessee. We are, therefore, of the opinion that the, lessee is entitled to be compensated out of the proceeds remaining in .court to the extent of the loss suffered by it in being deprived of the estate created by the lease. This compensation should be represented by a lump sum to be ascertained from the evidence, and reduced to its present worth. The amount of this compensation would be the difference between the amount of rent to be paid by the tenant and the actual net value of the leasehold estate.

No useful purpose would be served by reviewing in detail the evidence relating to the value of this leasehold estate or the rentals received by the Yondota Lodge from its sub-tenants. It is sufficient to say that the evidence discloses that during the entire period covered by the lease it had been subletting the premises to numerous tenants and had received during the term of the lease large sums of money and that there had been an increase of the amount so received, showing the enhanced value of the same as time passed. This evidence shows that the lodge-room was sublet to these various tenants at an annual rental which amounted at $5 per night for each night that the tenant occupied the same, the Yondota Lodge- reserving one night a week for its own use of the same. The total amount received by the lodge is clearly stated in the’ evidence. It also appears that the expense of lighting the hall was $100 per year and that janitor service amounted to $240 per year. After taking into consideration all this evidence, it is perfectly clear that the lodge had a very valuable lease and has suffered substantial damages, and on the evidence contained in the record we find that the amount of the loss suffered by the lodge is $1,035, which amount is an equitable charge on the fund now in court, and to be first paid therefrom, after the costs of court. The second and third mortgagees are entitled to receive the balance then remaining according to their respective priorities.

Decree accordingly.

Chittenden and Kinkade, JJ., concur.


author: Jones, P. J.

text:
    KNOWLEDGE OF THE UNDER AGE OF AN EMPLOYEE.
    Court of Appeals for Hamilton County.
    Lockwood et al v. The Aetna Life Insurance Co.
    Decided, June 3, 1917.

      Employment of Infant Claiming to be Sixteen Years of Age — Sis Subsequent Injury and Action for Damages — When Knowledge of Employer of Non-Age is Necessary — Liability of Indemnity Company to Employer.

    While it is true that it would be necessary to show an employer had knowledge of the non-age of an employee in order to render him guilty of a misdemeanor in connection with such employment and subject to the fine and imprisonment provided by law, yet such knowledge is not necessary in order to make the employment illegal for the purpose of a suit for personal injuries or under the terms of an indemnity policy referring to illegal employment.

      Messrs. Robertson> Buchwalter <& Oppenheimer, for plaintiffs in error.

      Messrs. Paxton, Warrington & Seasongood, for defendants in error.
   Jones, P. J.

Heard on error.

This is an action brought by plaintiffs in error, Edwin F. and Harry Lockwood, partners, as plaintiffs, against defendant in error, as defendant, under a policy of manufacturers’ employers’ liability insurance, in which plaintiffs seek to recover the amount of the judgment and costs obtained against them for damages on account of bodily injuries accidentally suffered by a child employed in their factory, by reason of the operation by him of a stamping-press machine used in stamping tinware.

The injured boy, Arthur J. Ruschell, by his guardian, brought an action for his damages by reason of personal injuries suffered during the operation of said stamp press; and George Ruschell, the father of the said boy, also brought an action on his own behalf for loss of services of his infant son by reason of said injury.

Upon the happening of said accident the insurance company was notified by the employers, and upon the filing of the suits copies of the summons in said eases were sent to defendant in accordance with the requirements of their indemnity insurance policy. Thereupon the agents for the insurance company advised plaintiffs of the possible illegal employment of Ruschell; whereupon the plaintiffs answered they were advised that the age was not the important feature of the case, and stated further, “However, we feel we can prove his age.” It appears, however, that the boy was fourteen years and four months of age at the date of the happening of the accident, and the defendant was unable to prove to the contrary, although it had been reported to it at the time of the employment that he was fully sixteen years of age.

The defendant claims to have accepted the case and taken charge of its defense, through its attorneys, with the understanding, that, if it appeared at the trial that the statute was violated in the employment of Arthur Ruschell, it would not be responsible for the expenses incurred or for an judgment taken. There is a dispute between the parties as to whether or not these conditions were accepted. At any rate, counsel for the defendant company filed an answer in each case. One case went to trial and was partly heard, when, because of misconduct of one of the jurors, the jury was discharged and the case continued. After-wards other counsel employed by plaintiffs were associated with those of the insurance company, and it appearing to the insured that the insurance company would take the position ultimately that the accident and injury were not covéred by its policy, an agreement was made, in the form of a stipulation, and filed in the Ruschell suit, as follows:

“Whereas, The Aetna Life Insurance Company of Hartford, Connecticut, by their policy No. E. 20952. (Accident and Liability Department) did thereby insure the defendants in the above entitled cause from the 15th of August, 1905, to the 15th of August, 1906, against loss or expense arising or resulting from claims upon them for damages on account of bodily injuries accidentally suffered by reason of the operation of the trade or business described in said policy; and
“Whereas, the trial and defense of the above entitled cause is now being conducted by the said Aetna Life Insurance .Company on behalf of the defendants, in pursuance of the terms of said policy, but that nevertheless, the said The Aetna Life Insurance Company does not contend that the injury to the plaintiff in the said suit was not covered by their said policy, and that said company is not subject to protect any recovery in the case, while the defendants claim that it was covered by the policy and the said insurance company is liable for any recovery.-
“Now, therefore, it is agreed and stipulated by- and between The Aetna Life Insurance Company and the defendants in the above suit, that they do hereby consent to a verdict being returned by the jury assessing the plaintiff’s damages at the sum of $1,200; and that a judgment may be entered thereon for that amount, from which no appeal or proceedings in error shall be taken; and all of which, together with the payment and satisfaction of said judgment by either party shall be without prejudice to the question, whether said accident and loss was covered by said policy of insurance, and the rights and liability of the parties to said insurance contract.
“Cincinnati, Ohio, this 3rd day of June, 1909.
“The Aetna Life Insurance Company, by T. B. Paxton, Jr.
“The Lockwood Manufacturing Company, by C. D. Robertson, ‘
“its Attorney.
“The same agreement, terms and conditions apply to the suit of the father against the defendants, where the consent verdict is for $300.
“The Lockwood Manufacturing Company,
“By O. D. Robertson, Attorney.”

At the same time this stipulation was agreed upon a settle- ' ment was effected by the attorney for the Lockwoods, and- they afterwards paid the judgments in both of these cases together-with costs, and, as stated above, this suit is to collect same from the insurance company.

When the accident occurred to Ruschell the act of April 8, 1890 (87 O. L., 161; Section 6986-1, Revised Statutes),- was in force, and was as follows:

“No child under the ag'e of sixteen years, shall be employed ■by any person, firm, or corporation in this state, at employment whereby its life or limb is endangered, or its health is likely to-be injured, or its morals may be depraved by such employment.”

The record clearly shows that Arthur Ruschell had not reached the age of sixteen years at the time of the accident. Regardless of the belief of the employers and the representations made by the minor to them, his employment was contrary to this statute, and was not covered by the policy of indemnity. While, as argued by plaintiffs, it is true it would be necessary to show that the employers had knowledge of the non-age of the employee, in order to render them guilty of a misdemeanor in such employment, and subject to the fine and imprisonment provided by Section 6986-2, Revised Statutes, yet such knowledge is not necessary in order to make the employment illegal for the purpose of the suit for personal injuries or under the terms of the indemnity policy in question. Breckenridge v. Reagan, 22 C. C., 71; Braasch v. Michigan Stove Co., 153 Mich., 652; American Car & Fdy. Co. v. Armentraut, 214 Ill., 509; Krutlies v. Bulls Heal Coal Co., 249 Pa. St., 162 (L. R. A., 1915 F., 1082); DeSoto. Coal M. & D. Co. v. Hill, 179 Ala., 186; Inland Steel Co. v. Yedinak, 172 Ind., 423, 87 N. E. Rep., 229; Holland Laundry v. Travelers’ Ins. Co., 152 N. Y. Supp., 92, and Buffalo Steel Co. v. Aetna L. Ins. Co., 136 N. Y. Supp., 977.

A case almost similar in its facts and questions involved is the case of Aetna Life Ins. Co. v. Tyler Box & Lumber Mfg. Co., 149 S. W. Rep. (Tex. Civ.), 283.

The record in this case fails to show that the plaintiffs were in any way misled to their injury by the conduct of the defendant company in assuming the defense of the Ruschell cases. It shows further that the settlement of those -cases was made not by counsel for the insurance company, but by their own counsel; and, regardless of whether or not they had fully understood and agreed to the original conditions under .which the insurance company undertook the defense, that the judgments were entered with full understanding is shown by the stipulation agreed upon that the insurance company was at liberty to contest its liability.

Objection is made to rulings of the trial court upon the admission of evidence. It appears that the testimony of Arthur J. and George Ruschell was read from a transcript of their testimony given at the former trial of the case, without any reason for so doing being stated to the court. While the testimony shows that at the time it was given the witnesses were beyond the jurisdiction of the court, six years had intervened, and, in the absence of any statement in proof of non-residence, we can not assume its continuance for that length of time. We think, therefore, that it was error in the court to permit the reading of that testimony without proper showing first made. But there is nothing' in this testimony, under the facts as shown and the law as we view it, that would make this admission of such substantial prejudice to the plaintiff in error as to require a reversal.

Upon the record as made this court is of the opinion that it was the duty of the trial court to direct a verdict in favor of the defendants; and, finding no errors to the substantial prejudice of plaintiffs in error, the judgment is therefore affirmed. ■

Judgment affirmed.

G-orman and Hamilton, JJ., concur.


author: Gorman, J.

text:
    BONDING COMPANY BOUND BY ACTION OF WHICH IT HAD NOTICE.
    Court of Appeals for Hamilton County.
    American Bonding Co. et al, v. The Board of Education of Cincinnati.
    Decided, May 17, 1917.

      Sureties — Bonding Company Failing to Make a Defense after Notice— Bound Toy Judgment Rendered against Oiligee — Effect of Consent of Surety to Payment of Contractor hefore Due.

    1. A bonding company having been notified of the pendency and nature of an action against a board of education, to which board it is liable on the bond of a contractor signed by it as surety, and having been given an opportunity to make a defense in the case, and having failed to do so, is concluded and bound by the judgment rendered in such action, and can not thereafter question the correctness thereof in another action.
    2. Where an owner makes a payment to a contractor in advance of the time when the same was due under the contract, but such payment is made upon the express written consent of the contractor’s surety, the surety is estopped from thereafter complain ing of such payment.

      Miller Outcalt and Dudley Outcalt, for American Bonding Co., and Kornhauser & Morgan, for Michael J. Heintz, plaintiffs in error.

      Charles A. Groom, City Solicitor, and Constant Southworth, Assistant City Solicitor contra.
   Gorman, J.

Heard on error.

In the common pleas court defendants in error recovered a judgment against the plaintiffs in error in the sum of $12,992.54 on a bond executed by the American Bonding Company in favor of the state of Ohio for the benefit of defendants in error.

The plaintiff in error Michael J. Heintz had entered into a contract with the defendants in error to erect a school building in Avondale, and to secure the performance of that contract he executed the bond sued upon in this action. After the building was partly erected Heintz defaulted and failed to complete the work. Thereupon the board of education of the city of Cincinnati notified the surety to complete the contract, which it failed and refused to do, and the defendants were obliged to complete the building.

After the completion of the building there remained in the hands of the board of education, of the contract price, $7,685.90.

It further appears from the record that Heintz had failed and neglected to pay to his sub-contractors and materialmen moneys due them for work and materials furnished for the erection of the building in the sum of approximately $19,000. A suit was brought by the sub-contractors and materialmen against the board of education to recover the amount due them for their work and materials, and in ease No. 142228 on the docket of the court of common pleas, entitled The Pittsburg Plate Glass Company v. Michael J. Heintz et al., a recovery was had in favor of these sub-contractors and materialmen, and the board of education was obliged to pay in excess of the amount held from the contract price, $7,685.90, the amount of recovery in the last action brought in the court of common pleas.

In case No. 142228 of-the court of common pleas the American Bonding Company was made party defendant, and was subsequently dismissed from the action, but thereafter the board of education vouched in the bonding company by sending notice to it of the pendency and nature of the action, and requesting the bonding company to appear by counsel and participate in defense. This the bonding company refused to do, and after the judgment was rendered against the board of education in said case No. 142228 the board of education notified the bonding company that it was content with the judgment, but that if the bonding company desired to prosecute error or to take any other steps to have the judgment reversed or reviewed it was at liberty to do so; but neither the board of education nor the bonding company took any steps to review the judgment, or appeal therefrom, and said judgment in case No. 142228 in favor of the sub-contractors and materialmen remains in full force and effect, unreversed and unmodified, and the board of education has paid to the various sub-contractors and materialmen the amounts so found to be due them by said court in said case.

Thereupon this action was brought by the board of education to recover the amount which it had paid to the various parties in case No. 142228, in excess of the amount held in its hands under the contract with Heintz. The American Bonding Company and Heintz prosecuted error to the judgment rendered in the common pleas court, and it is claimed that there is error in the record to the prejudice of both plaintiff’s in error.

The bonding company having been notified in the former action, No. 142228, and having also been a party to that action, although subsequently dismissed, and having been given an opportunity to make a defense in the case and having failed to do so, the court holds that the American Bonding Company is concluded and bound by that judgment and can not question thq correctness thereof in this action.

This court in Cincinnati v. Boston, 7 Ohio App., 350, laid down the rule that a party being vouched in such a ease is bound to appear and make a defense, and if he fails to do so he will be concluded and bound by the judgment. In support of this rule see Bank v. Bank, 68 Ohio St., 43; Cincinnati v. Diekmeier, 31 Ohio St., 242, and numerous other authorities cited in the case of Cincinnati v. Boston, supra.

It is further claimed by the American Bonding Company that the board of education paid to the contractor Heintz $8,000 in advance of the time when same was due under the contract, but the record discloses that this payment was made to Heintz upon the express written consent of the American Bonding Company, given before the money was paid to Heintz. And it further appears that the Board of Education refused to pay this sum to Heintz unless the bonding company would consent to the payment thereof. And it further appears that this $8,000 paid to Heintz was paid out to the sub-contractors and materialmen upon the cheeks of Heintz, countersigned by the bonding company’s agent, duly' authorized in the premises. • ’ ■

Under such circumstances we hold that the American Bonding, Company is estopped to complain of the payment of this money advanced to Heintz before it was due under the contract.

It is further claimed by the American Bonding Company that the board of education paid to the contractor Heintz from time to time moneys in excess of the amounts due him under the estimates. The contract provided that payments were to be made to Heintz from time to time upon estimates made by the superintendent of the building for the board of education. The evidence discloses that these payments were made to Heintz from time to time upon estimates so made by the superintendent of the building. It appears that the superintendent was not overly careful in the making of his estimates, but no money was paid except under these estimates, and from these estimates twenty per cent, was retained until the completion of the contract.

There is no claim of any bad faith or that fraud was perpetrated, either upon Heintz or the bonding company; but it is claimed that the estimates exceeded the amount of money actually due as the 'work progressed. In the absence of any bad faith or fraud we hold that the American Bonding Company, the surety in this case, was not prejudiced by the fact that the estimates exceeded the amounts that should have been computed. It was well within the rights of the board of education to pay upon the estimates made by the superintendent of the building.

In the ease of Y. M. C. A. v. Gibson, 58 Wash., 307, the court held that so long as the payments were made upon the estimates of the person w'ho w^as to make the estimates, even though they were in excess of the amount the contractor was entitled to, in the absence of bad faith, the surety would be bound by these payments. See Howard County v. Baker, 119 Mo., 397.

We fail to see how the bonding company was prejudiced in any way by the payment of these moneys to the contractor. It was the obligation of the contractor to pay his materialmen and sub-contractors, and if he received the money from the board of education to pay them and failed to do so, the surety obligated itself to be liable in case the contractor failed to perform every term and condition of the contract.

So far as the record discloses, we find no errors therein prejudicial to the American Bonding Company.

As to the plaintiff in error Michael J. Heintz it appears that he filed an answer in which he set up that he had been adjudged a bankrupt and discharged therefrom, and that the board of education had notice thereof. The board of education in the court below, filed a reply to this answer setting up that the claim of the board of education against Heintz had not been scheduled in bankruptcy and that the claim was contingent and not provable in bankruptcy. "While Heintz filed this pleading, when the-case came on for trial he failed to appear, and he failed to offer any evidence in support of his claim that he had been adjudged a bankrupt. And in this state of the record we are unable to see how any error was committed prejudicial to him. In the absence of any proof, and with the denial of the averments of his answer by the board of education, the court was warranted in rendering a judgment against Heintz in the full amount.

For the reasons stated the judgment of the court below is affirmed.

Judgment affirmed.

Jones, P. J., and Hamilton, J., concur.


author: Houck, J.

text:
    APPROPRIATION FOR ROAD PURPOSES.
    Court of Appeals for Fairfield County.
    Stephen A. Holtsberry v. The State of Ohio Ex Rel. Frank R. Fawver, Superintendent, Public Works of Ohio.
    Decided, September 24, 1918.

      Roads — Appropriation of Land for — Verdict may be Returned by Three-Fourths of the Jury — Burden of Proof — Necessity and Purpose of the Appropriation Need 'not be Set Forth in the Certificate.

    1. In an action for appropriation of land for road purposes, tbe burden of proving tbe value of tbe land sought to be taken is upon tbe property owner.
    2. 'Error does not lie in sucb a ease to failure of tbe certificate of appropriation to set forth tbe necessity of tbe appropriation or tbe purpose for which tbe land sought to be appropriated is to be used.

      Augustus A. Mithoff, for plaintiff in error.

      Joseph McGee, Attorney General; John F. Kramer and J. U. Fultz, Prosecuting Attorney, contra.
   Houck, J.

This case is here on error from the judgment of the probate court of Fairfield county, Ohio. The parties here stand in the reverse order from where they stood in the lower court.

The plaintiff below brought suit to appropriate certain real estate belonging to the defendant below for road purposes. A jury returned a verdict for the plaintiff and allowed the defendant the sum of $260 as compensation for the land so taken. A motion for a new trial was overruled and a judgment entered on the verdict.

Plaintiff in error seeks a reversal of this judgment for the following reasons:

1. The court erred in charging the jury that three-fourths of its number or more might return a verdict in the case.

2. Error of the court in its charge to the jury that the burden of proof as to the value of the land, sought to be taken, was upon the land owner.

3. Error in overruling motion of defendant below to dismiss the proceedings because the certificate of appropriation failed to state that it was necessary to appropriate the real estate in question, and further that- said certificate failed to state the purpose for which the land sought to be appropriated was to be used.

As to the first claim of error this court has heretofore passed upon this question in the case of F. B. Smith, et al. v. Carrie Craig, et al., 29 O. C. A., 236, the same being adverse to the claim of plaintiff in error.

As to the second and third grounds of alleged error, will say the suit in this case was brought under and by authority of and as a special proceeding, as authorized under Sections 442 to 450, General Code.

An examination of the record in this case clearly shows that each and every step necessary to be taken by the plaintiff below, as required by said sections of our statute, was fully carried out and the judgment of the lower court is clear and free from’any prejudicial error in any way affecting the substantial rights of the plaintiff in error.

It therefore follows that the judgment of the probate court should be affirmed.

Judgment affirmed.

Powell, J., and Shields, J., concurring.


author: Goeman, J.

text:
    ACTIONS FOR RECOVERY OF UNLAWFUL PAYMENTS OF PUBLIC MONEY.
    Court of Appeals for Hamilton County.
    The State, ex rel Campbell, Pros. Atty., v. Ballard.
    Decided, May 28, 1917.

      Public Funds — Actions for Recovery of Where Unlawfiilly Paid Out —Report of Bureau of Inspection and Supervision — Application of the Statute of Limitations.

    The special provisions of Section 286-3, General Code, that no cause of action on any matter set forth in any report made under authority and direction of Section 286, General Code, shall be deemed to have accrued until such report is filed with the officer or legal counsel whose duty it is to institute civil actions for the enforcement thereof, and that all statutes of limitations otherwise applicable thereto shall not begin to run until the date of such filing, apply in a case founded upon a report filed after the taking effect of such provisions. This is true despite the fact that the illegal payments of public moneys were made before the enactment of Sections 286, 286-1, 286-2 and 286-3, General Code, not only created a new right, but also provided therein a new remedy for this new right, and that the' statute of limitations against this cause of action to recover an illegal or unauthorized payment of public moneys should not begin to run until the filing of the report by the state officials.

      John V. Campbell, Prosecuting Attorney, and Smith, Hickenlooper, Henry G. Hauck and Louis Cap elle,. Assist ant Prosecuting Attorneys, for plaintiff in error. •

      Littleford, James, Ballard <& Frost, contra.
   Goeman, J.

Heard on error.

In tbe court of common pleas a demurrer was filed to tbe petition of relator, on tbe grounds that tbe relator had no legal capacity to sue; that there was a defect in parties plaintiff; that tbe action was not brought within the time limited for the commencement of such actions; and that the petition did not state facts sufficient to constitute a cause of action. The demurrer to the petition was sustained on the ground that the action was barred by the statute of limitations — the six-year statute — and the relator not desiring to plead further judgment was rendered in favor of defendant for costs.

The relator is in this court asking for a reversal of this judgment.

In his petition the relator sets out that the action was brought by the state of Ohio for the use and benefit of Hamilton county, in substance setting out that from January 1, 1908, to January 1, 1910, the defendant was the solicitor of the city of Cincinnati, and that during said period John M. Thomas, Jr., was one of the assistant city solicitors and was designated to act and was acting during said period as the prosecuting attorney of the police court of the city of Cincinnati; that the board of commissioners of Hamilton county appropriated each year during the said two years eight hundred dollars for the purpose of paying the salary of the police court prosecutor, without designating the name of the person,to whom said money was to be paid; that the defendant Edward M. Ballard collected from Hamilton county on account of said appropriation the sum of $1,399.94, in monthly installments, between May 7, 1908, and January 15, 1910, inclusive; that after the termination of the services of said Thomas he presented a claim to the commissioners of Hamilton county for the sum of $1,400, with interest, on -account of his services as prosecuting attorney of the police court, and claimed said sum as compensation for said services; that the claim was rejected, and upon the final hearing of the case in the Supreme Court of Ohio on January 20, 1914, said Thomas was awarded the full amount of the claim made by him, with interest. The petition further avers that on April 8, 1915, after said cause had been decided, the Bureau of Inspection and Supervision of Public Offices of the State of Ohio made a finding for the recovery of said moneys paid to said Ballard, and in such finding it was held that said Ballard should return to the treasury of Hamilton county said sum of $1,399.94, with interest ; that said Ballard refused to make a refunder of said sum or any part thereof; and that thereupon this action was brought to recover said sum.

The prosecuting attorney instituted this action by virtue of Section 2921 of the General Code, and Sections 286, 286-1, 286-2 and 286-3, General Code (103 Ohio Laws, 506, 507, 508 and 509).

Section 286, as amended May 3, 1913 (103 O. L., 507), provides that the report of the examination (made by the Bureau of Inspection and Supervision of Public.Offices) shall set forth in such detail as may be deemed proper by the bureau, the result of the examination as to any public moneys which have been illegally drawn from the public treasury, or illegally expended, and shall be filed with the prosecutor of the proper county.

Section 286-1 provides that the civil action provided for in Section 286 may be heard and determined in any court having jurisdiction of the amount involved, and having jurisdiction to afford the remedy prayed for.

Section 286-3 provides that no cause of action on any matter set forth in any report made under authority and direction of Section 286, General Code, shall be deemed to have accrued until such report is filed with the officer or legal counsel whose duty it is to institute civil actions for the enforcement thereof, and that all statutes of limitation otherwise applicable thereto shall not begin to run until the date of such filing.

By the provisions of Section 2921, General Code, it is made the duty of the prosecuting attorney to bring an action to recover any public moneys illegally drawn from the public treasury; and by the provisions of the sections just cited (286, 286-1, 286-2, and 286-3), it is also made his duty to commence an action for the recovery of moneys illegally withdrawn from the public treasury.

It w'ould appear from the averments of the petition that such payment made to the defendant herein was on January 15, 1910, and if Sections-11222 and 11236, General Code, apply, then it would appear that the action was barred on January 15, 1916. This action was not commenced until April 27, 1916.

We are of the opinion, however, that the special provisions of the Code, Section 286-3, being applicable to claims of this character, would apply to this case, rather than Sections 11222 and 11236, above cited. It appears to us that the Legislature not only created a new right by Sections 286, 286-1, 286-2 and 286-3, but also provided therein that all statutes of limitations otherwise applicable thereto shall not begin to run until the date of the filing of the report by the Bureau of Inspection and Supervision of Public Offices. In other words, they provided a new remedy for this new right, and also that the statute of limitations against this cause of action to recover the illegal or unauthorized payment of public moneys should not begin to run until the filing of the report by the state officials. This report having been filed on April 8, 1915, if we are correct in our conclusion, there would be no bar to the action until the 8th of April, 1921.

There is no vested right to a remedy in favor of anybody. The Legislature may, if it sees fit, amend, repeal or alter any section of the General Code relating to the remedy, but this they can not do so as to affect pending actions unless it is specifically so provided. Section 26, General Code, prohibits the Legislature from passing any act or amending any statute which affects the remedy so as to make it applicable to pending actions, unless the act specifically provides that it shall apply to pending actions. But at the time Sections 286, 286-1, 286-2 and 286-3 were enacted by the Legislature this suit was not pending, and therefore the inhibition of Section 26, General Code, can not apply.

There is no doubt that statutes limiting the time within which actions may be brought are statutes of repose, and relate to the remedy only. It is unnecessary to recite authorities in support of this plain proposition. And it was held in Elder v. Shoffstall, 90 Ohio St., 265, quoting from the language of the court on page 274:

“In view of the plain and positive provisions of the law, it follows that causes of action, prosecutions or proceedings existing at the time of the amendment or repeal of statutes relating to the remedy are not exempt from the operation of such amendment or repeal.”

So that if we treat Sections 286, 286-1, 286-2 and 286-3 as amendments to Sections 11222 and 11236, these amendments, nevertheless, being applicable only to the remedy and not affecting the cause of action, can not be invoked to bar an action which was not commenced at the time these sections were passed. The cause of action existed, but the cause of action was not affected by these amendments, and under the provisions of Section 26, General Code, there is no reason why the statutes may not be amended or repealed so long as they do not affect pending actions, and do not affect causes of action, unless particularly specified.

But Sections 286, 286-1, 286-2 and 286-3 are not to be considered as amendments to Sections 11222 and 11236, but are really new legislation, and, under the decision of W. & L. E. Rd. Co. v. Toledo Ry. & Term. Co., 72 Ohio St., 368, it has been held that Section 26, General Code, does not apply to new legislation.

It is claimed by counsel for defendant in error that the statute of limitations which governs this action is one which was in force at the time the cause of action accrued, to-wit, January 15, 1910. But as we have stated, this cause of action, which is a new one in favor of the state, did not accrue until the state officials had filed their report with the prosecuting attorney.

Numerous authorities are cited by counsel for defendant in error in support of his contention that Section 11236, General Code, applies to this action. But an examination of the history of this legislation will disclose that this section was originally Section 4974, Revised Statutes, and was repealed when the Legislature passed the General Code, February 14, 1910. Section 11236 was then substituted for Section 4974, Revised Statutes. Section 4974, Revised Statutes, contains the provision that the statute of limitations in force when the action accrued shall be applicable to such cases according to the subject of the action and without regard to the form. The Legislature in repealing Section 4974, Revised Statutes, and substituting therefor Section 11230, General Code, omitted this provision entirely from the code. So that the decisions cited by counsel for defendant in error, in support 'of his contention that Section 4974, Revised Statutes, applies to this action, were all rendered at the time when Section 4974, Revised Statutes, was in full force and effect. We are unable to see anything in the provisions of Section 4974, Revised Statutes, as amended, Section 11236, General Code, or in Section 26, General Code, which would preclude the Legislature from providing separate legislation for the creation of the new right and new remedy in favor of the public against any person who received any money illegally from the public treasury. ■ •

Such being the conclusion of the court, we hold that the common pleas court erred in sustaining the demurrer to the petition, and the judgment is therefore reversed.

Judgment reversed.

Jones, P. J., and Hamilton, J., concur.


author: Metcalfe, J.

text:
    AN EXECUTOR MAY QUIET TITLE.
    Court of Appeals for Belmont County.
    Mitchell, Exr., v. The City of Bridgeport.
    Decided, December 11, 1917.

      Title — Action to Quiet May Be Maintained Toy an Executor, When— Heirs of Testator Hot Hecessary Parties.

    Where the will directs the executor to sell the real estate of the testator, and empowers him to make deeds therefor to purchasers, such executor may maintain an action to quiet the title to such real estate against a person claiming an adverse interest therein, and it is not necessary that the heirs of the testator be made parties thereto.

      James G. Tollman and Gordon D. Kinder, for plaintiff in error.

      Fred Spriggs, contra.
   Metcalfe, J.

Heard on error.

The question in this ease is raised by the demurrer to the petition. It is averred in the petition that the plaintiff is the executor of the will of Josephine K. Mitchell; that by the terms of said will he was directed to sell the real estate of the testatrix and to make deeds for the same and convey the title thereto to the purchaser; that the real estate in question was a part of the estate of said testatrix; and that the defendant claims an adverse interest therein.

It is urged by the defendant in error that the direction in the will to the plaintiff as such executor to sell the real estate and convey the title thereto to the purchaser, does not give him the right to maintain an action to quiet title, but that to entitle him to maintain such action it is necessary to aver and prove both legal title and actual possession.

Under former legislation it is undoubtedly' true that the plaintiff in an action to quiet title would have to aver and prove both legal title and actual possession. Thomas v. White, 2 Ohio St., 540; Douglass v. Scott, 5 Ohio, 194; Harvey v. Eaton, 1 Dis., 65, and Chamberlain v. Marshall, 8 Fed. Rep., 398.

The statute then in force (29 O. L., 81) provided that “Any person having the legal title and possession of land may file a petition against any other person setting up a claim thereto.”

In Hubbard v. Clark, 8 Ohio, 382, Judge Hitchcock, delivering the opinion of the court, says at page 385:

“By this section of law a complainant, in order to sustain his bill, must show that he is vested not only with a legal title, but with the actual possession of the land in controversy;”

This was the unquestioned law of the state until 1893 — at which time the section above quoted appeared in the Revised Statutes as Section 5779, in substantially the words of the original enactment. The Legislature in 1893 (90 O. L., 226) amended Section 5779, Revised Statutes, as follows:

“An action may be brought by a person in possession, by himself' or tenant, of real property, against any person who claims an estate or interest therein, adverse to him, for the purpose of determining such adverse estate or interest; or such action may be brought by a person out of possession, having or claiming to have an estate or interest in remainder or reversion in real property, against any person who claims to have an estate or interest therein, adverse to him, for the purpose of determining the interests of the parties therein. ’ ’

This is substantially identical with the language of Section 31901, General Code.

Under the law as it now stands it is plain that an averment of legal title in the plaintiff is unnecessary. Is it also unnecessary in such an action by an executor, where he is directed by the will to sell the land of the testator and convey the title thereto to the purchaser, to aver actual possession?

¥e are of the opinion that such an averment is unnecessary. In Dabney v. Manning, 3 Ohio, 321, it is held that power given to an executor by the will to sell the testator’s land and distribute the proceeds among the heirs is a power connected with a trust, and entitles the executor to the possession of the land. In Lessee of Williams v. Veach, 17 Ohio, 171, the question again came to the same court, and, on page 183, the court say:

“It seems to the court, that taking the whole will together, it furnishes a strong case, of a power conferred by will upon executors to sell real estate, and that this power is coupled with an interest. A much stronger case, in fact, than the ease of Dabney v. Manning, 3 Ohio R., 321; and upon careful examination we are brought to the conclusion that the court did not err in instructing the jury, that by force of the will of John Kidd the premises in controversy were vested in fee simple in his executors, and did not descend to his heirs.”

In Elstner v. Fife, 32 Ohio St., 358, it is held that where a testator makes no other disposition of his property except to direct that it shall be sold by his executors and the proceeds paid to a trustee for the benefit of certain legatees, the right of possession passes with the will to the executors to enable them to effect the object of the testator. See also Roberts, Admr., v. St. Bernard, 8 C. C. (N. S.), 422, 29 C. C., 725; Lessee of Boyd v. Talbert, 12 Ohio, 212, and Barkman v. Hain, 5 N. P., 508. These decisions settle the question of the right of the executor to the possession of the land. Whether or not he must aver actual possession to enable him to maintain an action to quiet title has not been determined by the Supreme Court of Ohio.

But in Sears v. Scranton Trust Co., 77 Atl. Rep., 423 (228 Pa. St., 126), the exact question came before the Supreme Court of Pennsylvania, and in that case the court held:

“The direction to an executor to sell the decedent’s property and pay the proceeds to the widow gives the executor full power over the realty, and the right to maintain any action necessary to carry out the directions and protect the interests charged, including the power to maintain a bill to remove a cloud on the title.”

On page 426 the court say:

“The direction to the executor to sell the decedent’s property and pay the proceeds to the widow worked a conversion, and gave the executor full power and authority over the real estate, with the right to maintain any action at law or in equity which might be necessary to carry out the direction and to protect the interests with which it was charged.”

And, again, on the same page:

“While it is true that ordinarily a personal representative has not the right to maintain a bill or an action concerning the real estate of his decedent, the case is different where an executor is given an interest in the real estate such as under the present will. In a ease like this where the executor is practically constituted a trustee of the real estate, and is directed to sell in order to effect a conversion, if a cloud exists upon the title, it is his right and duty to do all in his power to have the cloud removed so that he may more advantageously carry out the direction to sell.”

In Lafferty v. Sexton & Son, 41 Ia., 435, it is held:

“Where the possession and control of real estate is given to the executors for the purpose of carrying out the provisions of the will, they are authorized to maintain an action to quiet the title thereto.”

See also Smith, Exr., v. Stiles, 68 Wash., 345, 123 Pac. Rep., 448; Pennie v. Hildredth, 81 Cal., 127, 22 Pac. Rep., 398; Quinton v. Neville, 152 Fed. Rep., 879; Dundas’s Appeal, 64 Pa. St., 325, and McClure’s Appeal, 72 Pa. St., 414.

A consideration of these cases seems to indicate that where a testator has directed his executor to sell the lands for the purpose of carrying out the provisions of his will, such direction works a conversion of the property and carries with it the title and possession necessary to enable him to maintain any action which may be necessary to carry out the provisions of a will, including an action to quiet title.

Judgment reversed.

Pollock and Farr, JJ., concur.


author: Powell, J.

text:
    JURISDICTION TO MODIFY A DECREE.
    Court of Appeals for Licking County.
    The Newark Natural Gas & Fuel Company v. The City of Newark, Ohio, and Others.
    Decided, October Term, 1918.

      Gas Company Required Toy Mandatory Order of Court of Appeals to Adhere to Rates Fixed in the Ordinance — But With Privilege of Applying for a Modification of the Rates Should Circumstances so Require — Jurisdiction Over Such an Application — Nature of the Proceeding.

    1. A petition for modification of a decree and finding by the court of appeals, provision for a modification should it be shown to be necessary being found in the decree, is not an original and independent action, but rather an additional proceeding in the original action, and is not appealable.
    2. Moreover, if such a proceeding were to be treated as an original and independent action, then it would in the case at bar become an action for money and not a chancery ease, and would not be appealable for that reason.

      S. M. Douglass and J. B. Fitzgibbon, for plaintiff.

      Henry G. Ashcraft, Frank A. Bolton and Edward Kibler, Sr., contra.
   Powell, J.

This action is before this court by appeal from the judgment of the court of common pleas.

A motion has been filed to dismiss the appeal and the ease is presented to us on this motion and the briefs of counsel.

This is the second case between the parties to this proceeding, the first having been commenced in March, 1911. The original case was an action for mandatory injunction to compel plaintiff to comply with the ordinance of March 6, 1911, fixing a rate for the sale of gas to the inhabitants of Newark and to the city itself. The defendant, Metz, was appointed receiver in the original case by agreement of parties; his duties were to collect and keep until final order was made the amount of the difference between the original franchise rate allowed to the plaintiff and under which it was supplying gas to the city, and the rate under the ordinance of March 6, 1911. In that case judgment was given to the city as prayed for, both in the court of common pleas and in the court of appeals, on appeal to that court. The latter judgment was affirmed in the Supreme Court of Ohio and later by the Supreme Court of the United States. It was finally determined on the 8th day of January, 1917.

The judgment in the original case, as entered in the court of appeals, contained a provision as follows:

‘ ‘ This finding and decree of the court is made, however, without prejudice to the right of defendant company at any time to apply to a court of competent jurisdiction to modify said finding, if at any time it should appear that said rate of eighteen cents net does not render an adequate return to said defendant company.”

The petition in the present case is based upon this reservation or exception in the judgment of the court rendered in the original action, together with such averments as show that plaintiff was entitled, to recover the proportionate amount due for the time covered by the rate of March 6, 1911, to the time when settlement was made between the parties by an agreement upon the rate between the city and the said plaintiff. The amount claimed is $29,434.63.

A hearing was had upon the issue joined in the present case resulting in an order dismissing the petition on the ground, first: that the court of common pleas was without jurisdiction to entertain the action; and second: that the proof was insufficient to sustain the averments of the petition. An appeal was taken from the judgment of the court of common pleas to this court.

After an extended and somewhat careful examination of the record in this case this court is of the opinion that the motion to dismiss the appeal herein should be sustained.

First: This is not an original and independent action, but is an ‘ ‘ additional proceeding in the original action. ” - It is not an action to impeach the judgment in the original action for fraud, but is one to modify or vacate a proportionate part of that judgment by reason of a changed condition of fact. The right to maintain such proceedings was reserved in the original judgment as well as authorized by statute. Section 11631 General Code.

That the petition and summons did not make a new action see Misner v. Misner, 41 Ohio State, 678.

Additional proceedings in an original action are not appeal-able. Taylor v. Fitch, 12 Ohio State, 169.

One appeal has already been had in the original action.

Second: If this case can be regarded as an original and independent action, then it was commenced in the wrong court. The judgment sought to be vacated or modified was recovered in the court of appeals of this county in an action pending in said court on appeal from the court of common pleas. This action was commenced in the court of common pleas to modify the judgment of the court of appeals.

We think the court of common pleas is without jurisdiction to vacate or modify the judgment of .the court of appeals. The petition pleads a continuing order and thereby avoids the effect of an answer of res adjudicada, but an action based on a continuing order is not an original and independent action, nor is it “the civil action” of the code, but is incidental to and part of the original action and is not appealable.

Third: If this action is original and independent, it is an action for money only, and not in chancery, and for this additional reason is not appealable.

Upon the grounds stated, the appeal will be dismissed.

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

       For opinion below see, Newark Natural Gas Co. v. City of Newark, 22 N.P(N.S.),-.